Arulthilakan v The Queen, Mkoka v The Queen

[2003] HCATrans 289

[2003] HCATrans 289

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A198 of 2003

B e t w e e n -

NOEL JEBATHILAKAN ARULTHILAKAN

Appellant

and

THE QUEEN

Respondent

Office of the Registry
  Adelaide  No A202 of 2003

B e t w e e n -

CHISEKO MARK MKOKA

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 13 AUGUST 2003, AT 10.16 AM

(Continued from 12/8/03)

Copyright in the High Court of Australia

__________________

GLEESON CJ:   Yes, Mr Rofe.

MR ROFE:   Thank you, your Honours.  Could I start by saying the prosecution case in this matter was an overwhelming case in respect of the attempted armed robbery charge on the basis of a joint enterprise between the appellants, Escalante the principal offender, and the witnesses Sinclair and Smith to rob someone of a mobile phone while armed with knives which were to be used to threaten or intimidate or prevent or overcome resistance.

In my outline I have put some references to the evidence.  The evidence of that really came from, first of all, Sinclair and Smith but also particularly the appellants.  In relation to Sinclair, if I could just give some page references:  appeal book 1, pages 45 and 52 and following.

KIRBY J:   Remind me who Mr Sinclair was.

MR ROFE:   He was one of the two youths who remained in the car while the other three went out to perform the robbery.

KIRBY J:   He was given an indemnity, was he, for any participation in the proceedings?

MR ROFE:   Yes, he was, your Honour.  In relation to the appellant Mkoka, could I take the Court first of all to appeal book 2, page 395.  We visited this yesterday in respect of the term “rolling someone”, which appears at line 27.  I will come back to that in a moment.  At line 32 on page 395 in examination in‑chief, he was asked:

Q.  What was your plan in regards to the knife that you took from Noel?
A.  I thought we would just sort of, just sort of threaten sort of thing.

Q.  How.
A.  Just – I thought just show the knife and sort of threaten them and then I thought really that would be it.

Q.  Were you ever intending yourself to use the knife.
A.  No.

Q.  To inflict injury on anyone.
A.  No.

Q.  What was your understanding about Carlos –

that is Escalante –

and his knife.
A.  The same thing, really; just to threaten.

Q.  Did you ever think of the possibility that the knife would be used by him.
A.  No.

Q.  To inflict injury.
A.  No.

Q.  Or death.
A.  No.

In relation to the comments on the previous page about “rolling someone”, could I take the Court to page 436 of appeal book 2.  His Honour returned to that topic at line 12:

Q.  Do you agree that ‘rolling someone’ usually means to rob someone using force, if necessary.
A.  Usually.

So he did expand somewhat on the concept of “rolling” that he had referring to earlier.

GLEESON CJ:   Could you give that page reference again, please.

MR ROFE:   Page 436, line 12.  I do not intend to read all the evidence that I have referred to in the outline.  The references are in the outline.  He was carrying a knife he had obtained from Arulthilakan for the purpose of preventing the victim of the proposed robbery from offering any resistance - appeal book 2, page 443.  He was aware that Escalante was in possession of a knife as they approached the victims.  He was aware that Escalante carried a knife fairly often.  However, he maintained he did not see the knife in Escalante’s hand.  He contemplated at page 459 that there would have to be a show of force to compel Hillam to hand over the phone.

KIRBY J:   You are going a bit too fast.  What page are you on?

MR ROFE:   I am sorry, that was at page 459.

GUMMOW J:   Line what?

MR ROFE:   Line 6, I think, your Honour.  The question at line 6, which was in cross‑examination:

Q.  And at that time there would have to be some show of force on the part of yourself, Carlos and Noel to create a state of mind in Mr Hillam where he would then be willing to hand over that phone.
A.  Well, yes.

KIRBY J:   But that would not be inconsistent with presenting the knife.

MR ROFE:   No, I accept that.  Where I am coming to, your Honours, is that the real issue on the counts of wounding with intent and murder was:  did the scope of the joint enterprise extend to the possibility of the infliction of grievous bodily harm to the victims?  The defence as it was raised at trial was a confusion of claims of self‑defence that Escalante had exceeded the scope of the enterprise and was acting on his own.

KIRBY J:   At some stage I would grateful if you would help me on this.  The criminal law normally reflects culpability and blameworthiness for moral wrong in a general sense.  We are told that the case which the accused were putting forward included an element that one of them had a knife but left it in a car, that the other picked the knife up but then threw it away.  If one just forgets the law for the moment in terms of the culpability element, that rather suggests that they were signalling by direct acts on their part, if the jury were to accept those two steps, that they were themselves not wishing to be involved in knife use in the sense of penetration.  At some stage in your argument I would like your help on how in that theory of the facts the statute attaches to permit a jury, if it does, to reflect an acceptance of that view of the facts so that the differential culpability of Escalante and of the two appellants is reflected in the guilt of the offence for which the Parliament of South Australia has provided.

MR ROFE:   If your Honour pleases.

GLEESON CJ:   While you are doing that, will you refer to the evidence as to why the knife was thrown away.

MR ROFE:   Yes, your Honour.  It would be my submission that Arulthilakan left his knife in the car, as was said, although, on some of the evidence, it would appear that he may have given it to Mkoka.  Certainly he was aware that Mkoka was taking that knife to the confrontation.

KIRBY J:   Was that effectively suggesting that he did not want the moral responsibility but he was leaving it there, knowing that it would be picked up by Mkoka?

MR ROFE:   There is no question that he knew Mkoka was taking the knife to the confrontation.

GLEESON CJ:   And he himself was armed with a billiard ball?

MR ROFE:   Mkoka had the billiard ball as well as the knife.

GLEESON CJ:   Was the reason that Mkoka put the knife down to allow him to get a better grip on the billiard ball?

MR ROFE:   That was the reason he gave in his evidence.

GLEESON CJ:   So that he could more effectively use it as a weapon?

MR ROFE:   Yes.  Once the thing escalated into an element of confrontation between the attackers and the victims, Mkoka decided to use the billiard ball and in fact did use the billiard ball on the deceased, Bourne.

GLEESON CJ:   The billiard ball, I presume, being made of ivory?

MR ROFE:   I do not know if there was any evidence on that, your Honour.  It was contained in a sock and used as “a cosh”, I think was the expression used.

KIRBY J:   It would not be pure ivory, I think.

MR ROFE:   I do not know what they make them of these days, your Honour.

GLEESON CJ:   Not rubber.

KIRBY J:   Even a rubber billiard ball could do a terrible damage, the size of a billiard ball.

MR ROFE:   Yes.

KIRBY J:   I would like to get clear in my mind the sequence of those steps.

MR ROFE:   If your Honour pleases.

KIRBY J:   It may be that your references in your written submissions allow it to be pursued, but if you could tell me what your understanding of the evidence that was available to the jury indicates of the steps that the two appellants took.

MR ROFE:   I have just been to page 459, that Mkoka contemplated there would be a show of force.  I have given the Court that reference.  From pages 467 to 471 Mkoka in cross‑examination talks about what he did with the knife.  Perhaps starting at the top of page 467:

Q.  You are standing at point R, the knife just drops to the ground where you are standing and is left there, is that your position.
A.  I dropped it, I don’t know how – I don’t know if I threw it or – I remember I dropped it, I can’t recall how I dropped it.

Q.  You just dropped it out of your hand, did you.
A.  Yes.

Q.  You didn’t throw it.
A.  I don’t remember throwing it or – I really don’t remember how I dropped it.

Q.  It must have been you were standing at about point R then when you dropped it.
A.  It would have been around there, yes.

HIS HONOUR
Q.  When did you first take the knife out of your pocket and have it in your hand.
A.  No, I had it in my pocket the whole time, it was just when I actually dropped it, that was when I took it . . . I didn’t take it out beforehand.

XXN
Q.  Why didn’t you leave it in your pocket.
A.  Why did I?

Q.  Why didn’t you.
A.  Well, I could tell – my hand was on it, and I could sort of tell that a fight was about to start, and I just didn’t – I didn’t want to use, I just wanted to get rid of it.

Q.  On the spur of the moment you see this altercation brewing between Hillam and Escalante, you pull the knife from your pocket and drop it on the ground where you are standing to get rid of it.
A.  Pretty much.  I knew something was – I knew something was going to start, so I wanted to have the pool ball in the right hand.

HIS HONOUR
Q.  You wanted to have the pool ball in your right hand.
A.  Yes.

Q.  Was the knife in your left pocket or your right pocket.
A.  No, my right pocket.

Q.  Were you getting rid of the knife so you could more easily use the pool ball in your right hand.
A.  Yes, I’m right-handed.

XXN
Q.  You knew that the pool ball could do some damage if you swung it hard at someone, didn’t you.
A.  If you swung it hard enough, I suppose it could, yes.

Then there is some questioning as to where in the scene they were.  Of course, Mkoka admits to hitting the deceased around the head area with the billiard ball.  That particular…..is at page 471 at line 15:

Q.  You knew that the pool ball held within the stocking was a dangerous weapon.
A.  Well, yes.

Q.  You knew that that could cause serious injury to someone.
A.  Yes, it could.

Q.  If you hit them over the head with it, that can cause serious injury.
A.  Yes.

Q.  You knew that when you struck Mr Bourne, didn’t you.
A.  Well, yes.  Yes.

Q.  That was the idea, wasn’t it.
A.  No, it wasn’t – when I was going to hit him I wasn’t planning to do him serious damage . . . 

A.  No, I was trying to defend myself, I mean I was basically trying to stop him from coming towards me.

He agrees that it was likely to cause him serious damage.  So I suppose on the culpability aspect, he has made a deliberate choice about the weapon that he wanted to take into the confrontation.  He certainly had a realisation that he could do some damage in that area.  As to Arulthilakan ‑ ‑ ‑

KIRBY J:   I suppose that counsel have to struggle with imperfect material, but it is hard to take seriously the suggestion of self‑defence.

MR ROFE:   That was the trial judge’s view as well and he did not leave self‑defence to the jury.  That was agitated in the Court of Criminal Appeal.

KIRBY J:   It borders on the ridiculous.

MR ROFE:   It does, in my submission; it certainly defies commonsense.

KIRBY J:   Here is a pack of people with weapons of various kinds, if only the cosh, and a person without anything.  Anyway, press on.

MR ROFE:   With Arulthilakan, if I could take the Court to the beginning of his cross‑examination, he conceded in ‑ ‑ ‑

KIRBY J:   Was there any external evidence of either the passing motorists or of the indemnified witnesses that contradicted that sequence of events that Mr Mkoka deposed to?

MR ROFE:   No, they were pretty much at one with that, your Honour.

KIRBY J:   And with the objective fact that his knife was found near point R on the map?

MR ROFE:   That is right, your Honour, yes.

KIRBY J:   Arulthilakan in evidence‑in‑chief said that he knew the plan was to rob Hillam, he was aware that Escalante and Mkoka were armed with knives and a cosh, he had given his knife to Mkoka.  He said he got out of the car only for the purpose of assisting Mkoka should he get into some difficulty.  That was the line he took right through.

GLEESON CJ:   On what page did he say he was assisting Mkoka?

MR ROFE:   Page 535, line 34:

As I was getting out of the vehicle I thought that this situation is no longer self‑protection, as though – I’m not so worried about my – I’m more worried about Chiseko’s -

that is Mkoka -

I thought I’d put it back in the car, just take it out of the equation.

That is the knife.

KIRBY J:   What line was that, I am sorry?

MR ROFE:   Page 535, line 34, over on to 536:

Q.  So what did you do?
A.  I was placing it on the back seat of the car.  As I was, I believe Chiseko –

Mkoka -

asked me ‘Can I use that, can I have that?’ . . . 

A.  I’m outside the car leaning in . . . 

A.  He’d asked me for it, I wasn’t going to take it, I thought –

Q.  What did you do.
A.  I gave it to him.

Q.  Why did you give it to him.
A.  Because he’d asked me for it.

He was not sure whether it was still wrapped in its cardboard.  At 555, line 9 ‑ ‑ ‑

KIRBY J:   On that evidence, his good intentions did not last for very long.

MR ROFE:   No, that would be my submission, your Honour, that his so‑called unwillingness to introduce the knife into the confrontation has to be read in the light of giving it to another participant, even if he did not precisely know what the other participant intended to do with it.

KIRBY J:   It was a very, one might say, human reaction of not wanting to have the moral fault oneself but willing to pass it to someone else, knowing what knives can do.

MR ROFE:   With respect, I agree.  At 555, line 8 he answered:

My intention was to make sure – make sure that Chiseko didn’t get hurt.

In cross‑examination I take the Court to 567, line 14.  He was asked:

Q.  You understood that there was a real possibility that this situation might end up in violence.
A.  The possibility was there.

Q.  It was a real possibility, wasn’t it.
A.  That’s correct.

Q.  You knew that knives were being taken up into that situation.
A.  Yes.

Q.  And that there would be a confrontation between the three of you – just to talk of you as a group at the moment – and Mr Bourne and Mr Hillam.
A.  Yes.

Q.  And because knives were there, that made it a potentially very dangerous situation.
A.  Yes.

KIRBY J:   Which page was that, I am sorry.

MR ROFE:   Page 567, line 14 on.  He conceded throughout that the knives would be used as threatening but not to be used in violence as to his actual intent.  It was put to him at 569, line 5:

Q.  I am not suggesting at the moment you necessarily wanted someone to get stabbed, but it was a real likelihood, wasn’t it, when you have a violent situation and people are holding knives in their hand.

Then an objection and the finish of the question:

Q  That somebody might get stabbed and, to be clear, I am asking you about what you thought.
A.  At the time, I didn’t think that but, yes, the possibility is there.

Q..You did not want to take your knife up there, did you.
A.  That’s correct.

Q.  Why was that.
A.  This was no longer a situation where I was looking at my self‑defence.  I was looking mainly for Chiseko’s well‑being.  I carried the knife for my protection, this was no longer a situation where I would be needing the knife for my protection.

Q  You originally decided to leave your knife behind because you knew it was a very dangerous thing to do; to take a knife up to that situation that was going to confront you.
A.  I thought it best that I leave it in the car, yes.

Q.  You knew full well that Chiseko was taking your knife up.
A.  He asked me for it and I gave it to him . . . 

Q.  You knew full well that Chiseko was taking your knife up there, didn’t you.
A.  Yes.

Q.  It is not just a matter that he asked you for it, you knew he was taking it.
A.  He asked me for the knife and I willingly gave him the knife . . . 

Q.  You gave him the knife to take up in a situation where you thought that he could get hurt.
A.  Yes.

Q.  You knew that the knife may well be produced in order to carry out this business of rolling someone as a threat.
A.  That is correct.

Q.  You knew also, I suggest, that people that were to be threatened with the knife mightn’t like it very much.
A.  That’s correct.

Q.  It is for that reason you were worried about Chiseko getting hurt.
A.  Yes.

Q.  Am I right in understanding your role in this is to look after Chiseko in case the people that are going to get rolled have a go at him, to use a slang phrase.  Do you know what I mean.
A.  Yes.

Q.  That was your role, wasn’t it.
A.  My role was to look after the well‑being of Chiseko, yes.

KIRBY J:   Remind me of the comparative ages of Mkoka and this witness.

MR ROFE:   Of the two appellants?

KIRBY J:   Yes.

MR ROFE:   Fifteen and 16 at the time, Arulthilakan being the elder.  In my submission, that evidence clearly laid the basis for the joint enterprise, at least as far as the attempted armed robbery went.  It also laid the basis for the other two counts of wounding with intent to do grievous bodily harm in respect of Hillam and murder in respect of Bourne.  The structure of his Honour’s summing up was, taking it up from the attempted armed robbery, looking at the scope of the enterprise.

Although I realise a wounding with intent conviction is not in issue here, his Honour very clearly pointed them to joint enterprise as a first consideration in respect of wounding with intent.  He gave them two routes to wounding with intent:  joint enterprise or aid and abet.  If we can take the Court to the summing up, appeal book 4, page 805, line 18.

The Crown alleges that each of the two accused now being tried is guilty of murder in either of one of two ways.  It is the same two ways that I have just outlined in relation to the offence of wounding Hillam with intent to cause him grievous bodily harm.  The first is the concept of joint enterprise, that is to say, the accused were acting together in pursuit of a common unlawful purpose, which was the intention to carry out an armed robbery.  The second is that the accused aided and abetted Escalante in the commission of this crime.  I repeat, that if you are satisfied as to one, you need not consider the other.  You only need consider the other, if you are not satisfied as to the first.

Clearly, in my submission, although we do not know the basis of the verdict for murder being either common law or statutory, as it has been called, their attention was clearly directed by the trial judge to consider in joint enterprise, aid and abet before he moved to statutory murder later in the summing up, having already put “wounding with intent” to them on the same joint enterprise, aid and abet basis.

KIRBY J:   Is not the approach of this Court in cases such as Domican that because we do not know how the jury reasoned, that one has to approach the matter on the basis most favourable to the accused that if there were an impeccable direction on common law murder and a flawed direction on statutory murder, then that may have been the way the jury approached it and therefore it has to ‑ ‑ ‑

MR ROFE:   I think I have to accept that, your Honour, yes.  If there were imperfections in the directions they related, as they have been raised in this Court, only to the concept of statutory murder.  That certainly could not have affected the verdict on the wounding with intent.  Statutory considerations did not come into play at all in that.  If they did affect the verdict on murder, it is my submission that there is no substantial miscarriage of justice.  Really, the point of my submissions to date has been to try and lay that before the Court, that there was an inevitability, if you like, about the joint enterprise common law purpose basis for murder.

KIRBY J:   Do you accept that there was a misdirection on the murder?  Is it as plain as that or not?

MR ROFE:   I accept it is certainly open on the interpretation of Royall in respect of the causation aspect.  It is arguable in respect of the direction on the question of law or direction as a matter of law in respect of the intentional act of violence.

KIRBY J:   On the point of the differentiation, I suppose it is relevant to the statutory offence between, as it were, the armed robbery and the point at which this affray turned into a murderous activity.  Was that issue clearly left to the jury?  Was that matter tendered to the jury for its resolution in the case of the present appellants or not?

MR ROFE:   In my submission, it was, your Honour, and was considered by the Court of Criminal Appeal.  Clearly, the commission of the major indictable offence as required by section 12A would include what one would expect these sort of things to develop into, the confrontation, and indeed the extricating.  When one is planning a crime of this type, the commission must extend past the completion of the actual time to the extricating themselves from the crime.  That was certainly the basis on which his Honour left it to the jury.

KIRBY J:   Do you have the reference to where his Honour did that, conveniently, that you could just ‑ ‑ ‑

MR ROFE:   I will get that for your Honour, yes.

KIRBY J:   If you can just put that on the record.

MR ROFE:   At the top of page 810:

Ladies and gentlemen, you must consider whether the joint enterprise to rob was still on foot, or whether it was over or had ever begun.  You will decide whether the common plan included being able to extricate themselves from the scene, and whether that was what the accused were doing when they were fighting Hillam and Bourne.

You will examine the evidence and determine whether you are satisfied the common plan to rob included use of knives, and whether the accused contemplated that the intentional infliction of grievous bodily harm by one or other of them was a possible outcome of the common criminal purpose.  In short, you will consider the scope and extent of the common purpose, and whether it was still on foot.

I do not know if that precisely answers your Honour’s question.

Could I turn to the two directions that the appellants have impugned.  First of all, the direction on causation is reproduced at page 812 of appeal book 4, lines 29 to 35.  As I understand it, the appellants concede that to the last sentence it is an appropriate adequate direction.  What they complain about it is:

It is enough if it is shown that, but for that one event, all the other events would not have happened as they did.

That was not raised at all in the appeal of Mkoka before the Court of Criminal Appeal.  It was agitated, although I would concede not precisely in the terms that they have raised it in this Court on the “but for” test in Royall.  It was considered by his Honour Justice Prior in his judgment reproduced at 880 and following in Mr Arulthilakan’s appeal.  In paragraph 43 ‑ ‑ ‑

KIRBY J:   What paragraph?

MR ROFE:   It starts really at paragraph 40:

The direction given by the trial judge was proper and consistent with the decisions of the High Court in Ryan v R and Royall v R.  The trial judge identified the earliest act of [Escalante], which could have been selected by the jury, as an act causing Bourne’s death.  He left it for the jury to be satisfied that the presenting of the knife at the very outset of the attempted armed robbery cause Bourne’s death.  In Royall, Mason CJ agreed with an observation by Burt CJ in Campbell v R, that it is enough if juries are told that the question of cause for them to decide is not a philosophical or a scientific question but a question to be determined by them, applying their commonsense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.  Here, the trial judge told the jury that whether the act of violence identified caused Bourne’s death was a question with respect to which “the law takes a commonsense view about causation”.  In Royall, Deane and Dawson JJ referred to a person’s conduct being a substantial or significant cause of death being sufficient to sustain a conviction for murder.  The jury’s task is to determine “whether the connection between conduct (identified) an the death of the deceased was sufficient to attribute causal responsibility”.

In continuance from there, paragraph 43 at 881:

In the instant case, the direct given by the judge has not been shown to be inappropriate in the circumstances.  He had to identify an act of violence in the course of or in furtherance of the attempted robbery, which the jury could determine caused Bourne’s death.  The presentation of the knife into the affray was capable of being a cause of Bourne’s death just as the later act of stabbing was.  It was not erroneous to identify and direct by reference to the single act of presentation.  The stabbing of Bourne soon after could have been joined with it or even considered separately.  The trial judge was entitled to leave it for the jury to determine whether the facts, as they found them, established death being caused by the act of producing the knife in the course of or in furtherance of an attempted armed robbery.  I would reject the second ground of appeal.

As I understand it, the appellants in this Court are now saying the “but for” test is the one that is in error on a reading of Royall, and I concede that certainly from the judgment of Justice McHugh in Royall that may be so, but it was considered in its entirety necessary to cause attention being drawn to that aspect specifically in the Court of Criminal Appeal.  In my submission, the approach of Justice Prior is correct on whatever basis, and there could not have been again a substantial miscarriage of justice if the direction is seen to be a misdirection.

KIRBY J:   How does Justice Prior in the end really resolve it?  Does he say it was a misdirection but the proviso saves it, or it was not a misdirection?

MR ROFE:   No.  He regarded it as a proper direction, so therefore there was no ‑ ‑ ‑

KIRBY J:   Well, that does seem to be contrary to certainly what Justice McHugh said in Royall and as an issue of principle.  I mean, if we look at causation there will always be things but for which the matter would not have happened.  The law normally looks for something more to assign a causative category to an event.

MR ROFE:   Yes, perhaps if I can just go to Royall, your Honour.

KIRBY J:   Everything we do in life is in a sense - just waking up in the morning is a thing but for which we would not have taken the step to walk along that road that night to be there in the wrong place.

MR ROFE:   In Royall 172 CLR 378 at page 440 Justice McHugh referred to March v Stramare, which was cited by my friend Mr Tilmouth yesterday.

HAYNE J:   But all this in the context where the victim in Royall had fallen from the bathroom window and no one knew whether she had been pushed or jumped.

MR ROFE:   That is so, your Honour.

HAYNE J:   It seems to me to be a rather different question of causation from that which arises here, where a knife is presented by one of several offenders in the course of attempting to rob A of his property and it is presented with the purpose of threatening or intimidating, perhaps even with the purpose of injuring A.  What is the causal question that then arises?  It is accepted that it is:  was the presentation of the knife in order to threaten or intimidate A, who happens to be accompanied by B, a substantial cause of the death of B when a melee ensues?

MR ROFE:   Yes, I think that is correct, your Honour, with respect.

HAYNE J:   Now, we can dance around on the end of a pin about the application of a “but for” case in some circumstances, but what real question of causation was there in this case?

MR ROFE:   In my submission, your Honour, the introduction of the knife by Escalante as part of the common purpose envisaged by the appellants, and Escalante and the other two, does satisfy the commonsense test and indeed the substantial significant cause test.  Even Justice McHugh at page 440, in referring to March v Stramare, said the following:

In criminal cases, the test of common law has also refused to apply the “but for” test as the sole test of causation.  Nevertheless, the “but for” test is a useful tool in criminal law for determining whether a causal link existed between an accused’s act or omission and the relevant injury or damage.  But before a person will be held criminally liable for his or her act or omission, the causal link between that act or omission and the injury or damage must be sufficiently cogent to justify attributing causal responsibility, i.e. legal responsibility to that person.  Causation-in-fact is not causation‑in‑law.

Now, in essence ‑ ‑ ‑

GUMMOW J:   What are these commonsense principles?

MR ROFE:   What are they, your Honour?

GUMMOW J:   Yes.  What are we talking about?

KIRBY J:   The jury is supposed to know them.

GUMMOW J:   Is that a philosophical question?

MR ROFE:   Unfortunately, we do tell juries to use their commonsense without telling them what it is.  I think appellate courts have in the past criticised judges who have tried to explain “commonsense” to juries.

KIRBY J:   Such as the matter that objective research shows which gives them the most worry, namely, what is “beyond reasonable doubt”.

MR ROFE:   That is so, your Honour.

GLEESON CJ:   I understand your argument to be - correct me if I am wrong - that in the facts and circumstances of this case the presentation of the knife was so obviously a cause of the death of Bourne that any deficiency in the language used in the direction did not give rise to a miscarriage of justice.

MR ROFE:   That is so, your Honour, yes.

KIRBY J:   But that is the second question though.

MR ROFE:   It may be.

KIRBY J:   I think ‑ ‑ ‑

MR ROFE:   I mean, I have to accept, I think ‑ ‑ ‑

KIRBY J:   If we have a role in this matter it is to clarify what was left a little open in Royall, because there are judges out there who every day are giving directions on this and there have been books that contain what the directions should be.  The proviso is always a rather unsatisfactory way to resolve these matters.

MR ROFE:   It is, your Honour, and I think I had to recognise the force of what Justice McHugh said in Royall.  But I would, with respect, take up his Honour Justice Hayne’s distinction about the factual circumstances between Royall and this case.  Really the commonsense says that if you are going to go into a situation of attempting an armed robbery and take knives for the purpose of ‑ ‑ ‑

KIRBY J:   The answer that could be given to that analysis is they knew that Escalante normally had a knife but did they know that he was going to withdraw it and present it on this occasion?  Did they know he was going to present it to the point of harming?  Did they know he was going to present it to the point of penetrating?  Therefore, the fact that there is a knife is just not enough.  You have to take it to a higher point of analysis of the facts, I think.

MR ROFE:   Did they contemplate the possibility of those events occurring?  That was, as I said, the real issue in the case, the scope of the joint enterprise and whether it contemplated the infliction of grievous bodily harm as a possible incident of the joint enterprise.

HAYNE J:   Well, each appellant acknowledged in his evidence that the intent was to show the knife and threaten with it.  I have in mind 395 in Mr Mkoka’s evidence and I think you took us to equivalent passages in Mr Arulthilakan’s evidence.

MR ROFE:   Yes, well certainly with Mr Arulthilakan, page 568 line 34, he acknowledged there is a real likelihood that somebody could get a knife pulled on them and pointed at them.  And at 569, line 24 he said:

A.  At the time, I didn’t think that but, yes, the possibility is there.

That is, if you like, a commonsense approach to - and that is really what the jury had to decide, was this possibility within their contemplation and, as such, should they accept the legal responsibility for the wounding of Mr Hillam on the one hand and the death of Mr Bourne on the other?

Very quickly on the other direction that was complained of, namely, the direction “as a matter of law”, that appears at 812, line 17, where his Honour said:

You must then consider three other questions.  The first is, was there an act of violence?  Ladies and gentlemen, I direct you, as a matter of law, that the introduction of the knife into this affray, for the purpose of threatening or intimidating, or for the purpose of stabbing another, is an act of violence.  It constitutes a form of assault.

We would stress the next three words:

If you find that Escalante presented the knife for the purpose of threatening or intimidating Hillam, or for the purpose of stabbing him, that constitutes an act of violence.

Now, in my submission, that is not usurping the function of the jury.  He has left it to them to make a factual finding about what occurred and, if they found that, then quite clearly as a matter of law it was an act of violence, even though the jury had to make that determination.  That is all he was effectively saying to them.  “If you find that to be the factual situation, then as a matter of law that would be an intentional act of violence”.  Again, if it is a misdirection, I would argue that it is not capable of producing a substantial miscarriage of justice on the facts of this case.

I do not think I can make the respondent’s position any clearer than that, if the Court pleases.

GLEESON CJ:   Thank you, Mr Rofe.

KIRBY J:   Could you just tell me, on sentencing was the statutory sentence imposed on each of the accused if undifferentiated, or did they receive differentiated sentences?

MR ROFE:   They would have received mandatory life.  I will just check the non‑parole.  My junior has instructed me that it was about 10 years non‑parole.  He does not have a precise memory.

KIRBY J:   So the differential element of their participation was reflected in non‑parole orders.  Is that right or not?

MR ROFE:   That would be the case, your Honour, yes.

KIRBY J:   And did Mr Escalante defend his trial or did he plead guilty?

MR ROFE:   Escalante pleaded guilty, your Honour, on the basis of statutory murder and received the same non‑parole period, as I understand it.

KIRBY J:   The same non‑parole period?

MR ROFE:   He would have had a discount for the plea obviously.

KIRBY J:   I see, yes.

GLEESON CJ:   Thank you, Mr Rofe. Yes, Mr Tilmouth.

MR TILMOUTH:   Unfortunately the sentences are not endorsed on the rear of the information as they sometimes are, pages 2 and 3 of the appeal book.

Two matters if I may, your Honours.  The first relates to the question of what the issues were at the trial and what objections were taken.  Now, if the Court pleases, whatever the merits of self‑defence, it was never allowed to go to the jury and his Honour ruled at page 702 that he would not allow self-defence.

KIRBY J:   Well, there is no complaint about that.

MR TILMOUTH:   No.

KIRBY J:   Nor in my view should there be.

MR TILMOUTH:   No.  And formal reasons were given, which appear at 740 of the appeal book.  What that meant, your Honours, is that what was left as joined in the court below was the intentional act of violence, what was it, was whether or not the major indictable offence was still on foot or had ever started, and it was the issue of causation.  Now, in my submission, it is clear that defence counsel would always maintain objections in relation to those three matters.  Might I give your Honours the references to those without reading them.  At 312 in appeal book 2, this was during the evidence and there was some discussion about the issues, and at line 19 it was put that under section 12A - this was Mr Barrett who was for Arulthilakan.  His submissions were always adopted by counsel for Mkoka, your Honours:

They have to prove that the intentional acts of violence is committed during the course of the major indictable offence, and they have to prove that that intentional act of violence caused the detail ‑

that should be “death” of course ‑

so they have to have a causal link between the first and third of those elements.

Now, your Honours, at the end of the evidence this issue was raised again and particularly the identification of the relevant act of violence.  The discussion on that commences in book 3 at 626.  Your Honours will see there was quite a discussion about this matter and in fact it appears at 653, line 28 that his Honour preferred the view at that stage that the better act was the act of stabbing Bourne, and also at 655.  But at 658, line 26, your Honours, in book 3 it was again put by defence counsel that there must be the necessary causative link.  At 660, line 22 it was put again there has to be the intentional act of stabbing, not just the presentation, and at 666, line 7 there was a discussion about the relevance of the Victorian case of Butcher, which is referred to in our written submissions, and that was sought to be distinguished by defence counsel.

KIRBY J:   Now, just pause there.  Why is it not an intentional act of violence to present a knife to another citizen in our country?  I mean, it seems to me to be a very serious act of violence.

MR TILMOUTH:   If it is produced with the intent to intimidate for the purposes of producing the phone, that of course may be an act of violence because it puts the victim in fear and is an assault.  However, this knife was held behind the back and was never seen by Hillam or the others, although they knew Escalante had the knife.  So, in this sense, this is why - I perhaps used the word “benign” yesterday rather badly, but to that point there had been no act which put Hillam in fear because he did not know about it and the knife had not been wielded in any ‑ ‑ ‑

GLEESON CJ:   Well, he was not presenting the knife as a gift.

MR TILMOUTH:   No, of course not, but the act that was identified was the initial act of production into the affray, not the use and this was the distinction ‑ ‑ ‑

GLEESON CJ:   You keep calling it an affray.  It is an armed robbery.

MR TILMOUTH:   It depends, with respect ‑ ‑ ‑

GLEESON CJ:   It is not a street brawl.

MR TILMOUTH:   No, I agree with that but, with respect, the way it was put to the jury was the taking of the knife initially from the car by Escalante and/or the handing over by Arulthilakan to Mkoka.

HAYNE J:   Sorry?  How do you say that was put?  To the jury?

MR TILMOUTH:   No, it was put to the jury on the basis of the introduction into the affray, but the point that was always maintained by defence counsel was the mere production itself was not enough.  It was the use to which it was put that should if anything be the act.

KIRBY J:   Well, it is put by them, but what I am questioning is is that right?  His Honour obviously did not think it was right and whether he should have directed it in the way he did or simply left it, that is a matter that has to be decided.  But it does not seem to me that his Honour’s view is an incorrect view of the statute.

MR TILMOUTH:   The point I put, with respect, is until it actually put someone in fear or was presented and wielded in a way that put someone in fear or actually came to being a threat, then it did not amount to a relevant offence.

KIRBY J:   All right.  You say if Escalante had gone along and kept it in his pocket until the critical moment, no intentional act of violence, but why is not moving on a person in a group with a purpose of robbery without a knife an intentional act of violence?

MR TILMOUTH:   That may be, if the Court pleases, but that is a different issue.

GLEESON CJ:   Unfortunately we are not in a position to know when Mr Bourne first became fearful.

MR TILMOUTH:   No, quite so.  We know that Hillam was fearful after the event because he did not realise he had been stabbed until afterwards.

KIRBY J:   But some of the transcript that was read to us yesterday where Mr Bourne effectively said “I don’t want any trouble”, that makes it sound to me that he is a citizen in fear.  Who would not be in fear?  He is on the other side of the road, this group of people move in on him and demand his property.  I mean, it is a disgraceful act of causing fear to another citizen - outnumbered.

MR TILMOUTH:   With respect, that may be, but that is not the act that his Honour identified as going to the jury.  It was the initial presentation.  At all events, can I point out, your Honours, at 668, Mr Barrett for Arulthilakan supported by Mr White at 669, sought specific directions concerning the intentional act of violence as being the stabbing of Bourne.  There were similar rejections during the course of the summing up at 817 and 819 of the appeal book, where both the presentation issue as opposed to the use and the need for a causal link between the two were again persisted with.  So, in that sense, if the Court pleases, the objection was always maintained.  Also, in the middle of the summing up at page 770 in book 4 the same objection was maintained.  Defence counsel specifically puts:

How, with respect, can it be said that the stabbing of Hillam can be the act of violence causing the death of Bourne?  That is untenable.

HIS HONOUR:  I agree.  I have already expressed a view to Mr Pearce [the prosecutor] that I think it may well be that the act of violence is the act of stabbing of Bourne.  If he wants a direction that is unfavourable to him, so be it.

As I said, his Honour initially favoured the defence view but was persuaded by Mr Pearce.

KIRBY J:   I do not quite understand that, I am sorry.  Would you explain your point here?  I just do not quite follow the point you are making.  Why is it unfavourable to the defence?

MR TILMOUTH:   I am not sure that it was.  In my submission, the actual direction he got was quite favourable to the prosecution because it enabled a view of the law to be put to the jury on a fairly tame basis:  the mere presentation of the knife.

GLEESON CJ:   But what is the point you are making?

MR TILMOUTH:   The point I am making, your Honours, is that one way or another objections were raised and maintained throughout the trial on the three issues that were left to the jury relating to section 12A.

GLEESON CJ:   I do not understand your opponent to have said anything to the contrary.

MR TILMOUTH:   If the Court pleases.  Now, on the question of causation, the problem with the “but for” direction and the problem for the Crown with respect to the application of the proviso is that the jury may well have thought, whether as a matter of commonsense or otherwise, that the initial presentation of the knife into the affray had nothing to do with the death of Bourne later on up Payneham Road.  They may well have thought, but for the direction, that the robbery was over and that something else entirely different had happened.  They may have thought that the initial presentation of the knife was merely a minimal or trivial, or some other similar word, contributing factor to the death of Bourne or it may have been de minimis, to use the ‑ ‑ ‑

GLEESON CJ:   Do you quarrel with the trial judge’s assessment that this entire occurrence occupied about two or three minutes?

MR TILMOUTH:   Yes, but that was still a question, with respect, for the jury.

GLEESON CJ:   So that is the context in which you are using expressions like “later on”?

MR TILMOUTH:   Quite.  Yes, I am.  I concede it all happened very quickly, but it was further up Payneham Road.  The initial presentation was back earlier.  All that has been gone through.  If the Court pleases, it was open to the jury to accept the evidence of each of the appellants that this was a different matter altogether, the dropping of the knife, because the events were seen differently by – they did not expect what Escalante did and so on, but the point is the law has always recognised that between “but for” and legal or moral culpability there is this area, de minimis, trivial, insubstantial and so on.  Now, it was open to the jury to think that the causative link was but a very minor one in that category and that was taken away from their consideration and that is why on the issue of causation there was a miscarriage of justice.

Your Honours, finally, a very small point if I may.  Could I just record ‑ ‑ ‑

KIRBY J:   On the proviso there they did know that Escalante carried a knife and that he had it there and that it was a risk that it might be used.

MR TILMOUTH:   Yes.

KIRBY J:   If you look at it from the point of view of the proviso, I mean, it is a very nice – it is perhaps an error, but it does not seem in the circumstances of events that it all took part in two to three minutes that it really leads anywhere.

MR TILMOUTH:   If the Court pleases, the evidence was read this morning that Mkoka, for his part, dropped the knife because he did not want to use it.

KIRBY J:   Yes, but it did not stop there.

MR TILMOUTH:   No.

KIRBY J:   He was then asked for it and he then handed it over.  I mean, what the law is essentially saying to people here is:  (a) do not carry knives, which used not to be a feature of Australian society; and (b) if you do carry knives and somebody pulls it out, protest and run away and have nothing to do with it.  That is what the law says.  Why is not that a correct message for the law to give?

MR TILMOUTH:   I understand the policy reasons, with respect, and they drove the felony murder rule and they drive statutory murder today, but if the Court pleases, in the ‑ ‑ ‑

KIRBY J:   Instead, he put it down but his moral qualms did not last more than seconds.  He was asked for it and he handed it over knowing that it would possibly get used or that this would turn from a robbery into a possible murder.

MR TILMOUTH:   With respect, the use of a knife as opposed to the use of a cosh in their minds is clearly something quite different.  If the Court pleases, the final matter was simply to record that I have had handed up to the Court a copy of the amendments to section 12A as it was in 1994.

GLEESON CJ:   Thank you.

MR TILMOUTH:   And the schedule is there, so your Honours can see how the felonies and misdemeanours were changed.  There is also a copy of the Summary Procedure Act which your Honours will recall yesterday gives the definition of what a major and minor indictable offence is, and there is a copy of the discussion paper that was circulated in 1993 before these amendments.  If the Court pleases.

GLEESON CJ:   Now, do you agree that the proceedings ought to be named by us Arulthilakan v The Queen and Mkoka v The Queen?

MR TILMOUTH:   Yes, there is no impediment once they turn 18, if the Court pleases.

GLEESON CJ:   Thank you.

MR TILMOUTH:   Your Honours, I am sorry, I should have mentioned we could not find the second reading speech to this Bill but it will be found and if it is convenient to the Court we will hand it to the Deputy Registrar, hopefully today or tomorrow.  If the Court pleases.

GLEESON CJ:   Yes.  Ms Powell, do you also agree that the proceedings ought to be entitled Arulthilakan v The Queen and Mkoka v The Queen?

MS POWELL:   I do.

GLEESON CJ:   And you, Mr Rofe?

MR ROFE:   Yes, your Honour.

GLEESON CJ:   All right.  We will make an order that they be so described.  Yes, Ms Powell.

MS POWELL:   Your Honours, in respect of the matters which were just discussed with my learned friend Mr Tilmouth in terms of what we say was in fact the extrapolated sort of identified act of violence, there is a piece of evidence of the man Hillam which I submit your Honours should take into account in determining exactly what the context was of the coming together of Mr Hillam and Mr Escalante.  That appears in volume 1 at page 156 in the cross‑examination of Mr Hillam.  He is asked at line 23:

Q.  Was there a point at which you stopped and decided ‘These people aren’t going to go away, I’ll take them on’.
A.  When he came up to me.  After I said – after I turned around, walking backwards, I was preparing myself for something.  I’d – I said ‘Just fuck off and leave us alone, we don’t want any trouble’, that’s when he came up.  I thought ‘This is it, you asked for it, you are going to get it’.

GLEESON CJ:   What a wicked animal this is.  When attacked it defends itself.

MS POWELL:   No, I am not suggesting, your Honour, that this does not indicate that this man was acting in self‑defence.  I am not suggesting that for a moment.  I am suggesting it in the context that this is not a contrived situation of this man in fear of production of a knife, the production of the knife being the relevant event identified by the learned trial judge.  That was just not the factual context.  Sure it is that people would be terrified by the production of a knife.  Sure it is that people may be scared by three people approaching them, but the crucial event identified is the act of violence being the production of the knife.

Now, in this factual context, the factual context of this case, that simply was not the factual situation.  The cross‑examination goes on:

Q.  So you were preparing yourself for what you saw was an inevitable physical confrontation.
A.  That’s correct, I wasn’t prepared to run away from them.

Q.  Was there, as it were, an exchange of looks between you and Matt ‑

that is Bourne – 

A.  None, none.  It was just straight into it.

Further, on page 157:

Q.  Did you make an assessment, yourself, of the situation, and say ‘Three onto two’, you were satisfied with the odds.
A.  That’s correct.

Q.  Is this the position:  that you assessed the situation, ‘three onto two’, you were satisfied with the odds, and then you let go.
A.  No, I didn’t assess it thoroughly enough, obviously, yes.

Q.  I appreciate that, but I’m still talking about your frame of mind, at the moment.
A.  Yes, I assessed it “Two onto three, I’m willing to take on those odds’.

KIRBY J:   Yes, but, Ms Powell, in the old days that is what an Australian would do.

MS POWELL:   Yes.

KIRBY J:   It is the introduction of knives into this situation that makes it a much more dangerous thing.

MS POWELL:   I appreciate that, your Honour, and of course agree with it, but what I am putting to the Court is that what occurred at the very moment that Escalante produces his knife from behind his back and drives it into the body of Mr Hillam is not to brandish the knife as an act of violence, creating fear in Mr Hillam.  Mr Hillam sees these three young men approaching them and girds himself to defend himself – and quite properly in the Australian way – but nonetheless, girds himself on the basis, “You asked for it, you’re going to get it”.

GLEESON CJ:   On page 812 at line 27, the trial judge said to the jury:

It is for you to determine whether the knife was intentionally presented ‑ 

That was a question of fact for the jury, left to them, as such, by the trial judge.  Are you trying to persuade us that their finding was wrong?

MS POWELL:   Yes, because he directed them that the introduction of the knife into the fray for the purpose of threatening or for the purpose of stabbing was the relevant act of violence.

GLEESON CJ:   Are you trying to persuade us that it was not open on the evidence for the jury to find as a fact that the knife was intentionally presented?

MS POWELL:   No, I am not, your Honour.  What I am saying is that that piece of evidence is a piece of evidence which goes to show how the act of violence identified by his Honour was not the act of violence which causally is connected with Bourne’s death.  We say, apart from the misdirections in respect of the subject, in the context of what happened in this case, it happened not to be so factually.

My learned friend Mr Rofe took your Honours to the passage of the summing up at line 17 at page 805 this morning.  At that point of the summing up his Honour, having told the jury that they could find the appellants guilty either via the joint enterprise route or the aid and abet route, said – and it was drawn to your Honours’ attention:

if you are satisfied as to one, you need not consider the other.

That is exactly the point I was making yesterday that Mr Rofe did not deal with.  It highlights my point yesterday ‑ ‑ ‑

KIRBY J:   He has conceded though, Ms Powell, that if you show misdirection on statutory murder, you cannot defend the verdict on the basis of common law murder.

MS POWELL:   But my point that I made yesterday, your Honour, was that, although it is not appealed against, it is still open to the appellants to point out that there is a serious misdirection re aid and abet, the wounding with intent of Mr Hillam, and that serious misdirection with respect to the aiding and abetting of Hillam means that this Court cannot be satisfied that the conviction in respect of the murder conviction was based on joint enterprise or aid and abet and not statutory murder, because it would always have been open on the way in which this jury was directed for the jury to have brought in their verdicts in respect of wounding Hillam on the misdirected law with respect to aid and abet and with respect to the murder of Bourne on the statutory murder.

If that was the situation – and, of course, we agree we will never know exactly on what basis, but while that exists as a possibility, then it may be that in respect of the murder conviction it was improperly based, because one cannot be confident that the jury properly applied the principle of aid and abet to the wounding with intent.  One cannot be satisfied that they got home that way to a conviction via joint enterprise and, accordingly, the whole matter becomes a miscarriage of justice because it simply cannot be presumed.

This is not really by way of reply, but yesterday your Honour Justice Hayne asked me a question which I do not think I answered, and that was whether the reference to the facts by the learned trial judge at pages 755 to 756 was an accurate summary of the facts.  My answer to that question is that it is an accurate summary of what preceded what we say are the vital facts in the case.  His Honour has brought the jury up to the point where they are all crossing the intersection and he says at line 25:

It is at this point that the question arises as to whether Hillam and Bourne first approached and attacked Escalante and the other two, or whether it was Escalante that first attacked Hillam.  Those are matters with which I will deal tomorrow.

What we say is that thereafter his Honour did not refer to any of what we say are the critical facts.  He did not refer to the way in which Escalante and Hillam came together, and Hillam’s evidence on that topic.  He did not direct them, with respect, to what I might call the progress of the altercation – and I do not mean to use that neutrally but the events that followed – the movements of all five of the men.  He did not refer at all to the observations of the passing motorist, Mr Douglas, which we say was crucial as to whether that supported the version of the events as put by the Crown or by the defence.  He did not tell the jury of the use that they could make of the pieces of evidence found at the scene as shown on the plan, exhibit P2, and what use they could make of those.

HAYNE J:   No doubt all that is so, Ms Powell, but there is no ground of appeal about it.  The purpose of my question was to attempt to abbreviate an

otherwise overly lengthy description of how we got to the critical events.  I think we have done it, have we not?

MS POWELL:   Yes, your Honour, but I cannot agree that that is a satisfactory summary of the facts.  If the Court pleases.

GLEESON CJ:   Thank you, Ms Powell.  We will reserve our decision in these two matters and we will adjourn for a couple of minutes to enable people to rearrange their places.

AT 11.25 AM THE MATTERS WERE ADJOURNED