Rigney v The Queen; Mitchell v The Queen; Carver v The Queen [2022] HCATrans 112 (17 June 2022)

Last Updated: 20 June 2022

[2022] HCATrans 112

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A38 of 2021

B e t w e e n -

ALFRED CLAUDE RIGNEY

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Adelaide No A39 of 2021

B e t w e e n -

BENJAMIN JOHN MITCHELL

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Adelaide No A42 of 2021

B e t w e e n -

AARON DONALD CARVER

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

KEANE J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND SYDNEY

ON FRIDAY, 17 JUNE 2022, AT 11.33 AM

Copyright in the High Court of Australia
KEANE J: In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.

MR S.G. HENCHLIFFE, QC appears with MS J.S. DANIEL for the applicant in A38. (instructed by Barbaro Thilthorpe Lawyers)

MR A.L. TOKLEY, QC appears with MR G.N.E. AITKEN for the applicant in A39. (instructed by Noblet and Co)

MR T.A. GAME, SC appears with MR K.G. HANDSHIN, QC for the applicant in A42. (instructed by Access to Justice Law Firm)

MR M.G. HINTON, QC appears with MR W.M. SCOBIE for the respondent in each application. (instructed by Director of Public Prosecutions (SA))

KEANE J: Yes, Mr Henchliffe.

MR HENCHLIFFE: May it please your Honours. Mr Rigney seeks the order that filing the application for special leave within the time required by the rules be dispensed with.

KEANE J: Any objection to that course, Mr Hinton?

MR HINTON: Sorry, your Honour. There is none.

KEANE J: You have that extension, Mr Henchliffe.

MR HENCHLIFFE: Thank you, your Honour. Your Honours, Mr Rigney’s application for special leave has a single ground of appeal, and that is that the Court of Appeal erred in holding he could be convicted of constructive murder pursuant to section 12A of the Criminal Law Consolidation Act according to the principles of extended joint criminal enterprise without proof that he contemplated that a co‑participant in their agreed crime might commit an intentional act of violence that caused the death of another. It is the “caused the death of another” that is the issue of note.

The issue raised is what is meant, in relation to the principles of extended joint criminal enterprise, requiring that an accused foresee the commission of the incidental crime that is – just what is it that the accused must foresee? Is it all the elements of the crime, or is it only some? In the case advanced ‑ ‑ ‑

GLEESON J: Mr Henchliffe, does this provision have any analogue except in – in any other State?

MR HENCHLIFFE: Your Honour, it has no direct comparator, though there are provisions in Victoria and New South Wales which have a constructive murder provision, but not in quite the same terms as the South Australian version.

GLEESON J: But do you submit that this appeal would have any implication in relation to those provisions?

MR HENCHLIFFE: In my submission it may well have an implication, particularly with respect to New South Wales, where the principles of extended joint criminal enterprise continue to be the same as in South Australia, because it is the combination of the statutory murder and those principles that have to be considered jointly. It may have less application in Victoria, though it may still have some application there, too.

In this case, the trial judge left two pathways for murder to the jury. The first was common law murder with the principles which then the joint criminal enterprise applied, and the second path was constructive or statutory murder with the common law principles for extended joint criminal enterprise applied. We submit that for both pathways to guilt, it had to be proven that the accused foresaw a possibility that a co‑participant in their agreed enterprise might not just commit an act of violence, but one which caused the death of another. That was not how the jury was directed. In our submission, the ‑ ‑ ‑

EDELMAN J: Mr Henchliffe, this application is presented by the applicants and by the Crown in a binary way. As I understand the applicant’s position is that the contemplation needs to be a contemplation of death, that death will occur, whereas the Crown’s position is that the contemplation needs to be only any intentional act of violence. But there may be, may there not, an intermediate position where what needs to be contemplated is that the acts of the general nature of those that caused the death were within the scope of the contemplated application of the joint enterprise?

MR HENCHLIFFE: Yes, I accept that, your Honour. That was one of the alternative ways in which we argued the matter previously below. Certainly, there was discussion below about whether there was a type of act that had to be contemplated in order for liability to attack, so I do accept that it is not just black and white, there is a middle ground as well that could be a way in which the law actually applies here.

In our submission, the statements of this Court in the cases concerning extended joint criminal enterprise, such as McAuliffe v The Queen and Gillard v The Queen, are at the very least ambiguous as to what it is that the accused must foresee. Is it all of the elements of the incidental crime or is it just some of them and, if so, which of them? So, in our submission, that issue has not been explicitly resolved before and is one worthy of this Court’s attention.

The court below reasoned that guilt of common law murder according to the principles of extended joint criminal enterprise only required proof that the accused contemplated the possibility a co‑participant would commit an act intending to cause grievous bodily harm or death but not that they needed to commit – contemplate an act that caused death, despite there being obviously an element of the crime of murder.

We have put in our written application for special leave reference to another decision of the Full Court of the Supreme Court of South Australia in R v Jones, a decision in 2006, and in that decision the court held that guilt of common law murder according to these principles of extended joint criminal enterprise required proof that an accused foresaw the possibility that a co‑participant might, firstly, unlawfully kill the deceased and, secondly, do so with an intent to kill or cause grievous bodily harm.

So, in our submission, the case of Jones stands for the proposition that we say is correct, that foresight of the possibility that death will occur to another person is necessary for there to be liability according to extended joint criminal enterprise.

EDELMAN J: Mr Henchliffe, is the underlying principle for either joint enterprise or extended joint enterprise arising from cases like McAuliffe or Miller that what is being attributed to the accused person is the acts of another?

MR HENCHLIFFE: Your Honour, I know there are mixed views in the court with respect to whether the attribution is of the acts or of the liability for the acts. In my submission, I understand from IL v The Queen that a majority have fallen on the side of the acts that are attributed, that is the current law.

EDELMAN J: If that is so, why would foresight of the actual consequence be relevant to attribution of the acts, rather than foresight that acts of that type might occur or, of course, that acts of that type were within the scope of the agreement or the enterprise?

MR HENCHLIFFE: We have in this case a fairly unusual example of the application of extended joint criminal enterprise because the actual agreed crime did not involve any act of violence at all and that does make this a rather unusual Crown case. Normally, the acts that are the agreed acts include the acts of violence which then make it much easier for one to prove and to see how things fit together. Here, we have an act that caused death, which was not part of what had been agreed at all, and not even an act of violence had been agreed. So, the contemplation of something completely outside ‑ ‑ ‑

KEANE J: But you are conflating what is in contemplation with what is agreed. Here, you have a number of men and a baseball bat entering a house to steal drugs. They might not have agreed on assaulting anybody, but it seems rather a stretch to say that they did not contemplate the use of a baseball bat on someone who might try to stand in their way.

MR HENCHLIFFE: Well, with respect, there was no evidence of a baseball bat. I was one of the trial counsel and certainly that was not the way in which the case was put that one of them had a baseball bat. There was evidence that one of them may have had a stick. Extremely poor CCTV showed him holding something, but it was very difficult to know what it was.

EDELMAN J: There was evidence of a long, dark object that was held, and it was referred to somewhere as a long, dark object or bat, or something like that.

MR HENCHLIFFE: Yes, it was a stick or a bat – it may have been a branch – it was a long, thin object – that was really as good as one could tell from the video.

KEANE J: But when we are talking about what is in contemplation, you are not suggesting, are you, that what people have in contemplation is limited for what they have sort of sat down and actually expressly agreed?

MR HENCHLIFFE: No, no, I am not saying that, your Honour.

KEANE J: We are talking about a situation where a number of men are mounting a home invasion to steal someone else’s drugs.

MR HENCHLIFFE: They were mounting an operation to steal the drugs not knowing whether someone would be in the house or not, but it was a residential property and there was obviously – it would not have been unreasonable to contemplate there might be someone living there.

KEANE J: And, therefore, not unreasonable to contemplate that there might be a confrontation with someone who objects to having his drugs stolen.

MR HENCHLIFFE: No, I accept that, your Honour – that could have been within contemplation. Indeed, mostly the jury found that. So, I do not quibble with those propositions. But, in our submission, there is a difficulty, at least in South Australia, because there are now two decisions of equal authority, Jones and this present case, which, in our submission, are quite inconsistent in terms of one saying that it is required for the accused to contemplate a co‑participant will unlawfully kill another, and obviously for the present case, to say he does not need to contemplate that at all for the purpose of common law murder. In our submission, there is a need to clarify the law on that issue because of these contradictory authorities.

In respect of constructive murder, which was left to the jury, the jury was directed that that required only the contemplation – sorry, firstly, with respect to constructive murder, we have firstly the agreed offence, that of aggravated serious criminal trespass with intent to steal. Now, that was an offence that involved no element of violence. What was left to the jury was that they needed to.....find that Mr Rigney was part of a joint enterprise to commit that offence, but then also that he contemplated that any act of intentional violence might be committed – which is another element of the section 12A statutory murder.

It was not put that he needed to contemplate that an act of violence causing death was caused, or that he had to contemplate an act of violence of the nature of that which did cause death and, in our submissions below, we said that either of those propositions were correct. We put more closely that the elements are what are needed to be contemplated by him and therefore he needed to contemplate that the act that might occur might cause the death of another. In our submission, that was consistent with what was said by the Full Court in Jones’ Case, that you need to contemplate not just the act, but also the consequence of the act.

In our submission, this is an appropriate case for a grant of special leave. The words by which this contemplation was created, that is, “voluntary extended joint criminal enterprise” was created, in Chan Wing‑Siu in 1984, were the words of Sir Robin Cooke, that an accused will be guilty of a crime that is “foreseen as a possible incident of the common unlawful enterprise”.

In our submission, to foresee the crime does require foreseeing the elements of the crime, all of the elements of the crime. In the case of murder, one of the elements is the death of another person, and in our submission, that does raise questions of general importance and also for special importance for South Australia and New South Wales.

Your Honours, those are my submissions in respect to Mr Rigney’s sole ground of appeal, but before I finish, I note Mr Mitchell has other grounds of appeal in his special leave application at application book
page 444, one of which, in his first ground of appeal, is that the Court of Appeal:

erred in law in considering that the doctrine of extended joint criminal enterprise (the doctrine) applied to cases of –

constructive murder at all. If the Court were minded to grant leave on that ground to Mr Mitchell, Mr Rigney would also seek to amend his application for special leave to adopt that ground and adopt the submissions that Mr Tokley will no doubt make in a moment. Secondly, Mr Carver’s application for special leave to appeal, at application book 478, contains two grounds of appeal, and if the Court were minded to grant special leave to him on ground 2, namely that the court below:

erred in holding that liability for common law murder on extended joint criminal enterprise principles did not require the prosecution to prove foresight of the possibility of an act causing death -

Then Mr Rigney would also seek to add that ground to his own application so he might have special leave to appeal on that. So, I am simply mentioning that now for completeness, in view of going first. If the Court pleases, those are my submissions.

KEANE J: Thanks, Mr Henchliffe. Mr Hinton, is it convenient to you if we hear the counsel for the other applicants first and then we hear you?

MR HINTON: Yes, indeed.

KEANE J: Very well, then. Mr Tokley.

MR TOKLEY: Thank you, your Honour. First of all, may I apologise to your Honours that I cannot see your Honours. There was a last‑minute glitch in the matter. Second, your Honours, we also need an extension of time. I imagine that is not opposed by Mr Hinton.

KEANE J: Mr Hinton, is that opposed?

MR HINTON: That is not opposed. No, your Honour.

KEANE J: You have your extension, Mr Tokley.

MR TOKLEY: Thank you, your Honour. Your Honours, obviously I do not propose to cover the same ground that has been covered by Mr Henchliffe – that would be a waste of the Court’s time. It seems to me, your Honours, in light of the questions that have fallen from your Honour Justice Gleeson about whether there are analogues in the other States, and from your Honour Justice Edelman in relation to the binary way in which the matter has been approached, that the error focus for me is to, first of all, say, in my respectful submission, this case would assist in the way in which analogue provisions are approached interstate because of the general way in which the question arises – which is, is there an inconsistency between, on the one hand, the formulation of the general principle concerning joint criminal enterprise and extended joint criminal enterprise in Miller’s Case which, as your Honours know, adopts the formulation in McAuliffe – whether there is an inconsistency between those basic principles – or that basic principle – and the way in which section 12A of the Criminal Law Consolidation Act has been interpreted by the court below.

That goes to the point, really, that your Honour Justice Edelman raised about whether there is really a binary question here or not. May I say a couple of points in relation to that? The first is, Mr Henchliffe did mention did mention it was put in the court below that it was not simply a binary choice, that there may be other sorts of acts that should be – intentional acts of violence – that should be contemplated by the parties. So, that was an issue. But, the way in which, I think, the Court of Appeal dealt with it was in terms of a binary choice. The second is that ‑ ‑ ‑

EDELMAN J: Just on that point, Mr Tokley, if that is a matter that you wish to raise in this Court, you may need to give some attention to your proposed grounds of appeal if this Court were to grant special leave on that issue.

MR TOKLEY: Yes, I understand, your Honour, and I appreciate and thank your Honour for raising that matter. Your Honours will know that in the case – one of the matters we refer to in justifying, or seeking to justify, a grant of special leave in the matter, is that in the case of IL v The Queen [2017] HCA 27; (2017) 262 CLR 268 at 312 in paragraph 107, his Honour Justice Gageler dealt with the issue of extended joint criminal enterprise and if I may, with your Honours permission, just read the passage – I do not know if your Honours have it open because I cannot see you, but the relevant part of the passage is:

Whether criminal responsibility attributed by operation of the doctrine of extended joint criminal enterprise is primary or derivative and how, if at all, the doctrine of extended joint criminal enterprise might intersect with constructive murder are questions which do not now arise for consideration.

In my respectful submission, this case – the case raised by the applicants – does give rise to that question, how, if at all, does the doctrine of extended joint criminal enterprise intersect with constructive murder, given the way in which constructive murder in this State has been expressed, namely an intentional act of violence by one person committed in the course or furtherance of another crime and causing the death of another person.

So, that is the first main point I wanted to make, that this is a suitable vehicle for the airing of that issue. It has been identified by this Court as a matter that might arise, and that might be dealt with on another day. In relation to this particular matter, Mr Mitchell - as your Honours will know from the transcript - gave evidence at trial and his version of events was that he was waiting in his car and did not go to the grow house, so there is a question there as to whether, if his version of events was accepted by the jury – and there is no reason to indicate that it was not accepted by the jury – he could still be found guilty of murder on the basis that he contemplated merely an act of violence without being anywhere near the grow house or in the grow house. There is, as we said in our written submissions, some suggestion and some support for the idea that he did not go into the grow house.

So, I take on board your Honour Justice Keane’s point about someone carrying a stick and going to the grow house, but in the case of Mr Mitchell, he is factually distinct in that regard because, as I say, his evidence was that he did not go into the grow house and there is some support for his version of events. But nevertheless it would be possible for the jury in this instance to convict him still on the basis that he might have contemplated an act or any intentional act of violence for the purposes of section 12A of the Criminal Law Consolidation Act.

I do not think I need to take your Honours to the various passages in the summing‑up of the trial judge because it is pretty clear, in my respectful submission, that his Honour did sum up in the way in which we have alleged in the written applications for special leave to appeal. But if it is of assistance to your Honours, in my respectful submission, the summing‑up and the way in which his Honour summed up on extended joint criminal enterprise in the context of section 12A can best be seen at application book pages 50 to 51, 61 to 63, 69, 277 to 278.

With respect to this matter, your Honours also may know that in IL her Honour Justice Gordon addressed the question of the intersection of extended joint criminal enterprise and also statutory murder and called into question the decision of the New South Wales Court of Appeal in R v Sharah (1992) 30 NSWLR 292 and in particular at pages 297, 298 and 303 in which Justice Carruthers delivered the lead judgment, and that was agreed to by their Honours the Chief Justice, Chief Justice Gleeson, and also Justice Smart. In my respectful submission, if this matter is.....to special leave to appeal, that case and the principle that it seems to stand for would also arise for consideration, which is the basic point that we are trying to make here.

Your Honours, I do not think I need to take your Honours to the decision of the Court of Criminal Appeal. It is, in my respectful submission, clear that their Honours did take an adverse view, or at least a view adverse to the applicants in this matter as to what needed to be established and came to the view that all that the prosecution needed to demonstrate was that they had contemplated an act of intentional violence, including, for example, a smack on the back of the leg.

Your Honours, as Mr Henchliffe mentioned, we do raise as a separate ground the question of whether extended joint criminal enterprise can apply at all in these circumstances, given the nature of the basic principle. Without wishing to take your Honours back to a point that your Honours are already familiar with, the particular passages that we rely upon in Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at 387 in paragraph 1 is the statement by the plurality in judgment:

In this context, the doctrine holds that a person is guilty of murder where he or she is a party to an agreement to commit a crime and foresees that death or really serious bodily injury might be occasioned by a co‑venturer acting with murderous intention and he or she, with that awareness, continues to participate in the agreed criminal enterprise.

Also, paragraph 45 where their Honours say – in again the second half of the paragraph, on page 402:

It is to be appreciated that in the paradigm case of murder, the secondary party’s foresight is not that in executing the agreed criminal enterprise a person may die or suffer grievous bodily harm – it is that in executing the agreed criminal enterprise a party to it may commit murder. And with that knowledge, the secondary party must continue to participate in the agreed criminal enterprise.

To sum up, your Honours, we see that there is an inconsistency between those basic principles, or that basic principle, as extracted from those paragraphs in the plurality judgment in Miller and the way in which the Court of Appeal here dealt with the question of extended joint criminal enterprise. May it please the Court, those are my submissions.

KEANE J: Thanks, Mr Tokley. Yes, Mr Game.

MR GAME: If the Court pleases. We also need an extension of time, and I imagine that Mr Hinton does not oppose that.

KEANE J: Mr Hinton, any objection?

MR HINTON: No objections.

KEANE J: You have the extension, Mr Game.

MR GAME: Thank you, your Honours. Can I commence with the statute, and could I say this – this is quite a contentious issue about whether you can use extended joint criminal enterprise to feed into constructive murder, to get to murder. Sharah, which is the New South Wales case about section 18, which is in slightly different terms addressed in IL, Sharah really is the only authority that actually supports that proposition.

Now, if I could take your Honours to section 12A, and I have to say I am picking up here an argument that appears in Mr Mitchell’s application – if you look at section 12A, what we have is a joint criminal enterprise to commit aggravated criminal trespass. That is the major indictable offence. It is joint criminal enterprise to do that, and that is attribution of acts. But when you talk about the extended joint criminal enterprise, that is attribution of liability. It is foresight of what somebody else is going to do. It is very difficult to see how you can feed extended joint criminal enterprise by attribution in that form into a person in section 12A. That is an important question raised by Mr Mitchell’s application, which we join. That is the first thing.

EDELMAN J: There may be a big question about that, Mr Game, as to whether extended joint enterprise is just extending the concept of attribution of acts to circumstances where there is also sufficient foresight of something, some relevant circumstance, that allows you to attribute further acts rather than to engage a completely different principle of liability that is concerned with attributing someone else’s liability.

MR GAME: Yes, but this is a grey area, your Honour. The texts do not all say the same thing. Some people call it direct liability, some call it derivative liability, or parasitic liability. It is a contentious question, and it is a contentious question raised by this case, but even if it were the case that you could feed it into the person and make that work, you would still have this question about what it is that you are making them liable for, and the work – the thing that you are making them liable for is not just an act, an intentional act of violence, but thus causes death, which is a consequence, therefore, a physical element to which a mental element does not attach.

I will come to Miller shortly, but part of the justification for Miller is the foresight of murder. That is explicitly part of the reason for its justification for not following Jogee. So, one cannot speak – talk the thing up here, for the purpose of.....it and then talk it down for the purpose of allowing people to be convicted, and these people have – the provisions here, they carry standard - minimum non‑parole periods of 20 years. Now, if I could take your Honours ‑ ‑ ‑

EDELMAN J: Mr Game, you can come to this and it may only be a fine distinction, but there may be a difference between acts which, of their nature, are likely to cause death and acts which, factually, do cause death.

MR GAME: Yes, I would say that a better way to put it would be capable of causing death might be the better way to put it, to have that capacity. If granted leave, I would probably put it in those terms. That is kind of how we frame it in our ground, and that is a way that gets you to the idea. It gets you to the connection, gives it some life, and makes it work as a provision if it applies.

So, one has to think carefully about how it is going to work and yes, it may not be that you get there by “thus causes death”. “To have the capacity to cause death” makes the nexus. So, it may be that, as your Honour says, it is not binary. It may be that.

But if you go to what actually was directed in this case, and bearing in mind, for example, Mr Mitchell’s circumstances, it was quite unclear about what happened. But if you have a look at what is said in pages 61 and 62, the judge was at pains to point out that it did not have to be the blow that caused the thing, it could be something else, much less. But the bottom of page 61, it could be a “threat or a menace”. On page 62, they kind of make it that one, et cetera, may commit “an intentional act of violence”, no connection to the thing that actually happens, in fact it is specifically eschewed.

Then, at the bottom of the page, we see might strike “on the back of the leg”. Now, Justice Peek dismissed that on the basis that people would know that if you are going to do a home invasion, then something worse is going to happen. That cannot be an answer to this problem.

So, what we have is an act of violence de minimus. It may not even be physical contact. The point I made about this question about it not needing to be the thing is emphasised at 69 – not what actually happened. So it is actually severed from it, and deliberately so. When the jury are redirected on this subject at page 278 – no need to go to it – they are redirected because they ask questions, the judge re‑emphasises the disconnect, that is to say, they were at pains to break up the connection with the very thing that one is trying to get to, which is a blow that has the capacity to cause death. The jury are being told, ignore that. It does not necessarily involve a stick or anything, it could just be a hit a blow, a menace, a threat and it is contingent if there are people there.

So, very little connection to continuing participation, which is always treated as an essential element of extended joint criminal enterprise. So that Mr Mitchell sitting in the car, he does not even have to do anything to be caught by this. We really are throwing out fundamental principles of things that make people liable in a meaningful way for murder – we are throwing them away if one lets this case go by.

May I take you back then to the extended joint criminal enterprise directions. Again, if one looks at the elements of murder, grievous bodily harm is not a physical element of murder, death is a physical element of murder. If we go to the directions that are given on this subject, they are to be found first at pages 50 to 51 of the application book. At 50 to 51, we see this. It says here, at the top of 50:

did the accused contemplate that in carrying out . . . if they came across ‑ ‑ ‑

again, contingency, go about participation if they come across – does not say and continued:

might inflict violence -

Now, violence – we know what violence has been spoken of – it has been spoken of as being a menace, or a threat, or a strike to the – now, violence is no element of murder and it is completely irrelevant to introduce that idea here. May I just say this. In Miller, which is – it is really important to remember that in Miller, in not following Jogee, they said the reason is because we are not catching bystanders because the people contemplated in executing the.....enterprise, the party to it may commit murder.

That is different actually in some respects than the language in McAuliffe which refers to death or serious injury. But even if it was serious injury, this is a mile away from that. When it says – it also says:

killing that person or causing really serious bodily harm -

and we raise that as a point too, because if it says, “or causing really serious bodily harm” and that is all that is in contemplation, then the natural consequence might be far less than actually causing death – so that one has to appreciate that it is not getting to the contemplated crime of murder by saying that. We would put a fallback position that – or at least might inflict grievous bodily harm.

That is kind of a step back, but Chan makes it clear that the principle relates to the contemplated crime, and that is the justification for it. These directions which appear here and are repeated, come nowhere near to
speaking in the language of either McAuliffe or Miller, but Miller in particular. So, there is that question as well.

What one has in this case then are three quite important questions: one, does section 12A apply at all; two, if so, what it is that one has to have in mind and, as I say, the position may be the position that your Honour Justice Edelman puts that we think may well be the correct position – something capable of having the capacity to cause death. Then we have this further question about do we throw away in extended joint criminal enterprise what it is that may be applicable.....talk about intent, and we say Miller makes it plain that that cannot happen either.

So, really, this case raises in the South Australian context a - a question left open by IL. We say that it is worth noting that the language of section 18 in IL which was a joint enterprise case, not an extended joint criminal enterprise case, although the judge had made a mistake about it at first instance – it was a joint enterprise case, so we are one removed from that. But this section 12A raises a much more acute problem about how you make it work from the language of section 18 of the Crimes Act.

So that is really – that is it in a nutshell. If we have leave, we would seek to amend in two respects: one, to pick up Mr Mitchell’s argument about section 12A; two, to extend the proposition about contemplation of death or serious injury in our extended joint criminal enterprise part of our argument. So those are our submissions, if the Court pleases.

KEANE J: Thank you, Mr Game. Yes, Mr Hinton.

MR HINTON: If the Court pleases. I will deal with the two arguments that are now common to all three applications in central and then come to the three distinct arguments made by Mr Mitchell. Can I first deal with a factual matter, and that is Mr Mitchell’s case. He did give evidence, and he was the only one of the confederates to give evidence, and he did say that he did not enter the house.

However, as part of the Crown case, that was challenged, and there was a powerful piece of evidence that was laid before the jury that gave rise to the question of whether or not Mr Mitchell was truthful in his claim not to enter into the house, and that was the presence in the house of a set of secateurs that the police found, upon which or from which a DNA profile was obtained, that profile matching Mr Mitchell’s. Now, the secateurs also had the remnants of cannabis upon them, and of course the cannabis was taken, and we also note that cannabis remnants were found in Mr Mitchell’s house subsequently. So, there was a basis for the jury to reject the explanation provided by Mr Mitchell, and to consider that he actually did enter the house.

Can I also say, again factually – and it is probably very relevant to your Honour Justice Edelman’s question about the middle ground and whether or not this is a suitable vehicle to entertain the middle ground – the facts and circumstances there are this. These confederates did not park immediately outside the house. They parked around the corner. Then, as they walked to the grow house, they arm themselves on the way. There is the stick, the bat – whatever you want to call it that was picked up – and there were also remnants of bricks which were similar to those from a nearby building site as part of the route taken to the grow house, that were located in the grow house. So, all who were party to that procession from where the cars were parked to the grow house, which on the prosecution case included Mr Mitchell, would have seen that some of them armed themselves. To add to that ‑ ‑ ‑

EDELMAN J: Although, Mr Hinton, do you accept that it was open to the jury to conclude that, on a standard beyond reasonable doubt, Mitchell was not with the others, but nevertheless, on the basis of the directions of the primary judge, that Mitchell should be convicted?

MR HINTON: It would have been open, yes. In Mitchell’s case, yes. But it would have meant that the jury had to put aside the DNA evidence to which I referred your Honours, and I cannot for the life of me, with respect, see how they could do that. That evidence was powerful, and it was strong in its opposition to Mr Mitchell’s claim not to have entered the house.

Can I come, then, to the first of the common arguments? I frame the first of the common arguments as to whether or not where an extended joint enterprise is overlaid on the top of common law murder there is – or there should be – a requirement on the Crown to prove that the secondary participant contemplated that the act that the primary participant performed would cause death.

In my submission, that question has been authoritatively determined by this Court in McAuliffe. If your Honours have McAuliffe with you, I invite you to look at pages – sorry, at the direction at 113 – the directions are to be found at about point 7, the paragraph commencing “The trial judge separately directed”. Bear in mind here that McAuliffe’s defence was that Mr Davis – who was the primary participant – exceeded the joint criminal enterprise.

The directions, of course, extend to not only inviting the jury to consider what was within the scope of the joint enterprise but an extension – over on to page 113. Those directions, at 118, are found to be correct. So, the question of the intersection of common law murder and extended joint criminal enterprise has been authoritatively determined.

Your Honours also have open at the moment 118 – I invite you to look at the reference at the very top of the page to the judgment of Sir Robin Cooke in Chan Wing‑Siu and the general principle, because it is this general principle that unites both a joint criminal enterprise and an extended joint criminal enterprise.

EDELMAN J: Mr Hinton, you may be right about all of this, but does that necessarily answer the question of whether the principles apply in exactly the same way when you are dealing with a deemed murder or a felony murder – a statutory murder?

MR HINTON: That is the second question which I was going to come to, but the short answer is the principles do say anything in the way of a statutory indication to the contrary. The principles derive from the common law plainly. It overlays generally - I think in the joint reasons in IL that that was embraced. So, the principles would apply equally here unless there was something in the provision, section 12A, which indicated to the contrary.

EDELMAN J: That is the very question, is it not?

MR HINTON: Well, it is, except here this becomes a poor vehicle because of the nature – because of the factual circumstances of the case. It is not a case about a simple tap on the leg. It is not a case about any form of – any menial act of violence. My reasons in drawing your Honours’ attention to the factual circumstances that the Crown proved – by that I mean the cars being parked around the corner, the procession and the arming on the way – what was plainly in contemplation was not a tap on the leg and what plainly occurred was not a tap on the leg.

So, this middle ground, to the extent that it could be explored, this is just not the right case for that. This was an intention to go in in number, into a grow house and to seize the crop and to resist all force offered – sorry, to use all force necessary to resist any resistance offered.

EDELMAN J: Mr Hinton, I should not be taken as suggesting any necessary formulation of what the middle ground might be, but one way that Mr Game put it was that what needs to - the act that needs to be contemplated is an act that has the capacity of causing death. Even accepting that a tap on the leg might be very remote from the circumstances of this case, one might also say that it is possible that simply arming themselves with bricks or a long object might not be sufficient to conclude that there was a contemplation of acts that had the capacity of causing death.

GLEESON J: Mr Hinton, also is not the difficulty that the direction was expressed in those terms?

MR HINTON: Can I answer your Honour Justice Edelman’s question first and then I will come to your Honour Justice Gleeson’s question if I may? Firstly, I did not mean to take your Honour to be expressing anything definitive about the middle ground. My point is that – whatever the scope of that middle ground – this case factually is beyond it. When I come to Mr Game’s contention, I deliberately took your Honours to page 118 of McAuliffe, to identify the commonality of the general principles that underlies, or underpins, joint criminal enterprise and extended joint criminal enterprise and what must be contemplated.

Your Honour Justice Edelman, and Mr Game, respectfully, have inserted what must be contemplated was an act that causes death. But, according to the common law principle, that is not required. It is just an act that might cause grievous bodily harm. So, if we are to add to that, the only source that you can refer to must be section 12A, but all 12A requires is an intentional act of violence. So, with respect, the additional component, the requirement to contemplate an act that causes death, it is additional for which there is no statutory hook and.....is not required.

Can I answer your Honour Gleeson’s question then? The neatest place to find the summing‑up or the summing‑up on extended joint criminal enterprise is 269 and 270 of the application book. At this point the judge is answering a question asked by the jury. I am using the red numbers, if your Honours please. Your Honours will see, on 270, the second large paragraph there, where the question of constructive murder is dealt with and its distinction from common law murder. The direction given with respect to common law murder is on all‑fours with McAuliffe and on constructive murder it is an application of the unifying principle between joint criminal enterprise and extended joint criminal enterprise to section 12A, “an intentional act of violence”. Again, as I have submitted, in this case, there is no reason to think that we were dealing with anything short of a vicious assault.

If your Honours were to entertain the second common ground, and that is the one that challenges the overlay of the extended joint criminal enterprise principles on section 12A, and the requirement put that there must be contemplation of an act that actually causes death, then there will be a carve‑out for those cases which embrace extended joint criminal enterprise and constructive murder.

Now, admittedly, that may be of some assistance in New South Wales, subject to the slight difference of language in section 18(1) of the Crimes Act, but it would mean that you are creating an exception that, so far, applying McAuliffe, has been resisted. So, in my submission, the underlying principle that unifies the two would suddenly no longer be the same where there is, with respect, no reason to distinguish, because the question is always, what was contemplated by the secondary participant.

Can I turn then to Mr Mitchell’s three subsequent grounds, and just to sum up, with respect to the first common ground, and that is the application of the extended joint criminal enterprise to common law murder, that is, in my submission, authoritatively determined by McAuliffe. Your Honours will see it restated in Clayton at paragraph 17 and Miller at 45. With respect to the second common ground, that is, the extended joint criminal enterprise overlaid on section 12A, my submission is that the common principle applies, and the direction given here was correct, and, indeed, to the extent that there might be some middle ground, this is an inappropriate vehicle by virtue of the factual circumstances.

I turn then to Mr Mitchell’s three discrete grounds that the doctrine of extended joint enterprise does not apply to section 12A. That was not argued in the court below. There is no textual support for it. In IL, the joint reasons adopted the assumption of the parties that the common law principles of joint criminal enterprise and the extended joint enterprise did indeed apply to constructive murder. In my submission, where the question has not been raised in the court below and it has – in obiter, but nonetheless seriously‑considered obiter – been embraced by this Court, this becomes an inappropriate case for a grant of special leave on that ground. The next one was the Court of Criminal Appeal referring to:

common knowledge in Australian society that such a grow‑house would likely be guarded –

That was just a comment by Justice Peek, with respect. It was not something said to the jury, and the jury were never concerned with any question of an assumption. They were concerned by evidence of five men going to a house where there was, undoubtedly, a cannabis crop and seizing it by force. So, with respect, that would not give rise to the sort of question that would warrant a grant of special leave.

Then we come to the question of Sharah. In my submission, Sharah is inconsistent with the principle that I have referred your Honours to, derived from Sir Robin Cooke’s judgment that underpins the length between joint criminal enterprise and extended joint criminal enterprise, and that ground alone, if entertained alone, would not warrant a grant of special leave, but if your Honours were to grant special leave with respect to the second common question then, of course, Sharah can be looked at for whatever value it might offer to your Honours.

May I make one or two quick submissions in reply. I have dealt with the question of the binary in the middle ground and this being a poor vehicle. I want to say something about Mr Henchliffe’s reference to R v Jones, the South Australian decision. May I read the paragraph to your Honours. I am not sure if your Honours have it[2006] SASC 189; , 161 A Crim R 511. The critical paragraph is 188 in which the court summarises the elements that would have to be proven to establish liability by way of extended joint criminal enterprise.

May I have 30 seconds longer?

KEANE J: That is just your first warning bell.

MR HINTON: Thank you, your Honour. The first requirement is uncontroversial:

1. The accused reached an understanding or arrangement with another person or persons to assault the deceased; that is, to apply force unlawfully to the deceased.

Uncontroversial:

2. Pursuant to the understanding or agreement, a person who was party to the understanding or arrangement . . . assaulted the deceased.

Again, uncontroversial:

3. While assaulting the deceased, the actor murdered the deceased. This requires proof against the actor of the elements of murder previously explained.

Again, not problematic. When we come to 4, this is where Mr Henchliffe purports to derive support for his argument. I will read it slowly in case your Honours do not have it front of you:

4. At the time the accused reached the understanding or arrangement with the other person or persons to assault the deceased, the accused foresaw the possibility that, in the process of assaulting the deceased, a person who was party to the understanding or arrangement would murder the deceased. This requires proof that the accused foresaw the possibility that a person who was party to the understanding or arrangement would unlawfully kill the deceased and would do so with an intention to kill the deceased or to cause the deceased really serious bodily harm.

Now, with respect to my learned friend, that does not say that it is necessary to prove foresight or contemplation of the fact of death.

EDELMAN J: Nor was that the direction that was given by the trial judge.

MR HINTON: In this case?

EDELMAN J: Yes.

MR HINTON: Yes. We say quite rightly because in a case where what you are concerned with is just an intent – sorry, where the primary participant acts with an intent to cause grievous bodily harm, that is all that is required, and that is the principle for which McAuliffe stands as authority, repeated in Clayton and Miller.

So, you do not need, when you are concerned with a primary participant who acts with an intent to cause grievous bodily harm, to contemplate death. It is enough that you contemplate that that primary participant will commit an act of violence with intent to cause grievous bodily harm for the purposes of common law murder and joint criminal enterprise, or common law murder and extended joint criminal enterprise. If the Court pleases, those are my submissions.

KEANE J: Thanks, Mr Hinton. Mr Game, anything in reply?

MR GAME: Yes, your Honour. So, first, Mr Hinton conflates contemplation with what actually happened and that is not how the trial judge directed the matter and that is not the joint criminal enterprise that was alleged. None of the things that he is referred to were required - the factual things were required for proof of guilt of murder – either on section 12A or on extended joint criminal enterprise, generally. So, one has to go back to what the directions were that were given. That is the first point.

The second point is that we get there on McAuliffe as well because in McAuliffe it is commonplace in a death or serious injury. Here, it is just contemplation of inflicting violence. So, we say, Miller actually ramps it up, consistent with Chan. But, even if you were in the territory of McAuliffe, these directions do not comply with McAuliffe – in a most significant way because the contemplated consequence here is violence – not grievous bodily harm when, as I say, death is the physical element of the offence.

Certainly, IL is about joint criminal enterprise. So, IL is not on point and if one – I know they are dissenting judgments – but if one reads – and
the judgments were – of course, your Honour Justice Keane was a member of the plurality – which decided the case on a different basis altogether. But IL decides nothing about extended joint criminal enterprise, then corrects the trial judge for mistakenly thinking – because the joint criminal enterprise in that case was the manufacture of drugs and because of the language of section 18, that fell within the conduct that sat inside section 18.

It does not work the same way when you construe section 12A because you have to work out how it feeds into the idea of a person inflicts an act of violence. That is a large question – the fact that the question was not raised in the court below is, ultimately, in my submission, beside the point because one has to get to this – one has to get to a proper construction of section 12A – even if one is getting to the point of the contemplation of the possibility of an act done with the capacity to cause death which was, shall I say, the middle ground, or the other ground that we were advancing and that your Honour Justice Edelman was raising with the parties from the outset. So, those are our submissions in reply, if the Court pleases.

KEANE J: Thanks, Mr Game. Mr Tokley, anything in reply?

MR TOKLEY: Yes, if I may, your Honour, just two matters. First of all, I would adopt obviously what my learned friend, Mr Game, has put to your Honours in respect to his response to Mr Hinton’s submissions. The second thing, your Honours, is that in relation to this factual matter that was raised, there is at application book page 98 a reference by the learned trial judge to the secateurs and, if I may – without taking your Honours to it – just read what he said:

The secateurs were seized from 17 Carousel Street. There was a mixed profile of five contributors, including an assumption by Dr Handt that one of the contributors was Mr Gjabri. A person who appeared on the quality assurance register which later turned out to be Brevet Sergeant Buller also had their DNA on the secateurs but Dr Handt’s evidence was that Mr Mitchell was a contributor and the DNA provided strong support, very strong support that he was a contributor on her analysis.

The fact that he was a contributor does not put him in the house, it may – there are obviously other ways in which one’s DNA can get on the secateurs. That was the only factual matter I wished to raise, your Honour. Apart from that, I adopt the submissions of Mr Game.

KEANE J: Mr Henchliffe, anything in reply?

MR HENCHLIFFE: Yes, your Honour. Mr Hinton referred to the appellants being – possibly having remnants of bricks which they collected from a building site which they took to the house in question before they broke in. In my submission, that was really a very speculative suggestion from the prosecution in the case. Most importantly, in the CCTV, even though it was of poor quality, one can see that one of them was holding a stick or a long, thin object. No bricks can be seen in any hands at the same time. At that point they had passed the building site where they would have had to collect them, so there was very little evidence to support that submission.

Just finally, in my submission, this is a good vehicle for a grant of special leave because of the nature of the directions that the trial judge gave to the jury as to, effectively telling them, contemplation of the most trivial act of violence, even a threat, would be enough to be sufficient for these men to be guilty of murder and, therefore, subject to the minimum non‑parole period. Your Honours, those are my submissions.

KEANE J: Thanks, Mr Henchliffe. The Court will adjourn for a moment to consider the course it will take in this matter. Adjourn the Court, please.

AT 12.37 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.41 PM:

KEANE J: There will be grants of special leave in relation to each of these matters. In relation to the indications of an intention to amend the notices of appeal to raise grounds raised by other applicants, the parties may proceed as they are advised. As to how long the matter will take - Mr Henchliffe, how long do you think the matter will take?

MR HENCHLIFFE: Your Honour, I would have thought a day – more than half a day.

KEANE J: Certainly, more than half a day. There are three matters and while there is a lot of commonality, we are going to hear three sets of argument from the appellant’s side.

MR HENCHLIFFE: Yes. I would say at least a day, from my point of view, your Honour.

KEANE J: Mr Tokley, what do you think?

MR TOKLEY: Your Honours, in the Miller matter, the Court gave us two days. I would have thought a day to a day and a half, probably.

KEANE J: Mr Game?

MR GAME: I actually discussed this with Mr Hinton yesterday, or the day before, and we were thinking a day and a half, if you granted leave.

KEANE J: Mr Hinton?

MR HINTON: I agree with the assessment of a day and a half.

KEANE J: Very well. Special leave is granted. The parties should follow the directions of the Senior Registrar to enable the matter to be brought to a hearing.

Adjourn the Court, please.

AT 12.43 PM THE MATTER WAS CONCLUDED