Presley v The Director of Public Prosecutions for the State of South Australia [2016] HCATrans 17 (12 February 2016)

Last Updated: 12 February 2016

[2016] HCATrans 017

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A17 of 2015

B e t w e e n -

JOHNAS JEROME PRESLEY

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 12 FEBRUARY 2016, AT 10.25 AM

Copyright in the High Court of Australia

MR J.A. RICHARDS: If your Honours please, I appear for the applicant. (instructed by Old Port Chambers)

MR A. P. KIMBER, SC: May it please the Court, I appear for the respondent with MS E.O. BROWN. (instructed by Director of Public Prosecutions (SA))

FRENCH CJ: Yes, Mr Richards.

MR RICHARDS: Thank you, your Honour. There are three issues in question on this appeal. The first goes to the question of whether the court below misapplied the common law doctrine of extended joint criminal enterprise. That relates to grounds 2.1 and 2.2, the draft notice of appeal.

The second question is whether the court below ought to have found that the judge at first instance should have directed the jury on manslaughter by extended joint criminal enterprise. That is ground 2.3 of the draft notice of appeal. The third question is whether the verdict was unreasonable or could not be supported, having regard to the evidence pursuant to section 353(1) of the Criminal Law Consolidation Act outlined there, in light of the nature of the offence, the intents required to be proven and, in particular, in light of the degree of intoxication of the applicant at the relevant time.

FRENCH CJ: Your argument in relation to 2.4 is the same in substance as that put on behalf of Mr Smith, is it not, although you have the benefit of a blood alcohol concentration reading and some calculations based on it?

MR RICHARDS: It is, if your Honour pleases.

FRENCH CJ: We will not need to hear you on that. Perhaps you could focus then on the other grounds.

MR RICHARDS: Thank you, your Honour, I am grateful. If the Court pleases, in relation to the facts on this matter, they are of relatively simple nature. At about 11 o’clock on 12 December 2012, at Grant Street, Elizabeth Park, the prosecution case is that Mr Betts murdered Mr Hall with a knife - - -

KIEFEL J: I think you can take it that we are reasonably familiar with the facts.

FRENCH CJ: Yes.

MR RICHARDS: Thank you, your Honour. In relation to the facts and I will just quickly call attention to those matters in which perhaps the respondent and the applicant are at difference. I note that factually although the second incident – there are two incidents, effectively: a confrontation between Hall, the deceased; a Mr King, Betts and Presley and followed shortly thereafter by Betts, Presley and others returning.

Firstly, I note that what then happens is two separate altercations, we would say – one involving Mr King, who had his elbow broken, and the other involving the deceased, Mr Hall, in which he was attacked by a number of men. The applicant contends that he was not involved in the assault on Mr Hall at all.

The respondent would say that there was a strong circumstantial case – and I refer to there a summary of argument at paragraph 7 – and I refer to what was observed to be “tramline” bruising on Mr Hall’s forearm. It was suggested that that would be consistent with an assault by Presley. In our respectful submission, the evidence in relation to that is flimsy indeed.

FRENCH CJ: Well, I am sorry, as I understand it by looking at your outline, first of all the first ground relates to the criterion for the application of the principle of extended joint criminal enterprise and what kind of foresight is required.

MR RICHARDS: That is right.

FRENCH CJ: Yes, and you refer to “an asserted error” by way of a departure from what was said in McAuliffe.

MR RICHARDS: Yes, perhaps I will go to that. Just on the primary issues in dispute, it is disputed and we say there is a good basis for the dispute as to whether or not Mr Presley was involved at all in respect of the deceased, Mr Hall. Your Honour’s question going to the issue of the interpretation of McAuliffe and the test there applied, in our submission, the ratio in McAuliffe has been interpreted in this particular case and elsewhere as going simply to whether or not in relation to unplanned offences whether there was a foresight of an intention to cause grievous bodily harm and an assault. That is not a foresight of the probability, of course; it is a foresight of the possibility of that event occurring.

In our submission, if one looks at the decision in McAuliffe, the Court there looked at the case of Johns and it looked at whether or not the principle in Johns could be extended not only to events within the contemplation of the parties but could be extended to unplanned offences and it looked there at the, amongst other things, the judgment of Sir Robin Cooke in Chan Wing-Siu and thereafter, if your Honours please, the Court discussed what would be gleaned from that.

It is contended that that discussion in some way limits the question of whether or not it is necessary on an offence justified by foresight because liability in relation to extended joint criminal enterprise falls because of foresight of another offence.

KIEFEL J: But the question on your argument is foresight of what? Is your argument not that it has to be in the context of joint criminal enterprise – extended joint enterprise – foresight of actual death?

MR RICHARDS: Yes.

KIEFEL J: Well, is that not rather an extension of the existing law?

MR RICHARDS: We say it is not an extension of the existing law. Firstly, if it is an extension of the present law then we say it ought be, but, more importantly, we say that the correct interpretation of McAuliffe, the Court there referred in – did not limit extended joint criminal enterprise in the manner contended and the manner subsequently interpreted in this particular case. We note, if your Honours please, that in the discussion of Sir Robin Cooke’s judgment, the Court cited with approval his dicta and this is in the Commonwealth Law Reports at page 116 or about page 34 of the Australian Law Reports:

“If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A - - -

KIEFEL J: Well, that is to say - that is stating the current test, is it not, that the state of mind necessary is that a participant could foresee that another member might act with intent to kill or cause grievous bodily harm but that is not the test for which you are contending.

MR RICHARDS: If your Honour pleases, your Honour is quite right thus far. The Court goes on to say:

with the requisite intent, kills in the course of the venture.

KIEFEL J: That is the fact - that is the fact of killing but that is not the intention. That is not to be elided with intention.

MR RICHARDS: That may be so. The Court went on to cite with approval immediately thereafter:

As Professor Smith points out, B has in those circumstances lent himself to the enterprise and by so doing he has given assistance and encouragement to A in carrying out an enterprise which B realises may involve murder.”

If your Honour pleases, that cannot be said to not involve at least a foresight of a death, with respect.

FRENCH CJ: What do you say about the passage from Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439 which is quoted at paragraph 17 of the respondent’s submissions at page 399?

MR RICHARDS: If your Honour – the decision in Clayton related to arguments firstly for a review of the law wholesale which was of – the Court took the view that it ought not to be reviewed by majority. Of course, the minority decision of Justice Kirby was to different effect but, with respect, the Court there was asked to amend the law and it went back to the issue of possibility versus probability.

We are not contending that the test ought to be probability of the incidental offence occurring. We do not say that it ought to be foresight of the probability but when the bar is set as low as foresight of simply the possibility of the offence occurring, we are left with a situation in which, as far as the principle offender is concerned, he has to actually intend to commit the assault and he has to actually intend, at least, grievous bodily harm.

In relation to the ancillary offender, all that is needed, if the respondent’s position is correct, is simply a foresight of the possibility of an act occurring with that intent and in real terms, then, for those alleged to be guilty because of the principles of extended joint criminal enterprise, we say that the test is actually lower than for the principal offenders themselves, and, with respect, that cannot be the case.

In our submission, if one looks further at McAuliffe, the Court immediately after the passage to which I referred, reports to foresight of a relevant offence and foresight of the incidental crime and it does so repeatedly and we say in at least two separate parts of the judgment immediately following the part to which I referred.

If your Honours please – if we are talking about foresight of the actual offence and foresight of the incidental crime we are talking about a death occurring. The criticisms that Justice Kirby made in Clayton in relation to this matter, in our submission, would be ameliorated by requiring that a doctrine which lies in foresight and continued in participation despite that foresight, in our submission, the criticisms made by Justice Kirby again would be ameliorated by requiring that the foresight must be of the offence, indeed as mentioned in McAuliffe, the foresight must be of the crime, again, as mentioned in McAuliffe, not simply of part of the crime, namely, an intention to cause grievous bodily harm and nothing more.

If it were otherwise, with respect, the injustice would occur that virtually anyone charged with an offence of murder based on extended joint criminal enterprise will be guilty and the reason for that being, if your Honours please, that any assault, any seriousness involving as little on some of the cases as a fractured cheekbone will constitute sufficient harm and, with respect, one does not need weapons to cause that sort of injury.

With respect, any means could go to causing that sort of injury and, in the result, anyone charged under this doctrine will almost automatically be guilty if it is not required they also foresee the offence. That interpretation of McAuliffe, if your Honours please, still allows that a person who foresees an assault with the requisite intent that results in a death will be guilty of murder. But if they foresee nothing more than an assault without intent, with respect, on a doctrine that has their liability based on their foresight, their liability ought be no more than guilt of taking part in an assault occasioning grievous bodily harm if nothing more is foreseen.

If your Honours please, the decision also of this High Court in Truong – the joint judgment of Justices Gummow and Callinan in that case at paragraphs 41 and 89 of that judgment again refer to the same issue being foresight of the death of the applicant – sorry, the deceased in the matter, so foresight of death occurring.

In our submission, if it is the case that courts refer to the test as involving, in some instances, foresight of death occurring and other instances interpret it differently, with respect, it has never yet been taken before this Court as to whether that foresight is required. That issue has not been settled. In our submission, it remains open from McAuliffe, when one looks at the actual judgment closely. It does not say anywhere in McAuliffe that a person foreseeing – will see nothing more than an assault with a certain intent. With respect, it comes to possibility of that and not probability.

The other advantage, of course, as your Honours will note from my outline, is that it achieves some consistency between the common law position and the position in the Code States requiring a much higher test, unless there be a case that exactly the same facts will fortuitously result in a murder conviction in one State and an acquittal on the same offence in another. If your Honours please, they are my submissions in respect of - - -

FRENCH CJ: That covers 2.1 and 2.2, I think, does it not?

MR RICHARDS: Yes, if your Honours please. We say that if there is still scope for confusion in respect of that, that falls to be decided by this Court. Next, if your Honour please, is the issue of the directions in respect of manslaughter by extended joint criminal enterprise. In our submission, the court below did not deal with the issue of manslaughter by extended joint criminal enterprise at all.

KIEFEL J: Do you mean the Court of Criminal Appeal?

MR RICHARDS: Yes.

KIEFEL J: But did not the Court of Criminal Appeal hold that the trial judge did direct in relation to manslaughter and the Court of Criminal Appeal accepted it as a sufficient direction?

MR RICHARDS: It did. That is correct, if your Honour pleases. But, with respect, it misapprehended our submissions in relation to manslaughter by extended joint criminal enterprise. It contended that based on – and I note in that regard that my friend would say manslaughter by unlawful and dangerous act would cover the field, as it were, and so there is no place for manslaughter by extended joint criminal enterprise.

We say the latter in fact involves something more. It involves a situation where the jury foresees the possibility of an assault with some intent less than intent to cause grievous bodily harm and an accidental death that might occur which involves foresight. In those circumstances, there was no direction given to the jury and those facts, if your Honours please, we say were open. Their Honours – if I could take your Honour to the judgment - - -

FRENCH CJ: It is paragraph 83, is it not?

MR RICHARDS: Yes, thank you, your Honour. That, if your Honour pleases, apprehends our argument in this regard as directed simply to manslaughter by unlawful and dangerous act. One looks at the last sentence of that paragraph. That was not our argument. Our argument was that there was an alternative ground of which manslaughter might be found and that ground was not left by the judge at first instance, and our submissions in relation to that in the court below were simply misunderstood and not referred to at all. With respect, if my friend’s contention that there is no place for manslaughter by extended joint criminal enterprise is correct, then with respect the complaint that we make of the failure to address our actual argument - - -

KIEFEL J: Well, it rather depends on what you mean by manslaughter by extended joint enterprise.

MR RICHARDS: Yes. If your Honour pleases, our submission in relation to that is that manslaughter by extended joint criminal enterprise would involve a foundational agreement to commit some offence falling short of an assault to commit grievous bodily harm. So an assault – a simple assault, that is an assault to cause harm but not grievous bodily harm, and thereafter a contemplation not of a death occurring but of an accidental death possibly occurring, that, in our submission, would be sufficient for a finding of manslaughter by extended joint criminal enterprise and, if your Honours please, that was a matter which was not addressed on at all and, with respect, was not addressed by the court below.

FRENCH CJ: Yes.

MR RICHARDS: If your Honours please, those are my submissions. We say that on the grounds advanced that special leave ought be granted in relation to all grounds. There are effectively three grounds over – the four, the first two being to one effect. We ask for special leave on all grounds.

FRENCH CJ: Yes, thank you, Mr Richards. Mr Kimber, we only need to hear you, I think, on ground 2.4.

MR KIMBER: The manslaughter issue, your Honour?

FRENCH CJ: Yes. In other words, why should we treat this any differently from Smith in relation to that ground?

MR KIMBER: Yes, there are similarities. That similarity lies in the fact that for Miller there was exact – if I can use that phrase – evidence of his blood alcohol intoxication. There was a count back. There was for Mr Smith.

FRENCH CJ: Mr Smith was counted back over a period of 10 hours to get to a 0.2, was he not – no, I am sorry, Mr Presley.

MR KIMBER: Was, that is right, a lesser level than existed for Mr Miller, but the key difference - - -

FRENCH CJ: Well, 0.2 is pretty solid.

MR KIMBER: There is no doubt that he was intoxicated at the time and that he was in the order of 0.2 and that is significant. But, what has been thus far overlooked is that this applicant pleaded guilty to count 2. Count 2 was causing harm with intent to cause harm.

KIEFEL J: Yes, we appreciate that.

MR KIMBER: He admitted committing a deliberate act with a baseball bat – the breaking of the arm of that victim with that baseball bat and doing so with that intent. The possession by him of that intent, however intoxicated he might have been, is difficult, in my respectful submission, to reconcile with the jury leading to acquit because of that intoxication.

FRENCH CJ: How does the jury take into account his plea of guilty on another offence?

KIEFEL J: With respect to another person?

MR KIMBER: They heard that plea - - -

FRENCH CJ: Well, they might have heard the plea, but were they entitled to have regard to it?

MR KIMBER: Well, they certainly heard it. They were certainly - - -

FRENCH CJ: Yes, but that does not answer my question.

MR KIMBER: They were not told that they could not take it into account.

FRENCH CJ: Well, what is your answer? What is your submission?

MR KIMBER: Well, in my respectful submission, the only practical way to approach that is that it was an admission by him in their presence. He was arraigned in their presence and he admitted that offence. What other approach could a jury take to that plea in their presence? His case was that he had done those things. Putting to one side the admissibility of it he conducted his case on that basis. He did not dispute that he had used the baseball bat on the victim in count 2 – mere use of that baseball bat.

A jury must have found that he did that. He did not contest it and there was clear evidence of it in the trial. In those circumstances, it was inevitable that the jury would find that he was acting in a deliberate and purposeful way, bearing in mind particularly that he had been at the first confrontation and so the only motive for returning was what had occurred at that first confrontation.

On the conduct of his own case, he had gone and armed himself and chosen to return with that baseball bat and once he returned, he delivered blows to the victim in count 2. That was a very different case to the way the case was conducted by the others who did not conduct their case in a way that, in effect, conceded those things had been done. So, those matters

allow a distinction to be drawn as does the fact that there was detailed consideration of this applicant’s intoxication by the court below.

One of the reasons the Court appeared to grant special leave for Miller was because there was inadequate reference to Mr Miller’s intoxication in the judgment of the court below. Here, there is detailed consideration commencing at paragraph 92 of that issue. Mr Presley pressed his ground back to the directions on intoxication and the court, at application book 356, considered in considerable detail not just the evidence of the blood alcohol level and the likely level at the time of the confrontation of 0.2 per cent, but also then in paragraph 93 they have made detailed reference to the directions that were given and the issues.

So, when the Court concluded very shortly thereafter that the verdicts were not unsafe or unsatisfactory, it is difficult to conceive that they were not cognisant of that evidence. For Miller part of the argument was that there was not this detailed reference to Mr Miller’s intoxication in the judgment itself that then preceded the finding that the verdicts were not unsafe. That was the essence of the complaint. In effect, it is partly an “inadequacy of reasons” argument put by Miller. That cannot be said to apply to this applicant. If the Court pleases, they are my submissions.

FRENCH CJ: Thank you, Mr Kimber.

We would not be disposed to grant special leave on any ground other than 2.4 on the basis that there are no sufficient prospects of success to warrant the grant of special leave. In relation to ground 2.4 in the draft notice of appeal we will refer the application for special leave, limited to the question raised by that ground, to an enlarged Court.

As I indicated in the previous matter of Smith, it is obviously desirable that these three matters - Miller, Smith and Presley - be dealt with at the same time. At present, Miller is listed for hearing in the second week of the March sittings. It may not be practicable to have all matters ready – or possible to have all matters ready for hearing at that time, but that is a matter I will leave to be dealt with administratively between Registry and counsel and their instructing solicitors. Thank you.

The Court will now adjourn to reconstitute for the next matter.

AT 10.52 AM THE MATTER WAS CONCLUDED