Arulthilakan v The Queen, Mkoka v The Queen
[2003] HCATrans 288
[2003] HCATrans 288
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 TUESDAY, 12 AUGUST 2003, AT 2.21 PM
Copyright in the High Court of Australia
__________________
MS B.J. POWELL, QC: May it please the Court, I appear with MR R.B. HARRAP for the appellant, Mr Arulthilakan. (instructed by Harrap & Stokes Solicitors)
MR S.W. TILMOUTH, QC: If the Court pleases, I appear for the appellant, Mr Mkoka, with my learned friend, MR I.L. WHITE. (instructed by McGee Solicitors)
MR P.J.L. ROFE, QC: If the Court pleases, I appear with my learned friend, MR J.P. PEARCE, for the respondent. (instructed by Director of Public Prosecutions (SA))
GLEESON CJ: Ms Powell and Mr Tilmouth, have you agreed between yourselves on an order of presentation?
MS POWELL: We have, your Honour. Mr Tilmouth will go first, your Honour. We will split our argument.
GLEESON CJ: Thank you. Yes, Mr Tilmouth.
MR TILMOUTH: If the Court pleases, before I tell the Court what we propose by way of splitting the argument, could I mention that there is the application by the respondent on the notice of motion.
GLEESON CJ: Is that opposed?
MR TILMOUTH: No, it is not, if the Court pleases.
GLEESON CJ: Yes, you have that leave. Yes, Mr Tilmouth.
MR TILMOUTH: If the Court pleases, the Court would have noticed that there are joint written submissions. That reflects not only a division of tasks, but it also reflects what we submit from our side of the Bar table is that both of these appellants, so far as liability is concerned, stand or fall together. There is, in our case, no relevant difference to be drawn between them, factually or otherwise. As to the argument, I will deal with statutory murder.
KIRBY J: Are you the one who had the knife and threw it away?
MR TILMOUTH: Yes.
KIRBY J: Or are you the one who supplied the knife?
MR TILMOUTH: No, we were the one who had it and threw it away. Ms Powell’s client, Arulthilakan, gave us the knife at about the time they left the car. Ms Powell will deal with the facts, but it was thrown away at a point on a plan that your Honours will be taken to, marked R. My client had the cosh, the billiard ball in the cosh.
KIRBY J: I was not entirely clear what – there was some description of what the cosh did to the deceased. Will you bring that out?
MR TILMOUTH: It is not altogether clear, if the Court pleases, but he had some grazing injuries to the head.
KIRBY J: It would certainly amount to violence, an act of violence, would it not?
MR TILMOUTH: Yes. The evidence was that the cosh was aimed at him towards the upper part of the body and apart from the fatal stab wound there were some injuries about the head which were consistent with being hit with the cosh, but those injuries were not, on the medical evidence, life threatening at all. But there is no doubt that my client used the cosh and probably struck Mr Bourne about the head.
GLEESON CJ: Was there some suggestion at the trial that the jury might possibly have found that this episode did not involve violence?
MR TILMOUTH: No, the argument more, if the Court pleases, was – there were a lot of arguments buried throughout the whole trial and principally relating to statutory murder in the way it was left, although not ultimately on the grounds on which leave has been given. But there was an argument about the relevant act of violence, that is, the mere production, as opposed to the question of the use of the knife, and counsel at trial consistently put that the mere production taken alone was not enough.
GLEESON CJ: Production for what purpose?
MR TILMOUTH: The knife, for the purposes of using to threaten for the purposes of obtaining a mobile phone. That was the robbery, ultimately the attempted robbery, of course, because it was never achieved fully.
KIRBY J: A question was raised in the special leave by Justice McHugh as to whether an error had been made by the trial judge in directing the jury as to what they were to do with the facts concerning the act of violence. Are you pressing that point before us?
MR TILMOUTH: The point we do press is the emphatic direction in relation to act of violence for the purposes of section 12A of the Act. That is the first point. The other is, of course, if I could label it the “but for” question on causation. The former was taken on appeal but the latter was not, in either case.
Perhaps I should explain too, by the way, how it came about that there were two Court of Criminal Appeals. What happened was ‑ it was quite unusual, if the Court pleases, normally these matters would have been heard together – my client appealed against conviction before sentence because there is a 28 day period, whereas Ms Powell’s client elected to wait until sentence, so the two matters were listed at different times. When the matter then came on for hearing in the Court of Criminal Appeal, counsel for Arulthilakan appeared and applied for it to be adjourned so they could be heard together, but that adjournment was refused. So we had one coram earlier on sitting in the Mkoka matter and a quite different coram, three different judges, sitting in the later matter. That was just historical accident because one appealed against conviction within time and one did not.
Your Honours, so far as splitting the argument goes, I will deal with the section 12A point and the causation point. That is to say, if it pleases the Court, I will deal with paragraphs 19 to 34 of the written submission and my learned friend, Ms Powell, will deal with the rest. That is to say, the facts, the question of the proviso and the interrelated question of the failure to take the point at least, the “but for” point.
Your Honours, turning if I may to statutory murder, could I take your Honours briefly to section 12A of the Criminal Law Consolidation Act, which is item 1 in the materials supplied to the Court, simply to draw, if I may briefly, what the elements are and to explain how it fits with what used to be felony murder.
KIRBY J: When did this come into the Criminal Law Consolidation Act?
MR TILMOUTH: It came in 1994, your Honour.
KIRBY J: Was that against the background of a Law Reform report?
MR TILMOUTH: There was a report, I am not sure if it was widely available. It was Act No 59 of 1994. It received assent on 27 October 1994 and the significance was, your Honours, although it does not appear from the materials you have, that Parliament at that time abolished the common law distinction between felonies and misdemeanours so that in Schedule 1 to the Act everywhere “felony” or “misdemeanour” appeared in the Criminal Law Consolidation Act it was replaced with the word “offence”; a neutral word “offence”.
GLEESON CJ: Is the expression “major indictable offence” defined?
MR TILMOUTH: It is, may it please, your Honour, but that is in sections 4 and 5 of the Summary Procedure Act. I do not have copies now, but I could get them overnight if needs be. How it works is that indictable offences under the new definitions in the Summary Procedure Act ‑ a major indictable offence is simply defined as one which is not minor indictable. Minor indictable offences are defined by description, either generically or by specific offence. There is no general description except that in some cases minor indictable is at least 5 years imprisonment.
GLEESON CJ: I suppose armed robbery is a major indictable offence?
MR TILMOUTH: I have no question about that, if the Court pleases.
KIRBY J: Where is that provided? Is that a common law offence or is it in the Consolidation Act?
MR TILMOUTH: No, it is sections 4 and 5 of the Summary Procedure Act. It comes about by default, because it is not defined as a minor indictable offence anywhere, it therefore is a major indictable offence.
KIRBY J: But is the crime itself simply a crime at common law or is it a statutory crime in this State?
MR TILMOUTH: It is a crime at common law, your Honour, and I think it is also under statute, but its common law basis is section 158 of the Criminal Law Consolidation Act. But its elements are common law. It is not a Code offence in that sense of the word.
KIRBY J: So you accept, do you, that your client was acting in the course or furtherance of a major indictable offence, punishable by imprisonment for 10 years or more?
MR TILMOUTH: Yes.
KIRBY J: So we can take all of those words and put them in brackets and they are not contested?
MR TILMOUTH: No, not now.
KIRBY J: There was no misdirection suggested in respect of them?
MR TILMOUTH: Not strictly in those terms, no.
GLEESON CJ: Perhaps I should just get one thing clear. These present appeals are not against all the convictions, are they?
MR TILMOUTH: No, they are murder, against the murder convictions.
GLEESON CJ: Can you just remind us of the convictions against which there is no appeal.
MR TILMOUTH: Of the attempted armed robbery and of the wounding of the first man, Hillam, with intent to cause grievous bodily harm.
GUMMOW J: Are your clients still under age?
MR TILMOUTH: They are – no, I take that back, I think they have now turned adults and may be in an adult prison.
GUMMOW J: Why do we have to use initials?
MR TILMOUTH: Only because that was the way it appeared on the documents, if the Court pleases.
KIRBY J: It makes it harder for generations of law students to remember the case if it is initials.
MR TILMOUTH: Indeed.
KIRBY J: Is there any reason why they should not now be named?
MR TILMOUTH: I do not think so. From memory the embargo is on children as defined in I think the Youth Act, which is ‑ ‑ ‑
GUMMOW J: The question is whether that binds us.
MR TILMOUTH: Of course, that is another issue, if the Court please, and it has arisen of course in the migration area as well, but as I understand it they are both over 18 at the present time.
GUMMOW J: We had better also, I think, be given a copy of the Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act 1994. That is the one you referred to, Act 59 of 1994. It seems to have done various work in this area and we had better have that as well as the Summary Offences Act.
MR TILMOUTH: I will attend to that overnight, if the Court pleases.
GUMMOW J: Very well.
KIRBY J: And if there is a second reading speech as well, if there is anything been said as to the purpose.
MR TILMOUTH: Yes. There was in fact a discussion paper from the Attorney’s department, but we will check the second reading speech, if the Court pleases. It followed a review and, as I said, the thrust of it was to abolish the old distinction between misdemeanours and felonies and of course it follows that section 12A now replaces, for South Australian purposes, the felony murder. It is not as demanding.
KIRBY J: If we take the words in brackets which are not contested, that leaves really two points in the section. One is “while acting in the course” of and the other is “and thus causes”. Is the course of argument being run and is that Ms Powell’s obligation?
MR TILMOUTH: No, what is being run is the intentional act of violence. The submission is on that that his Honour directed the jury that the production of the knife was an intentional act of violence. He did not leave it for the jury to determine.
GLEESON CJ: What else might it have been except an intentional act of violence? What were the competing possibilities?
MR TILMOUTH: On the facts very little, but it was still a question for the jury to determine, in our submission.
GLEESON CJ: I understand that, but we are dealing amongst things with the proviso argument here, so what were the alternatives that the jury might have regarded it as being, apart from an intentional act of violence?
MR TILMOUTH: Of course the evidence was that it was produced with an intention to intimidate, to effect a robbery.
GLEESON CJ: Yes.
MR TILMOUTH: And I understand, if the Court pleases, on the facts there was very little room for an alternative view of those facts but the jury might have taken a very benign view about matters at the first moment of production.
GLEESON CJ: What is the benign view that was open to them?
MR TILMOUTH: Only that it was produced simply, as it were, with a benign purpose in mind, rather than one that threatened.
GLEESON CJ: A benign purpose such as?
MR TILMOUTH: Being ready to use - this knife was behind the back.
GLEESON CJ: Being ready to use for what purpose?
MR TILMOUTH: To effect the armed robbery, to threaten for the purpose of having these two ‑ ‑ ‑
GLEESON CJ: That does not sound very benign.
MR TILMOUTH: I understand that, if the Court pleases.
KIRBY J: But, picking up what Justice McHugh said in the special leave, you say still that it is a matter that should have been left to the jury?
MR TILMOUTH: Yes, it is a very simple point, if the Court pleases.
GLEESON CJ: Let us assume it should have been left to the jury but it was not, what follows from that in the facts of the present case?
MR TILMOUTH: Of course what follows if the Court takes the view that there was no option open to the jury but to find it was an act of violence, then there would be no miscarriage of justice. That is what it comes to.
KIRBY J: Can I understand – I thought there was an argument, that is why I referred to “in the course of”, that the actual offence of armed robbery was over at the time that the act of violence was performed.
MR TILMOUTH: No, at the time of the stabbing of Bourne, the argument was that the act of violence was over and this was a quite separate independent act in time and place. It was, if you like, an unexpected act by Escalante, a frolic of his own, if you like, quite unexpected and quite outside the contemplation of the appellants.
KIRBY J: That is why I asked you about “in the course of” because, as I understood, there was an argument that the act of violence here was done in the course of the armed robbery which was over before the step was taken that caused the death of the deceased and that therefore your clients did not get to the second part of the section because of the temporal sequence of events. Is that correct?
MR TILMOUTH: Yes, that was the argument, if the Court pleases, but his Honour put that to the jury. So there is no complaint about that part of it as such, but it is relevant of course on the application of the proviso because if it was still open to the jury to find that the intentional act of violence as defined was over then it had to be another act of violence which was never put to the jury to invoke the section.
GLEESON CJ: All right, well tell us how it was open to the jury to find that.
MR TILMOUTH: Well, Ms Powell will deal with the detailed facts, but in essence it was that the attempt to secure the mobile phone from Hillam had finished. They had gone in time and place quite a distance up the roadway and over the roadway, and in fact Hillam had been stabbed unbeknownst to even himself and the appellants and was hopping in a taxi, and the argument is that by that time any attempt to finish off the robbery had completely finished.
GLEESON CJ: You mean an armed robbery is over once you have taken possession of what you are after?
MR TILMOUTH: No, it depends on the facts and it depends, with respect, on the view that the jury take. But the whole argument in the court below was that this was a different episode born of quite different circumstances, principally Escalante’s aggression.
GLEESON CJ: That is not an argument that is part of your submission to this Court?
MR TILMOUTH: No, but it is a proviso submission, not an appeal submission. So to come back to what ‑ ‑ ‑
HAYNE J: Is that right? Can we perhaps grapple with the direction of which you complain? We find it at 812 of the appeal book at line 16 and following I think. Is that right?
MR TILMOUTH: That is right, your Honour, that is where it arises.
HAYNE J: Now, there is a direction there about “act of violence”. It can be understood as containing at least these elements: “introduction of the knife . . . for the purpose of” - thus I interpolate simply to speak in terms of “introduction of the knife” seems to tell only a part of the story – “introduction of the knife . . . for the purpose of”. Then:
If you find that Escalante presented the knife for the purpose of threatening or intimidating Hillam ‑
that is victim one, is it not?
MR TILMOUTH: Yes it is.
HAYNE J:
or for the purpose of stabbing him, that constitutes an act of violence.
Now, that is the act of violence to which the jury’s attention is drawn. Where in that, if at all, does any question arise of defining the duration of the armed robbery - whether the armed robbery is at an end - or any such temporal or spatial question of the kind to which you last referred?
MR TILMOUTH: Well, it does not arise there, if the Court pleases. This is, at it were, beforehand and the first act that his Honour - and the only act by the way that his Honour - left to the jury as constituting the act of violence. But if the Court pleases, the complaint is “I direct you as a matter of law”.
GLEESON CJ: Yes. Your complaint is that the words “as a matter of law” should be deleted and that he should have added, “It is open to you to find it was an act of violence”.
MR TILMOUTH: Quite.
GLEESON CJ: My question to you is what was it open to them to find other than that it was an act of violence?
MR TILMOUTH: Well, if the Court pleases, I have answered that as best I can, and I understand what your Honour is putting to me.
GLEESON CJ: Now, suppose we came to the conclusion that there was no reasonable view of the facts that the jury could have taken other than it was an act of violence. What course should we take?
MR TILMOUTH: That would mean there would be no miscarriage of justice on that view taken alone. But the difficulty, if the Court pleases, as part of the entire case is that - and this partly gets us to the causation issue - what was left to the jury was very little, if anything, of substance to decide.
HAYNE J: Before we get to that. Of what use, if any, are we to make of the judge’s report to the Full Court appearing at 828, in the second of the paragraphs appearing in the paragraph numbered 2, where his Honour appears to describe the course of events at trial as being that:
The issue whether the presenting of the knife was an act of violence was argued as a question of law by all counsel. No one objected to the manner in which it was left to the jury.
What account, if any, may we take of that?
MR TILMOUTH: Well, if the Court pleases, the transcript shows, before this was put to the jury, that counsel had argued long and hard about this particular aspect of the case and his Honour had resolved it against them. There was no point in getting up later on and repeating the objection. It was very clear that at least on this point counsel had opposed the putting of the production of the knife as the act of violence that was concerned, and this matter was argued over several days at various places.
So, in my submission, your Honours of course can have regard to the report but it does not mean anything, in my submission, because it was clear that counsel would always oppose section 12A being left to the jury in this way. Indeed, even in the summing up itself it was clear that counsel was unhappy about the way it was being left. That appears from 817 and following in material respects.
If the Court pleases, on that point the Court has understood the point. It is simply a matter of basic principle that it is a question for the jury to decide. The judge can direct them as a matter of law it is open to find or it is capable of being the act of violence but not that it is, and if the Court pleases, I need say no further about that except it is important because when we come to causation really our submission is that very little was left to the jury in order to convict of statutory murder. Now, your Honours, can I then move if I may to the causation part of the argument and that also appears at 812, if the Court pleases, in book 4.
KIRBY J: You say little was left to the jury, but it may be that that is the effect of the section. I am not saying that the suggested misdirection is the effect of the section, of the direction of law, but that this perhaps is the purpose of statutory murder. What do you say is the theory of the section? What is the purpose of the section?
MR TILMOUTH: The purpose of the section is akin to felony murder, as a matter of policy to prescribe that murder is committed without ‑ ‑ ‑
KIRBY J: And how would you describe that principle?
MR TILMOUTH: Well, in effect, it is a principle which liables one to murder without having, or being party to, an intent to kill or cause grievous bodily harm. That would be the main distinction between common law murder and statutory murder.
KIRBY J: The policy of the law here is that if you become involved in dangerous acts, the experience of the law is that they have a tendency to lead on to murder and therefore the law will assign responsibility as of murder although you did not actually intend it.
MR TILMOUTH: Yes.
KIRBY J: Is that a correct understanding?
MR TILMOUTH: Yes, and the refinement of course has been to take the artificial distinction from felonies and misdemeanours away and to enable Parliament to define as it wishes which are regarded as major indictable offences.
KIRBY J: That does not really matter in this case, does it?
MR TILMOUTH: No, it does not.
KIRBY J: Because these are, in old terms, felonies.
MR TILMOUTH: That is right. This would have been a felony murder case.
GLEESON CJ: But it means, for example, that if a bank robber uses explosives to blow up a safe and, in the course of doing that, kills one of the employees of the bank then he is guilty of murder.
MR TILMOUTH: Yes. And so, subject to proper direction, are his cohorts, whether they are with him or outside, if it is part of the plan, of course. Essentially the two elements that were in dispute at the trial were the intentional act of violence and the causing of death. We have seen, in my submission, that intentional act of violence was taken away. That left causes the death, and as the Court would have seen, his Honour put a bare “but for” test of causation which was very easy to satisfy and, in our submission, was in error.
GLEESON CJ: Now, on what view of the facts might the presentation of the knife, with the intention you mentioned earlier, not have been regarded as a cause of the death?
MR TILMOUTH: Well, it depends of course how one looks at it. If the Court pleases, the knife was produced early on at a different place. It was not used at all and it really had - this is the initial production of course - nothing to do with what happened later.
KIRBY J: Could you give us the time sequence? All of this is happening, I think, in a matter of minutes or even seconds.
MR TILMOUTH: Very quickly, if the Court pleases.
KIRBY J: Tell us what the time sequence is, because it may be that it is not really sensible to divide it up into seconds; that you have to look at it as a continuous series of acts. Or is this Ms Powell’s responsibility?
MR TILMOUTH: I do not think there is any definitive evidence in terms of minutes or seconds, if the Court pleases.
KIRBY J: They saw the two men walking on the side of the road that they were travelling on.
MR TILMOUTH: Yes.
KIRBY J: They went ahead and stopped. The two men crossed the road I think, is that correct?
MR TILMOUTH: They did.
KIRBY J: They went after them and the affray happened on the far side of the road, Escalante producing a knife and your client having thrown away a knife but entering the affray and Ms Powell’s client, as I get the impression, standing back a bit but willing and ready to go into the affray if needed. Is that a fair understanding of the facts?
MR TILMOUTH: That is generally the situation. Escalante was first with his knife. I think Bourne was first and then Hillam, victim 2 and victim 1. Escalante was first following them as they were retreating, then there was my client and then there was Ms Powell’s client. The initial exchange as I understand it happened with Hillam after they crossed the road and had gone past the hotel. This is in very general terms of course. My client was concerned that Bourne would interfere with Hillam and he engaged Bourne. Ms Powell’s client was behind and came up to assist my client. Now, that is a very rough analysis of the matter, but if the Court pleases, as I understand it there was no ‑ ‑ ‑
KIRBY J: And the whole purpose of it was to get the mobile phone.
MR TILMOUTH: At least initially, yes.
KIRBY J: Well, when did it, in your suggestion, in the theory that you are propounding, finish the attempt to get the mobile phone and become the steps leading to the felony murder?
MR TILMOUTH: Around the time that Hillam left the area and hopped in the taxi. It was shortly beforehand.
KIRBY J: It is a little artificial, is it not, to divide the facts up. Their object was to roll somebody in the course of a robbery. They pulled up for that purpose presumably because they saw one of the deceased speaking on the mobile phone. They went across the road. All of this time it is a robbery and then somehow, magically in the course of the affray, it ceases to be the robbery and turns into a felony murder.
MR TILMOUTH: If the Court pleases, with respect I would rather defer to Ms Powell, but as I understand it the argument was that although it initially started out as a robbery of the mobile phone it escalated into something quite different - that the victims turned on Escalante and then there was a separate altercation between them, in effect.
CALLINAN J: They tried to defend themselves.
MR TILMOUTH: Well, it depended again on which ‑ ‑ ‑
CALLINAN J: Are they supposed to submit to being robbed?
KIRBY J: That is what Mr Escalante said. It was only over a mobile. He just expected him to give it up. People get passionate about their mobiles and other possessions.
GLEESON CJ: They also get strong feelings about people waving knives at them.
MR TILMOUTH: Of course, if the Court pleases. But if the Court pleases could I, if I may - I know there is a difficulty in splitting the argument, but may I leave that to Ms Powell, and if I could quickly deal with the question of ‑ ‑ ‑
KIRBY J: You just want to have a nice refined point of law.
GLEESON CJ: It is not only a nice refined point of law. It is a point of law on which there is no argument. Your opponent agrees with you on this point. You are pushing at an open door.
MR TILMOUTH: That is true.
KIRBY J: That is what you like to do, Mr Tilmouth.
GLEESON CJ: But you have a problem, Mr Tilmouth. This is not a point that was taken in either of the courts below, is it?
MR TILMOUTH: No it was not, if the Court pleases.
GLEESON CJ: So you have to persuade us that exceptional circumstances exist which entitle you to take the point. Whilst sometimes the law seems to take a good deal of trouble to avoid this kind of collision, that brings us to what might be called the merits.
MR TILMOUTH: Yes. Of course we understand that, if the Court pleases, and we understand what the Court said in Crampton’s Case. Once again, Ms Powell will argue this because there are some important things to say, but could I just ‑ ‑ ‑
KIRBY J: You have left the hard bits to Ms Powell. This is hardly very gallant of you, Mr Tilmouth.
MR TILMOUTH: Your Honours, we were more philanthropic in our intention. We were hoping to not trouble your Honours with two arguments covering the same area, and dividing it up just happened to come that way. So we apologise if it is inconvenient but that is ‑ ‑ ‑
GLEESON CJ: Well, I gather from what your opponent has said in his written submissions that you do not have to persuade anybody that the “but for” test is not the test of causation. But what you do have to persuade us is that the merits of the case are such that we ought to treat this as one of those exceptional cases in which we will let you argue this point here.
MR TILMOUTH: Yes. If the Court wants to drive us straight to that point, accepting that there was a misdirection in relation to causation, which is at 812 and over to 813 ‑ ‑ ‑
KIRBY J: Mr Rofe concedes this point.
MR TILMOUTH: Yes, he does.
KIRBY J: Speaking for myself, I mean, I pay great respect to the fact that a Director of Public Prosecutions concedes it, but is that the law? Can we be satisfied? Does Royall say that in clear terms?
MR TILMOUTH: Perhaps I can put a brief argument, if I may. What the argument would be is that his Honour clearly put the “but for” test – this is volume 4 at 812 lines 34 to 35 – without anything else. His Honour repeated it at 821 to 822, 821, your Honours, line 34 and particularly at 822 the first five or so lines.
GLEESON CJ: Now, was there any complaint about this at the trial?
MR TILMOUTH: No, not about this particular ‑ ‑ ‑
GLEESON CJ: Does that not suggest that there was not any serious contest at the trial about whether, if this knife was produced for the purpose you described earlier, it was a cause of the death?
MR TILMOUTH: No, if the Court pleases. If I could take your Honours to 822, just to illustrate this point, at line 13:
The defence, I repeat, says there is absolutely no possible causal link between the presenting of the knife at this early stage of the affray, this early introduction of it into the affray, and the stabbing of Bourne, which, on any view, had to have occurred later.
Again, his Honour repeats the defence at lines 19 to 20, “there is no causal link” so the defence says:
there is no causal link between the introduction of this knife –
and so on. In my submission to your Honours, it was quite clear, although defence counsel and, indeed, appellate counsel, never seized upon the “but for” problem, they continued to object to statutory murder being put in this form.
Can I take your Honours back to the initial directions which commenced at the bottom of 812 and to 813? His Honour at 814, line 10 put the defence case again in slightly different terms:
The defence case is that there was a fight, each defending the other; they had no idea that knives would be used in the fight. Mkoka, indeed, had thrown his away. All they were doing was acting in their own defence and in defence of each other.
CALLINAN J: But how can people who go armed to rob somebody be acting in defence of themselves when the intended victims resist being robbed? I do not see that as defending themselves. They can turn around and run away, they had a car they could get into.
MR TILMOUTH: If the Court pleases, that is now a spent issue because that was taken to the Court of ‑ ‑ ‑
CALLINAN J: But it is a relevant fact and it may be relevant to the matter that the Chief Justice raises with you.
MR TILMOUTH: Well, if the Court pleases, can I go back to the Chief Justice and your Honour Justice Kirby, if I may. Your Honours, in relation to the question of the failure to raise, there was clearly no forensic advantage in not raising this point. It is an important point of law, and had it been picked up, it would have been taken. In my submission, it is clear that defence counsel was never happy with section 12A being left in the way it was with the early production of the knife. Defence counsel persistently put that it would be the use of the knife later, if anything, which would be the relevant act of violence and, indeed, the relevant act for the purposes of causation. Now, could I answer your Honour Justice Kirby’s point about Royall without going to it, if I may?
KIRBY J: That seems to establish at least two of the points that the judge did put to the jury. It does not have to be the sole cause and the determination of whether it is the cause is a matter of commonsense for the jury. If the judge put those two points, that was fine.
MR TILMOUTH: Yes. He did, yes.
KIRBY J: But what does Royall go on to say in relation to the old dilemma about causa causans and causa sine qua non?
MR TILMOUTH: What Royall says, in my submission, and indeed what all the cases say or do not say is that putting causation on a bare “but for” basis has, in my submission, no justification in any case law whatsoever, whether in this country or anywhere else. The “but for” criterion is talked about in the literature as being the factual threshold, as it were, which qualifies the identified act for causation purposes; but there is also a legal requirement, something more than the “but for” requirement, which is often expressed or can be expressed to elevate it from the minimum to the maximum, not merely trivial or insignificant or de minimis, or another version of it is significant or substantial.
The first point that I make is there is no case, in my submission, anywhere which has upheld a direction where it matters of course where causation is an issue, that simply satisfying the initial factual test “but for” has been said to be the law.
What Royall stands for, in my submission, is that there must be a qualification between the bare “but for” cause and causation for legal purposes which, of course, for legal purposes ascribing moral…..for the purposes of the criminal law, the Western Australia case of Campbell approved in Royall. Generally, in my submission, what Royall said was the direction should be that it was a significant or a substantial cause. Now, without taking your Honours to the case ‑ ‑ ‑
HAYNE J: Pausing there, if you go to 822 that you have taken us to and the second and third complete paragraphs on 822 where the competing views are put.
MR TILMOUTH: Yes.
HAYNE J: First, is that an accurate statement of the competing views put at trial?
MR TILMOUTH: Yes, in broad terms, it is.
HAYNE J: Do you say, therefore, that those competing views were to be resolved by the jury applying the directions which appear at 812 down to, but not including, the sentence commencing at line 33? If you took out the sentence, “It is enough if it is shown that, but for that one event”, et cetera, the preceding part of the paragraph would have been an accurate direction to the jury on the question of causation?
MR TILMOUTH: Accurate, with respect, so far as it went.
HAYNE J: What was incomplete about it?
MR TILMOUTH: Because it did not say that the jury had to be satisfied that the cause was substantial or ‑ ‑ ‑
HAYNE J: Yes it does. I have left in the sentence, “It is enough if it is a substantial cause”.
MR TILMOUTH: I see, if the Court pleases. Down to there would probably be sufficient.
HAYNE J: Is there any other aspect of the legal test of causation that could have been put to the jury other than that part of that paragraph before its last sentence?
MR TILMOUTH: His Honour might have explained what “substantial” meant, but that is very much according to the case law and the discretion of the judge according to the facts of the case. But I concede, if the Court pleases, if it had stopped at “substantial cause” that would probably be a sufficient direction. The problem is that his Honour goes on to say, “It is enough if it is shown that, but for the one event”. So that rather swallowed, as it were, the qualification of “substantial” and took it away because his Honour simply put:
if it is shown that, but for that one event, all the other events would not have happened as they did.
HAYNE J: But the substantial thrust of the defence case at trial appears to have been, correct me if I am wrong, that Escalante, by becoming aggressive, had departed from a common intent and was off acting on his own account entirely through anger.
MR TILMOUTH: Yes, and as a result of that, perhaps, or additionally, the original enterprise was over. Hence, the argument as well that the act of violence or the major indictable offence that was identified, the attempted robbery, was over and so on.
GLEESON CJ: It is not easy to reconcile that approach with the conviction against which you do not appeal in relation to the robbery, is it?
MR TILMOUTH: That, if the Court pleases, is true, assuming that the wounding in particular coincides with what would have been a proper direction for complicity on murder, and Ms Powell will direct that. Our submission is the two do not coincide.
Your Honours, can I then just go back to Royall without reading it to mention that, in our submission, Royall plainly stands for the proposition that a judge must direct a jury that the causation identified or the act of causation identified has to be significant or substantial. It is Justice Brennan at 398, Justices Deane and Dawson at 411 and Justices Toohey and Gaudron at 423 - they use the words “substantially contributed” - and Justice McHugh, if the Court pleases, at 442, “substantial cause”. At 448 to 449 in Royall, if the Court pleases, his Honour rejects a “but for” test in the context of the criminal law for substantially the same reasons that this Court did it in the context of the civil law in March v Stramare.
So our submission is it is a clear misdirection for the reasons identified. Your Honours, without labouring on the question of law, the submission would be that our submission is consistent with common law authority and including the recent Canadian Supreme Court decision in Nette, which is on our list of authorities, your Honours, at No 5 – I will not read it – particularly at 643 and 644, paragraphs [71] to [72], where the Canadian Supreme Court by a majority of five to four adopts a direction, “significant contributing cause”, which is for practical purposes, in our submission, the same as Royall in Australia.
So, if the Court pleases, assuming for the moment that Royall supports what we submit and assuming that there is no justification for putting causation to the jury on a bare “but for” basis, in our submission, there is plainly an error of law on really the only element left to the jury in relation to a statutory murder, which would then drive us to the questions of the proviso and, as I have indicated, Ms Powell will argue those matters. If the Court pleases, if it is convenient to the Court, since the Court has directed attention to really where it comes to, Ms Powell might deal with those matters now.
GLEESON CJ: All right. Thank you. That is very kind of you to leave that to Ms Powell.
MR TILMOUTH: Yes, if the Court pleases.
MS POWELL: Before I take your Honours to the facts, which has been the task of course left to me, can I just add one thing to what my learned friend Mr Tilmouth has said in respect of the significance of what was identified as the act of violence in this matter and what is said to be causative of the death of Bourne in this matter.
When this Court says in Royall that juries should be directed that the commonsense approach should be adopted in respect of deciding the question of causation, one thinks about that in the context of this case and any sensible person asked what caused Mr Bourne’s death, they would say it was Mr Escalante stabbing him once. That would be the immediate and commonsense approach to what caused Bourne’s death. But the reason why the Crown was driven back to identify it to the presentation of the knife to Hillam which, when one thinks about it in a commonsense way, is a contrived cause of death, to say the least – but the reason the Crown is driven back to that is because it fears the suggestion on the facts that the attempt armed robbery is well and truly over and finished at the time that Mr Escalante stabs Mr Bourne.
KIRBY J: It does not seem well and truly in my mind – I mean, the whole object of stopping was not originally to murder Mr Bourne. The object was to get his mobile and they did not get his mobile. He would not give it up. It would have been wise in retrospect had he done so, as Mr Escalante kept saying in the car, but he did not and, therefore, right up to the point of stabbing, it does seem to be that the stabbing by Mr Escalante was intimately and directly and commonsensically connected with trying to get the mobile. Is that wrong?
MS POWELL: In my submission - I will take you to the facts in a moment – it seems as though the request for the mobile and trying to get the mobile is really over and done with and finished before Escalante even strikes at Hillam. Hillam himself gives no evidence even of a demand for the mobile.
GLEESON CJ: You probably do need to explain the facts to us.
MS POWELL: I probably do, but just to complete that, that still leaves hanging in the air why it is that the Crown in this case were driven to identify that earlier act of violence. If it was an easier way home for the Crown, why not identify the commonsense causative act of violence. The extrapolation of it back to the point of production to Hillam, in our submission, is indicative of the factual problems that the Crown had, but I will need to take your Honours obviously to the facts.
GLEESON CJ: But was the problem any more than that it was easy for the Crown to treat them all as participants in a plan to use weapons to rob somebody, use in the sense of presenting them, but it might have been more difficult for the Crown to say that they were all part of a plan to actually stab someone.
MS POWELL: Yes.
GLEESON CJ: Well, at least in the case of statutory murder that does not matter much, does it?
MS POWELL: That is so. Perhaps I am not expressing myself ‑ ‑ ‑
GLEESON CJ: In the example that I gave earlier of the bank robber who uses too much explosive to blow up the safe and kills one of the employees of the bank, one of his confederates might have been a party to use the explosive to blow up the safe but had no intention to kill the employee.
MS POWELL: Yes. I think perhaps I was not making my point properly by saying the stabbing of Bourne, but why not presentation of the knife to Bourne being the commonsense approach of what was causative of the death. We say the reason it goes back to presentation to Hillam is in an attempt to, and we say in a contrived way, include it in the attempt armed robbery.
GLEESON CJ: It would certainly help me if you could just state in summary form what happened, the sequence of events.
MS POWELL: Do your Honours have - which was provided to you and, I am sorry, not with the arguments - the plan, P2, and a set of photographs?
GLEESON CJ: We have just been handed some photographs but not a plan.
MS POWELL: The plan might be inside the book at the back.
GLEESON CJ: All right.
MS POWELL: Now, if I can take your Honours to the book of photographs, photograph No 1, the picture from the air – if you turn that book of photographs upside down, then what you are looking at in the plan is now depicted to you. The red‑roofed building that you can see in about the middle of photograph P1 is the Maid and Magpie Hotel which is situated between Payneham and Magill Road just where the corner rounds there. That is where the red‑roofed hotel is.
What happens is that these five young men in a stolen car, having discussed that they were going to roll somebody and having driven into town to see if they could see someone they could roll, were driving out towards the Maid and Magpie Hotel from town along ‑ ‑ ‑
KIRBY J: You know these roads; I do not. Which is the way from town?
MS POWELL: Town would be on the left side of the map.
GUMMOW J: It is the end of North Terrace.
MS POWELL: That is right. So they are travelling along North Terrace from the very left‑hand side of the plan towards the Maid and Magpie Hotel.
KIRBY J: Now, I have the photograph upside down.
MS POWELL: So they are coming from North Terrace out in the same way, from left to right as well.
KIRBY J: Very well.
MS POWELL: As they are travelling along North Terrace, travelling in approximately a northerly direction, they see Mr Hillam and Mr Bourne walking along on the western footpath of North Terrace towards – can your Honours see Baliol Street marked on the map on the left‑hand side?
GLEESON CJ: Yes.
MS POWELL: That little “x” above the “B” of Baliol is a telephone box and these gentlemen were walking towards that telephone box. The front passenger, who turned out to be a Crown witness, a young man called Sinclair, saw Mr Hillam talking on the mobile phone, not the deceased Bourne but Mr Hillam, and they drove slowly past these two, had a look and then stopped before the telephone box. It is at that point that the decision of the three accused, Escalante, Mkoka and Arulthilakan, they make the decision to go and participate in the rolling of Mr Hillam for his mobile phone.
GUMMOW J: What time of night is this?
MS POWELL: About 3.30 in the morning, on the Saturday morning. Now, at the car, the back of the car, there is some discussion between these two appellants as to weapons. It was known by both of the others that Escalante commonly carried a knife. Arulthilakan, my client, had a knife wrapped up in cardboard and in his jacket pocket and he gave evidence about having been threatened and intimidated and assaulted previously and having reported that to the police and he said he was carrying that knife for his own protection.
KIRBY J: So, having been a victim of this sort of activity, he decided to join in it?
MS POWELL: Previously, yes. He gave evidence to the effect that he only went up to the scene for the purpose of defending Mkoka and making sure he did not get into any trouble, but clearly he was rejected by the jury on that point. But what he did, having alighted from the car in any event, was to take that knife still wrapped in cardboard from his pocket, put it on the back seat because he did not want to take ‑ ‑ ‑
GUMMOW J: Now, the car stopped presumably?
MS POWELL: The car had stopped.
GUMMOW J: Whereabouts is that?
MS POWELL: Probably back from where the map is shown because they had to walk, I think, somewhere around about 100 metres up towards where the telephone box is.
GUMMOW J: So it stopped in Baliol Street somewhere?
MS POWELL: No, the men were walking towards Baliol Street. The car stopped further back on North Terrace, probably not within the compass of the map, but at best somewhere towards that very far left‑hand side of the map. Anyway, Mr Arulthilakan put his knife on the back seat and Mr Mkoka said, “Can I take that?” and he let him take it and that was the state of affairs.
KIRBY J: Now, can I just get clear in my mind: is that the suggested throwing away of the knife?
MS POWELL: No, that is not. This is much earlier.
KIRBY J: I see, that is done by Mr Tilmouth’s client.
MS POWELL: This explains how Mkoka came to be with a knife, which I should impress upon your Honours is not the knife used either against Hillam or against Bourne. There seems to be no doubt, and there was no contest on the forensic evidence, that it was Escalante’s knife which was used against both men.
GLEESON CJ: Is there a photograph of Escalante’s knife in these photographs?
MS POWELL: Not of Escalante’s, only I think of the discarded knife ‑ ‑ ‑
GLEESON CJ: What was the size of Escalante’s knife?
MS POWELL: Eighteen centimetres.
HAYNE J: The blade, or overall?
MS POWELL: The blade, and it was a 20 centimetre wound to Bourne, so there was expert evidence given by the pathologist about the pushing in. But that was a knife which was straight to a point. In other words, it was blunt on the top side and sharp on the bottom.
GLEESON CJ: Both of the appellants knew that Escalante was armed with that knife.
MS POWELL: That is right. There is no doubt about that whatsoever, but it is important that it was Escalante’s knife that was used, not the Mkoka knife, by Arulthilakan. There is evidence, and I prepared actually, your Honours, some summaries of evidence, but both of the appellants said that they thought that knives were being taken to scare Hillam into giving up the mobile phone. There was not any contest about that. Indeed, the two Crown witnesses, who were the driver and the front passenger seat young lads, gave evidence of their awareness and weapons and that nothing was said about using the weapons in terms of actual application of physical force, but that everybody talked about ‑ ‑ ‑
GLEESON CJ: Just a minute. The way you scare somebody into giving up an object by using a knife is by threatening to use it.
MS POWELL: Brandishing it, yes, that is right. Both of the accused gave evidence that their understanding was that the knives were going to be used for the purpose that your Honour the Chief Justice identified, but both believed that they would only be used to the extent of threats and that they would never be used for the purpose of physically harming.
So the three lads are approaching the men who are in the vicinity of the telephone box. There was some dispute about whether they had gone into that telephone box, but that need not trouble your Honours.
KIRBY J: How old were the participants in this activity?
MS POWELL: There is a chronology, I think. My client is now 19, so this is back in 1999. I think we were 16 and Mr Tilmouth’s client was 15 and Escalante was 18. I think it is helpful looking at this map, but if I could take your Honours quickly to the evidence of Mr Hillam.
HAYNE J: Before you do that, the judge described to the jury the sequence of events at pages 755 to 756 of the charge. At some point, I would like to know whether you challenge the accuracy of that sequence of events. If it is not convenient, do not do it now, but at some point, please.
MS POWELL: Thank you. If I could just take your Honours to appeal book volume 1, page 126. This is where Mr Hillam says that he first noticed – at line 23:
I looked up and noticed the three people left the phone box –
he thought they were in the phone box, but that is a matter that will not need to trouble your Honours –
and the guy in front with the cap and hood –
There was independent evidence that this is Escalante. Escalante had pulled up the hood of his jacket and put it over his – he had a red cap underneath and a hood over the top. So this is Escalante. He:
just came and said ‘What the fuck are you looking at?’ What are you doing?’ . . . I said ‘We’re not looking at anything; we’re just walking home’, and kept walking.
Then over at 127:
They started walking towards us, so we made a jaywalk across the intersection towards the Maid & Magpie, and they continued to say ‘What the fuck you looking at? Where the fuck do you think you’re going?’, and I replied by saying ‘Leave us alone. We are going home. We don’t want any trouble’.
Then if I can take your Honours to 131, down the bottom, at line 33:
Q. What about these people . . . were they saying anything while you walked across the road.
A. Yes, they were. I’m pretty sure it was the guy in the red cap –
that is Escalante –
continually baiting us and asking us for a confrontation.
So Hillam believed not that he was in the process of being confronted for the purpose of a robbery, but he believed that he was being confronted for the purpose of a fight.
GLEESON CJ: How old were Hillam and Bourne?
MS POWELL: In their early twenties, your Honour. Over on 132:
Q. What sort of things was he saying, do you remember.
A. ‘What the fuck are you looking at? Do you want a fucking go?’.Q. Were you replying.
A. Not all the time. I replied three times. The third time I replied I turned around and was taking steps backwards . . .
down to line 20 –
A. They were slowing gaining on us. They were within three or four metres when we were on the other side of the road.
Q. Is that the Maid & Magpie Hotel side of Payneham Road.
your Honours can see what that means from the plan –
A. Yes.
Q. What happened when you got over there, to the Maid & Magpie Hotel side of Payneham Road.
A. The third time I said ‘Leave us alone, we are walking home, we don’t want any trouble.’ I turned around and said ‘Just fuck off, leave us alone, we don’t want any trouble’, and the guy in the hat said ‘What the fuck did you call me?’, and he started – starting rushing up in my face, and I let go of three punches at his face, and I felt a whack in my side. I looked down and saw him pulling a knife out of me, and I just yelled out ‘Run Matt, they’ve got a knife’.
GLEESON CJ: That is the wounding of which the two appellants were convicted?
MS POWELL: Of which the appellants were convicted.
GLEESON CJ: There is no appeal against those convictions?
MS POWELL: There is no appeal but, in due course, as Mr Tilmouth foreshadowed, there is a complaint in respect of the summing up, which we say goes to the question of the proviso, and whether the ambit of the direction with respect to complicity can apply equally to the murder as to the wounding with intent. I will come to that in a moment. What is significant, we say, at this point ‑ ‑ ‑
KIRBY J: As recounted by Mr Hillam, there is no doubt that Mr Escalante is the real centrepiece of the violence in this matter.
MS POWELL: That is right.
KIRBY J: Mr Tilmouth’s client had a knife which he left in the car.
MS POWELL: No.
KIRBY J: It is your client who did that?
MS POWELL: My client left it in the car, but knew that Mkoka, Mr Tilmouth’s client, took it with him to the scene.
KIRBY J: I see.
MS POWELL: We will come to that in a moment.
GLEESON CJ: Is that the knife that is photograph 54?
MS POWELL: Photograph 54 is the knife that Mr Mkoka dropped. If your Honours would like to mark, there was evidence that he dropped it at point R. That is where it was found and photographed.
GLEESON CJ: That is your client’s knife?
MS POWELL: My client’s knife, dropped by Mkoka at R on the map. Photo 35, I am told.
GLEESON CJ: What is photograph 54? The same one?
MS POWELL: The same knife after being collected; 35 is the knife where found.
GLEESON CJ: It was Mr Escalante who had the big knife?
MS POWELL: Mr Escalante had the 20‑centimetre knife. I think this one was quite big, too, in length, but it was not used.
KIRBY J: So if you forget the terms of the statute just for the moment, if you look at the causative agents here, Mr Escalante is at the top of the pile, there is no doubt about that. He is the person who is baiting, he is the person with violence, he is the person with the knife, he is the person who uses the knife, stabs and kills Mr Bourne. Your clients at various stages disengaged themselves from the knife, one in the car, the other taking it but then throwing it away. The question is whether the statute picks up what, in commonsense terms, is the lesser involvement of your client in the cause of the death and says, when you get involved in affrays with knives, you pick up the guilt of the principal offender.
MS POWELL: But we say, your Honour, what is Mr Escalante doing ‑ ‑ ‑
KIRBY J: He wants the mobile.
MS POWELL: Does he want the mobile, or is it as Mr Hillam interprets it, from what has been said, that he wants to fight?
KIRBY J: So your theory of the case is that Mr Escalante was out with the others to roll somebody. He went after a mobile, but, perhaps because of a certain violent streak, or something in his personality, he turned it into a personal confrontation and a fight to the death.
MS POWELL: Yes, he might not have liked the look of Mr Hillam.
GLEESON CJ: Of course, there were two of them and only one of him.
KIRBY J: But he had a knife.
GLEESON CJ: Yes, that is the problem.
MS POWELL: That is right, your Honour, but certainly it is open on that evidence of Mr Hillam that ‑ ‑ ‑
GLEESON CJ: What are they doing there if they are not backing Mr Escalante up?
MS POWELL: That is what they were there for originally. We do not resile from that. That is what they are there for when they go up North Terrace and diagonally across the intersection. There is no doubt about that.
KIRBY J: Your theory of the case is what I shall call a very refined time sequence division. They were there to get a mobile and to use a knife, if necessary, in getting the mobile, to the extent of threatening, but then they were not there because of crazy acts of Mr Escalante, as you say, who went on into a frolic of his own and set out and murdered Mr Bourne and assaulted Mr Hillam. They went into it up to a certain point, but not beyond that.
MS POWELL: The whole character of the enterprise changed, and changed dramatically.
GLEESON CJ: Changed from what to what?
MS POWELL: Changed from a joint enterprise to rob by threatening with knives to an intended stabbing of Mr Hillam as a result of a temper loss and altercation with him. In other words, it turned into a fight.
HAYNE J: You will no doubt explain then, when given an opportunity, such evidence as Hillam gave in‑chief at 135, where, as he has got into the cab holding his insides together, he is looking back for his friend and he describes it as:
All three of them were kicking and punching at him.
MS POWELL: I will come to that in sequence. Can I put this to your Honours, just before I come to that point. It may be that the others joined in the fight.
GLEESON CJ: Ms Powell, we are dealing here with the death of Bourne, are we not?
MS POWELL: Yes.
GLEESON CJ: There is no appeal about the convictions in relation to what happened to Mr Hillam.
MS POWELL: No.
GLEESON CJ: So what Justice Hayne just put to you as to what Mr Hillam observed to be Mr Bourne’s last moments alive is significant, is it not?
MS POWELL: Yes, it is, and I will come to what he was capable of seeing and whether he is accurate about what he did see or whether that is reconstructed, in a moment. Certainly, this is after the attack on Hillam and after, we say, everything has gone awry. This is not just an attempt robbery gone wrong. Nobody is thinking about the phone. There is no attempt to wrest the phone off the injured Mr Hillam. Mr Hillam says he perceived it as an offer to fight, and in fact ‑ ‑ ‑
HAYNE J: Your client gave evidence, did he not? Both of the present appellants gave evidence?
MS POWELL: Yes.
HAYNE J: What did they say they were doing when Escalante was stabbing Mr Bourne?
MS POWELL: They say it happened very, very ‑ ‑ ‑
HAYNE J: What did they say they were doing?
MS POWELL: They were to the side – as best we can place it, the incident with Hillam and Escalante occurred somewhere to the left of R on exhibit P2, somewhere between the corner and that marker R. What Arulthilakan said he did – and there is no doubt that they are somewhere in the vicinity – Arulthilakan says that he saw it as Hillam moving on to, if you like, Escalante. Indeed, there might be some support for that in terms of how Hillam saw it happen, thinking that he was on for a fight. Apparently Hillam was a very much larger man than Escalante.
Arulthilakan moved towards them very quickly and apparently delivered two punches to the lower back, which must have been so ineffectual that Mr Hillam did not even notice it. He then turns round and by that stage he sees Mkoka grappling with Bourne. What Mkoka said is that he loses sight of Hillam and Escalante altogether. They are out of his vision, but he knows a fight is on. He believes that a fight is imminently about to start, by reason of the heightening of tension in the voices and by the abusive manner in which the two men were interchanging their words.
He turns round to see Bourne, who has wandered up to a point at about P on the map, there was evidence. So that is where Bourne is. At this point he sees Bourne – this is Mkoka – turn around. Obviously, Bourne now realises that Escalante is fighting with Hillam, so he starts to move swiftly back towards the Maid and Magpie Hotel. It is at that point that Mkoka says, realising – so he is moving straight back in the direction of Mkoka. Mkoka says, “I realised a fight’s on and this bloke’s coming for me, while Hillam deals with Escalante”. At that point he drops the knife at point R and he takes out his billiard bill in the sock.
Bourne rushes up to - and these two connect. Mkoka says he is swinging the billiard ball and that he connects, and there were two lacerations to the left side of Bourne’s head which would be consistent with his having been hit on the head with that ball. The first point where Bourne’s blood is discovered is at point Q. That, it can be inferred from the facts, is as a result of the strike to the head, because the massive amounts of blood and footprints in blood are up at the point with a number of letters around it to the right-hand side.
GLEESON CJ: Now, what about Hillam’s evidence that he saw somebody kicking Bourne?
CALLINAN J: It was not only Mr Hillam. Mr Smith was the driver of the stolen car, was he not?
MS POWELL: Yes.
CALLINAN J: And he gave evidence - at page 349, he said that Arulthilakan said “he helped Chiseko”‑ that is Mkoka:
beat up the guy by punching him a few times and kicking him on the ground.
Now, that is a reference to Mr Bourne, is it not, the deceased? That is at about line 16 on page 349. You do not only have Mr Hillam’s evidence. You have ‑ ‑ ‑
MS POWELL: No, I was going to bring your Honours to ‑ ‑ ‑
CALLINAN J: You have a direct admission to Mr Smith that both men, both of the appellants, were kicking and punching Mr Bourne when he was on the ground.
MS POWELL: Yes. The medical evidence about that, your Honour, was that there were these two lacerations to the left side of the head, there was a graze to the elbow and to the knee of Mr Bourne, both of which were consistent with him falling onto a hard surface such as ‑ ‑ ‑
CALLINAN J: But none of that is to the point, Ms Powell, if in fact the jury accepted this evidence of a very clear admission. The fact that the kicking and punching might not have left any bruises that were discovered by the doctor who undertook the post-mortem does not assist, I do not think.
MS POWELL: Your Honour, both the appellants got into the witness box. Mkoka said, “I am swinging at him with this ball”. Arulthilakan joins in and grabs him from behind, says, “I hit him twice to the back of the neck and then when he and Mkoka fell to the ground I kicked him”. So there is no doubt that ‑ ‑ ‑
CALLINAN J: Yes, would not all of that have helped to disable Mr Bourne so that the other man would be in a position to stab him, stab him fatally?
MS POWELL: We say not as part of a joint enterprise to rob.
GLEESON CJ: But that is the problem. Maybe that is the central issue in the case, Ms Powell, but joint enterprises of this kind are not very clinical in their nature.
MS POWELL: No.
GLEESON CJ: And when three men with the weapons and propensities of these three set upon two unarmed men in the street then unless the unarmed men in the street run away and get away there is going to be violence and an evident possibility of grievous bodily harm.
MS POWELL: Except this, your Honour ‑ ‑ ‑
GLEESON CJ: You cannot say that the robbery is over once the victims start to resist.
MS POWELL: Of course not, your Honour, but let me pose this - and your Honour is right, of course these enterprises are never very clinical in terms of “we will do this and then we will do that”. But let us suppose that these men got up to the corner near Baliol Street, took a look at these two men Hillam and Bourne and thought, “They’re much too big for us and they’re too aggressive. We’ll stop this idea of an attempted armed robbery. We’ll go back to our car and we’ll get in it and we’ll drive away and forget it.”
Let us suppose that Hillam and Bourne took some sort of - were insulted by this approach to them at all and followed these young lads to somewhere else, and a fight broke out. One could not say it was still in the course of the joint enterprise, because it would be separated in time and in intention.
GLEESON CJ: Am I right in thinking that although we are now dealing with some points that were not raised in the courts below, the way this case was fought at trial and in the Court of Criminal Appeal was as a case of self-defence?
MS POWELL: Yes.
GLEESON CJ: Exactly. That is what the major element of the judgment of the Court of Criminal Appeal is all about.
MS POWELL: That self-defence was not left to the jury.
GLEESON CJ: So the grand theory of the case before it came here was that what started off as an armed robbery turned into a brawl in which your clients were defending themselves against the attack of Bourne and Hillam.
MS POWELL: That is what Mkoka and Arulthilakan were doing, although Arulthilakan said, “Yes, that’s right, I was there, defending Mkoka and that was the only reason I was ever there”. So his was a little more extended. Mr White tells me that it was put on the basis that - Mr Escalante’s stabbing was put on the basis that that was excessive self‑defence but the others did not know about that at the time and just basically took up the offer to fight, which is what - and it cannot resile from that. That is the way it was run. Can I take your Honours to the evidence of a passing driver, back to Mr Douglas, appearing in appeal book 2 at page 285?
KIRBY J: Was he the taxi driver, or another driver?
MS POWELL: No, this is a driver, Mr Douglas, who is coming from North Terrace across the intersection and is intending to drive in a northerly direction up Payneham Road.
KIRBY J: Was Mr Hillam by this stage inside the taxi or is this before the taxi ‑ ‑ ‑
MS POWELL: No, and your Honour will see why in a moment. So at page 285, he puts the time at 3.30 am, he is travelling on the lane closest to the centre of Payneham Road travelling in this northerly direction and he sees - at the bottom, line 30 - to his right on the other side of the road he sees four people, and as he travels a little further he sees a fifth person:
That single person was running . . . and headed towards my vehicle . . .
Q. Was that person doing anything.
A. Yes he was. He raised a piece of clothing and he was sort of motioning with his hand, pointing to his stomach ‑
That has got to be the stabbed Mr Hillam trying to wave down Mr Douglas to get help. Line 11:
Not knowing the circumstances, I just veered around him, continued on my way.
Q. The other people, where were they.
A. The other people were still, at that stage, running in the same direction as I was travelling - easterly ‑
and that is consistent with a movement up towards where all of the blood was found, on the map P2:
They seemed to be supporting, or I would say supporting, a person in the middle. Their arms were interlocked under his and around his shoulders.
Q. Were they moving or were they stationary.
A. They were running.
Now, what Mr Douglas has perceived is Mkoka at the front of Bourne grappling with him, Arulthilakan has come in from behind and is trying to pull Bourne off Mkoka and this interlocking of three people, he has seen it in this quick look to his right this way but clearly that is what he has seen at the relevant time. Interestingly, 25:
A. They were actually running the same direction I was travelling, but on the opposite side of the road. There was another person behind them who was walking ‑
And over on 287 line 5:
A. They were running. There was another person behind them who was walking . . .
A. He was wearing grey headgear, like an extension of a jacket, I assume, over his head.
That is Mr Escalante coming up to deliver the fatal blow.
GLEESON CJ: Ms Powell, what time elapsed between the time when the three men got out of their car and the time when Mr Bourne was killed?
MS POWELL: I do not know. There is no specific evidence on that, your Honour, but it must have been minutes.
GLEESON CJ: Some minutes.
HAYNE J: I thought the judge instructed the jury, I may be wrong, that it was of the order of two or three minutes, but perhaps I am wrong.
MS POWELL: That might have been his Honour’s assessment, your Honour. I could not find any specific evidence from anyone as to precisely over what period of time this all went on. Everybody just said it happened very quickly, and clearly it did. I should add one more piece on the legend for your Honours. Does your Honour see S on the plan P2?
GLEESON CJ: Yes.
MS POWELL: That is where Mr Mkoka loses a button of his shirt. That is found there. So one can assume from the moving back of Bourne, the grappling together, the hitting on the head, clearly that is where they are interlocked together in that Mr Mkoka’s button is dropped at that point.
HAYNE J: My reference to two or three minutes is page 780 lines 25 and ‑ ‑ ‑
MS POWELL: Thank you, your Honour. Both Mr Mkoka and Mr Arulthilakan gave evidence that in respect of the incident with Bourne, their fighting with Bourne, they only became aware of Mr Escalante being at the point of the incident at the very end. It may have been as they started to walk away or just before they started to walk away from Bourne. Now, the taxi driver also, as your Honour the Chief Justice said, saw the fight going on. Can I tell your Honour a problem with taking Mr Hillam any further than we have already taken him in his evidence - go back to photograph P1, do your Honours see a blue circle in pen on that photograph?
GLEESON CJ: Yes.
MS POWELL: That blue circle was put there by Mr Hillam as being where the taxi stopped, which he got into. Clearly, what he thinks happened is - now your Honours can see that that would indicate that the taxi is travelling in the same direction as Mr Douglas was travelling, that is towards the north because that is Payneham Road on which that blue line is drawn, and Mr Durant the taxi driver would be on the wrong side of the road if he stopped there. Indeed, Mr Hillam gave evidence that he looked back - at the time he got into the taxi he looked quickly back towards the pedestrian crossing. Do your Honours see the pedestrian crossing just in front of the red roof?
GLEESON CJ: Yes.
MS POWELL: He looked back there, and that is where he says he saw the fight going on between Bourne and the other three men when in fact the taxi driver gave evidence, “I am travelling down Payneham Road travelling south towards the hotel, and in my headlights I see ahead of me” - what I will take your Honours to in a moment - and that Hillan ran up to him and got into his car on that side of the road.
So clearly Hillam is confused – which is not surprising, given the ghastly injury that he had suffered – as to what happened in respect of that. But what the taxi driver, Mr Durrant, says he sees appears at page 296, line 7. So he has stopped his taxi in response to what he sees ahead of him:
it just looked to me like a fight, like a scuffle, you know, that had gone on to the road . . . I could tell that one person was really – was getting harassed really badly by two to three men.
Q. And what made you come to that conclusion?
A. Well, I saw one of the men hitting one of the other men in the head, a lot of just maybe kicking or throwing, holding, that sort of thing.
GLEESON CJ: That is Bourne, presumably?
MS POWELL: That is Bourne being attacked, yes, your Honour. Then he is asked at the bottom if he could isolate what the person in the hood was doing, and he said:
Not really.
Line 6 on page 297:
Q. When you first saw this fight, were the people all upright?
A. The man with the purple hair –
that is Bourne –
at one stage was like, someone was punching him in the head so he was either bent over or on his knee, or something like that.
Then he goes on at line 28:
A. There’s one, I can remember one man hitting the man with the purple hair in the head. There may have been another man standing around, or – it was all very quick, like, I can’t exactly remember.
At this stage he is about three or five metres away and he shouts at the men. At page 298, line 17:
Q. What did they do when you started yelling those sorts of things to them.
A. This all happened very quickly. I think one man was already walking away. Another man was probably walking away, or hovering around, and I think one man was still sort of harassing the man with the purple hair.Q. What do you mean by ‘harassing’.
A. Hitting, or something like that.
GLEESON CJ: What to a passer-by might have looked like a street brawl was in truth an armed robbery in which the victims were resisting?
MS POWELL: I am not relying on these passages, your Honour, to say that there we are, this is proof that it was a brawl, but certainly, that is the way it was perceived by Mr Durrant. That last passage that I just read to your Honours is interesting because that certainly looks like - and it is consistent with what the two appellants said, that they never knew there had been a stabbing of Bourne and they were not aware that Escalante was in the area until the very end. It looks as though those two are walking away and have desisted at the time that one man is still “Hitting, or something like that”.
Now, what Mr Durrant might be seeing, of course, when he says “Hitting, or something like that”, he might well have seen a stab. So that the taxi driver may well have witnessed the fatal stab.
GUMMOW J: Hillam was 30, by the way, at the time of the trial.
MS POWELL: Was he?
GUMMOW J: Yes. It seems to be at page 112.
MS POWELL: Thank you, your Honour. So the three young men go back to find the car that Smith and Sinclair, who were in the car - they found them in Baliol Street. You can turn into Baliol Street onto the intersection onto North Terrace, but you cannot get out of it. Escalante was very angry. All of them gave evidence about him hitting the back of the driver’s seat, saying, “He hit me, he hit me. Why didn’t he just give me the phone?”, and clearly, he is very, very angry indeed, and we rely upon that in terms of what might have been motivating Escalante at relevant times.
GUMMOW J: Was their house in Payneham Road far down from the junction?
MS POWELL: Sorry, your Honour?
GUMMOW J: The two victims lived in the house in Payneham Road, did not they?
MS POWELL: I do not know how far they had to walk, your Honour, but they had walked into town and clearly they were planning to walk ‑ ‑ ‑
GUMMOW J: How long does that road go for, some miles, does it?
MS POWELL: That goes miles and miles and miles. It goes up to Paradise.
KIRBY J: They were not trying to go to the Maid and Magpie?
MS POWELL: No, no. I imagine that was closed by then, so I think Hillam said, I think they were intending to continue to walk upon what might be called the western footpath, but they crossed over to the hotel specifically to avoid the three young men who were trailing behind them with Mr Escalante as the vanguard.
In the car Escalante admitted stabbing Hillam and all the witnesses from the car, including the appellants, talked about him wiping his knife. That was the first that the appellants say they knew that Escalante ‑ ‑ ‑
KIRBY J: What did they do? They all took turns in wiping the knife?
MS POWELL: No, only Escalante wiped his knife, but the others in the car saw him doing that, but both appellants gave evidence that that was the first time they became aware that there had been any stabbing at all. They drove off to a little park somewhere and only the witness, Smith, says that some time later when they were in that park that in fact Escalante admitted stabbing both men.
KIRBY J: Is that difficult to reconcile with the evidence of the independent witnesses, including Mr Smith ‑ though he is not entirely independent – that they saw the group around Mr Bourne in his last moments?
MS POWELL: It is my submission that ‑ ‑ ‑
KIRBY J: Was it open to the jury to reach a different view on that assertion of the appellants in their evidence?
MS POWELL: Potentially, yes, of course. They must have done that, your Honour – well, perhaps not. No, they perhaps still – well, obviously, we say, by reason of the statutory murder misdirection, they could easily have come to that conclusion, notwithstanding that they believed the accused that they did not know. Their version – and they are saying that they did not know that Hillam had been stabbed until he said it - is quite consistent with their evidence in that by that stage Mkoka has turned towards Bourne, and his attention is there. Arulthilakan says that, “I never saw him stabbed” and he is at Hillam’s back and Hillam receives the stab to his left flank, so it may well be that he just thought that there were punches being aimed at the front rather than the knife being used, and of course, Hillam says he was not even aware that Arulthilakan was there.
As far as the Bourne stabbing is concerned, that last evidence of the taxi driver of two men walking away and one still hitting the man with purple hair, Bourne, is of course again consistent with the story that these two young men had started to walk away at the time that the fatal – when the stab occurs and were not aware of it. So those are really the facts. There is perhaps a passage of ‑ ‑ ‑
HAYNE J: On that analysis of the facts, when did the enterprise which they acknowledge they embarked upon, namely, an enterprise to rob, stop?
MS POWELL: When Mr Escalante embarked upon his own frolic by rushing at or joining in and immediately stabbing Hillam, and that is interesting because when you judge ‑ ‑ ‑
HAYNE J: So the fact that the two appellants were attacking Bourne at the same time stood apart, did it, from the enterprise upon which they had embarked?
MS POWELL: Yes, and that is manifest by Mr Mkoka’s decision to drop the knife. He is no longer going to use that knife to threaten and to attempt to effect an armed robbery. He is going to fight, and so he is not going to bring the knife to a fight.
HAYNE J: Did anyone ever make a demand for the phone? There is no evidence of it, is there?
MS POWELL: Escalante said he did - “Give us your phone”. I think Mkoka gave evidence that he heard him say “Give us your phone” but that was before all of the “What are you looking at?” At 397 of appeal book 2:
Give us your mobile –
and Mkoka says Escalante said – Hillam says:
What mobile?
according to Escalante – I am sorry, to Mkoka, and then there was the talking about fucking off and “What did you say to me?” and “What did you call me?”.
GLEESON CJ: Ms Powell, I thought there was a description of the enterprise as being that they were setting out to roll somebody?
MS POWELL: Yes.
GLEESON CJ: What does that mean, “roll”?
MS POWELL: They were asked questions about that. At page 395 of appeal book 2, his Honour asks Mkoka at line 27:
Q. What do you mean by ‘rolling someone’.
A. Like, just to really rob them, really.Q. Only to rob, or does it mean something else.
A. Just really just to rob, nothing sort of in particular.
GLEESON CJ: It shows something a little more than a disrespect for private property, does it not?
MS POWELL: Yes. It shows that you are prepared to use a weapon to steal from someone. I mean, we do not resile from the serious antisocial behaviour that was embarked upon this night, but it is a separate issue as to whether these two men ‑ ‑ ‑
GLEESON CJ: It involves physical violence, does it not, to the extent necessary to achieve the object?
MS POWELL: Yes, unless something happens which suddenly turns it all around and changes it. Your Honour, I do not think I can keep saying the same thing over and over again. It obviously does not become any more palatable to your Honours by my repeating it. Can I move to the question of whether a substantial miscarriage of justice has occurred by reason of the identified errors in the direction of his Honour in respect of statutory murder.
GLEESON CJ: You can probably deal with it at the same time and in the same way, but a related question to be addressed is whether, these points not having been taken in the courts below, there are exceptional circumstances.
MS POWELL: Yes, and, really, as your Honour says, it is really appropriate that they be dealt with in the same way. If there has been a miscarriage ‑ ‑ ‑
KIRBY J: The only difference is that the exceptional circumstances is a judge‑made gloss. The proviso is made by Parliament and we have to ultimately obey what Parliament has said. At least, that is the view I would take of it.
MS POWELL: That is so. These young men were children at the time and ‑ ‑ ‑
KIRBY J: Children with knives.
MS POWELL: ‑ ‑ ‑ for this Court to say that because of some forensic error on the part of their counsel at trial and in appeal, that these young men who were, albeit ‑ ‑ ‑
HAYNE J: I do not think it matters, Ms Powell, whether they were 16 or 56. If there is an error, there is an error. Their age does not matter. There is no jury sitting here.
MS POWELL: Thank you, your Honour. In any event, I think that the arguments, as your Honour the Chief Justice suggests, can be developed at the same time. It depends on whether this Court can draw the positive conclusion that the misdirection could not have made any difference at all for the purpose of the proviso. As your Honour Justice Hayne says, an error is an error, and it is a question of whether the extent of the error and the extent of the merits of the case will depend on whether there are special circumstances.
GLEESON CJ: But we do need to keep sight of the way the trial was conducted.
MS POWELL: Yes.
GLEESON CJ: We are a couple of stages removed now, and looking at points that were not argued at the trial, but is it right to say that the defence was conducted on the basis that their best hope was in an argument based on self-defence?
MS POWELL: In terms of the way in which it thought the jury should have been directed in respect of common law murder. As far as the question of statutory murder was concerned, it was always put that if statutory murder were to be left, it should not have been left on the basis that it was in terms of the scope of the attempt murder. I am told that Butcher’s Case was challenged as to whether the production of the knife in these circumstances could ever have been the relevant act of violence here, by reason of Escalante being off on a frolic of his own.
So just addressing the issue, perhaps, of the proviso and the test that should be applied in respect of that, must the jury have inevitably reached the same verdict? Well, I think we probably dealt with the first reason why we say it could not have in our written argument, because it may well be that the jury determined the murder charge first. It was first on the information, and the way in which the judge directed with respect to statutory murder gave them an easy way home.
There is logic in the submission that the jury may well have approached their task that way, being the easiest way home and not requiring them to consider the more complicated matters of complicity and what was really contemplated in the matter. The way that the “but for” test was argued may well have been very appealing and very palatable to a jury.
KIRBY J: You are not raising any objections to the way in which the judge instructed the jury on the common law murder?
MS POWELL: No.
KIRBY J: The counts of the indictment – did they permit a distinction, they did not, between the way the jury found murder?
MS POWELL: We submit they did, and I will come to that now. You see, the Crown argues in its notice of contention – they argue against that by saying that the directions which the trial judge gave for the wounding with intent charge in respect of Hillam – wounding him with intent to do grievous bodily harm – and upon which the juries convicted the appellants, because they were convicted of that, with respect to complicity, the respondent contends that those directions are identical in content, in terms of what the jury had to find, as were the directions on the murder charge, that is, the directions with respect to joint enterprise and the direction with respect to aid and abet, joint enterprise, wounding with intent, murder.
They are on all fours, and, accordingly, one can assume that because the jury found these two appellants guilty of wounding with intent, a fortiori they would have convicted on murder, even if one removed from the picture statutory murder altogether. But the problem for the respondent’s contention in that respect – and this has not been pleaded as a ground of appeal, but we say it is still highly relevant to the proviso – is that directions with respect to aiding and abetting for the two offences are markedly different, and we say that the direction with respect to aiding and abetting wounding with intent is wrong. It has not been appealed, but we say that this is a relevant consideration for the purpose of the application of the proviso.
His Honour directs with respect to aiding and abetting wounding with intent at page 802, at line 22:
I come now to the question of whether the accused are guilty of aiding and abetting Escalante in the crime of wounding Hillam with intent to cause him grievous bodily harm. You will recall that this is the other route by which the Crown suggests that you can find the accused guilty.
His Honour had earlier said, at page 789, that you can find them guilty by “two routes”:
The first is the notion of joint enterprise. The second is that they aided and abetted Escalante in the commission of the offence.
He reminds them again of the two ways:
If you are satisfied as to one, then you need not consider the other –
fairly obviously –
If you are not satisfied with one, then you do need to consider the other and consider what your verdict should be.
KIRBY J: Which page are you reading now?
MS POWELL: I am reading from 802.
KIRBY J: Thank you.
MS POWELL: Then he puts what the Crown case is. At the last paragraph on the page, he says:
In relation to the allegation that Arulthilakan and Mkoka aided and abetted Escalante in the commission of this crime, the Crown case is that both Mkoka and Arulthilakan were aware that Escalante was armed with a knife, and the Crown puts it to you that they knew he intended to stab.
The Crown has told the jury, we say, quite properly, that for accessorial liability, they must know the essential facts. He goes on to say:
The Crown relies on Arulthilakan’s evidence that he could see Escalante holding the knife –
He puts it to them that:
the Crown said that Mkoka also would have seen the knife –
Puts it to them, going down page 803, what the Crown puts about what they might have seen. In addition, at line 15, he says:
the Crown says that they helped Escalante with the stabbing, and they fought with Bourne to prevent Bourne from going to the assistance of Hillam.
All of that is put in the context of what the Crown has put to you. He then puts the defence case in respect of aid and abet, saying that:
The accused both deny that they, in any respect, aided and abetted Escalante when stabbing Hillam. They say that a fight had broken out and they were acting in self‑defence –
which is the thing that we have already talked about.
Now, we say that from line 27, his Honour moves to the directions which he is giving the jury in respect of this matter – he has previously just put the Crown and the defence case:
When considering whether Mkoka and Arulthilakan aided and abetted the commission of the offence, you will have to consider who was the first to attack. If you think it was Hillam and Bourne, you should consider whether they genuinely thought it necessary and reasonable to do so –
in their own defence –
If it is a reasonable possibility they were acting in that way, to defend themselves and each other, and that is all it was, you may be satisfied that they were not aiding and abetting Escalante in the murder of Hillam –
obviously, that is a slip of his Honour’s – he means the wounding of Hillam, and I have no doubt the jury would have understood that –
If you believe that Escalante was the first to attack, and Mkoka and Arulthilakan joined in to assist him, the position is different. In this case, the three young men were the aggressors. But you must also consider whether they knew that Escalante intended to stab Hillam, or whether ‑ as the defence, in effect, says – there was simply a fight, and Mkoka and Arulthilakan had no knowledge of what Escalante intended, or that he intended to use the knife in the way he did. You will consider whether Escalante at this time is acting quite separately in using the knife. It was, the defendants say, a fight prompted by Escalante’s aggression in the course of which they were simply defending each other.
If you are satisfied about that, you will find them not guilty of aiding and abetting the stabbing.
Can I immediately take your Honours to compare the directions that his Honour gave with respect to aid and abet on murder, and that appears on page 810, at line 16:
I remind you of the essential elements of the crime of aiding and abetting. They are that the accused must know of the intention to commit the crime. Second, the accused must attend or assist in the crime, or encourage the commission of crime by their –
obviously, that should read “presence” –
Thirdly, the accused is present when the crime is committed by the perpetrator.
This jury were never given a direction with respect to aid and abet unlawful wounding as to what it was that they were obliged to find before they could convict. They were not told that they could not convict the appellants unless satisfied beyond reasonable doubt, firstly, that they knew the essential facts that made what Escalante did a crime. That is, of course, well‑settled by Giorgianni and I do not think I need to take your Honours to that often‑quoted case of this Court.
That is, they had to know that Escalante intended to stab Hillam or may intend to stab Hillam. I say that that is what they should have been given as a direction – not invited to consider whether they knew that Escalante intended to stab Hillam. We say in respect of the murder direction on aid and abet, his Honour got it right, and he got it patently wrong with respect to wounding with intent. To put it another way ‑ ‑ ‑
GUMMOW J: Sorry, can we just go back to page 799 for a minute, line 13, in his Honour’s summing up. Where do we find Mkoka’s evidence that he dropped the knife, not because the…..was over but because he wanted to get his billiard ball out.
MS POWELL: I will just find that for your Honours. Shall I pause to find that for your Honour?
GUMMOW J: Yes, come back to it, but it is in volume 2 somewhere.
MS POWELL: Yes, it is around 395 but Mr White will find it for me.
What we say is that the jury should have been directed that before they could convict of this unlawful wounding, on the ordinary principles well settled by this Court, they had to be directed that the Crown had to prove that they knew what Escalante was doing, and we say that is quite uncontroversial and it is not what his Honour did. They had to be directed that with that knowledge of the essential facts they intended to aid and assist a stabbing, that that was what they intended to aid and assist, the stabbing, and they were never told that. Of course, they had to be directed, although this probably would not have been an issue at all, but they were not directed, that they were present when the stabbing occurred.
But we say they are serious misdirections, quite apart from the fact that the trial judge did not identify for the jury what activities “aid and abet” would have been in this context. His direction focused, we say, almost entirely on who started the fight and it may well be, we say, that upon that direction the jury may have been convinced of aiding and abetting the wounding with intent simply on the basis that either they did not believe the appellants when they said that Hillam had gone towards Escalante and that Bourne had come towards Mkoka, or they may even have believed them as to the facts of what happened, but accepted his Honour’s suggestion or when his Honour put to them that these two men may well have been acting in response to a perceived attack on them and quite legitimately in self‑defence.
They may simply never have realised that the Crown had to prove that the appellants knew that Escalante intended or may intend to stab Hillam. That just was only left as a matter of consideration, never told that that is what they had to define. We say that the Crown cannot exclude that the jury convicted of wounding with intent of Hillam on the basis of aiding and abetting, statutory murder with respect to Bourne and, while that is a real possibility, then clearly there has been a miscarriage.
What about the conviction on attempted robbery? Does that assist us in any way or assist the Crown in its contention in any way? Can I take your Honours back to page 788, which is the charge in respect of the attempt armed robbery. At line 3:
For present purposes, we need not be concerned who started the fight. The question you have to decide is whether the accused had begun to commit the crime when Escalante began to speak to Hillam and ask for his phone. We know that they did not succeed in taking the phone. It is for you to decide whether at that time, when Escalante began speaking to Hillam, these three men had begun their attempt to rob Hillam of the telephone.
So that this jury may have accepted that invitation of his Honour and said, “All right, we accept that he was asking Hillam for the phone even though Hillam can’t remember that, we accept that Hillam and Bourne were either acting in self‑defence or didn’t start the fight and the others did, so we’ll convict them both of aid and abet and we’ll take up that invitation to convict of statutory murder”, never having turned their minds as to what the actual scope of the attempted armed robbery was and never having turned their minds as to what was in the contemplation of these two young men when they started off down the road towards the two older men. And that, we say, is a possibility, it is a possibility which cannot be excluded and which is a serious matter indeed.
Your Honours, the third reason is that neither of the convictions for attempt armed robbery or wounding with intent in fact preclude the argument that the major indictable offence, that is, the attempt armed robbery, was over at the time Escalante stabbed Bourne. None of those convictions say that that is still not open on the evidence and open to be argued before a jury on the evidence. Of course, we rely on all of the matters that have been put as an evidentiary basis for that.
The fourth reason, we say, is that there was evidence, including evidence in the Crown case coming from the accomplices, Smith and Sinclair, that the stabbing of Bourne by Escalante was outside the scope of what was contemplated would happen with respect to the armed robbery because all of those people in the car – Smith, Sinclair, Mkoka and Arulthilakan – all said that it was the view, or at least it was considered, that the weapons would not be used but would merely be used as a threat. And so there is evidence which supports the appellants’ position in respect of their assertions on oath that they did not contemplate that the knives would actually be used.
GUMMOW J: Can you say that again.
MS POWELL: There was evidence to support their assertions that they did not contemplate that Escalante’s knife would be used.
GLEESON CJ: By “used”, you mean to cut flesh?
MS POWELL: I am sorry, by “used”, I mean to actually wound or to kill.
GUMMOW J: There was evidence the other way.
MS POWELL: Pardon.
GUMMOW J: What about 443, lines 30 and following?
MS POWELL: I am not resiling from the fact that the knives were to be presented.
GUMMOW J: No, to stop resistance.
MS POWELL: I think that the witnesses in their evidence where they were cross‑examined about resistance talked about the presentation to stop resistance rather than ‑ ‑ ‑
GUMMOW J: That is not what they say there.
HAYNE J: If two men go into a convenience store intending to rob the proprietor of money and there is a customer in the store who attempts to impede their activity, is the accuseds’ presentation of the knife with a view to intimidation of the shopkeeper a cause of the later death of the bystander when he is stabbed in the course of interference?
MS POWELL: It may be; it would depend on the facts. As we know, there are different propositions that his Honour Chief Justice Barwick put up in Ryan’s Case about the number of ways in which the presentation of a weapon can be causative of death. I mean, if somebody fell onto the knife, stumbled onto the knife, for example, in fear, yes, of course, it would be causative. There is no doubt about that.
GLEESON CJ: Does that does cover your submissions, Ms Powell?
MS POWELL: I think I must have missed it and I do apologise. I think your Honour Justice Kirby asked whether the verdict in any way identified the basis of the jury’s decision. It was simply guilty or not guilty of murder and no further specifications to the route home. The dropping of the knife is at pages 401 to 402 ‑ ‑ ‑
GUMMOW J: That is in‑chief, is it not?
MS POWELL: Yes.
GUMMOW J: …..
MS POWELL: I will check on that perhaps, your Honour.
GLEESON CJ: Does that cover your submissions, Ms Powell. Has that completed your submissions?
MS POWELL: Yes, I am sorry, your Honour.
GLEESON CJ: Thank you. I have a question I want to ask Mr Rofe, that is why I asked you. How long do you expect to be in your argument, Mr Rofe?
MR ROFE: I would hope no more than 30 or 40 minutes.
GLEESON CJ: All right, then we will adjourn until 10.15 tomorrow morning and we will take the next case not before 10.45 am.
AT 4.31 PM THE MATTERS WERE ADJOURNED
UNTIL WEDNESDAY, 13 AUGUST 2003
Key Legal Topics
Areas of Law
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Criminal Law
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Evidence
Legal Concepts
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Appeal
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Charge
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Sentencing
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Procedural Fairness
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