Clayton v The Queen; Hartwick v The Queen [2006] HCATrans 433 (9 August 2006)

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Clayton v The Queen; Hartwick v The Queen [2006] HCATrans 433 (9 August 2006)

Last Updated: 17 August 2006

[2006] HCATrans 433

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 WEDNESDAY, 9 AUGUST 2006, AT 10.02 AM

(Continued from 8/8/06)

Copyright in the High Court of Australia

GLEESON CJ: Mr Carter.

MR CARTER: Your Honours, could I just take up one preliminary matter. Yesterday your Honour Justice Kirby, just as I was beginning, painted a fairly grim picture of the case against my client and I think my comment was I did not want to be seen to be acquiescing in the way your Honour had encapsulated it. Could I just say briefly that the trial judge in this case at page 552 of the - - -

HAYNE J: Sorry, five hundred and - - -

MR CARTER: Page 552, I am sorry, your Honour.

KIRBY J: Can you lift your voice a bit? I do not know whether I am getting more and more deaf or there is some problem in the acoustics, but I did not have any problem in the first case, but I really do need to hear you. It is quite a big room.

MR CARTER: Yes. Your Honour, at page 552 of volume 2 of the application book, paragraph 27 of his Honour’s reasons for sentence, he has stated:

On the evidence, it is not possible to point to any one of the accused playing a more significant role than the other at any time during the events of that night.

Secondly, your Honour Justice Kirby referred to evidence concerning Mr Hartwick having cited to Lisa Hartwick matters in respect to cleaning or disposal of knives. That material, of course, emanated from Lisa Hartwick’s record of interview and was inadmissible against Mr Hartwick in his separate trial. Returning, your Honours, to our contention that considerations of public policy do not justify the retention of the doctrine - - -

KIRBY J: Could I just ask you, did you find the report of the Honourable T.W. Smith? Did you find what his Honour had recommended? I am pretty sure he did a major inquiry on murder as one of his principal functions when he was first appointed back in 1974 or 1975.

MR CARTER: Your Honour, we have not been able to locate that report given where we are and so on.

KIRBY J: Between all of you, I would be grateful of a note at some stage on that and also on the Law Commission because I have a belief that after Gillard one the Law Lords wrote and said that they were looking at these issues and that the Law Commission had looked at it. So it would be helpful to know what the Law Commission did on the aspect of murder.

MR CARTER: This is the New South Wales?

KIRBY J: No, the Law Commission of England and Wales.

MR CARTER: Mr Boyce, I can indicate, will be informing the Court about what the state of play is with the English Commission. I have taken your Honours to statements in Chan Wing-Siu and Powell as to the rationale for this area of the law. In this Court in Gillard, in the judgment of your Honour Justice Kirby, in the section identified in our written outline at paragraph 62 – I do not seek to read it out – your Honour also encapsulated what seems to be the rationale in this area. Can I turn then to Gillard in the judgment of your Honour Justice Hayne at page 38, paragraph 119, where in the section of your Honour’s judgment headed “Reconsideration of McAuliffe neither sought nor required” your Honour concludes that:

If liability is confined to offences for the commission of which the accused has previously agreed, an accused person will not be guilty of any form of homicide in a case where, despite foresight of the possibility of violence by a co-offender, the accused has not agreed to its use. That result is unacceptable. That is why the common law principles have developed as they have.

Now, with respect to your Honour and to other Justices who have in part articulated the rationale in this way, that is, in part by a reference to people escaping consequences if the law is not as it is, we challenge that conclusion and we submit as follows: one, that if people should be convicted as a secondary party to murder, they will be covered by the relatively settled doctrines of counselling and procuring, concert and aiding and abetting; but secondly, and critically, that the abolition of the doctrine of extended common purpose will allow more realistic scope for manslaughter verdicts and that, as a matter of positive policy in the criminal law, is a vital matter and it is a matter that this Court should be concerned with.

The breadth of the availability of manslaughter, however described, but most usually manslaughter by unlawful and dangerous act or criminal negligence, at common law is something that as a matter of policy must be confronted by your Honours in looking at what the aftermath would be of taking up our invitation.

We have provided your Honours with various secondary literature, but if I could just briefly identify two passages that make a similar point to the one I am making now. Mr Charles Cato, writing back in 1990, his article having been cited by both your Honours Justice Hayne and Justice Kirby in Gillard, is included behind tab 10. At page 192 – and we apologise for the quality of some of the copying – at about point 5 Mr Cato writes that:

The opinion of Stephen J in Johns and Sir Robin Cooke in Chan Wing-Siu however appears to overlook the fact that the secondary party does not escape complicity altogether. As will shortly be seen, he will only be entitled to an acquittal if the death was a total departure from the scope of the joint enterprise. Otherwise, he will be guilty of manslaughter. Although this may be a more merciful verdict, the court has in a very serious case of manslaughter, a capacity to punish severely, thus protecting the public interest.

KIRBY J: Can I just ask, you would have heard me yesterday asking Mr Croucher what his comment was on enlivening judicial directions in cases of this kind concerning the alternative verdict of manslaughter. Justice Hayne rightly made the point that that would have to be consistent with the earlier directions on, assume it stays, that possibility, but that a direction along those lines might enliven the jury into remembering that it has that alternative verdict available to it if, subject to the earlier directions, it considers that that is the appropriate verdict to return.

Now, there are risks in that for the accused, but do you have any submission in relation to that form of judicial direction and what form it should take, given that counsel often resist judicial instructions to the jury on manslaughter at trial and only remember it when they get on appeal?

MR CARTER: I only have one submission, your Honour, and I want to relate it to the circumstances of this case. Although your Honours are, of course, aware that grounds were taken initially in relation to erroneous direction, and we are not here to contend that by reason of the nature of the referral, a real difficulty would seem to arise if a jury had been satisfied as to a conviction for murder on a direction that, in our submission, really only required proof of manslaughter but then were directed that there was a way out, that there is, as his Honour Justice Hayne says, a problem with that as a matter of policy.

KIRBY J: Well, it is a problem as a matter of logic, but juries – I mean, the population of Australia was originally, though not in this State, created by lots of people who were sent here because juries refused to find that the value of the sheep stolen was over £2 or whatever it was. So juries do exercise a lot of common sense in their verdicts. That is the matter that I am directing my attention to, whether some reconsideration of this in a practical way might solve the problem of the alleged lack of harmony between responsibility and the verdict that the jury returns.

MR CARTER: Well, your Honour, with respect, that is not a solution that we advocate. We are directing our submissions at the coherence of principles in the area of complicity. That is a way out that is perhaps a bandaid solution but the - - -

KIRBY J: Anyway, you resist that and reject it?

MR CARTER: We do not put it forward as an alternative submission to abolition.

KIRBY J: You want possibility substituted by probability, essentially?

MR CARTER: Well, in the structure of the argument, that is the final position, but the primary argument is that the doctrine ought be abolished. Now, in Professor Clarkson’s commentary on the decision in Powell, which is contained behind tab 12, at the bottom of page - - -

KIRBY J: Has any Law Reform Commission recommended abolition of the doctrine, root and branch?

MR CARTER: The Commonwealth Officers in 1990 – and some of this is identified in your Honour Justice Kirby’s judgment in Gillard itself in the footnotes – the 1990 report - - -

KIRBY J: Do we have the officers’ report? Was that chaired by Sir Harry Gibbs?

MR CARTER: We do not have that one. We have the follow up included in your Honour’s material, the 1992 discussion paper and then the final report where ultimately a compromise was adopted which is addressed in our written submissions. Initially there was thought given to abolition. Your Honour Justice Hayne and Justice Kirby in Gillard refer to a fairly dated Canadian proposal that did not seem to come to pass. In Professor Clarkson’s opinion – and I commend his analysis to your Honours – at page 558 about midway through the first paragraph the sentence beginning:

The result of this decision

that is, Powell –

is over-inclusiveness in that persons will be convicted of murder when manslaughter would be the more appropriate verdict. In fair labelling terms there is a moral distinction between the accessory who helps the principal wanting or foreseeing as virtually certain the death (or grievous bodily harm) of the victim and the accessory who provide similar help foreseeing only the risk of a murder occurring and perhaps hoping desperately that it will not happen. It is a matter of regret that the House of Lords did not take the opportunity to mark this moral distinction.

He goes on to speak of the decision in terms of both under-inclusiveness and over-inclusiveness.

Yesterday your Honours were taken to the decision of this Court in Markby and I do not want to repeat what Mr Croucher had to say about it, but in the section that followed the section you were taken to at page 113 in the judgment of Acting Chief Justice Gibbs, his Honour articulated the relevant principle that this Court has held underpins the availability of manslaughter as a verdict in this situation, and it was taken from the judgment of the Court of Criminal Appeal in R v Reid, that is:

“When two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use his weapon in some way which will cause death or serious injury. If such injury was not intended by the others, they must be acquitted of murder; but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter.”

That, in fact, is from the judgment of Lord Justice Lawton delivering a judgment of the Court in Reid. That authority was approved by your Honour the Chief Justice and Justice Callinan in your judgment in Gillard where approval was also given to the judgment of Chief Justice Doyle in South Australia in the case of Zappia, that being in Gillard at pages 12 to 13, paragraphs 21 through to 23.

The public policy rationale, as I am labelling it, of manslaughter in such circumstances has also been approved of by the New Zealand Court of Appeal in the matter of R v Tomkins [1985] 2 NZLR 253. If I could just take your Honours briefly to that – it was provided yesterday – the judgment of Justice Cooke. Having at page 254, line 26 referred to the earlier decision in Tomkins where reliance had been placed on Reid and Markby, at 255 his Honour returns to the argument as to manslaughter, line 9, with the reference to counsel:

the precise jurisprudential basis or theory on which manslaughter is available as a verdict is open to debate. More importantly, it is desirable that a test capable of being explained simply and understood readily should be given to juries.

The passage I wish to emphasise:

The availability of manslaughter as a verdict in such cases gives effect to the community’s sense that a man who joins in a criminal enterprise with the knowledge that knives (or other weapons such as loaded guns) are being carried should bear a share of criminal responsibility for an ensuing death; but that, if he did not think that the weapons would be intentionally used to kill, it may be unduly harsh to convict him of murder.

I will not read on the passage, your Honours. You can see there that there is a wrestling with what exactly is it that underpins this branch of the law. Ultimately at lines 30 and following a preference is expressed for the judgment of Lord Justice Lawton in Reid in the same way that this Court in Markby as approved by at least your Honour the Chief Justice and Justice Callinan in Gillard have embraced the principle.

Reid has also found approval. I have not provided this authority but your Honours would be familiar with it from other decisions. The Supreme Court of Canada in R v Jackson [1993] 4 SCR 573 at 585 in the judgment of Justice McLachlin and there is also reference made to Reid as representing an appropriate rationale for the differentiated verdict of manslaughter in a common enterprise situation.

Now, that survey of material out of the way, your Honours, this is the submission that I wish to make. The form of manslaughter in this line of cases will be available for people who would otherwise have been convicted of murder by extended common purpose. If something is foreseen as a possibility, it would surely follow that it is capable of being regarded as an unexpected incident in the course of carrying out a common design. Manslaughter on the basis identified and applied in this.....cases recognises and upholds the same public policy concerns underpinning extended common purpose that I have taken your Honours to, but critically for the sake of our argument – and this is the link back to the first point Mr Croucher made about our asserted disjuncture between moral and legal responsibility – manslaughter on this basis does strike an appropriate equilibrium between moral and legal responsibility.

In our submission, once that is accepted, and there has been no doubt in this Court of the Markby line of cases, it provides a very important answer to the complaint that without extended common purpose in the area of murder, people would escape liability altogether.

KIRBY J: Have you done a draft for your own purposes – you have not done it for ours – of the directions that a judge would have to give in conformity with the approach that you are urging on this Court?

MR CARTER: In respect of this line of manslaughter?

KIRBY J: The charge to the jury, what the judge would actually say.

MR CARTER: I have not done a draft, your Honour.

KIRBY J: Do you not think that would help to sharpen the point that you are urging on the Court – not in great detail, but the points that would have to be made step by step? This is, as many trial judges have said, a very difficult area. It is difficult for them and it is difficult for juries.

MR CARTER: It will be easier for them once they do not have to deal with the doctrine of extended common purpose as well but, your Honour, can I say we will happily attend to that task. Certainly one of the authorities approved of by your Honour the Chief Justice and Justice Callinan in Gillard was Zappia in South Australia. I have identified the pages where it is and there are some directions extracted in that judgment, but we will certainly attend to that.

GLEESON CJ: It is of some importance, Mr Carter, because there was no application for redirections to the judge in this case, was there, along the lines that are now being urged to this Court?

MR CARTER: My learned friend, Mr Croucher, reminds me that certainly there could not be any argument before the trial judge, or the Court of Appeal for that matter, that extended common purpose was inappropriate.

GLEESON CJ: No, and the practical consequence is this then: in the absence of actually seeing what you say ought to be the appropriate directions, it is difficult for us to test your proposition that what you are proposing is a simplification of the law because the directions – and this is the important thing – have to relate the principles of law to the facts and circumstances of the particular case. Any judge can read to a jury from a textbook, but the problem that judges have to face in directing juries is relating their directions to the facts of the particular case.

MR CARTER: Indeed.

GLEESON CJ: For my part I would be interested to see a set of directions related to the facts of this particular case that would be more favourable to your client than the directions that were actually given.

MR CARTER: We will certainly take that on board, your Honour. Can I make it clear though that the reason that I have been taking the Court to the Markby line of authorities is to highlight to the Court what is still there if extended common purpose murder goes.

KIRBY J: I understand that, but what I do not quite understand is how the directions you are urging on the Court would leave a space for manslaughter and what the judge would say in the context of this case concerning that space. I think if you can get to common ground between the three applicants that gave us what you say ought to be said, that would help to sharpen the issue in the applications.

MR CARTER: We will certainly attend to that promptly, your Honour.

GLEESON CJ: Bearing in mind that it is not just legal propositions; it is relating the legal propositions and the various alternative verdicts to the facts of this case.

MR CARTER: Yes, your Honour. Just two final matters in respect of the area of our outline concerned with policy arguments. It is submitted importantly that the abolition of this doctrine would promote greater clarity in the conduct of criminal trials and that really what would be lost from the Crown’s point of view is very minimal indeed. It is not going to deprive them of the arsenal, the doctrine that they require to ensure that people who should be convicted are convicted.

Just in closing, if I could come back to one matter that was raised yesterday that in a sense is a policy matter, that is the question of whether if this Court was satisfied that there was force in our argument, this Court rather than Parliament is the appropriate body to change the law. In our submission, having reflected more closely on the criteria in John v Federal Commission of Taxation – and, as your Honour Justice Hayne said when you directed my learned friend, Mr Croucher, to them, they do not purport to be exhaustive criteria – the reasons that we give for urging this Court to act on our submissions if satisfied is first of all that the law is clearly wrong and that that in the area of the substantive criminal law is a powerful matter on its own justifying change. Secondly, that this Court is, with respect, best placed to make the change given that the attack on doctrine relates to decisions of this Court. Thirdly – and this matter was ventilated yesterday – it cannot sensibly be said that the Parliament would make change in this area.

Finally, to the extent, as it must be, that the decision in Powell is regarded as a persuasive influence on the way this Court takes or maintains the law, it is submitted that in the area of doctrine justifying conviction for murder, that that doctrine should not ultimately rest on pragmatic grounds, as the House of Lords held that it does in Powell, but it should be grounded in principle. In our submission, particularly for the reasons outlined yesterday by Mr Croucher, it is a doctrine that is seriously deficient and should be abolished. Mr Boyce will now address the Court on the alternative.

HAYNE J: Just before you sit down, on this question of the relationship between the courts and the legislature, the Law Commission of England and Wales has published its report. It is Law Commission No 300 and was published on 11 July last. The report is CN6878. It is entitled “Inchoate Liability for Assisting and Encouraging Crime”. What is notable about it is this, that the Commission has reported along the lines that it proposes reforms but, whereas it had originally set out to publish a report and draft Bill setting out and explaining a statutory scheme to replace the common law of complicity including the doctrine of joint venture, incitement and innocent agency, the Commission concluded that that was not the path to follow; rather, they should publish first the report discussing questions of principle and then at a later stage consider drafting as a second matter.

Does that not of itself demonstrate the difficulty that is implicit in the submissions of the applicants that a part of the law of complicity should simply be abolished with nothing replacing it, leaving the law of complicity to operate apparently as to its balance apparently what, for the future, for the past as well? Does that not reveal that the considerations which underpin John are acutely engaged in this case and that it is not right, the state of authority being what it is, that this Court should engage in what is essentially a task of law reform of the complexity thus revealed?

MR CARTER: First of all, your Honour, Mr Boyce is going to deal with that reform and, as I understand it, that is the one that makes recommendations in relation to assisting and encouraging crime. They have foreshadowed that in their next discussion paper or report they will not be recommending any abolition of extended common purpose. All of the submissions that we make as to why this Court should act are predicated, naturally enough, on satisfaction that the law is seriously wrong and the submissions are maintained because this is judge-made law and that the situation in England is that this latest round – I mean, as I understand it, it goes back at least till the 1970s that the English have been considering change here and then it enlivened again in 1993, but the English experience in part reveals that ultimately it is for the courts, and we are asking this Court to take a different step to the House of Lords. We note from the
judgment that there did not seem to be any concern expressed about the flow-on effects to other crime – in Powell, I am sorry.

GLEESON CJ: Yes, thank you, Mr Carter. Mr Boyce.

MR BOYCE: Your Honours, before I deal with my allocated paragraphs may I take a moment just to answer the question or the proposition that was put by Justice Kirby yesterday, namely, that it might be a big ask to do what we propose in view of the position in England, mainly perhaps, and indeed in other jurisdictions. Of course, what we propose is the alteration upwards, if you like, of the mens rea threshold as between murder and manslaughter or, to put it another way, the reclamation of manslaughter.

We accept, of course, as Mr Carter has just said, that the Court would be much influenced by what the Law Lords have considered to be the law, but if your Honours were to adopt the submissions that we make it would, we submit, avoid perhaps the law falling into a rather awkward knot that appears to have manifested itself in England. One sees the genesis of this what is submitted a problem in the case of Powell and English itself.

Your Honours will know that in Powell, which is found behind tab 6, that there were indeed two appeals afoot. There was the appeal of Powell and the appeal of English, and Mr English’s appeal succeeded. The facts with respect to English were that Mr English was party to an attack on a deceased with wooden posts. The Crown case was that while English was present his confederate, W, produced a knife with which fatal injuries were inflicted by cutting the deceased’s throat. Importantly, however, by dint of the question that was referred to the House, it was to be assumed that Mr English foresaw that the other party to the assault would cause really serious harm to the deceased and by means of kicking or striking a blow with a wooden post.

The question for consideration by the House was that given that particular scenario could English be guilty of murder and, if not, whether the trial judge’s directions to the jury had permitted of that qualification. Lord Hutton determined, by reliance on Anderson and Morris, Chan Wing-Siu and, in particular, the case of Gamble, that E or English who as part of a violent joint enterprise and he foresees the infliction of really serious injury upon V yet does not foresee the particular type of weapon that is to be employed by the confederate which is in fact used to kill, then the determination was that on those facts English would not be guilty of anything, not even manslaughter, and reliance was placed upon the case of Gamble, as your Honours will see at page 29 of the report, the judgment there of Justice Carswell. Of course, Gamble was a case where there was a plan between - - -

KIRBY J: This is why we really need your draft of what you say Justice Smith, if the law were proper, would have said to the jury. “If you reach this conclusion on those facts, you come to that verdict. If you reach this conclusion, you come to a verdict of manslaughter.” It is quite difficult to understand the submissions without having that.

MR BOYCE: I apologise for that, but thank you, your Honour. The claim between the confederates in Gamble was to kneecap V or the deceased by firing a loaded weapon into his knee. However, what occurred was that the other two confederates, it would seem, cut the deceased’s throat by means of a knife and also bullets were fired into the vital parts of the deceased’s body by the other two. The defendant in Gamble had not foreseen the slitting of the throat and the firing of the rifle into the vital organs of the body.

If I can take the Court to page 29 of the judgment in Powell and read just certain passages from the quoted reasons of Mr Justice Carswell, in particular, at point 25 of the quoted reasons:

Persons who take a part in inflicting injuries of this nature no doubt do not generally expect that they will endanger life, and I should be willing to believe that in most cases they believe that they are engaged in a lesser offence than murder. The infliction of grievous - - -

GUMMOW J: What are you reading from?

MR BOYCE: From the quoted judgment of Justice Carswell as set out in Powell at page 29D and following down.

GUMMOW J: That may be a bit of a Panglossian view of human nature.

MR BOYCE: It may be:

The infliction of grievous bodily harm came within the contemplation of Douglas and McKee, and they might therefore be regarded as having placed themselves within the ambit of life-threatening conduct. It may further be said that they must be taken to have had within their contemplation the possibility that life might be put at risk. The issue is whether it follows as a - - -

GUMMOW J: These are gangsters in Northern Ireland, are they not, part of a terrorist organisation, the Ulster Volunteer Force?

MR BOYCE: The four accused were members of a terrorist organisation, the Ulster Volunteer Force.

GUMMOW J: Yes.

MR BOYCE: Yes:

It may further be said that they must be taken to have had within their contemplation the possibility that life might be put at risk. The issue is whether it follows as a consequence that they cannot be heard to say that the murder was a different crime from the attack which they contemplated, and so cannot escape liability for the murder on the ground that it was outside the common design. To accept this type of reasoning would be to fix an accessory with consequences of his acts which he did not foresee and did not desire or intend . . . Although the rule remains well entrenched that an intention to inflict grievous bodily harm qualifies as the mens rea of murder, it is not in my opinion necessary to apply it in such a way as to fix an accessory with liability for a consequence which he did not intend and which stems from an act which he did not have within his contemplation.

If I can now read from the judgment of Lord Hutton at H:

In my opinion this decision was correct in that a secondary party who foresees grievous bodily harm caused by kneecapping with a gun should not be guilty of murder - - -

GUMMOW J: Was this a trial without a jury?

KIRBY J: It is probably one of the Diplock courts.

GUMMOW J: Yes, I would have thought so.

MR BOYCE: I am not sure, your Honour:

who foresees grievous bodily harm caused by kneecapping with a gun - - -

GUMMOW J: Magna Carta went out of the window pretty quickly in Northern Ireland.

MR BOYCE: I am sorry, your Honour.

GUMMOW J: Magna Carta vanished fairly quickly in Northern Ireland some time ago. It may be back now.

KIRBY J: They were very perilous circumstances.

MR BOYCE: Returning to Lord Hutton’s judgment:

In my opinion this decision was correct in that a secondary party who foresees grievous bodily harm caused by kneecapping with a gun should not be guilty of murder where, in an action unforeseen by the secondary party, another party to the criminal enterprise kills the victim by cutting his throat with a knife. The issue . . . whether a secondary party who foresees the use of a gun to kneecap, and death is then caused by the deliberate firing of the gun into the head or body of the victim, is guilty of murder is more debatable although, with respect, I agree with the decision of Carswell J. on the facts of that case.

So further on page 30G Lord Hutton, as it were, proposes - - -

GUMMOW J: The reason why I mention it is that passage from the judgment of Justice Carswell conflates the functions of judge and jury, does it not?

MR BOYCE: It may do, your Honour, but it seems to be - - -

GUMMOW J: There is the one tribunal of fact in law. It is a fundamental difference in the sort of system we are operating in.

MR BOYCE: But the principle is approved of. However, it is in the House of Lords, it is submitted, and - - -

GUMMOW J: Certainly, and applied to English prosecutions, I understand that.

MR BOYCE: Yes, but there is a qualification and one finds it in particular at just above G. Lord Hutton says:

However I would wish to make this observation: if the weapon used by the primary party is different to, but as dangerous as, the weapon which the secondary party contemplated he might use, the secondary party should not escape liability for murder because of the difference in the weapon, for example, if he foresaw that the primary party might use a gun to kill and the latter used a knife to kill, or vice versa.

KIRBY J: But as a matter of policy we would not want to be weakening the force of the law that tells people that the experience of the law is that people who take knives into affrays end up getting injured themselves and end up injuring very seriously other people.

MR BOYCE: I would agree with that, your Honour, and it is what I think I have described as a rather awkward knot that the law seems to have got itself into in England - - -

KIRBY J: This used to be a relatively rare thing in Australia, knives. Australians used to fight with their fists and knuckledusters and so on.

HAYNE J: A broken bottle.

KIRBY J: But knives, they came up during the time I sat in the Court of Criminal Appeal and I am sure the Chief Justice saw a lot of them too.

MR BOYCE: May I defer to your Honour’s experience.

GLEESON CJ: There was a famous District Court judge in New South Wales in the 1950s who once said to an Italian defendant, “Why didn’t you fight like an Australian? Why didn’t you use a broken bottle?”

MR BOYCE: Yes, as Mr Croucher says, I wonder if he would say that now.

GLEESON CJ: There are people whose hands and fists are as dangerous as weapons – as knives.

MR BOYCE: Yes, that is the point we are seeking to make. May I relate it back to the general thrust of our submissions. The criticism has already been made by my learned friends, Mr Croucher and Mr Carter, that Powell or McAuliffe extended common purpose murder encroaches downward impermissibly into the territory of manslaughter, leaving no meaningful operation for manslaughter. That is the submission that we have made. Indeed, the criticism has been made that the striking or creation of Powell or McAuliffe extended common purpose liability has been brought about. In a murder or nothing it would seem paradigm that assumes that if extended common purpose murder did not exist, people who would enter into illegal joint ventures foreseeing the possibility of murder being committed by a confederate would walk free.

CALLINAN J: Mr Boyce, in this case, why would not the decision of this Court and the test posed by this Court in Royall apply, that all of the persons here - - -

MR BOYCE: I agree, your Honour.

CALLINAN J: But if that is so, on the evidence, they all plainly made a significant contribution and that would be the end of the matter, would it not? We would be wasting our time going into any question of extended common purpose. They all made a significant contribution to the death.

MR BOYCE: It has to be with the appropriate mens rea, but can I just say this in answer to your Honour’s proposition? As will appear from the application books, at least in my client’s case, an alternative case for murder was what she effectively said in her record of interview. They positively relied upon her record of interview in my client’s case. What did she say in her record of interview? In essence she said, “I went there armed. I knew there was going to be a confrontation of sorts and some property would be taken, but I had no idea anything like this was going to happen”. Now, the first port of call - - -

CALLINAN J: But once she drove there with them and once she was involved in holding one of them down to prevent intervention by that person she must have made a significant contribution, must she not?

MR BOYCE: In her record of interview she says she is handed what she thinks is one knife; she is handed it by one of the others; she holds Rodwell captive on the couch with a knife to Rodwell while the others are taking property and bashing; then the deceased - - -

CALLINAN J: While the others are assaulting Borg, is it not?

MR BOYCE: No, then Mr Borg comes in from the front and the fight develops, and at that point she sees Mr Borg being beaten. She says to Rodwell, “I had no idea this was going to happen and it doesn’t deserve this”.

GLEESON CJ: But why do you keep telling us about her record of interview? That was rejected by the jury, was it not?

MR BOYCE: Well, no, we do not know that, your Honour, because it was relied upon by the Crown as a basis upon which they could find liability for murder.

GLEESON CJ: As a practical example of the danger of concentrating too closely on the kind of weapons that people have, it may be useful to bear in mind that in McAuliffe two of the accused were experts in tae kwon do and one was described as an experienced street fighter.

MR BOYCE: Yes, I agree with that, your Honour.

GLEESON CJ: A lot of people do not need to be armed with weapons in order to be very dangerous customers.

MR BOYCE: Your Honour is making my point for me, if I may submit, with respect. I am simply trying to answer initially the proposition that was put by Justice Kirby yesterday about being a big ask for this Court to depart from the approach that has been followed in the House of Lords, and I am simply attempting to make the submission that there is good reason for the submissions that we make. If the Court were minded to adopt our approach, the knot that seems to have developed will be avoided. That is the only point I am seeking to make.

We refer in paragraph 60 of the outline to the jurisprudence that has since developed in the English courts on this type of weapon or manner in which the weapon used theory, and you will see the cases cited at footnote 19. Your Honours will also see there cited the Clarkson Criminal Law Review article and we find that behind tab 11 where it is submitted, with respect, Professor Clarkson makes the argument that we make here at page 558 at point 75 on the page, the sentence beginning with “Such an approach” in the second paragraph. He is referring to the approach of the House of Lords in Powell:

Such an approach is the natural consequence of the refusal to consider manslaughter as an alternative. If the accessory is to be liable for murder or nothing (in terms of homicide offences), it is necessary to circumscribe carefully the acts for which the accessory can be liable for murder. However, it is questionable whether such an approach is justifiable.

So while Professor Clarkson – and Mr Carter has referred to the initial part of the article – would suggest that extended common purpose murder is over-inclusive insofar as Powell is concerned, in a very real and material sense it is submitted that it is also under-inclusive in the English Gamble type of instance referred to. So that is the point that I would be seeking to make in answer to the proposition put by Justice Kirby yesterday.

If I can move to my assigned paragraphs, as it were, the proposals for reform, they being paragraphs 71 and following. We are able to assist immediately insofar as the English Law Reform Commission is concerned. Although the Commission has been deliberating for many years and at one point it seems proposed the abolition of all, as Justice Hayne noted, secondary accessorial liability in favour of the development of inchoate offences of assisting or encouraging crime, at least in part because of the trenchant criticisms to that approach offered by the late Professor Sir J.C. Smith, there has been a fundamental rethink and the Law Reform Commission has, as Justice Hayne has noted, released a Report No 300 which does create or suggests or recommends the creation of the inchoate offences of encouraging and assisting crime.

It is yet to release its report on secondary liability, it would seem, generally, although there is an indication that it will maintain accessorial liability in murder in the same form as the common law, namely, extended common purpose accessorial liability, with some amendments and additions. We know this because the Law Reform consultation paper labelled “Part 5: Complicity in First Degree Murder”. In essence, what has been sent out by the Commissioners for consideration is a proposal that would have extended common purpose murder as we know it maintained but in a manner that would apparently remove the type of weapon defence that is being referred to, and this, from what one can glean from the report, would be done by abolishing, it seems, in some way, shape or form, the mens rea for murder of intending to cause grievous bodily harm.

I think a fair reading of it would have it that if the secondary party must foresee the intention to kill, then presumably the manner in which it occurs is irrelevant. But, importantly, there is the insertion of a new offence which appears similar to Markby, a form of manslaughter which is to be regarded as a new species of gross carelessness, the proof of which would require satisfaction of the following elements: firstly, that P and D would be party to a joint venture to commit an offence; secondly, that P would commit the offence of first degree murder or second degree murder in relation to the fulfilment of that venture on account of his intention to kill or cause serious injury – and I am yet to understand how that meets up with the other proposal as to murder.

GLEESON CJ: Well, that sounds like two degrees of murder. That is the sort of thing they have in Western Australia.

MR BOYCE: Yes. Three, D intended or foresaw that non-serious harm or fear of harm might be caused by a party to that venture; and four, a reasonable a person in D’s position with D’s knowledge of the relevant facts would have foreseen an obvious risk of death or serious injury being caused by a party to that venture. The position taken clearly, at least insofar as the consultative paper is concerned, is admittedly different from the position for which we contend, but it is only a consultative paper. It has been trenchantly criticised by at least Professor Sullivan in his article - - -

GUMMOW J: Where does all this go?

MR BOYCE: It goes, because I was asked to assist, about what the view of the Commissioners was. I am trying to assist, but beyond that I agree, your Honour, where does it go? I mean, who knows what they will recommend? We do not know.

GUMMOW J: The situation is in a state of irresolute confusion.

MR BOYCE: On one view, yes, and has been so for many, many years.

GUMMOW J: No, as to what Law Commissions do.

MR BOYCE: Yes.

CALLINAN J: Mr Boyce, in relation to what I put to you about Royall, at page 552 of the application book, paragraph 27, the trial judge made this finding for sentencing:

On the evidence, it is not possible to point to any one of the accused playing a more significant role than the other at any time during the events of that night.

MR BOYCE: That was his Honour’s finding, yes.

CALLINAN J: That would suggest that this was a case in which each made a sufficient significant contribution within what was laid down in Royall and therefore are guilty of murder.

MR BOYCE: Well, that was his Honour’s finding, I accept that, but all I can do is advert to the way in which the case was left to the jury.

CALLINAN J: But if that finding is correct, then the case is plainly within Royall, is it not, and makes this a quite unsuitable case to consider the doctrine of extended common purpose?

MR BOYCE: Well, we have the benefit of his Honour’s findings. We do not know the basis upon which the jury convicted my client. All we do know, it is submitted, with respect, is that there were a number of bases of accessorial liability that were left. One of the factual bases upon which the jury were invited to convict this particular applicant was a factual basis. The closest form of accessorial liability would have been extended common purpose, namely, what she said in her record of interview. If the jury in this case did accept the invitation that had been offered to them by the prosecutor to convict on the record of interview, the closest basis to have convicted would have been to have gone to that particular basis of liability, it is submitted.

KIRBY J: You have to say, and I understand your written submissions to say, that if only the law permitted a more nuanced consideration by the jury of criteria then, in the peculiar circumstances of at least your client’s case, the jury might have come back with a verdict of manslaughter at least and that given the current state of the law, specifically in Gillard, that you do not get to that and the trial judge was bound by this Court’s rulings and the jury were not asked questions that elicited the differential responsibility of the accused.

MR BOYCE: Yes, your Honour. It is difficult for me not to answer your Honour’s question without straying into areas in which I am not permitted to go by dint of the terms of the referral, but if I may be permitted to say this. There is at least a finding by the court below that it would have been far preferable had the written directions in this case been clearer on the question of what the mens rea was. Now, our contention here is, as a matter of theory, that the conceptual scope for manslaughter is much reduced, almost to nothing, by virtue of this particular form of liability for murder. That is the first contention. The second contention is, of course, in the particular circumstances of this case, given the directions that were given, whatever focus there was for manslaughter was confused by the rather - - -

KIRBY J: We have been through all this before.

MR BOYCE: Yes. No, I will not go through it. If I can go to paragraph 71, it has been made obvious by my predecessors the impugned form of accessorial liability, it is submitted, must be either abolished or modified. If the underlying doctrine of accessorial liability in this case, or in these cases, as approved of in McAuliffe at 118, is the intentional assistance or encouragement of crime, then the impugned form of liability as it currently stands, it is submitted, does not sit with that doctrine, so long as it is possible, as has been put, for the accessory to hope against hope, indeed intend, that the collateral crime will not be committed.

Put by Justice Hayne yesterday was the alternative, perhaps, doctrine upon which the form of liability could be based, namely, the Simester doctrine, that is that it is something about an underlying illegal agreement that sets you apart or changes your normative position. The answer was made by Mr Croucher, that is really just constructive crime, and the other riposte to Mr Simester’s position might be, what sort of illegal agreement is relevant? There are any number of forms of illegal agreement. There will be some where – and we do not concede this but in the alternative – they are inherently dangerous. There are some illegal agreements that are not in the slightest bit violent or dangerous. If that is the theoretical basis, you would have liability in manifestly unjust terms.

So we contend for the traditional basis for accessorial liability, namely, intentional assistance and encouragement of crime. You will have, it is submitted, consistency between liability and doctrine, firstly, if one were to adopt the late Professor Sir John Smith’s alternative formulation as is set out in the written outline at paragraph 72 – and if I may read from it knowledgeable that the late professor was a.....advocate of extended common purpose murder. He perhaps grudgingly said, if it is too harsh, this is what it could be replaced with, and he says:

It may be that the law is too harsh and, if so, it could be modified so as to require intention (or even purpose) on the part of the accessory that, in the event which has occurred, the principal should act as he did. Indeed, there is no decision preventing the House of Lords from taking this step and it is possible that they will shortly be invited to do so [in Powell]. If it were to be decided that intention should be required, the jury would be told that they should not find D guilty of murder unless they were sure that D either wanted P to act as, and with the intention which, he did, or knew that it was not merely a “real possibility” but virtually certain that he would do so.

The advantages are set out in the dot points at paragraph 73 and I will not repeat them. At paragraph 74, the second alternative, or what has been described by my learned friend, Mr Croucher, as our bottom line, is the possibility be lifted to probability - - -

GLEESON CJ: By probability do you mean more probable than not?

MR BOYCE: No, we do not mean that, your Honour. Much has been written upon it, as has been recognised yesterday, in Darkan. It clearly means something more than possible, even more than a real possibility or a substantial chance, but does not mean necessarily more probable than not. As was recognised yesterday, Darkan threw into stark relief the differences between the Queensland Code and the common law on the point of liability for a collateral crime in the instance of a basal joint enterprise.

As was recognised yesterday the Queensland Code has foresight of probability but objectively assessed; the common law, possibility, assessed subjectively. The base submission that we make is that the protection of the common law against overly broad liability occurring by dint of the employment of the term “possible” that is said to flow from the fact of subjectivity is, in real terms, no protection. The submission is made that in real terms that, barring evidence of admissions, whether a person contemplates a consequence or not, can really realistically only ever be assessed by asking whether that person ought to have foreseen or contemplated the occurrence. It is submitted there is something about contemplation, the existence of which, barring admissions, can only be determined by means of that form of inquiry.

Why we make that submission is for this reason. Let us take the example posited by the learned Chief Justice yesterday of the person planning to rob a service station armed with a loaded weapon. We know, or the jury would know, that that person intends to commit an armed robbery and the jury knows that it is factually circumstances he is, that he has a gun, that he probably has a balaclava, that he has spray paint, let us say, to cover the internal cameras. Let us add another fact, if I might. He also knows that his confederate who is going to be holding the gun is a relatively excitable person. He does not know anything about the attendant who will be at the service station. The question for the jury is to determine whether in the accessory’s mind he foresaw or contemplated the possibility of murder. How does the jury do that given that they know he positively intends to commit armed robbery? The submission is that the only way that can be done is by asking, “Well, what would a person in that situation contemplate?”

GLEESON CJ: “What a reasonable person”?

MR BOYCE: Yes.

GLEESON CJ: Well, that is the difference, because it is thought to be to the advantage of the accused to say, “What would this person have contemplated?”, bearing in mind that a lot of people who find themselves accused of crime are not very reasonable.

MR BOYCE: Well, if that is so, how else - - -

GLEESON CJ: The problem is – look, let me be blunt about it – you have some uneducated, oppressed youth who has been abused as a child and who is the confederate of this hold up and you start applying the standards of reasonable people to determine his criminal liability.

MR BOYCE: Yes. It does not seem right, does it, your Honour?

GLEESON CJ: That is why the law is subjective. That is why the common law is subjective. That is thought to be a benefit for accused people of the difference between the common law test and, for example, the Queensland test.

MR BOYCE: Well, the law appears to assume, firstly, that the accused person is capable of consequential thinking. It must. Now, whether that is true or not we do not – but let us assume that is a valid assumption. Then the jury asks themselves, “Well, did he contemplate it or not?” How else can they resolve that by positing what a person in that person’s position – when all they know about that person presumably is that he says, “I had no idea that the murder was going to take place”? How else do they resolve it other than by asking what a person in similar circumstances would consider possible or ought to consider possible to contemplate. Is subjectivity really any protection in that circumstance?

GLEESON CJ: Having regard to the characteristics of some of the people who in practice are charged with these offences, yes, it is a protection.

MR BOYCE: Very well, your Honour, because if it was not a protection paragraph 76 of Darkan would come into play because the Court, at paragraph 76 of Darkan noted that were the Queensland Code to be referable to possibility rather than probability, then, as the Justices said:

If under ss 8 or 9 of the Code the expression “a probable consequence” were construed so as to make a possible consequence sufficient, there would be liability in the accessory for whatever the principal offender did, since the fact that the principal offender did it shows that it was possible, and there would be no protection against excessively wide liability.

Thank you, your Honours. Those are our - - -

HAYNE J: Just again before you sit down, just to return to the English Law Commission Report, and I will confess to not having read it in any detail.

MR BOYCE: We can provide your Honours with copies of – sorry, of the consultation papers?

HAYNE J: No, not the consultation papers, the final report.

MR BOYCE: Sorry, your Honour, yes.

HAYNE J: My understanding of the final report is that the Law Commission rejects the proposal to abolish the secondary liability in respect of collateral offences committed in the course of a joint venture.

MR BOYCE: Yes, I think that is right.

HAYNE J: They reject it at paragraph 2.25 of the report and they say that their reasons for rejection, including explaining why liability for collateral offence committed in the course of a joint venture is justified in principle and as a matter of policy, and a matter they all deal with in their second report yet to be published, but the English have turned their face against the proposition which lies at the root of this application, have they not?

MR BOYCE: It would appear so, yes. Thank you, your Honours.

GLEESON CJ: Yes. Thank you very much, Mr Boyce. Mr Coghlan.

MR COGHLAN: The Court is being asked to say that McAuliffe is wrong. Before saying that, it is submitted that since that was a decision made in 1995 we ought look for those examples of cases in which the principle set out in McAuliffe has been applied which have given rise to injustice. No such examples are drawn to the attention of the Court, no examples, and this case is not one of them. I follow that because McAuliffe is the law, it would not be possible to have argued miscarriage but it does not mean that injustices that have been occasioned cannot be pointed out to the Court, and they are not.

It is interesting that the example which is chosen, the fishing example, is one of the most extreme examples that could be taken in a case of this kind. On the facts as they are put, a mere agreement to steal misrepresents totally what is intended by the doctrine of extended common purpose if on those facts it gave rise to murder. If, however, the facts were that in relation to the parties to that fishing expedition they knew and understood there had been a long ongoing hostile dispute with the owner of the dam about the question of fishing and there had been fights or arguments in the past and one of the two fishermen then in a dispute that occurred with the owner of the dam killed him and the second fisherman was in a position where he was forced to say at the end of the day, “I thought that might have happened”, is there any true question as to both his legal and moral liability in such a circumstance, and there is not.

McAuliffe is a considered decision. It is one of the few cases in the last 20 years in Australia where on a point of importance in the criminal law we have a decision of the whole Court. This is a decision of a Court of five. It is a case that proceeded after leave had been granted. Full argument was heard on the cases that are set out clearly in the report, all the relevant cases. We know that the way the law had proceeded in the common law world was that Johns had been decided but it might on the majority have done no more than deal with the question of complicity, particularly as it related to accessories before the fact, a question that had been open to some doubt. That was the decision of the majority.

It was then in Chan Wing-Siu that the question arose of extended common purpose, Johns having been cited in that case but cited as being only one of the cases that dealt with the question of complicity. That was brought into starker relief in Hui Chi-Ming when it was pointed out that the real question in Johns might be slightly different from the question that it had been addressed in Chan Wing-Siu. It was in that context that the Court in McAuliffe came to revisit the matter, did deal with Johns as a case that basically dealt with complicity and said that the courts in Australia then needed to consider the question of extended common purpose, and did so and stated the law as it is.

By that time Hyde had been decided by the House of Lords and subsequently Powell has been decided by the House of Lords. There is no argument, it is submitted, that supports altering the law. That is, by a firm declaration that the common law is now or always was something different from the way that it is expressed to be in McAuliffe.

CALLINAN J: Mr Coghlan, could I ask you this question about the facts. Despite what one might argue about details and other matters, is it clear that the victim was being assaulted at the same time by two of the applicants, one with a knife and the other one with a stick or something like that, and both of those applicants were kicking the victim at the same time as the third applicant was restraining I think Rodwell with a knife from intervening.

MR COGHLAN: That is so, your Honour.

CALLINAN J: Those facts are beyond dispute, are they not?

MR COGHLAN: They are, your Honour.

CALLINAN J: Why are they not all principal offenders?

MR COGHLAN: It is submitted that they are, your Honour. Part of the problem becomes – and it is the way the law develops in a lot of these areas. I suppose it is the way the law developed as to why we said that intentionally causing serious injury was a sufficient attempt to murder because somebody wanted to come along and say, “I didn’t intend to kill, I only intended to hurt very badly”. In this case I assume that what happened was at the end of the day somebody is saying, “Well, because I was only sitting on the couch, I’m not aiding and abetting - - -

CALLINAN J: Restraining the other person from intervening to protect the person being attacked.

MR COGHLAN: I agree wholeheartedly, your Honour. I think extended common purpose had little work to do in this case. This was a case that was plainly a case – but it depends on what defences are run, it seems to me. What happens is somebody says, “I have a defence because you accept my record of interview”. The Crown responds by saying, “You haven’t got - - -

CALLINAN J: Nobody denied those facts that I put to you though, have they?

MR COGHLAN: No, they have not, your Honour.

CALLINAN J: There might have been argument about states of mind but those basic facts which involved the repetitive use of a knife and a stick and the kicking of the victim while he was complaining that he was dying were accepted by everybody, were they not?

MR COGHLAN: They essentially had to be, except if you rejected totally the evidence of Rodwell, but how the deceased received the really complicated set of injuries he received without them being inflicted somehow by these three in combination did at the end of the day seem beyond dispute, your Honour. But in this case – and it seems to be a remarkable circumstance, but I do not have the running of cases on behalf of the defence; I have enough trouble with the cases I have to run on Bar for the prosecution. But there was no actual concession in this case that there was a minimum line of manslaughter. How that ever could have possibly been as a matter of forensic possibilities is just beyond me.

In a way these things got brought into focus because of what people wanted to say about the facts. If the Crown counters by saying at the very least extended common purpose makes you liable, it then gets led into the debate. Not much work to do in this case, if any, your Honour. At least what is set out in the judgment below in the way that the court there described what had occurred – this is in paragraph 7:

According to Rodwell, at first Borg and John Hartwick attempted to “dagg” (stab) one another. John Hartwick then called for assistance from his co-offenders, who took it in turn to participate in attacking Borg, while Clayton held Rodwell hostage. In the result, the deceased was severely beaten with the poles and stabbed a number of times; his left ear was almost severed, five of his teeth were knocked out and he was fatally stabbed on the left side of his chest, the knife puncturing his heart and a lung. He died a short time later. Near the end of the frenzied attack, which lasted 30 to 40 minutes –

in the presence of the three accused. The case succeeded, it seems to me, on the relatively artificial basis – Rodwell was not an admirable person in any sense and she was a person who was easy to criticise and relatively easy to cross-examine and on some issues she was not much of a witness of truth. But in relation to a person who said “I was in this room and I observed this beating” and these injuries exist, she had to be accepted by the jury. Notwithstanding that, the case was conducted in the way it was. That is what happens, I suspect, in cases of this kind.

GLEESON CJ: I suppose part of the problem is that none of the accused gave evidence. One man was dead and the only eyewitness to the fatal events was a person of infirm reliability.

MR COGHLAN: That is so, yes, and the case took on a life because of that. Since the three of them had been present in the room during this very substantial attack, how manslaughter was not going to be the starting point and then whether it was murder or not be the point to be decided from there. Manslaughter was left in the case. All the opportunities – that is one of the difficulties about framing a charge in this case by which you leave manslaughter presumably on some new doctrine known to the law of extended common purpose manslaughter.

Once upon a time in general parlance in Victoria we used to refer to Markby as felony manslaughter and there is a sense in which that is true, but the work to be done by Markby is shown in this case. The alternative of manslaughter is left and here, once the alternative of manslaughter left on the basis of unlawful and dangerous act, manslaughter was left, no other kind of manslaughter needs enter into the debate. There is no need for the review of the law of manslaughter to create a new kind of manslaughter separate from how it exists.

In relation to what charges might be given to the jury, a matter that your Honour had raised, going back to the first of the Privy Council cases, Sir Robin Cooke was at some pains at the end of that judgment to speak of cases where the possibility was so remote in such a case, perhaps our fishing example, that it would be necessary for a careful direction to be given to the jury that made it clear that the possibility had to be a possibility contemplated in the continuing enterprise. There is room for a direction that would say unless you are clear about that, then there can be no conviction for murder. There will, however, in many cases be a conviction for manslaughter.

In the case raised by my friend about what happened in the service station, I say again if the man walked out of the service station and he said, “I thought that might have happened”, he truly does not have anything to complain about, but if he walked out and said, “I didn’t think there was the least possibility of that happening”, then he has a defence. If the Crown chose to charge him with murder in those circumstances, the Crown would have to show that he subjectively saw the possibility of the murder arising out of the enterprise that he was involved in, namely the armed robbery. Strangely enough, unfashionable as it might be, if he thought it was necessary, he could get into the witness-box at his trial and say so.

GLEESON CJ: And subjectivity being to his advantage if in fact he is full of drugs.

MR COGHLAN: That is so, your Honour, and that is the whole rationale of the way the Privy Council approached this problem as it developed, that the objective measure of the scope of criminal enterprise might be unjust, we should go to subjective. That was the fairest way of approaching it on behalf of accused people. Unless there are any other matters that the Court sought, they are my submissions.

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

MR COGHLAN: My learned junior has reminded me only of one thing. There can be statutory reform. There can be statutory reform in the area of homicide. We have just gone through such a series of statutory reform in Victoria. We have dealt with the defences. We have abolished provocation. We have created a new offence of excessive self-defence. So they are matters capable of being approached with and being dealt with by the legislature.

KIRBY J: Can I ask just two little questions. Do you remember what the Honourable T.W. Smith’s early projects were on? Is it a trick of my mind?

MR COGHLAN: There was a homicide reference, your Honour. It is funny how you remember the ones keenly because they affected you at the time. We altered forever the order of addresses so the prosecutor always had to go first, and some of us have been smarting about that for the rest of our careers.

GLEESON CJ: Including trial judges who then have the responsibility of correcting mistakes made by defence counsel.

MR COGHLAN: Yes, exactly, your Honour. The other matter was as a trade off for that almost, as it were, we got alibi cautions for the first time in Victoria.

KIRBY J: It was not to do with the substantive law of homicide. I thought it was, but I will check it.

MR COGHLAN: Well, the part really that Justice Smith played in that part of it, your Honour, is really Lowrey and King in the way that we, at least in Victoria, have taken that almost as wholly written in the way that it has described parties to a crime, but did not deal and was never required to deal with the question of common purpose.

KIRBY J: But I had in my mind that it was the elements of murder, but it may be wrong. The second question, you remember I asked Mr Croucher and then other counsel whether or not the alternative charge on manslaughter might, as a general standard, be introduced in order to allow juries to reflect culpability and responsibility. It runs into two substantial problems that Justice Hayne mentioned, and it had to be consistent with the current law, but it also runs into a problem of jury compromises. But do you have any other submissions on that possibility of ensuring that ultimately a jury has the entitlement to reflect in these common purpose cases the jury’s assessment of responsibility, because Bentley and other cases do show that you can get anomalous outcomes of common purpose verdicts?

MR COGHLAN: That is so, your Honour.

KIRBY J: You remember Bentley in the United Kingdom?

MR COGHLAN: Yes.

KIRBY J: That later went up to the English Court of Appeal on a reference from the Wrongful Convictions Board and that led to the quashing, 35 years after Mr Bentley was hanged, of the verdict in that case and the sentence.

MR COGHLAN: Yes, the famous expression “Give it to him”, your Honour, and whether that meant shoot him or whether it meant give him the weapon. That was a felony murder case though - - -

KIRBY J: That is true.

MR COGHLAN: - - - and it proceeded and there have at least been reforms to the way we approach the question of felony murder. One of the difficulties that was seen as a matter of justice, I suppose, arising out of Bentley is that the principal, who was a child.....of course, was not hanged.

KIRBY J: But what of, as it were, a catch-all direction to the jury, is that a feasible approach or not?

MR COGHLAN: It is submitted it is not feasible, but more significant, your Honour, it is not necessary, because in these sorts of cases they will cry out for a direction in relation to unlawful and dangerous act manslaughter. There will be a proper direction about manslaughter.

GLEESON CJ: As recognised in Gillard.

MR COGHLAN: Yes, your Honour, and as happened in this case. There was a full and complete direction on manslaughter, it was there, and it will arise.

GLEESON CJ: That was the ratio decidendi in Gillard, was it not, that there should have been a manslaughter direction?

MR COGHLAN: It was, your Honour, yes. It is impossible to criticise counsel and it is impossible to criticise counsel in a case such as Gillard, because if one was appearing for Gillard and you had the opportunity to run the case on the basis that you will get acquittal if the jury find you were party to robbery, you would want to run the case that way.

GLEESON CJ: But Gillard is a good example of the importance of subjectivity because, as I recollect the facts of that case, he was saying he was dominated by the other man.

MR COGHLAN: That is so, your Honour, yes, but now, because of the changes to the law arising out of Gillard, it would seem that trial judges would now not accept that you could not leave manslaughter and manslaughter will be left. I mean, the anomalous cases that have arisen, have arisen really in cases where it is counsel saying to trial judges, “We don’t want manslaughter left”, not because the law does not provide that it can be left. You know, it is there, it is there, it exists in those cases and it has a job to do, but you have counsel saying, “Well, we don’t want it left because we make a forensic decision about it”. Well, this Court has now said that is not how these matters are to be approached.

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

MR CROUCHER: Your Honours, just a couple of housekeeping matters first. I was asked yesterday about the law of murder in Victoria and authorities where you will find the mens rea spelt out. Firstly, the requirement of an intention to kill or cause grievous bodily harm, this Court’s decision in Zecevic v Director of Public Prosecutions (Victoria) [1987] HCA 26; (1987) 162 CLR 645 at 661 to 662; as to recklessness, where in Victoria the Crabbe line of thinking was adopted as well, most conveniently found in the R v Faure [1999] VSCA 166; [1999] 2 VR 537 in the judgment of Mr Justice Brooking at pages 541 to 542 and 546.

What you will see there as well, your Honours, is that rather than the phrase “grievous bodily harm”, in Victoria we subsequently adopted the phrase “intention to cause really serious injury” which was consistent with largely the English way of doing it, but it was also consistent with the change in the offences that were available in Victoria in the mid-1980s. It used to be offences like grievous bodily harm and actual bodily harm, but now they are serious injury offences.

GLEESON CJ: It is what the juries are always told in New South Wales grievous bodily harm means. They always grievous bodily harm, that is, really serious injury.

MR CROUCHER: Yes. So for all intents and purposes it is the same as - - -

GLEESON CJ: What about felony murder?

MR CROUCHER: Yes, section 3A, as I mentioned yesterday, is the provision and the leading case, in fact the only case, on that is R v Butcher [1986] VicRp 4; [1986] VR 43.

GLEESON CJ: Thank you.

MR CROUCHER: Secondly, by way of housekeeping, there was a question about whether power went to the Human Rights Commission. It did not, as far as we understand it. Thirdly, in answer to your Honour Justice Callinan’s question on - - -

HAYNE J: Concannon did go to Europe and I think was found not to be a contravention of Article VI.

MR CROUCHER: As the Court pleases. Thirdly, in answer to your Honour Justice Callinan’s questions about the facts, the facts as your Honour posited before to the learned Director were hotly disputed. The way your Honour described the three people being there, that was simply not so. On, for example, my client, Lisa Hartwick’s version, her record of interview was contained at pages 85 to 203 of the application book. In substance she said this, that when they arrived at the premises all of a sudden Celia Clayton pulled out a knife which she had not seen before, hit Paula Rowell on the head. She and her husband then restrained Clayton, subsequently provided a towel to Rodwell to help her, and that was accepted in the evidence, in part. Next, her husband then went inside the house, as did Clayton. She did not go inside the house, she was merely at the front door, could not see what was going on. All of a sudden Mr Borg come from nowhere, to use her words, and stabbed her husband. A scuffle ensued. It was around the corner where she could not see. She did not herself touch or assault the deceased. She did not see what happened to the deceased.

CALLINAN J: Did she continue to restrain Rodwell, though?

MR CROUCHER: No, not on her account. Rodwell, as the learned Chief Justice – the restraining was of Clayton, initially, then Clayton broke away. The judge actually in his findings of fact accepted that that was so. They are the principal facts. So the point is if the jury broadly accepted that version of events but nevertheless concluded that she went there with an agreement to assault and foresaw the possibility that one of the others might with intention cause grievous bodily harm then she was guilty of murder, even on that finding of fact, which we say does not reflect the proper correlation between moral culpability and legal responsibility.

The fourth point is this, and it relates to the former point. The learned Director says that the fisherman example is inapt but the truth is the fisherman example, as a matter of law, as it is laid down in McAuliffe, says that the accessory is convicted of murder because he foresaw the possibility that a serious injury might be caused with intent. It does not matter how innocuous the plan was, he is gone, on those facts. That is wrong, in our submission. Why it is wrong is this, that it is foresight of possibility. In La Fontaine v The Queen [1976] HCA 52; (1976) 136 CLR 62 at 76 Justice Gibbs, as he then was, said this:

There is a great difference between the state of mind of an accused who is prepared to risk the consequences of death or grievous bodily harm that he foresees as probable and that of an accused who does no more than take the chance that death or serious injury may ensue although it seems an unlikely consequence.

It sounds like the fisherman example and my client’s record of interview thus far.

The act of the former is much more worthy of blame than that of the latter. To treat knowledge of a possibility as having the same consequences as knowledge of a probability would be to adopt a stringent test which would seem to obliterate almost totally the distinction between murder and manslaughter.

That is what the law of extended common purpose does. The next point is that whilst our principal submission is that the doctrine should be abolished and our first alternative submission is that it should be amended in the way in which Professor Sir John Smith would have it, the third alternative is simply raise the level from foresight of possibility to foresight of probability in line with the sort of thinking in Justice Gibbs’ judgment in La Fontaine.

It is the changing of one word – one word. No radical change; one word. It is consistent with the mens rea for a principal offender under Crabbe’s Case, under La Fontaine which I have just read from in the sense that foresight of probability is required. There is a closer correlation between moral culpability and legal responsibility in those circumstances. We say not sufficiently close but insofar as that is our third alternative we accept that.

Importantly, it also leaves adequate scope or a greater scope for the operation of manslaughter. It does not get into these knots that the House of Lords and the Court of Appeal in England have got themselves into by foreseeing types of weapons and so on and it is not radical. It is but one word. The sixth point is this, again, in answer to your Honour Justice Callinan’s question about Royall’s Case, your Honour, with respect, is right that it is proper to say that on the assumed facts that your Honour posited if there were three people attacking then it would be proper to rely on direct liability via Royall-type reasoning, but the law requires in such a case that the mens rea be intention to kill or cause really serious injury or, at best, foresight that death was probable or that grievous bodily harm was probable, not foresight of possibility.

GLEESON CJ: Reckless indifference to human life, actually.

MR CROUCHER: Exactly. That is the way it is put in New South Wales, yes.

GLEESON CJ: Yes. Royall was a New South Wales case.

MR CROUCHER: Royall was from the Northern Territory.

GLEESON CJ: The Northern Territory?

MR CROUCHER: No, I am sorry, I thought you meant Crabbe.

GLEESON CJ: Crabbe was from the Northern Territory, but Royall was a New South Wales case in which the issue was causation.

MR CROUCHER: Yes, it was.

GLEESON CJ: A woman went out the bathroom window as the result of a ferocity of an attack on her but there was no evidence as to what exactly propelled her out the window and there is a possibility she jumped.

MR CROUCHER: There were three versions, that is right, but I am raising Royall in answer to Justice Callinan’s question. The final point is, your Honours, we will respectfully take up the Court’s invitation to draft appropriate directions.

GLEESON CJ: Yes, you can probably co-operate between the five of you.

MR CROUCHER: Yes, but knowing this, your Honours, our third alternative is but the change of one word. If the Court pleases.

GLEESON CJ: Yes. Mr Coghlan, we would like your comments on that draft when it is prepared.

MR COGHLAN: May it please the Court.

GLEESON CJ: Maybe you could do that within 14 days and Mr Coghlan can give us his comments within 14 days after that.

MR CROUCHER: If the Court pleases.

MR CARTER: I have two very short matters.

GLEESON CJ: Yes. You both have rights of reply.

MR CARTER: This is very short, your Honour. In relation to your Honour Justice Callinan’s question about was and was not in issue, the matters that were not in issue in this trial are conveniently summarised by the trial judge at pages 330 to 331 of volume 1. I will just identify the pages for you. Also, at page 441, line 15 in his Honour’s summary of the evidence of Dr Robertson she agreed that, despite the evidence of the beating, “there was only one injury that caused the death and it was the only life-threatening injury”. That is at page 441, line 15.

The next point that I wanted to make shortly is that the learned Director submits that really extended common purpose did not have much work to do on those facts. The submission is it was given to the jury as an avenue to convict him of murder in circumstances where, despite the forensic choices of defence counsel, manslaughter was viable and the injustice is that there is a real possibility that the jury have returned guilty verdicts in respect of murder whereas in truth they reflect, because of the directions, no more than satisfaction of manslaughter. If the Court pleases.

GLEESON CJ: Thank you.

MR BOYCE: If the Court pleases, other than adopt the submissions that have been made by Mr Croucher and Mr Carter insofar as they can relate in my case, I adopt them, with respect, and simply make one further point about the infirmity, or so-called, of the witness Rodwell. Just to remind the Court that that particular witness attracted a warning in the case and insofar as that was the case the record of interviews in the case of each of the applicants took on a greater significance. Other than that, thank you, your Honours.

GLEESON CJ: Thank you.

In this application for special leave to appeal from a decision of the Court of Appeal of Victoria the applicants seek an opportunity to pursue one ground of appeal. The success of that ground would depend upon this Court deciding to alter the common law of Australia as declared in cases such as McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 and Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1.

We have heard full argument in support of an invitation to depart from those decisions. For reasons that will be published at a future date, the invitation is declined. The applications are dismissed.

We will adjourn for a few minutes to enable people to collect their papers for the next matter.

AT 11.47 AM THE MATTERS WERE ADJOURNED