O'Dea v The State of Western Australia [2022] HCATrans 79 (4 May 2022)

Last Updated: 4 May 2022

[2022] HCATrans 079

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P53 of 2021

B e t w e e n -

BRETT CHRISTOPHER O’DEA

Appellant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 MAY 2022, AT 9.46 AM

Copyright in the High Court of Australia

MR S. VANDONGEN, SC: If your Honours please, I appear with MR A.O. KARSTAEDT for the appellant. (instructed by NR Barber Legal)

MS A.L. FORRESTER, SC: If your Honours please, I appear for the respondent with MR S.D. PACKHAM. (instructed by Office of the Director of Public Prosecutions (WA))

KIEFEL CJ: Yes, Mr Vandongen.

MR VANDONGEN: Thank you, your Honour. Both grounds of appeal concern the correctness or adequacy of the directions that were given to the jury in this case about the necessity for them to apply in deciding whether the appellant was guilty by operation of section 7(a) of the Criminal Code (WA).

There is considerable overlap between the grounds of appeal. Both concern the role, if any, that the concept of unlawfulness has insofar as it relates to the act that constitutes an offence. Ground 1 concerns the role that unlawfulness has in determining the scope of the act that constitutes an offence. Ground 2 concerns the role that unlawfulness plays in deciding what acts of another can be attributed to another person who is said to be criminally liable.

KIEFEL CJ: Has the ground shifted a little from the grounds of appeal before the Court of Appeal, particularly in relation to what is now ground 1?

MR VANDONGEN: No. In fact, what happened in the Court of Appeal was that an issue arose about that matter and supplementary submissions were filed by both parties and the submission that is made in support of ground 1 which relies upon paragraph 43 of Pickett v The State of Western Australia was the subject of written submissions made by the appellant at that stage.

KIEFEL CJ: That might explain why it seems to have been dealt with by the court, but it does not really seem to come out of the description of the grounds.

MR VANDONGEN: That is right. In fact, what happened was supplementary submissions were invited about that. The State filed submissions, as I understand it, that directed the court’s attention to Pickett and to this Court’s analysis of Chapter V of the Code and that explains perhaps why the court only dealt with Chapter V of the Code. It did not deal with unlawfulness, whereas the appellant in response in written submissions referred specifically to paragraph 43 of Pickett and to those paragraphs that we rely upon in the judgment of Justice Nettle. None of those paragraphs were referred to by the court, for reasons we do not know. But none of those paragraphs were referred to by the court in their concluding that unlawfulness was not relevant.

EDELMAN J: Mr Vandongen, can I raise a matter with you at the outset relating to your ground 1, and particularly the expression “acting in concert”, which is picked up in the Court of Appeal in a number of authorities. You do not need to respond immediately, but I would be grateful if at some stage you could address this.

On one view of the authorities, the expression “acting in concert”, when it is used in relation to section 7(a), is just a loose use of language that is apt to be confused with the language of section 8, which is of course a section that is concerned with attributing the acts of one person to another. But a better approach may be to see section 7(a) as concerned only with what the common law called “principles in the first degree”, that no acts of others are attributed at all under section 7(a), unlike section 8 or other provisions of section 7, and with one qualification, which may be very significant, that a person on one view might be liable under section 7(a) where their own acts have contributed to a result – such as gross bodily harm or causing death – rather than actually caused the result, provided that the combination of acts that caused the result were all unlawful acts. At some point, if you might address that view of the operation of the expression “acting in concert”, that would be very helpful.

MR VANDONGEN: I can probably address that immediately by noting that, I think since 1977 – at least from the Court of Appeal in Queensland – it has not been construed in that way. Consistent with the view of Justice Lucas, I think in Wyles, and the subsequent decision of Webb, and then following through a number of authorities in Western Australia, including the seminal decision of Warren and Ireland, section 7(a) has always been construed as extending to the attribution of the acts of one person to another person, provided they were acting in concert ‑ ‑ ‑

EDELMAN J: Although in Warren and Ireland, the Chief Justice relied also upon section 7(c), and in Wyles and in Webb, there are statements that - the judges refer to 7(a) as being concerned with principles in the first degree.

MR VANDONGEN: Again, we run into the question of what that means insofar as Osland might inform us about that. Can I say this ‑ ‑ ‑

EDELMAN J: It may not be inconsistent with your submissions ‑ ‑ ‑

MR VANDONGEN: It may not.

EDELMAN J: ‑ ‑ ‑ because the causal rule, both at common law in civil or in criminal law, was always a rule that the combination of acts all had to be acts which were unlawful. But it was a rule that was concerned not with attribution of acts but with joint liability for a combination of events.

MR VANDONGEN: On the basis of causation. Yes. Can I say that one of the problems with the combination of section 7(a) and section 7(b) and (c) that may have contributed to the case that is before this Court is a potential misunderstanding of Warren and Ireland and what was said there. What appears to have been said there, in my submission, is that there are cases in which it is not clear – and it may not be clear to a jury – whether the person whose liability they are considering falls within section 7(a) or section 7(b) or (c). The import of Warren v Ireland appears to have been that it does not matter. The jury does not need to decide which one of those it is, provided they are clear that it is one of those.

That is not the way the jury was directed in this case, and so the Court of Appeal found that there were different pathways and part of the confusion may have arisen because when the prosecutor was being asked questions about this by the trial judge he made it clear that the prosecution case was not, for example, that Mr O’Dea himself, on his own, committed the offence.

GORDON J: Can I just ask some questions about that? The indictment which appears at core appeal book 5 was that, for present purposes, O’Dea and Webb unlawfully did grievous bodily harm to the victim. Taking from what you said then, it was the position that the State could not establish, as I understand it, the jury could not be satisfied that O’Dea did the acts by himself. So therefore, it was what, both, or none of them? Is that the way it was put?

MR VANDONGEN: It ought to have been both or none of them but the second pathway was left, that is, on the basis of aiding, albeit in circumstances in which, at least my reading of the transcript, they could not prove, and did not seek to prove, that either one or the other did the offence – or carried out the offence alone and the other aided it.

GORDON J: When you go to the transcript we have been provided in the Court of Appeal, is it right that the State conceded that it could have charged Mr O’Dea as a single principal offender but chose not to?

MR VANDONGEN: That is correct. As I understand it, there is no dispute in this appeal that the only pathway upon which Mr O’Dea was convicted was on the basis that he was a joint principal offender under section 7(a). In other words, his liability depended upon the acts of Mr Webb being attributed to him.

GORDON J: Thank you.

EDELMAN J: If that is right and section 7(a) is just an attribution of acts rule, is there any scope left for 7(b), (c), (d) or 8?

MR VANDONGEN: Yes, because – and Justice Nettle made this point at paragraph 111, I think, of Pickett – that when you look carefully at section 7(b), (c) and (d), they talk about two different sorts of acts – the act of aiding – section 7(b) and section 7(c) – and the act of procuring and counselling, section 7(c) – and the act that constitutes the element of the offence.

EDELMAN J: Justice Nettle’s approach was one of attributing the liability, not the act. That approach was not taken by the other members of the Court. In (b), (c) and (d), as I read his Honour’s reasons, it is the responsibility that is attributed, not the actual acts.

MR VANDONGEN: I think what his Honour did was to say the criminal responsibility, insofar as Chapter V informs criminal responsibility, is only relevant for paragraphs (b), (c) and (d), to the extent that the act of aiding, or the act of procuring or counselling itself is excused by one of the provisions in Chapter V. But to the extent that it might excuse the actor, it did not. So, it did not attribute liability in that way. His Honour did not deal with – and the Court did not deal with – a concept of unlawfulness and whether that is attributed – and that is really the subject of ground 1 in this appeal.

The Court in Pickett did deal with it tangentially and, admittedly, not in circumstances in which it was an issue, but at paragraph 43 of the joint reasons in Pickett left open the possibility that unlawfulness might be still relevant in terms of attribution – that is, direct attribution. Certainly, from paragraphs 7(b) and 7(c) ‑ ‑ ‑

KIEFEL CJ: That is the hypothetical – their Honours were dealing with the hypothetical where the principal offender may not have been acting unlawfully, which has a particular consequence in relation to aiders and abettors under (b) and (c), but their Honours do not deal with the situation which you raise, which is what happens when they are both principal offenders under 7(a).

MR VANDONGEN: That is right.

KIEFEL CJ: It is not the same consequence, is it, that was referred to in Pickett?

MR VANDONGEN: Well, Pickett at paragraph 43 did not distinguish between any of the paragraphs. It just ‑ ‑ ‑

KIEFEL CJ: But it was clearly dealing with aiders and abettors under (b) and (c) and there are clear consequences if the principal offender is not acting unlawfully in relation to those persons.

MR VANDONGEN: There are clear consequences under paragraphs 7(b) and 7(c), yes, I accept that. The question that is raised by ground ‑ ‑ ‑

KIEFEL CJ: It is a different in relation to two principal offenders under 7(a).

MR VANDONGEN: Well, it is, but we would say that for consistency of construction, when section 7 is looked at as a whole, there is no reason in principle or based upon the text of section 7 that the observation that was made at paragraph 43 of Pickett ought not also to apply to paragraph 7(a).

KIEFEL CJ: It would be a rather unusual thing for a co‑offender to be not criminally responsible on the basis that the jury was unable to convict a co‑offender. That is without actually making a finding of acquittal, verdict of acquittal.

MR VANDONGEN: I am not suggesting that it ‑ ‑ ‑

KIEFEL CJ: But that is the consequence of your argument.

MR VANDONGEN: Not necessarily, because it is not dependent upon the acquittal of a co‑offender, but it is dependent upon the evidence admissible in the case against the accused with whom you are considering and the question in that context is whether or not the acts of a co‑accused are unlawful, not dependent upon the acquittal of a co‑accused.

KIEFEL CJ: We did not have an acquittal here.

MR VANDONGEN: No, we do not.

KIEFEL CJ: It did not go that far.

MR VANDONGEN: No, that is right, and that is why I say it overlaps to an extent with ground 2 because it is concerned with what acts are capable of being attributed to another person in circumstances in which they are acting in concert and whether or not that requires that both of them be acting unlawfully in the sense that both of them would be acting pursuant to a common unlawful purpose.

GORDON J: There is another way of looking at it when you look at section 7(a). It says:

Every person who actually does the act or makes the omission which constitutes the offence -

means that one looks to see what acts are parts of the offence and, as I understand the way you are putting it – I just want to make sure I have this right – because the Crown conceded it needed both the acts of Mr O’Dea and Mr Webb, in a sense because the jury could not work out whether or not Mr Webb’s acts were unlawful, therefore the case had to fail. Is it because then as a result of the defences that were sought to be raised by Mr Webb by way of self‑defence, which made what would otherwise be an unlawful act possibly lawful, as distinct from the Chapter V defences which do not change an act from unlawful to lawful, it remains unlawful but you are not criminally responsible for it. So, you are not concerned with criminal responsibility, you are concerned with the act and the nature of the act.

MR VANDONGEN: Yes.

GORDON J: Do I have that right or wrong?

MR VANDONGEN: That is right.

KIEFEL CJ: That is the distinction between excuse and justification which is accepted by the respondent that that is a perfectly correct distinction to draw. The question is whether it matters.

MR VANDONGEN: We say it does, and we rely upon paragraph 43 of Pickett.

KIEFEL CJ: But you have to relate that to two principal offenders, not to aiders and abettors.

MR VANDONGEN: That is right. The question is whether the entire act, so when we look here at the offence of grievous bodily harm, the act is that the combination of strikings that occurred, some of which – we do not say there is an inconsistency between the finding or the failure to find in relation to ‑ ‑ ‑

KIEFEL CJ: That is how it was approached. That is why I was a bit confused about how it was – that is how it was approached, a factual inconsistency approach in the Court of Appeal, but you are not placing any weight upon that now?

MR VANDONGEN: No, we are not. I think ground 2 included as its particulars the particular argument that we are running today, which is the unlawfulness issue.

KIEFEL CJ: Yes.

MR VANDONGEN: There was a separate argument about inconsistencies of outcome, which was a subject of a different ground of appeal. In that ground of appeal, the court found that it was not irrational or illogical for the jury to have – or at least some of the jury to have had a doubt about whether or not Mr Webb was acting unlawfully. We would pray that in aid to show that it was open to the jury to – at least open to the jury to have concluded that the prosecution had not disproven that Mr Webb’s acts were unlawful, but we do not rely upon it as necessarily an inconsistency. It just raises the issue or the potential, on the evidence in this case and on the directions that were given, that it was open to the jury to conclude that Mr Webb’s – that the prosecution had not proven that Mr Webb’s acts were unlawful.

The question that then arises is, well, in section 7(a), if it is on the basis of attribution of the acts of everybody involved in the pre‑concert, to what extent can lawful acts of a co‑accused be attributed to ‑ ‑ ‑

KIEFEL CJ: Well, they are not sure they are lawful acts, though, so it is just a possibly lawful act.

MR VANDONGEN: Of course, but in the context ‑ ‑ ‑

KIEFEL CJ: What you are really saying is that the prosecution must prove that Webb’s acts were unlawful?

MR VANDONGEN: That is right. So, unless the prosecution could prove that the acts of Mr Webb were unlawful, they could not be attributed to Mr O’Dea under section 7(a) of the Code. We say that principally because this Court found in a sense that that would apply in relation to section 7(b) and (c) and we say that there is no reason why it ought not apply in relation to section 7(a) for consistency of reasoning, the same way in which the court found that the word “offence”, the commission of an offence ought be construed consistently throughout section 7 distributively.

KIEFEL CJ: As I have said, I have no difficulty following what was said in Pickett in relation to aiders and abettors and the principal offender. The principal offender’s acts would need to be unlawful for the aiders and abettors to have attributed to them those acts. I have conceptual difficulty with two principal offenders. Because they are not reliant upon the principal offenders you say there is no distinction to be drawn?

MR VANDONGEN: No, I say there is no distinction under the Code, no.

GORDON J: Sorry, just so I am clear, did you say no distinction between the two of them or in circumstances where the Crown accepts it cannot prove liability by reference to one?

MR VANDONGEN: No, no distinction between section 7(a), 7(b) and 7(c).

GORDON J: I misunderstood, thank you.

MR VANDONGEN: Can I just demonstrate why that must be so, having regard to the context of the Code and in particular by reference to a defence that was obviously front and centre in this case, which was self‑defence. Can I ask your Honours in doing this to look at volume 1 of the joint book of authorities?

KIEFEL CJ: What is the case you are taking us to?

MR VANDONGEN: This is not the case, this is section 248 of the Criminal Code which is self‑defence. The starting point is to note that section 7 – if it operates in the way in which it appears to operate, that is, by attributing the acts of a co‑accused to the acts of the other co‑accused such that in combination all of their acts constitute the conduct element of the offence ‑ ‑ ‑

EDELMAN J: You can make that submission without using the word “attributed”, can you not? You can say that if 7(a) operates in such a way as in combination all of the unlawful acts constitute the ultimate result.

MR VANDONGEN: You could, but again I say what I said before.

EDELMAN J: Yes.

MR VANDONGEN: I am in a position where this longstanding authority – it is the attribution principle which applies in relation to section 7(a) – at least in Western Australia.

KIEFEL CJ: And Queensland.

MR VANDONGEN: And Queensland.

EDELMAN J: Although, you also have the same longstanding authority that talks about 7(a) as being concerned with principles in the first degree which is, by definition, not an attribution principle.

MR VANDONGEN: That is not inconsistent with the common law, that principals in the first degree – and Osland tells us that principals in the first degree – people are also principals in the first degree by attribution of the acts of other people.

EDELMAN J: By a common purpose.

MR VANDONGEN: By a common purpose.

EDELMAN J: And the rules that are equivalent to section 8.

MR VANDONGEN: Section 8 is the analogue – although not the direct analogue of the extended joint criminal enterprise known in the common law. It is not the direct analogue because it is not about foreseeability, it is about objective likelihood. But that is the analogue – that is how section 8 operates – to extend liability beyond the common unlawful purpose – and I will come back to that when I deal with ground 2 – to extend it so that it attributes those acts – based upon Pickett – to people who do things beyond the unlawful enterprise.

But, looking at self‑defence, section 248, and if the idea is that all of the acts of the principal offenders are aggregated together – so, in these particular circumstances, Mr O’Dea and Mr Webb were alleged to have done a whole series of acts – kicking, hitting, striking with implements over the course of a period of time – and the prosecution case was that the act that caused the grievous bodily harm was that aggregation of acts and sought by section 7 to attribute Mr Webb’s acts to Mr O’Dea.

The question that arises is how does that work with section 248 because it ought operate with 248 if the defence of self‑defence should be available to either of those two accused. Attention must be drawn immediately to section 248(1) which is the definition of “harmful act”. It defines it as being the:

act that is an element of an offence under this Part –

The act, for the purposes of this particular matter, was the act that caused the grievous bodily harm which, as I have explained, was the aggregation of acts. That act, that aggregation of acts, is deemed to be lawful if it is done in circumstances in subsection (4). Subsection (4)(a) requires the prosecution to prove that “the person” – if we just insert there for the moment, Mr O’Dea:

believes the act is necessary to defend the person –

In this case it is to defend another person, so it is Ms Dimer. Mr O’Dea may not have even been aware of all of the acts that were carried out by Mr Webb, and so it is difficult to see how section 248 could apply, and this applies in reverse for Mr Webb as well, for the prosecution – it would be a very easy step for the prosecution to prove that the person did not believe the act is necessary because they were not aware of all of the acts. That problem would be solved if, as we submit, it is only the unlawful acts which are attributed to the accused. Paragraph (b) talks about:

a reasonable response by the person in the circumstances as the person believes them to be –

But the aider, if it is section 7(b), may not have responded at all. The effect of their aiding – this is for the purpose of section (b) – the effect of their aiding may have been to provide some other kind of assistance. The point that I am making is that if section 248 is to apply, and to apply consistently throughout section 7, it does require that the only acts that are attributed to the particular person that you are dealing with are the unlawful acts.

That process of reasoning applies in relation to the other defences that are referred to in Chapter XXVI. One of the defences that was relied upon was section 231, which you can see on page 22 of the book. The same process of reasoning applies there. The use of force there is excused. The force here was the aggregation of acts by both of the appellants – by both the appellant and Mr Webb. In order to determine whether that force was lawful it is necessary to only attribute to the person whose case you are considering those acts of the other that are lawful, otherwise it does not operate – cannot operate in respect of the person who you are considering.

KIEFEL CJ: But the effect of your submission is still to attribute criminal responsibility?

MR VANDONGEN: Well, it depends on what you mean by criminal responsibility?

KIEFEL CJ: If one reads paragraph 42 of Pickett, in the joint judgment, it is confirmed that criminal responsibility must be negatived:

in order to establish criminal responsibility –

when Chapter V issues are raised, it has to be negatived. It goes on to say that:

it has never been suggested that the freedom from criminal responsibility enjoyed by an individual participant –

works to give a “like freedom” to others, to co-offenders, and really that is what you are saying, is it not?

MR VANDONGEN: No, because what was said in Pickett is only in respect of those freedoms by reasons of personal circumstances that are apt to engage the provisions of Chapter V.

KIEFEL CJ: That is the defence – circumstances pertaining to the defence.

MR VANDONGEN: Chapter V contains those – well, in my submission, when the joint reasons talk about criminal responsibility, they are talking about that in a particular context, that is, the criminal responsibility that is defined by Chapter V, not criminal responsibility in a broader sense, including those senses that are provided for in, for example, Chapter XXVI of the Code. That is the reason why, at paragraph 43, the joint reasons go on to talk about the fact that the provisions of Chapter V do not alter the terms ‑ ‑ ‑

KEIFEL CJ: Of section 7?

MR VANDONGEN: No, no, of the Code’s proscriptions or defences.

KEIFEL CJ: Yes.

MR VANDONGEN: And specifically refer to Chapter XXVI of the Code. Proscriptions, in my respectful submission, was a reference to elements of the offence which include the element of unlawfulness, and defences which might inform that element are those defences in Chapter XXVI, including the one that I just took your Honours to - section 248.

The joint reasons in Pickett left open and recognised, in my respectful submission, that it would still be open for a question to be raised as to whether or not only unlawful conduct of another participant in a criminal offence can be attributed to whether it is by operation of section 7(b), (c) or (d), or in this case, section 7(a), to another person in order to render them criminally responsibly in that broad – using that term in a broader sense for the act or omission constituting an offence.

Of course, we do not construe the Code by reference to the common law except to the extent that – and this is consistent with the way in which it was construed in Wyles - it might not be supposed that the Criminal Code sought to radically adjust the common law, particularly in relation to questions of attribution of liability.

So, his Honour Justice Nettle in Pickett referred to the common law in support of a different approach to the same conclusion, but referred at paragraphs 102 and 103 – and this is in the joint book of authorities, page 504 ‑ ‑ ‑

GORDON J: What paragraph was that, I am sorry?

MR VANDONGEN: Paragraphs 102 and 103.

GORDON J: Thank you.

MR VANDONGEN: His Honour’s discussion about the common law really begins at paragraph 98. What his Honour was doing there was observing the distinction between justification and excuses at common law, and one of the distinctions or one of the consequences of the distinction was, his Honour concluded at paragraph 102, the fact that it determines differently:

the scope of principal and accessorial liability arising from conduct that is prima facie criminal but subject to a defence.

His Honour in that next sentence of paragraph 102 – your Honours can obviously read that for yourself – said, importantly:

a person . . . who participates in a joint criminal enterprise extending to its commission . . . is not liable to punishment.

To distinguish that from excusable conduct – Chapter V – and that then informed his Honour’s decision, when you come to look at what his Honour decided at paragraphs 110 and 111 that made his Honour draw the distinction and make the decision that excusable conduct – Chapter V – in the hands of, if you like, the co-accused, does not render the principal offender – using that term loosely – not criminally liable. What his Honour said at paragraph 110 in that last sentence:

That conclusion accords with the common law doctrines of principal and accessorial liability, and the common law distinction between justifications and excuses, which the Draft Code was designed to embody.

Our short submission is that is correct. That is how section 7(a) ought be construed.

I think that that is probably all that I need to say in support of ground 1. Can I deal then with ground 2? Ground 2 approaches the problem from a different angle, if you like. It is not concerned necessarily with whether or not unlawful acts are attributed. It is concerned with the basis upon which acts are attributed to a co‑accused and it is concerned specifically with the directions that were given by the trial judge in this case, and the adequacy of the directions that were given by him.

The Court of Appeal concluded that the directions that were given by the trial judge about what the jury had to be satisfied about before convicting of an offence based on the first pathway were adequate. The directions that were given can be seen in the Court of Appeal decision, if I could ask your Honours to turn to the core appeal book at pages 159 to 160. You can see at paragraphs 128 through to 132, the particular directions that were given.

To that point, that is, to the point at paragraph 132, which is the culmination of the original oral directions that were given, the net result of what was said by the judge was that it was sufficient for them, that is, both Mr Webb and Mr O’Dea to have been “acting in concert”.

Now, what is not referred to in the Court of Appeal’s judgment, but which can be seen from the core appeal book, is that after his Honour gave those directions – and they were, of course, supplemented by written directions that also appear in the core appeal book – the jury asked a question about what “in concert” meant, and this can be seen at page 83 of the core appeal book. His Honour answered that question at page 84, and it is at about point 6 on the page, in the paragraph beginning “So as I said”. What his Honour added, in effect, in substance to the phrase “in concert” were the words “acting together”, and in that last sentence – sorry, in the second‑last sentence:

What you do is you look at the totality of the acts and if it can be said that the relevant accused was acting together or in concert with the other accused.

It was put in the court below that that was not sufficient, those directions were not sufficient, because what it lacked were two things. One was an indication or a direction that what was required was for the accused to have been acting in pursuance of a common understanding or agreement, and an understanding or agreement to commit a criminal act, or to act unlawfully.

In this particular case, it was important for those two additional factors to be drawn to the jury’s attention because, in this case, both accused relied upon defences – I will describe them broadly as self‑defence defences - but they were defences of another and defences that relied upon the notion that they were effecting a citizen’s arrest, effectively, or attempting to stop the victim in this matter from further assaulting Ms Dimer.

The Court of Appeal found that it was open – I say effectively open to the jury to conclude that the prosecution had not proven that Mr Webb was acting under one of those defences. The Court of Appeal expressed it slightly differently, because it was a situation in which the jury was not able to reach a verdict that it was not irrational or unreasonable for some members of the jury to have failed to be satisfied about those things.

But it was important because, in this particular case, the facts demonstrated that what happened on this night was something that was very fluid. The video – the CCTV footage I apprehend is not part of the materials before your Honours, but what that shows – and it is adequately described in the materials that Ms Dimer was running down the street and came to the house where Mr O’Dea and Mr Webb were at that time. Then they came out of the house and over the course of a number of minutes a number of things occurred.

What that gave rise to is the possibility that, for example, the grievous bodily harm which was said by the doctor to have been consistent with having been inflicted by maybe one or two blows, may have occurred early in the piece – very early in the piece. It may have occurred at a time when both the appellant and Mr Webb were acting in concert but were acting lawfully - at least one of them was acting lawfully.

So, it was important – critical for the jury’s attention to be directed to that question by reference to whether or not, at the time, the act that caused the grievous bodily harm occurred, that that occurred whilst they were acting unlawfully, that they were acting pursuant to an agreement or understanding that they act unlawfully. The direction, in short, that they were acting in concert or acting together was not sufficient to bring that home to the jury in circumstances of this particular case.

EDELMAN J: Was it necessary to conclude that there was one single act that caused the GBH, or was it possible that the GBH was a product of a number of acts?

MR VANDONGEN: It was possible. The medical evidence was, from memory, that it was possible one or two blows. But, certainly, the injury – the grievous bodily harm – was sustained – the evidence is a bit unclear about that. There was evidence given about head injuries and about bleeding on the head. My reading of the evidence is that there was a bleed on the head on the right‑hand side but that was not under the skull. The left‑hand side had both bleeding under the skin and under the skull, constituting what was described as a traumatic brain injury.

The jury was directed that they had to be satisfied about the acts that caused the grievous bodily harm. So, they were directed about that particular issue, specifically – they had to be satisfied about that and they had to be satisfied, consistent with other decisions of the Court of Appeal that when that occurred that the particular accused that they were considering at least did one act.

Perhaps, if I could just explain that a bit more. There is a controversy in the Court of Appeal, demonstrated by the decision of Campbell and L, about the extent to which joint criminal enterprise applies for section 7(a). The difference between the two appears to be that, in Campbell, it is not necessary that the person does an act. In L, it is necessary that a person does an act in order to be rendered liable under section 7(a). So, the trial judge’s directions – consistent with L – made it clear that the jury had to be satisfied that an act of the accused caused, or contributed to, the grievous bodily harm.

It is in that context – in light of the fluid nature of what occurred – that it was important for the jury to understand that, at the time that occurred, it had to be – if you were to attribute all of the acts that had occurred at that time to the particular offender, Mr O’Dea, in this case – there had to be an agreement, or understanding, amounting to not to commit an unlawful act and that was not directed in this case.

What happened after this case, in the Court of Appeal, is O’Leary v The State of Western Australia. So, between ‑ ‑ ‑

EDELMAN J: Sorry, just to take a step back, Mr Vandongen.

MR VANDONGEN: Sorry.

EDELMAN J: If it is correct to say that the concern is one under section 7(a) for joint enterprise liability with attribution of acts of Mr Webb to the appellant, why or how is the approach in L – also the approach in Campbell – to be justified, which would require that one of the acts that actually caused or contributed to the GBH was the act that came from the appellant because if it is just a question of attribution – if one of the acts of the appellant is to hit in the stomach, and the act that causes GBH by Mr Webb was the hit in the head, why is it not enough just to attribute Mr Webb’s act to the appellant – putting aside the unlawfulness issue?

MR VANDONGEN: No, I understand. I think that the way in which it was put in this case was not so much that the particular act had to cause the grievous bodily harm, but it had to be one of the acts, in combination of which caused the grievous bodily harm. The person, Mr O’Dea, actually had to do an act that comprised one of those acts which, in combination, caused the grievous bodily harm.

EDELMAN J: As part of a series of unlawful acts.

MR VANDONGEN: That is right.

EDELMAN J: Thank you.

MR VANDONGEN: The issue, or one of the problems with this case, is when that occurred – and because it was a fluid situation in which it might – I am not saying that is what happened here, but it might, for example, be that they began acting together in defence of Ms Dimer, but it progressed, and one of them went beyond that, and the other one did not. That might have occurred here. If that is the possible scenario open on the evidence, and the jury were required to be directed that they had to – the acts that they were going to attribute had to be as a consequence of an unlawful agreement, an agreement to do an unlawful act.

What I was saying is that after the Court decided O’Dea, and after special leave was granted in this case, the Court of Appeal again returned, because there has been a long series of cases that have dealt with the question of what section 7(a) means in the Court of Appeal, and so after special leave was granted in this case, the court again returned to what section 7(a) meant in the case of O’Leary, which is in the joint book of authorities at tab 14.

That case, in our submission, is instructive of the way in which – and demonstrates the error in this case, the way in which the jury ought to have been directed. At page 428 of the book, behind tab 14, the court is dealing with ground 1 of the appeal in O’Leary, and on the next page, at 429, at the bottom of the page they then began to deal with the application of section 7(a) to a series constituting the offence.

What the court did there is examine the authorities, including O’Dea, and went to paragraph 68, dealt with O’Dea, set out the principal basis upon which the acts of one person might be attributed to another on the basis of the existence of concert between the actors, and noted that previously, particularly in the case of Wyles, the Queensland case of Wyles, that had been thought to be on the basis of a section in the Interpretation Act, discounted that to be the case, but then, over the page at paragraphs 72 and 73, set out the principal basis upon which acts of one person might be attributed to another, not by way of section 10(c) of the Interpretation Act, but by way of another route, which in particular, paragraph 73 noted that it is not enough for two people, two or more people to have done a series of acts which together:

constitute the conduct element of an offence, without any need to show a connection between the actors.

The relevant connection that their Honours noted there is in that last part of paragraph 73 by reference to something else that was said by Justice Lucas that:

in the absence of a ‘common unlawful purpose’ or a ‘common unlawful intention’, s 7(a) would not apply to a case where several people undertake separate acts which, in combination, comprise all of the elements of an offence.

That is the first aspect, and in O’Dea the court concluded – the ground of appeal was that it was necessary for the trial judge to direct the jury that there needed to be an arrangement or understanding amounting to – to do an unlawful act. So, in that paragraph the court recognised the necessity under section 7(a) for there to be a common unlawful intention and for there to be a common unlawful – or a common unlawful purpose. The second thing that the court recognises is subsequent to O’Dea and subsequent to special leave being granted in this case, at paragraph 75:

The notion of acting in concert has been described by this court as acting in combination, acting together, collaborating or having joined forces.

That is what comes directly from O’Dea, but it went on to say:

It involves acting pursuant to an arrangement or understanding, whether express or tacit. Acting in concert involves mutuality.

So, the court itself, subsequent to O’Dea, recognised that those two factors are necessary in order to attribute the acts of one accused to another.

KIEFEL CJ: In many of these cases, though, the circumstances are fluid and what one does is infer from what is done whether or not there was an arrangement or a collaboration.

MR VANDONGEN: Exactly. There is no difficulty with that ‑ ‑ ‑

KIEFEL CJ: So, it is an observation of what is occurring, you draw an inference from that.

MR VANDONGEN: There is no difficulty. Of course, an inference must be drawn because in most cases the agreement or understanding will not be expressed necessarily ‑ ‑ ‑

KIEFEL CJ: Almost never.

MR VANDONGEN: Almost never, and almost always will require an inference to be drawn, but the jury’s attention needs to be directed to the requirement to draw that inference.

KIEFEL CJ: Yes, I see.

MR VANDONGEN: It is not enough, we say, to simply say acting in concert or certainly acting together in circumstances in which it may be that there is a coincidence of acts all directed superficially towards the same purpose, that is, assaulting somebody – and I do not mean that unlawfully, but applying force to somebody – but the purposes may be different depending on which particular point in time it is. So, two people could be acting in concert or together but be acting in defence of another person, and that would not be an arrangement – an understanding or agreement to carry out an unlawful purpose, and that is why the fluidity of the circumstances is all important.

It might also be said that, albeit that one person is acting lawfully and the other person is acting unlawfully and that their acts taken together might be seen as being acting together, they are not really acting together. They are not acting with a common understanding or agreement to carry out an unlawful purpose, and that scenario too might have applied in this particular case.

KIEFEL CJ: Well, they are acting together to obtain a result. Whether or not a defence applies afterwards is a different question.

MR VANDONGEN: That might be right. I note that my friends have referred to Osland insofar as that is concerned.

KIEFEL CJ: Yes.

MR VANDONGEN: But certainly in the circumstances of this particular case it was open to the jury – I am not saying that they would have – but open to the jury to conclude, or at least formed a reasonable doubt about whether or not at the time they were both acting together, or in concert, in circumstances in which they were both acting pursuant to a defence that could not be said to have been, properly speaking, acting in concert or acting together to carry out an unlawful purpose.

Irrespective of that, as I have pointed out in O’Leary, which came after O’Dea, the same court that decided O’Dea noted the requirement for there to be mutuality, or an agreement or an understanding, which they
decided was not necessary in this particular case and that the directions were sufficient to bring home that idea. But also that the connection – and in Pickett – in Pickett it was noted, I think at paragraph 51, that what is in issue in determining whether or not:

the prosecution has proved against the accused that an act or omission has occurred which constitutes the conduct element of an offence, and in relation to which the accused participant has such a connection as to be deemed to have taken part in that act –

the relevant connection for the purposes of section 7(a) is an agreement or an understanding to carry out a criminal purpose or criminal intention, in our submission.

That conclusion – and if I could just rely on something that your Honour Justice Edelman put to me earlier – is consistent with the overall structure of section 7 and section 8. Section 8 proceeds upon the premise or the requirement of proof of a common unlawful intention. It would be odd, in my respectful submission, for that not also to apply for section 7(a).

EDELMAN J: Except there is a tension then with your first submission, is there not? Under section 8, provided you have the common unlawful intention, the acts are attributed irrespective of whether they are lawful or unlawful.

MR VANDONGEN: That is right. But in order to attribute under section 7(a), as the Court of Appeal found in O’Leary – in order for there to be a common unlawful purpose or a basis for attribution there does need to be this understanding or agreement at the very least. We also say an understanding or agreement to commit a criminal offence. Those are my submissions, if your Honours please.

KIEFEL CJ: Yes. Thank you, Mr Vandongen. Yes, Ms Forrester.

MS FORRESTER: Thank you, your Honours. Your Honours, the jury in this case were directed, in respect of the first pathway, that each of the appellant and Webb must have done one or more of the acts which caused the traumatic brain injury to the victim so, to that extent, the jury were very clearly directed that there had to be that significant contribution to the injury that was ultimately suffered and of course this is the offence of unlawfully doing grievous bodily harm, not doing an act which causes grievous bodily harm.

They had to be acting in concert, and there was no real contest on that issue at trial. It was not something that was the subject of significant argument. It was dealt with in item 2 of the first pathway in the handout that his Honour gave to the members of the jury, that they had to be acting in concert, each of them doing one or more of the acts which caused the traumatic brain injury to be done to the victim.

KIEFEL CJ: There was no request for a further direction or clarification?

MS FORRESTER: In respect of that, there was the question, one of multiple questions ‑ ‑

KIEFEL CJ: From the jury itself?

MS FORRESTER: Yes, but no request from counsel in that regard. There was considerable discussion in the trial about the handouts and there was a debate at one point about whether the acts should be individually separated in terms of them being lawful or not. But, ultimately, the jury were directed in accordance with the handout. Then the jury were directed in accordance with the first pathway that the relevant accused, that is, the accused case, that under consideration, his conduct had to be unlawful.

In our submission, that is entirely in accordance with the principles in relation to section 7(a), that is, they are both principal offenders and in actual fact, the acts of the other were not attributed under the first pathway, under the direction there is no attribution in accordance with the way the jury were directed. To some extent, there might then be an unduly favourable direction.

KIEFEL CJ: There should have been, should there not?

MS FORRESTER: We would say, and it is consistent with their argument, that the acts of Webb should have been attributed to O’Dea but, under the direction that they were given in respect of the first pathway, that in fact did not happen.

KIEFEL CJ: Do we assume that they were charged in this way because it was not possible for the prosecution to identify which of the acts caused grievous bodily harm?

MS FORRESTER: We do not accept that as a proposition, your Honour. I know that it was conceded that it was open to charge O’Dea as an individual offender, and that is certainly the position that we hold now, that it actually was possible, and it was argued to the members of the jury that it would be possible. They were entitled to find that O’Dea was the most likely cause – or if they had to choose one, it would be most likely to be O’Dea’s conduct.

KIEFEL CJ: Because it was mostly his conduct?

MS FORRESTER: That is right. There were certainly acts of contribution by Webb and this pathway required that the jury find there be acts of contribution by Webb to that injury. But the case was always run on the basis that O’Dea was the most likely significant contributor, or the principal contributor to the injury.

Now, the argument that is put by the appellant would, in our submission, work a manifest injustice. It would not arise very often but would work a very significant injustice. In our submission, the reliance on paragraphs 43 and 102 to 103 of Pickett are misplaced. It is clear in each case that this Court is talking about accessorial liability, for lack of a better term, that encompasses all but section 7(a).

In respect of section 7(a), there is a different situation, and I will come to that, but it is clear that the liability of an aider or a person who counsels or procures is dependent upon the act of the person who commits the acts which constitute the offence be unlawful.

In the case of principal offenders, that may not necessarily be the case. For example, there may be a situation where two parties commit an assault that causes grievous bodily harm. One honestly and reasonably believes that they need to act in that way to defend themselves. The other knows that that belief is unfounded, but participates, in any event, in that vicious assault, and also does an act. The idea that that person could be exonerated by reason of the fact that the other person’s conduct is not unlawful is abhorrent to the criminal law.

KIEFEL CJ: Is that is what is being said in Pickett at 42, or is that a different point that they are making?

MS FORRESTER: It is a slightly different point ‑ ‑ ‑

KIEFEL CJ: About negativing – it is about negativing criminal responsibility.

MS FORRESTER: Yes, but all of the cases pick up on that abhorrence, and it is perhaps most clearly expressed in Osland because the Court was therein required to directly engage with that issue in that case. Pickett, because it related to section 7(c) and 7(a) together, did require, in effect, that the act of the principal be unlawful. So, to that extent, the conduct element in Pickett was fairly able to be said to be an unlawful assault.

But the way that all of the cases over time have described the conduct element are the physical acts, and then one looks at how liability arises depending on what part of the provisions we are looking at. In this case, in our submission, his Honour was entirely correct to require the jury to find only that Mr O’Dea’s conduct was unlawful in the case against O’Dea, as long as he was a joint principal offender pursuant to section 7(a).

One notices that when one looks at the second pathway, which is the section 7(a), (c), that is, you cannot say who did it, but whoever was not the principal offender was the aider, his Honour did direct the jury that both O’Dea and Webb’s conduct had to be unlawful. So, his Honour recognised that under the accessorial pathway, both of them had to be acting unlawfully, but the jury plainly in this case convicted in respect of the first pathway, and that seems to be accepted.

KIEFEL CJ: There does not seem to be an issue about that.

MS FORRESTER: No.

KIEFEL CJ: In your submissions, you do not dispute the distinction drawn between personal excuse and defences which provide a justification.

MS FORRESTER: We do not – and Pickett – that was our argument.

KIEFEL CJ: Pickett was concerned with the attribution.

MS FORRESTER: Yes.

KIEFEL CJ: It said the error was the attribution of criminal responsibility ‑ ‑ ‑

MS FORRESTER: Yes.

KIEFEL CJ: ‑ ‑ ‑whereas the section talks only about attribution of acts or conduct.

MS FORRESTER: Yes.

KIEFEL CJ: This is slightly different, what is being raised here.

MS FORRESTER: It is.

KIEFEL CJ: Would you say it is attributing no liability to criminal punishment because that is the way the defences operate? It would, you say, exonerate but ‑ ‑ ‑

MS FORRESTER: Yes, yes. That is what ‑ ‑ ‑

KIEFEL CJ: But if the defence had been accepted, the jury did not even get that far, it just did not – there was a possibility that something about the defence was concerning the jury but all we know is that they could not reach a verdict.

MS FORRESTER: That is right, your Honour. One of the issues, of course, was the intention – O’Dea was the more active of the two, on the State case. One of the issues was whether the intention itself could have been proved. If the jury were unable to decide whether he had that necessary additional specific intention, then they could have been hung on that issue. There is no – it is not possible to ascertain ‑ ‑ ‑

KIEFEL CJ: That is in relation to Webb, you mean?

MS FORRESTER: Yes, yes.

KIEFEL CJ: Yes.

MS FORRESTER: Yes, I am sorry. So, it is certainly not possible to ascertain why the members of the jury were unable to reach a verdict, but we cannot exclude, of course, that they may have had an issue in relation to his conduct being unlawful.

KIEFEL CJ: What is, essentially, your answer to the question that the act has to be – the act of the other principal offender has to be proved to be unlawful?

MS FORRESTER: It does not.

KIEFEL CJ: Is it – it is an attribution that is not permitted by the section, following Pickett?

MS FORRESTER: No, no, Pickett is entirely consistent with, we say, the way that we now put this – that Pickett was about the attribution of criminal responsibility and acknowledged that, in the case of excess or in a liability, one has to have a principal offender acting unlawfully. There has to be an offence. In this particular case, the offence is committed by attributing acts. If, in the broader sense – because it did not, necessarily, happen in this trial – but the offence is committed by the attribution of all of the acts to each and then ‑ ‑ ‑

EDELMAN J: Do you need to talk in that language?

MS FORRESTER: No.

EDELMAN J: Or does it suffice to say that the offence is committed by the combination of the acts – of the two principal offenders?

MS FORRESTER: You can say that, your Honour. As my learned friend put it, it is the common language that has been used over many years. But one of the potential pitfalls in using language that has been used over a number of years is some of the confusion that has arisen in respect of the concept of joint criminal enterprise.

EDELMAN J: In O’Leary, itself, the Court of Appeal says that no rationale for 7(a) has yet emerged.

MS FORRESTER: I am sorry, your Honour ‑ ‑ ‑

EDELMAN J: That despite the use of various language and the number of decisions over a long period of time, there has not yet been an authoritative determination of what the rationale for section 7(a) is.

MS FORRESTER: Our position, in that regard, would be that there is. That it is – and the Court in Pickett made it clear that it was outlining – that that particular provision was outlining all of the different ways in which a person can be liable; and it necessarily incorporates, in our submission, joint actors, that is, joint principals.

EDELMAN J: But in a different way from (b), (c) and (d) which are concerned with different issues.

MS FORRESTER: Very much so, your Honour. But even 7(a) attributes acts of one person, we would say, because it deems that every person who actually did the act or acts which constituted the offence – so we would say it does involve some attribution.

GORDON J: Can I just pick up on that last bit ‑ ‑ ‑

MS FORRESTER: Yes, your Honour.

GORDON J: ‑ ‑ ‑ just to make sure I understand the argument? It is right to say, as you do, that 7(a) says every person who actually does the act which constitutes the offence, so one is driven back to, what are the acts that constitute the offence?

MS FORRESTER: Yes.

GORDON J: Here it was a combination of acts that served to give rise to the offence?

MS FORRESTER: Yes, your Honour. The way the State case was run was that both offenders together committed the act – that is, the composite acts which constituted the offence of unlawfully doing grievous bodily harm.

GORDON J: In relation to that, when one comes to the fact the jury could not reach agreement on Webb, why is it not then that that itself is a sufficient question to ask oneself – we are left with just one and not both of them – when it required the combination?

MS FORRESTER: Because the jury were directed that in the case against each accused, they had to find that both of them contributed to the doing of the grievous bodily harm in order to convict either.

KEIFEL CJ: So the conviction of O’Dea proves that they went down the path they were directed?

MS FORRESTER: Yes.

KEIFEL CJ: The fact they – and they would have, following the direction, which we assume they do – they would have considered the culpability of Webb in the same light.

MS FORRESTER: Yes.

KEIFEL CJ: But, having considered the attribution of O’Dea’s conduct to Webb, may have then said – been satisfied about that, but then gone on to consider whether or not the defence applied and then had the difficulty. Any of those things could have happened.

MS FORRESTER: All the questioning of his specific intention to cause serious harm.

KEIFEL CJ: His specific intention.

MS FORRESTER: Yes.

KEIFEL CJ: So there is nothing – there is nothing by which we should assume that the jury did otherwise than to look at the conduct of each of them and consider the conduct of each of them ‑ ‑ ‑

MS FORRESTER: No.

KEIFEL CJ: ‑ ‑ ‑ together and acting in concert.

MS FORRESTER: No. There is absolutely nothing that warrants looking at it in that way. And the jury were, of course, given ‑ ‑ ‑

KEIFEL CJ: The jury does not get to consider the lawfulness of conduct, and it is not relevant at that point. It only becomes relevant when they ask, was it lawful or unlawful by the operation of the defence, having done that first pathway.

MS FORRESTER: Yes.

KEIFEL CJ: Yes.

MS FORRESTER: Yes, and that is entirely consistent with what – in particular his Honour Justice McHugh, but of course Justices Kirby and Callinan agreed with him, that it is the acts which are part of that acting in concert which are attributed and then you can – it depends on the case. Sometimes one will look at the lawfulness of what a principal did and sometimes you will not, but in the particular case that happened, as it was in Osland, it was the acts that were attributed and then one looked at whether the conduct was lawful as against each individual accused. While we do not say that the entirety of the common law in this area applies in the Code State, it does no violence to the language of the statute for that common law position. That is, it is the acts which are attributed, and then one looks at the lawfulness of that conduct, as against the accused in question.

GAGELER J: Will you come to O’Leary?

MS FORRESTER: I will come to O’Leary, your Honour. I can do it now. O’Leary was a very different case in one respect, because there were three actors who joined the assault at different times, and the offence charged was also a different one, it required an act causing the harm. The way that the State particularly ran its case was somewhat complex as well. It could not be said in O’Leary that they were acting in concert at the time that the harm was done, but part of the problem there was that they all joined the attack at different times. In this case that was not a particular issue.

GAGELER J: I can appreciate that, but the real question that I am asking is, does the notion of acting in concert for the purpose of section 7(a) require a common unlawful purpose?

MS FORRESTER: It does not, and O’Leary ‑ ‑ ‑

GAGELER J: So you are saying O’Leary is wrong?

MS FORRESTER: No, I am saying O’Leary does not say that.

GAGELER J: I see.

MS FORRESTER: That perhaps was – I was going to address that in respect of ground 2 ‑ ‑ ‑

GAGELER J: I am sorry.

MS FORRESTER: - ‑ ‑ can I come back to it then, your Honour?

GAGELER J: Yes.

MS FORRESTER: Thank you. But just completing the argument in respect of ground 1, your Honours, it is the case that when one looks – first of all, the jury were given an orthodox separate trials direction. The evidence against each of Webb and O’Dea was different in the sense that each of them gave records of interview, and that is a fundamental difference in the evidence against each of them, and the differences in verdicts could easily be explained in that regard as well. So it is not, in our submission, appropriate to speculate – and I am not suggesting that anyone is ‑ in respect of the reasons why the jury were unable to reach a verdict in respect of Webb, but it does not matter.

KIEFEL CJ: It is sufficient, in your view, that one assumes that they followed the directions they were given in relation to conduct, or conduct of each of them?

MS FORRESTER: Yes, your Honour. To that extent, what was in Pickett both at paragraph 43 and paragraphs 102 to 103, is no barrier at all to ‑ ‑ ‑

GORDON J: Can I just ask one question about that?

MS FORRESTER: Yes.

GORDON J: In paragraph 43 of Pickett it identifies, as a matter of analysis, a potential leaving open or distinction drawn between excuse and justification, and in the middle of the paragraph it is said:

It might be said that –

the act was not dealing with self‑defence:

was not the conduct element of an offence because his assault was a lawful act –

MS FORRESTER: Yes.

GORDON J: Which comes back to this distinction to be drawn between acts and whether the acts are lawful or unlawful. So, we are not dealing with criminal responsibility, we are dealing with the actual acts that constitute the offence.

MS FORRESTER: And that is the argument that my learned friend has put against us in respect of that paragraph. Our response to that is that that is correct in the case of section 7(b), (c), (d), and 8, because the liability of the parties rely on someone having committed an offence, so in order to prove that someone committed an offence, it must be proved that the principal, whoever that may be, and of course it was not known in Pickett, be acting unlawfully. In this particular case ‑ ‑ ‑

KIEFEL CJ: And that would require the defence be negatived.

MS FORRESTER: Yes. In this case, because they are both principals, if either one of them are acting unlawfully, then that person, who is proved to be acting unlawfully, must be guilty. It would be manifestly, as I say, unjust, for a person acting unlawfully as a joint principal to be acquitted on the basis that the other person who was joining could not proved to be acting unlawfully.

GORDON J: It may be that my concern will be answered when you answer Justice Gageler’s question, because it raises fairly and squarely the common unlawful purpose.

MS FORRESTER: I appreciate – yes, and I am coming to it very shortly. Can I just finish on Pickett? At paragraphs 102 and 103, that is at Justice Nettle’s judgment, his Honour there, we would submit, is talking again about the common law concepts of accessorial liability. He does not, in our submission, refer to principals in the context in which we are, that is, joint principals both doing an act or acts that constitute the commission of the offence. And it was specifically at paragraph 102, the sentence commencing:

Specifically, because justifiable conduct –

I am sorry, your Honours, this is at page 504 of the joint book of authorities:

Specifically, because justifiable conduct is not unlawful, a person who aids or abets another –

which is, in effect, the equivalent of section 7(b) or (c):

or who participates in a joint criminal enterprise extending to its commission –

in our submission, it is the common law concept which is most closely analogous to section 8, that is it is the extended common purpose:

or who counsels, procures or commands another to commit it –

that is our equivalent of section 7(d), so in each of those cases, his Honour is quite rightly, in our respectful submission, saying that where there is accessorial liability, it is necessary to prove that a person is liable to punishment. And his Honour goes on, then, at paragraph 103, and uses self‑defence as the example, aiding, participating:

in a joint criminal enterprise in the course of which another participant wounds a third person in self‑defence, may be entitled to plead that his or her actions . . . were, to that extent, not unlawful –

but it does depend on the case. And in this particular case, because they are joint actors both committing the offence, it is sufficient that each of their conduct be scrutinised and be determined individually to be unlawful. If I can move now to ground 2, your Honours. I am just going to pull up O’Leary – I am sorry, I am somewhat hampered – which is at page 409 of the book, but the specific passages are at paragraphs 72 onwards. When the Court talks at paragraph 75 about:

The notion of acting in concert –

there is no reference in that to acting unlawfully. At paragraph 74:

it is the fact that the actors are acting in concert in doing the acts constituting the offence, with the consequences identified in [68] above, that sustains the application of s 7(a)to cases involving multiple offenders –

Again, at paragraph 75:

The notion of acting in concert has been described by this court as acting in combination –

and it goes on:

One person, A, cannot act in concert with B unless B is also acting in concert with A –

and they talk about the mutuality, but there is no reference to a requirement that they be acting together unlawfully or for an unlawful purpose.

GAGELER J: What there is, flowing through from the reference in Justice Lucas’ judgment to section 7(a) picking up common law categories of liability through to the third sentence in paragraph 75 is the idea that there is a mental element that ties those acting in concert together. They are acting in concert because they have a common purpose.

MS FORRESTER: A common purpose, yes.

GAGELER J: Relevantly, a common unlawful purpose.

MS FORRESTER: In many cases, it is a common unlawful purpose. The cases in which – so, there is the reference in almost all of the cases to a common agreement to commit a crime. In our submission, when one looks at Barlow and says the words “the offence” in Barlow constitute the acts or omissions which make up that crime, it is used in the same way in the common law cases – that is, to commit a crime is to commit the acts.

That becomes most apparent in Osland. There are very few cases which grapple with the issue of whether the purpose itself or the acting in concert needs to be acting unlawfully in concert. But where that question is engaged with ‑ ‑ ‑

GAGELER J: Really, it is a question of whether to be in concert – for two people to be in concert so that the acts of each of them can be aggregated together, is it necessary that they have a common unlawful intention?

MS FORRESTER: No, your Honour. And we say that because Osland, for example, is a precise example of that. That those two – that is, Ms Osland and Mr Albion – were found to be acting together, and in the context of that case, both significantly contributing to the death. And in those circumstances, even though Mr Albion was acting in self-defence or under provocation such that it would be a complete defence, Ms Osland could still be guilty. That is, they did not have to join a meeting of the minds as to the unlawfulness, it was the acts which are attributed to each other by reason of their agreement to act in a particular way, and then one looks at the lawfulness of the conduct of the person under consideration.

In my submission, the reason why so often in the authorities the terminology refers to common unlawful purpose or to commit a crime in that more specific sense, is because most of the time that is exactly what it is. Webb, all of the cases going through, it is undoubtedly the fact that both parties are trying to commit a crime; that is their agreement. But it does not need to be. And the focus in the common law on the need for the purpose to be unlawful quite often is about the extended ambit of joint criminal enterprise. That is, whether or not a person actually has to even be present, or commit one of the acts, which is not section 7(a).

Section 7(a) requires the commission of a principal of an act which makes up the offence. At that point it is not necessary that they have a joint unlawful purpose; it is enough that it is a joint purpose such that the acts can be attributed to the actor who, if they are then acting unlawfully, will be guilty of the offence, and it matters not that the other person might have had a different purpose in respect of their conduct.

In fact, in this particular case, the words “for the same purpose” were removed from the direction at the request of counsel in the course of debate in respect of the question trail and the document to be given to the jury. It is, in our submission – that is the fundamental difference, and the explanation for it between the common law and the Code is that joint criminal enterprise as a concept permits people to be liable even if they have not committed one of the acts constituting the offence.

That is where the need for a common unlawful purpose comes about, because if you are not committing one of the acts, then there must be some authorisation of the actors to be committing that criminal conduct in order to have their acts attributed to the non-participant. But we do not need to that far in this case because the actors committed the acts, they are acting together in committing those acts in the Osland sense, and therefore the person who is the principal is acting unlawfully, and that is sufficient, regardless of whether the other person is or is not. And none of the authorities that do deal with that particular issue actually – that is, none of the authorities which grapple with the question of whether there must be an unlawful purpose say that there must be.

So Likiardopoulos, for example, broadly refers to it but refers to the act – that is, all of the parties must have joined in the plan to attack, physically attack the complainant; in O’Leary, there is this notion of acting in concert; in Osland – which I have referred to, both in the submissions and in the course of my argument this morning – none of them require that purpose to be unlawful, but it is not something which is commonly engaged in because it is so often not in issue. I hope that – I am not sure that I can further answer your Honour’s question in respect of O’Leary more than that. I hope that I have engaged with what your Honour Justice Gordon put to me earlier. Thank you.

GAGELER J: So, you are referring to common law cases. You accept that, in this respect, 7(a) is not different from – embodies no principle that is
different from, say, Osland’s principle – the principle that informs Osland’s Case?

MS FORRESTER: I am affirming that I am not saying it is any different.

GAGELER J: Yes.

MS FORRESTER: Yes, your Honour. Your Honours, unless I can assist further, those are the arguments in respect of grounds 1 and 2, thank you.

KIEFEL CJ: Yes, thank you. Yes, Mr Vandongen.

MR VANDONGEN: I will just deal with Justice Edelman’s question to me before I sat down about the application of section 8 and the fact that it attributed acts which are not necessarily lawful. The point about section 8, however, is it proceeds upon a premise that there is a common unlawful purpose, and that is the extent to which I draw in aid that provision in supporting my argument in relation to section 7(a).

My learned friend pointed out that, during the prosecutor’s closing address in this case – which your Honours do not have – the prosecutor did submit to the jury that it was most likely that Mr O’Dea caused the injury that was sustained by the victim. What happened after that, however, was that there was an extensive discussion between the prosecutor and the trial judge about whether or not the prosecutor was actually saying that Mr O’Dea was – it was open to the jury to find that Mr O’Dea was, of himself, criminally responsible for the acts that caused the grievous bodily harm, in the sense that it did not matter the contribution that Mr Webb had to it.

There was an extensive discussion about that, which resulted in the directions that were actually given, which did not leave it open to the jury to find that Mr O’Dea was principally responsible. As I understood it, it was accepted by the appellant in the Court below that that was not a basis upon which Mr O’Dea was actually ultimately convicted. He was convicted on the basis of the first pathway, which relied upon joint responsibility. My friend took your Honours to the judgment of Justice Nettle in Pickett, and to paragraph 102. I understand the submission that was made was in relation to the second sentence of paragraph 102 where his Honour talked about:

a joint criminal enterprise extending to its commission –

and the submission being made that, as I understood it, his Honour was there referring to extended joint criminal enterprise as opposed to – at common law, joint criminal enterprise. In my submission, that is not what his Honour is saying there at all. What his Honour is saying there is that it
is both – both joint criminal enterprise and extended joint criminal enterprise, because both of those concepts are only a basis for liability if they extend to the commission of the offence that was actually committed.

In relation to Osland, my learned friend relies on Osland in relation to ground 2 and I just indicate that at paragraphs 92 and 93 of Osland – which is at page 142 of the third volume of the joint book of materials – his Honour in paragraph 92 referred to a whole series of cases at common law which dealt with the principles that should be applied in circumstances of joint criminal enterprise. His Honour dealt with a number of those cases in the course of his judgment, most notably at paragraph 72 – which is on page 134.

His Honour referred to the well‑known and longstanding case of Lowery and King and the judgment – and the direction of Justice Smith, which you can see reproduced there, which included a direction or a requirement to:

reach an understanding or arrangement that together they will commit a crime –

Equally, his Honour referred to Tangye – R v Tangye, which he referred to at paragraph 73 and his Honour then set out the direction that was given by his Honour in that case – sorry, the direction that was referred to by his Honour in that case – Justice Hunt, I think it was – which also referred to the requirement for there to be a joint criminal enterprise.

So, in my submission, contrary to what my learned friend submits, Osland is not an authority that assists her in the resolution of the question raised by ground 2 in the grounds of appeal. Those are my submissions in reply.

KEIFEL CJ: Thank you. The Court reserves its decision in this matter and adjourns to 9.00 am tomorrow for pronouncement of orders, and otherwise to 9.30 am.

AT 11.15 AM THE MATTER WAS ADJOURNED