O'Dea v The State of Western Australia [2021] HCATrans 210 (3 December 2021)

Last Updated: 6 December 2021

[2021] HCATrans 210

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P16 of 2021

B e t w e e n -

BRETT CHRISTOPHER O’DEA

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

GAGELER J
GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO SYDNEY AND MELBOURNE

ON FRIDAY, 3 DECEMBER 2021, AT 2.29 PM

Copyright in the High Court of Australia
GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR A.O. KARSTAEDT appears for the applicant. (instructed by NR Barber Legal)

MS A.L. FORRESTER, SC appears for the respondent. (instructed by Office of the Director of Public Prosecutions (WA))

GAGELER J: Mr Karstaedt.

MR KARSTAEDT: Thank you, your Honours. Your Honours, this matter concerns the pathway to criminal liability that is said to arise under section 7(a) of the Criminal Code (WA) that two or more offenders acting in concert each doing one or more acts would constitute the offence. This case raises squarely the issue of what the requirements are for liability under this particular pathway. We submit it is an appropriate vehicle for determining what the requirements are, and what the scope of that application is of that pathway in the context of section 7(a).

This particular pathway to liability under the Criminal Code (WA), and the other Code States, has not previously been the subject of a decision by this honourable Court. In our submission, there are strong arguments on the merits that the decision of the Court of Appeal was wrong. Your Honours, if I may turn to the application for special leave at page 187 of the application book. Your Honours ‑ ‑ ‑

GAGELER J: Mr Karstaedt, you might need to position the microphone in a way that you are speaking directly into it. You seem to be turning away and we are losing some of your words.

MR KARSTAEDT: Thank you, your Honour, I apologise, I will do my best. Your Honour, the concise statement of special leave question said to arise, whether the liability of either one of two accused charged jointly under this pathway requires proof establishing that (a) both accused were acting unlawfully, (b) the two accused had reached an understanding or arrangement amounting to an agreement between them which may be inferred to commit a crime, and (c) that the act of the particular accused sought to be held liable caused or materially contributed to the grievous bodily harm.

The Court of Appeal answered no to all three of those issues. According to the Court of Appeal’s decision, an accused person under this pathway can be guilty of doing grievous bodily harm – can be criminally liable where, one, he has not caused or materially contributed to the injury; two, there is no arrangement or understanding amounting to an agreement that a crime will be committed – there is no unlawful common purpose, three, where the other accused was not acting unlawfully. That would mean that where you have two accused, A and B, they can be acting together in a literal sense in assaulting someone, B can act in self‑defence, B can cause the relevant injury, and A will be guilty of the offence even though B is acquitted. The effect of this decision is to create a very low threshold for criminal liability, and we submit with great respect that the decision is not correct.

Your Honour.....justify special leave, it is submitted that the decision of the Court of Appeal.....by error, that an appeal would enjoy good prospects of success, the matter raises important questions of law, the pathway of liability the subject of this matter is one which is often applied in trials in the superior courts in the State, and the decision of the Court of Appeal in this matter will not relied on and applied by the courts. The decision is going to guide courts in Western Australia, it is a category A decision which entails that it will be reported and will be given attention, and it will guide trial judges for one thing, to direct juries in this type of case that the jury only has to find the acts of the accused they are considering to be unlawful, not the acts of the other accused ‑ ‑ ‑

GAGELER J: I had not heard – Mr Karstaedt, what is a category A decision?

MR KARSTAEDT: It is a decision – category A, B and D decisions – category A is a decision that is almost always reported in the law reports as regarded as establishing principles for the guidance of other courts. Your Honour, as I have indicated, this particular pathway to liability has not previously been the subject of a decision of this Court.

Your Honour, if I could briefly address each of the three grounds, of the three proposed grounds, in relation to ground 1, this matter concerns the issue whether under this pathway both accused must be acting unlawfully for either one to be found guilty, where there are two alleged offenders what is the effect on the criminal liability on the one offender when the other offender did not merely lack criminal responsibility for his conduct but whether his conduct was not unlawful, for example, the other participant was acting in self‑defence.

The Court of Appeal have said that the fact that the conduct of one of the offenders was not unlawful does not affect the liability of the other offender, and this would be so even where the party whose acts were not unlawful in fact caused the relevant injury or harm. The Court of Appeal in this matter held that under this pathway, the co‑accused does not have to act unlawfully and this, the court said, is because of the decisions in the cases decided by this honourable Court in Pickett and Barlow.

For the reasons set out in the application, we submit that the Court of Appeal erred in conflating the different issues of criminal responsibility and unlawfulness. This brings into focus the issue that was referred to in Pickett by the plurality of the Court at paragraph 43, and by his Honour Justice Nettle at paragraphs 102 to 103, where there was a discussion of the position where the co‑accused’s act was not unlawful, as opposed to merely.....not having criminal responsibility. And the Court distinguished these situations and said that where the other participant’s acts were not unlawful, that should result in the appellant, in our cases, criminal liability not being established and him not being guilty of the offence.

Now, the respondent argues that the reasoning in paragraph 43 of Pickett does not apply to this pathway, it only applies to aiders but, in our submission, it is clear from the judgments in Pickett that this distinction is not only relevant to section 7(c) offenders, it applies to all categories of offenders under sections 7 and 8, which involve the attribution of the conduct of another party and this appears clear at paragraphs 43 and 102 to 103 of the case.

Your Honours, Pickett did not simply involve the alleged liability of an aider, the issue was whether the appellant was responsible as an aider under section 7(a), or an enabler under section 7(b), or, thirdly, as a party to a common purpose. And the Court said at paragraph 43 and Justice Nettle, at paragraph 102 to 103, that where the other participants act are not unlawful as opposed to him not really being criminally responsible that would affect the appellant’s ‑ the other participant’s liability and would negate that person’s liability.

Your Honour, if I may just briefly refer to what the majority of the Court said at paragraph 43. Justice Nettle.....the concurring judgment, at paragraph 43, the Court said:

The provisions of Ch V of the Code do not alter the terms of the Code’s proscriptions or defences. If PM, as the hypothetical killer of the Deceased, had struck the lethal blow in self‑defence in accordance with s 248(4), which is to be found in Ch XXVI of the Code, his assault upon the Deceased would not have been unlawful. It might be said that PM’s act was not the conduct element of an offence because his assault was a lawful act under s 248(4).

If one turns to the separate concurring judgment in Justice Nettle at 102, his Honour, after drawing the distinction between excuses which negative criminal responsibility on the one hand, and defences or justifications which negative unlawfulness on the other hand, his Honour said at 102, in relation to that distinction:

the distinction also determines the scope of principal and accessorial liability arising from conduct that is prima facie criminal but subject to a defence. Specifically, because justifiable conduct is not unlawful, a person who aids or abets another in its commission, or –

Now, this is important:

or who participates in a joint criminal enterprise extending to its commission, or who counsels, procures or commands another to commit it, is not liable to punishment. By contrast, because excusable conduct remains unlawful, a person who aids or abets its commission, or who participates in a joint criminal enterprise extending to its commission, or who counsels, procures or commands another to commit it, is liable to punishment, unless he or she is also excused ‑

At paragraph 103 it elaborates on that, and refers, for example, to a co‑offender who is acting in self‑defence, that would negative unlawfulness, and because there is a question of attribution of that offender’s conduct to the appellant, it would result in the appellant not being liable either. That is precisely the situation in our case.

GORDON J: Mr Karstaedt, may I ask a question?

MR KARSTAEDT: Yes, your Honour.

GORDON J: At page 188 of your application, paragraphs 11 and 12, you set out what is the Crown concession, as I understand it, that this was not a solo actor case. This was a case of acting in consort. In other words, the case brought against your client and Mr Webb was that they were acting in consort.

MR KARSTAEDT: Yes, your Honour, exclusively ‑ ‑ ‑

GORDON J: As I understand your complaint, if you were to put it in general terms, it is when you have got a charge of acting in consort and you have the elements – which are set out at page 93, being the pathway to verdict being the first pathway described and handed up to the jury ‑ as I understand your complaint, you cannot have the inconsistent verdict you have got here in respect of Mr Webb and Mr O’Dea. That is, you ‑ ‑ ‑

MR KARSTAEDT: Yes, your Honour.

GORDON J: Sorry, I did not mean to interrupt. Is that the position? The inconsistency arises because, as I understand it, the jury were unable to reach a verdict in relation to Mr Webb in respect of conduct – which if your client was liable as he was found to be guilty – would have been attributed to Mr Webb.

MR KARSTAEDT: Yes, your Honour. Your Honour, this issue arose in relation to two grounds that were before the Court of Appeal. The one ground complained that the trial judge had erred in directing the jury that they only had to find the appellant’s conduct unlawful – not that they also had to find the respondent – the other participant’s conduct unlawful. It also arose in a ground which, can I just indicate, the appellant was invited to add at the hearing that there was an inconsistency in verdicts, but we do not rely on that ground.

We say that the difference – or the fact that the jury was unable to reach a verdict in relation to the other participant cannot – we do not argue that that can be relied on as establishing an inconsistency. But we do say there was an error in directing the jury to the effect that only the appellant’s conduct had to be unlawful, not the co‑accused’s conduct. The Court of Appeal found that, in relation to that, the jury would reasonably have not been satisfied that the defences that applied in respect of Mr Webb had not been negative. So the Court said it was reasonable for the jury not to have been certain that Mr Webb the co‑accused’s conduct was unlawful and, therefore, there was no ‑ ‑ ‑

GORDON J: So do you take issue, then, with what is set out at page 179 of the application book, at paragraphs 173 to 176, where they seek to justify that difference?

MR KARSTAEDT: Yes, we do, your Honour, because the court conflated criminal responsibility and unlawfulness. What the court did was said – with reference to Pickett’s Case, where an accused is not criminally responsible for an act that does not affect the liability of the other accused, namely, the appellant, what the court overlooked was, in this case, they were not excuses that led to criminal responsibility, they were actual defences that negatived unlawfulness, primarily there was self‑defence and there were two other defences that were left in respect of Mr Webb that had the effect of excluding unlawfulness, not merely criminal responsibility, and with respect the court did not appreciate it, they conflated the concepts of criminal responsibility and the paragraphs 43 and 102 to 103 of Pickett explain clearly that there is that distinction, which the Court of Appeal did not appreciate. And we say that is where the error lies in this case.

Now, the respondent’s position is that distinction that is discussed in the paragraphs in the judgment only apply where the appellant is alleged to be an aider, and we say no, clearly, on the terms of section 43 and from paragraph.....the court were talking about all offenders under section 7 and section 8 where there is an issue of attribution to that offender from the other accused, from the other participant. And where ‑ ‑ ‑

GAGELER J: Now, where in your three grounds of appeal do we find the point crystallised? Which is the formulation that best captures what you say is the essential problem with the Court of Appeal’s reasoning?

MR KARSTAEDT: It is ground 1. We say paragraph 20, crucially 19 to 22, we say Pickett involves the consideration of excuses that arise under Chapter V of the Code, whereas our matter involved consideration of defences under section 26 of the Code and under the Criminal Investigation Act there was one defence as well which also negatives unlawfulness, we submit.

Pickett held, at 21, that the provision of Chapter V operate only as an excuse, not as a justification. The position is otherwise, with respect, to the three defences that arose in the present paragraph, paragraph 22, are set out what they are.

GAGELER J: I am really looking at your grounds, Mr Karstaedt. You have three grounds.....those three grounds.

MR KARSTAEDT: It is ground 1, your Honour.

GAGELER J: Ground 1, thank you.

MR KARSTAEDT: Yes. Your Honour, perhaps I could move to ground 2. Our submission is that acting in concert cannot simply mean virtually acting together without an unlawful purpose. I have cited McAuliffe’s case. I note that Osland v The Queen, which is a case of this honourable Court cited by the respondent, also states that the pathway to guilt if parties are acting in concert at common law, certainly at common law, requires this as well, that the parties have reached an understanding or arrangement with another that they will commit the crime.

Certainly those are the common law doctrine of acting in concert. Ours is one that arises under the Code, but we submit that it should.....under the Code, that it is not sufficient simply for two parties, in a literal sense, to be acting together for joint liability to arise in this way. The trial judge directed the jury that “acting in concert” means acting together. The jury came back and asked for a redirection on that, as to what “acting in concert” meant and, again, the learned trial judge said it meant acting together. We submit that it cannot simply mean that.

Your Honour, ground 3, if I could just summarise the position, your Honour, that appears at page 187:

The Court of Appeal –

we say:

erred in law in deciding that it was open to the learned trial Judge to leave to the jury the basis of liability designated as the “first pathway”, in factual circumstances where the State was unable to prove, and it was not the State case that it could be proved, which act or acts of which particular accused were a cause of or materially contributed to the grievous bodily harm.

Your Honour, we submit that firstly there is a divergence in the law in this regard between Western Australia and Queensland. In Queensland, the position is governed by the case of Sherrington, where it was held that this pathway, the identical pathway, cannot apply where it cannot be shown that both participants at least partially caused or materially contributed to the harm. What has to be done in that situation is leave the matter to the jury as a combination of section 7(a) and section 7(c). There have been a few overturned references in Queensland to cases in Western Australia making reference to this pathway ‑ ‑ ‑

GAGELER J: Mr Karstaedt, can you hear me?

MR KARSTAEDT: Yes, your Honour.

GAGELER J: You may not have heard the signal, but your time is up. Is there anything you want to say by way of conclusion?

MR KARSTAEDT: Yes, your Honour, simply to say that our fundamental submission in relation to count 3 is that an act which does not at least partially cause or materially contribute to the relevant harm cannot, for the purposes of 7(a), be an act which, quote:

constitutes the offence –

Thank you, your Honours.

GAGELER J: Thank you. Yes, Ms Forrester.

MS FORRESTER: Thank you, your Honours, can you hear me?

GAGELER J: I can.

MS FORRESTER: Thank you. Your Honours, in my respectful submission, ground 1 is misconceived and, in particular, the problem lies with the misconception of Pickett. The issue in Pickett arose because at the nub of that case was, when is an offence committed? The opening words to section 7 require first of all that an offence be committed. In Pickett, the issue – because the case was put on the basis of accessorial liability – that is under section 7(b) or (c) or 8, it was necessary for an accused to have committed the offence in question before the aiders or the section 8 parties could then be liable.

In the present case, where both accused – that is the applicant and his co‑accused – were alleged to be principals, the commission of the offence relied upon one of them acting unlawfully, they had to be acting together, not in the common law concept of acting in concert, but in the sense of acting together. If that occurred, then the acts – that is the conduct of one could be attributed to the other – and if that other – in this case being the applicant – was acting unlawfully, then he was committing an offence.

GORDON J: May I ask a question about that please? Does that mean though that the conduct of Mr O’Dea should have been attributed to Mr Webb?

MS FORRESTER: It could have been, your Honour, yes.

GORDON J: In other words, was “compelled” to be attributed to Mr Webb because they were acting together?

MS FORRESTER: Yes, your Honour and the ‑ ‑ ‑

GORDON J: So how is it then of the concession? Just explain to me because I am not clear in my mind how the concession works then? This was not a single actor charge.

MS FORRESTER: I am not clear on what your Honour means by “concession”.

GORDON J: So, you accept – as you probably do – that it was that they were acting together.

MS FORRESTER: Yes.

GORDON J: And you have got conduct which is attributed and attributable to Mr Webb, and yet they cannot reach agreement on him. Does that not call into question the way in which the matter was put to the jury?

MS FORRESTER: In my submission, no, and it comes down to this. The verdict, or the inability of the jury to reach a verdict in relation to Mr Webb, is entirely explicable in relation to the question of intent. The charge was one of doing grievous bodily harm with intent. The intention had to be the intention – under the first pathway, the intention had to be the intention of the principal, so either the applicant or Mr Webb.

So, in order for Mr Webb to have been found guilty, not only did he have to have the conduct element, that is, the acting in consort with the applicant, but he also needed to have the intention to inflict that harm. It is worth observing that, on a retrial, Mr Webb was convicted of the offence of doing grievous bodily harm. So, it was entirely possible for the jury – and this goes back to Warren and Ireland, for example, your Honour, where the two offenders were convicted of the offence of doing grievous bodily harm but with different intentions.

In my respectful submission, when one looks at the judgment of the Court of Appeal in this particular case and the judgments to which – sorry, the paragraphs to which your Honour referred – in particular, at appeal book page 179 and also the summary of their Honours of what the CCTV showed, it was entirely explicable that the jury would find that the applicant was the principal offender, that is, the most severe of the two actors in this particular incident. So, in no way could it be said, in my submission, that the verdict of the jury, in the sense of being unable to reach one in respect of Mr Webb, was inconsistent with a finding of guilt of the applicant on the charge of doing grievous bodily harm with intent.

GORDON J: Can I ask one question about that? Does that mean that one could have got through the first three steps of the first pathway and got to a negative result on the fourth in relation to Mr Webb?

MS FORRESTER: Yes, your Honour.

GORDON J: Is that right when it has got the “relevant accused” in both 3 and 4?

MS FORRESTER: Yes, your Honour, and that was how it was explained to the jury in the course of the judge’s charge.

GORDON J: Thank you.

MS FORRESTER: And that is the nub of – because when one goes to the second pathway, which the Court of Appeal determined could not have been the pathway the jury took in this particular case, his Honour directed that both accused’s conduct had to be unlawful, and that reflects that idea of accessorial liability, because if one cannot say which accused caused the injury, then both of them had to be proved to be acting unlawfully.

Under the first pathway, the requirement was that they each did one or more of the acts that caused the harm, and that.....in this particular case there appears to be a fundamental assumption flowing through the applicant’s case that the State could not prove that both of the accused, that is, the applicant and Mr Webb, contributed to the injury, the traumatic brain injury suffered by the complainant.

That was the second pathway, that is, if the jury were not satisfied that it was a combination of the acts of the accused that caused the injury, then they would go to the second pathway, and they would determine it on the basis of one was liable under section 7(a) and one was liable under section 7(c).

In this case, as they were directed that they must, the jury must have found that the conduct of both accused contributed in a sufficient way to the traumatic brain injury suffered by the complainant, and at that point their acts could be ‑ provided they were acting together, their acts could be attributed to each other, and then, if one was acting unlawfully, then he would be guilty, and if the other was acting unlawfully, he would be guilty. And as a matter of ‑ ‑ ‑

GAGELER J: Can I just ask what “acting together” means here? Perhaps I am asking the same question as the jury asked.

MS FORRESTER: Yes, your Honour, “acting together” means – his Honour Justice Hall in Whitby, perhaps, dealt with that best, but his Honour the trial judge in this particular case did explain it to the members of the jury at – and this is perhaps more ground 2, he says ‑ his Honour said at application book page 86, his Honour was directing the members of the jury in relation to acting together, and this was the redirection that his Honour gave, so it is perhaps more comprehensive, he said this, and this is about, just under a third of the way down the page under the words:

Explain ‘in concert’ –

. . . it’s not enough that various acts when put together constitute the offence. For an accused to be liable as a joint principal he must do an act that forms part of the offence which act is part of a series of acts committed with another person while they are acting together . . . you look at the totality of the acts and if it –

says they were:

acting together or in concert with the other accused.

So he did explain that detail, and his Honour did also ‑ ‑ ‑

GORDON J: Just so that I am clear though, that is really directed at the first two points, is it not, in the pathway handout? It is not directed at 3 and 4?

MS FORRESTER: Sorry, your Honour, if I might just check that.

GORDON J: I am contrasting it to what was in the handout at application book 93, it is only dealing with 1 and 2, it is not dealing with 3 and 4.

MS FORRESTER: That is entirely so, your Honour, because for them to be acting together, as it is in a Code jurisdiction – which is entirely different to a common law jurisdiction – their acts then become attributed to each other. One example might be where someone is acting in self‑defence and they are assaulting somebody and someone else comes along and joins in but does not know the basis upon which the other person is inflicting that particular injury, if they start to act together to inflict a serious injury upon the victim, the person who comes in not knowing the basis for the assault should not be excused from liability because the other is acting – or at least was initially acting lawfully.

In this case, that does not apply because both of them were, on the State case, acting together at all material times, they came out of the property together and they both engaged in the assault, and that was a matter that was addressed at the trial. But it is very important, in my submission, to recognise the difference between acting in concert in a common law jurisdiction and acting in concert in the Code context, because acting in concert is simply a way of describing the joint conduct of two accused people who were acting as principals under section 7(a), it is not ‑ ‑ ‑

GAGELER J: But does it involve anything more than acting in the presence of each other?

MS FORRESTER: It involves a meeting of the minds.

GAGELER J: It involves a common plan, does it?

MS FORRESTER: In effect - - -

GAGELER J: That takes us to the common law, so it must stop short of that. So, I do not quite understand it.

MS FORRESTER: It is not two people acting entirely independently of each other. They need to be acting together. One person comes up and assaults someone and one person separately comes up behind a person at the same time and hits them and those two people do not know each other. Say, for example, in a brawl situation, they could not be charged with acting together in such a way that one’s acts would be attributable to the other. There needs to be some conjunction of the acts, or some concept of them acting together in that sense, but it does not require a common plan or agreement to commit a crime, such as is submitted on the part of the applicant, because that concept is foreign in effect to section 7(a) in particular of the Code.

The only place where a common agreement to have an unlawful purpose ‑ and my learned friend for the applicant used this expression in the course of his argument ‑ common unlawful purpose is a term of art and is used in section 8. So the courts have routinely said that in Criminal Code jurisdictions that acting in concert is not a term of art, and is not a head of liability in Code jurisdictions in the same way that it is under the common law. And that probably deals with the respondent’s argument in relation to ground 2, that when his Honour was asked, what does acting in concert mean, in the context of this case, his direction was entirely orthodox in that sense because the acts of both accused in combination, having regard to the circumstances of the case, indicated that they were acting in a sufficient way that one’s acts could be attributed to the other.

Can I just return perhaps to ground 1 briefly. In the context of ground 1, and I might be repeating myself so I will not go too much into it, but the jury were directed that each accused had to be found beyond reasonable doubt to have committed an act which contributed to the harm, and that is clearly apparent at – that is question 2 of the first pathway, and his Honour explained it in that way on a number of occasions. So only if the members of the jury were satisfied that each of them had contributed to the harm could the applicant have been found guilty, and that is entirely relevant, in my respectful submission, to the issue in ground 3, because ground 3 assumes that the State could not prove that the acts of both of them contributed to the grievous bodily harm.

That is a divergence from what was argued in the court below in the sense that the argument that the Court of Appeal was dealing with was whether the discrete acts could be identified. What is now suggested, in my submission, is that the applicant is saying that the medical evidence was not capable of proving that they each contributed to the harm. There was, of course, much more evidence than just the medical evidence in this case. There was the closed‑circuit television footage and there was also evidence of witnesses and it was entirely open to the jury to find that each of the two had contributed to the grievous bodily harm. Again, the fact that they did not resort to the second pathway indicates that they did, in fact, find that each contributed.

The applicant claims, by ground 3, that it was open to the trial judge that the Court of Appeal erred in finding that it was open to the trial judge to leave the first pathway in circumstances in which the State was not able to prove which acts of which particular accused was a cause or materially contributed. This is a traumatic brain injury. Each of the applicant and Mr Webb made contact with the complainant’s head. It was more than feasible, having regard to the directions in relation to causation, that the jury would find that the conduct of each of them contributed.

I probably cannot take ground 3 any further, other than that. The reference at appeal book 188, on the part of the applicant to what is said to have been the State’s case – this appears at paragraph 10, just above line 20, the reference by the State Prosecutor at that point:

“And we can’t say which blow caused the brain injury.

With respect to the applicant, the transcript is much more extensive than that and the State went on to say:

It could have been one blow, or a combination of multiple blows. But for s 7(a), the State says it does not matter, because they were acting together, or acting in concert.”

So, they each did one act or multiple acts as part of a series of acts that constituted the offence of grievous bodily harm. So, that is how the State will be presenting the section 7(a) case. So, the reference to which my learned friend – the reference my learned friend makes at page 188 is, in fact, to the section 7(c) case. So, it is misconceived to say that the State case was anything other than for the first pathway, both of them contributed to the harm.

Once that is accepted, then there is no difficulty with the Court of Appeal’s findings in relation to any of the three matters which are raised at page 177 of the application book. In that context, my learned friend submitted in the course of the oral submissions that in relation to paragraph 5(c) on page 187 the Court of Appeal answered no to that question.

In my submission, in the way this ground is put the Court of Appeal did not answer that question in the negative. The acts of the particular accused sought to be held liable in this case did cause or materially contribute to the grievous bodily harm and the Court of Appeal’s decision necessarily found that to be so in order for the applicant to have been able to be convicted under the first pathway because that was the direction of the trial judge.

Unless I can assist your Honours further, those are the respondent’s submissions.

GAGELER J: Thank you very much. Is there anything in reply?

MR KARSTAEDT: I am sorry, yes. Thank you, your Honour. Your Honour, firstly, with regard to ground 3, as I have said in paragraph 12 at page 188 of the application book, the State expressly disavowed reliance on the applicant being liable as a 7(a) offender, other than by virtue of acting in concert, and stating that the State case was not that the jury could be satisfied which accused caused the relevant injury; I have referred to the pages of the transcript.

At the hearing of the appeal in the Court of Appeal this was confirmed by the State. The State’s case left to the jury was that it could not be said which accused caused the harm, but that under this pathway this was required to prove that. This was said multiple times, both during the trial and at the hearing of the appeal.

With regard to the second element left for the jury, the Court of Appeal held that that was a reference to their acts in totality causing the harm, not to the individual acts. There was actually a ground of appeal that said that the verdict was unreasonable because the jury could not have found this, and the Court of Appeal said, in light of what the State said its case was at the trial and the evidence, what the trial judge meant was that the acts in totality caused, not that the individual did.

Your Honours, just going quickly to ground 1, my learned friend said the distinction between defences that negative unlawfulness and excuses which negative criminal responsibility only applies to aiders – only applies to the position of an accessorial offender, not where there are two principal offenders. That is not correct because Pickett’s case involved consideration of the liability of the appellant, not only as an aider but also expressly as a party to a common unlawful purpose and as a co‑principal offender and in the consideration of the appellant as a co‑principal offender pursuant to a joint common purpose.

This was section 8 of the Code; the court said that a defence that negatives unlawfulness as opposed to one which negatives criminal responsibility would affect the liability of the appellant so that the appellant would not be guilty and that is exactly what the court’s paragraph 43 of the judgment and what Justice Nettle said at 102 and 103 of the judgment, that was in the context of all accused where the conduct of another accused is attributed to that accused, including parties in that case who are acting in
pursuit of a common purpose and on both principal offenders. Thank you, your Honour.

GAGELER J: The Court will adjourn for a short time to consider the course which will be taken in this matter.

AT 3.12 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.24 PM:

GAGELER J: There will be a grant of special leave to appeal in this matter limited to grounds 1 and 2. Would it be fair to treat this as a one‑day case, Mr Karstaedt?

MR KARSTAEDT: I would say yes, your Honour.

GAGELER J: Ms Forrester? I am taking that as a yes, thank you.

MS FORRESTER: Yes, your Honour. Sorry, your Honour.

GAGELER J: The Court will now adjourn.

AT 3.25 THE MATTER WAS CONCLUDED