Bikic v The Queen

[2003] HCATrans 648

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S245 of 2002

B e t w e e n -

NED BIKIC

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 APRIL 2003, AT 12.36 PM

Copyright in the High Court of Australia

MR M.L. ABBOTT, QC:   May it please the Court, I appear for the applicant.  (instructed by Patsouris & Associates)

MR G.E. SMITH:   If the Court pleases, I appear for the respondent with my learned friend, MR D.M. HOWARD.  (instructed by Solicitor for Public Prosecutions (New South Wales))

CALLINAN J:   Yes, Mr Abbott.

MR ABBOTT:   If the Court pleases, in this matter the Crown case was one of a joint criminal enterprise for assault and tie up but by the application of a doctrine of common purpose the Crown submitted that liability for the killings should be sheeted home to Mr Bikic on the basis that he must have contemplated murder as a possibility.  I note that this is still their submission.  It is in the application book at page 264 of their submissions.

The defence case was postulated on the basis that he was not present at all at the house where the killings happened and was not a party to anything.  The alternative defence case was that if he was present and he was a party to the joint criminal enterprise that was the Crown case, he was not liable for the killings because he could never have contemplated the possibility of murder because the Crown case was clearly predicated on the basis that if any shooting was to occur it was to occur in circumstances of self‑defence.

CALLINAN J:   I know that was put but if you go along to assault people with guns, to assault and detain, imprison people with guns, knowing well that they are carrying guns, I wonder whether you can possibly, seriously claim that if they shoot their guns when they see eight of you with your guns, you are acting in self‑defence.  Did the trial judge leave self‑defence to the jury?

MR ABBOTT:   And wrongly left self‑defence in the way he left it.  He left it on the basis ‑ ‑ ‑

CALLINAN J:   But he left it to the jury?

MR ABBOTT:   He left it to the jury on the basis it was a derivative defence, that is, derived from what in fact happened.  He did not leave it on the basis of whether or not a self‑defence situation was in the contemplation of the applicant.

CALLINAN J:   But if eight people with guns, masking tape and other means, presumably, of assaulting somebody, go along to assault three people who are carrying guns, how does a self‑defence situation arise anyway?

MR ABBOTT:   That is the whole point.  It only arises insofar as the doctrine of common purpose as applied to Mr Bikic, assuming he was there, he is entitled to make the submission, “Look, I could never have contemplated the killing because what was spoken about was, if any shooting did occur, it would occur in circumstances of self‑defence.”

CALLINAN J:   The jury do not have to believe that.

MR ABBOTT:   Of course they do not have to believe it, but that position was never put.  What we complain about with the Court of Criminal Appeal’s decision is that although they said that the trial judge had not adequately directed the jury, they said it does not matter about what you contemplate in terms of whether you contemplate a killing with self‑defence or not, it is the mere fact that you contemplate the possibility of an act is all that is needed.  It is that conclusion on the part of the Court of Criminal Appeal at paragraph 138 of application book page 158 about which we most vigorously complain.

You will see at paragraph 138, by a process of reasoning which we say is completely flawed, the New South Wales Court of Criminal Appeal came to the conclusion:

If the acts and not the crime of the actual perpetrator are attributed to the person acting in concert, to use the words of McHugh J, and the actus reus is thereby established, the relevant mens rea is contemplation of those acts as a possible incident in the carrying out of the joint enterprise.  There is no added mental element to the effect that the accused contemplated the acts in circumstances amounting to a crime.

That makes you guilty of murder by a process of strict liability.  If you join a joint enterprise to assault and tie up and if you are present when the assaulting and tying up is done and if it is, according to this decision, within your contemplation that someone might get killed, you are guilty of murder on that reasoning.  What is of significance, of course, is that in cases of parties in the second degree, that is, the person is present and aiding and abetting, the test is higher, as recently has been enunciated in the Court of Criminal Appeal in the case of Phan which is on our list of authorities. 

It is a curious result that the test for murder by being a member of a joint criminal enterprise where the court directs the jury as to common purpose arising there from is less on the part of a charge of a murder than it is in relation to a mere aider and abetter.

CALLINAN J:   Mr Abbott, I think we will adjourn now and we will resume at 2 o’clock.

AT 12.42 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

CALLINAN J:   Mr Abbott, could you just develop that anomaly that you were referring to before we adjourned.

MR ABBOTT:   Certainly.  Our starting point is that a man who has been found – let us assume for the present purpose he has been found to have joined a criminal enterprise for assault and tie up two men and even though he knows that guns are going to be carried by some of his compatriots, we say he should only be found guilty of murder if the jury find beyond reasonable doubt that he contemplated murder as a possibility.  This court decision says that mere contemplation of the acts as a possibility is sufficient.  The anomaly from that decision at paragraph 138 is that it imposes a test of strict liability for murder in the sense that if you contemplate an act of a killing, regardless of the circumstances you are guilty of murder.

CALLINAN J:   What are the circumstances here that would ‑ ‑ ‑

MR ABBOTT:   It is regardless of the circumstances on which the ‑ ‑ ‑

CALLINAN J:   I understand the principle that you keep putting.

MR ABBOTT:   The circumstances here where that the Crown case was that the applicant did not fire a gun, that he was only present, that the plan was to tie up and subdue the two men – I think it was a payback situation, something had happened to one or more of the men in the past, they had been tied up and this was a payback situation – so he was there on the Crown case as part of a joint criminal enterprise to assault and tie up the two men who had been lured to the premises or had been asked to come to the premises.

CALLINAN J:   And that he might have contemplated a lawful killing but not an unlawful one, is it?

MR ABBOTT:   We say that that issue was never put to the jury properly and by virtue of the decision of the Court of Criminal Appeal was irrelevant.  If this decision stands, it matters not whether the shooting was deliberate or accidental because it is contemplation of the act which is the touchstone and the test, not contemplation of the crime.  What this decision has done has been to rewrite and re‑interpret McAuliffe and Osland in a way which we say does great violence to the decisions of this Court in those two cases, particularly Osland where your Honour Justice Callinan endorsed what Justice McHugh said on this very topic.

Can I just go to where the Full Court did deal with McAuliffe at application book page 151, paragraph 120.  I will not read it all out but if you look at – and this is a reference to what this Court was saying in McAuliffe about Johns – about line 23 we read:

There was no occasion for the Court to turn its attention to the situation where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture.  However, the secondary offender in that situation is as much a party to the crime –

and I emphasise crime –

which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose –

and these are the important words –

Of course, in that situation the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind.

The defendant, during the course of the applicant’s counsel, of course, relied on that comment and the Court of Criminal Appeal dealt with that on the next page of the application book.  At paragraph 121 we read:

The appellant relied for his submissions upon this passage, taking up the references to commission of a crime and submitting that if the contemplation had to be of the possible commission of a crime, then it was insufficient that the appellant contemplated that there might be a shooting in self defence as an incident of the criminal enterprise.

And then comes what, in our submission, is a quite incorrect view.  The court said:

I do not think that McAuliffe v The Queen supports the submission.  The Court’s reference to commission of a crime were plainly not intended to address that matter.  By “crime” the Court meant the relevant acts – in that case, the acts constituting the crime of murder.

I will not read out the rest of it, but that paragraph concludes by saying:

The distinction being made by the appellant in the present case between acts in contemplation not constituting a crime and acts in contemplation constituting a crime was simply not in question.

I do not have time obviously today to develop that but I would say on a fair reading of McAuliffe that is, with respect to the Court of Criminal Appeal, quite wrong.

In relation to Osland, the other case which they used to arrive at their decision, that is to be found at page 155 of the application book and they take the judgment of Justice McHugh.  I read only a part of it at line 20:

Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non‑existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator –

Then he went on to say that even if the perpetrator gets off there is no reason why they should not be.  He concluded by saying:

They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime.

They then referred to what the applicant said about this and that is at page 157 of the application book, paragraph 136 at line 25:

The appellant submitted that even if the act rather then the crime of the other person was attributed to the accused, it was necessary that the accused have mens rea.  He drew attention to McHugh J’s references in the passages I have set out to possession of mens rea in addition to attribution of the actus reas, and submitted that there would not be mens rea if all that was contemplated was the possibility of a killing in self defence.

Then they said at paragraph 137:

This . . . does not assist the applicant.  The relevant mental element in cases such as the present is the accused’s contemplation.

One asks the question there, contemplation of what?  The answer is down on paragraph 138.  It is merely contemplation of the act, not contemplation of the crime.

The logic jumps from the top of page 137 to the conclusion in paragraph 138 on page 158 of the application book by the use of two cases.  The first is Powell’s Case, the English decision.  That really does not help, with respect, the argument because they cite Powell only to say there is an anomaly between the – foreseeability will be sufficient for the secondary party but will not be sufficient in relation to the primary party.  So the reference to Powell does not help the argument go any further.

What we say they have not done is look at the relevant passage of Powell.  I refer the Court to Powell [1999] AC 1 at 18. It is only three lines and it is the remarks of Lord Hutton at line 3. Lord Hutton said this – and this is a passage which has been referred to on many occasions by this Court:

My Lords, I consider that there is a strong line of authority that where two parties embark on a joint enterprise to commit a crime, and one party foresees that in the course of the enterprise the other party may carry out, with the requisite mens rea, an act constituting another crime, the former is liable for that crime if committed by the latter in the course of the enterprise.

That cannot be brushed aside or rewritten or construed so as to give any basis for the conclusion of the Court of Criminal Appeal at page 158 of the application book.

The second matter that they rely on is a section from McAuliffe where they cite a passage from Hyde.  It is our respectful submission that on a careful reading of that passage in the middle of page 158 of the application book that it supports entirely the contrary position.  May I read it to the Court very quickly:

If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture.

Just pausing there, is it not just contemplation of the act; it is contemplation that the act of murder will be committed by A with the requisite intent.  Then they go on to say:

As Professor Smith himself points out, B has in those circumstances lent himself to the enterprise and by so doing he has given assistance and encouragement to A in carrying out an enterprise which B realises may involve murder.

It is not just a killing that B has to realise; it is a murder that B has to realise.  They have then taken that passage and then comes what we say is not sequentially logical, the conclusion that the relevant mens rea once you establish the actus reus of murder, namely, a dead body:

the relevant mens rea is contemplation of those acts as a possible incident in carrying out of a joint enterprise.  There is no added mental element to the effect that the accused contemplated the acts in circumstances amounting to a crime.

They then went on to this conclusion – and we say that if the proper test had been applied, namely, contemplation of a crime not the act, the likelihood in this case is that Mr Bikic would have been found not guilty of murder.  He would have been found not guilty of murder because on any view the joint enterprise was only an assault to tie up and rob and on any view they said to themselves, “There will be no shooting”.

CALLINAN J:   You say “rob”.  I thought it was standover.

MR ABBOTT:   I am sorry, it is not rob.  I withdraw that.  It is standover.

CALLINAN J:   What does standover mean, cruel and harsh punishment if they do not do what is wanted?  What does it actually mean?

MR ABBOTT:   It was a joint enterprise to assault and tie up, not murder.

CALLINAN J:   It was a joint enterprise to conduct a standover.  Was that not the term that your client used?

MR ABBOTT:   I do not know, your Honour, but we say it is unlikely that the jury, if they had been properly directed, would have come to the conclusion they did come to.  They came to the conclusion they did come to because of the imperfections in the trial judge’s summing up and the confusion of derivative liability with primary liability.

The point of principle which we say warrants the grant of special leave is that the test propounded by the Court of Criminal Appeal is novel

and, in our submission, is wrong.  It is a decision which should be corrected as it purports to correctly interpret the decisions of this Court in Osland and McAuliffe and of the English House of Lords in Powell, yet it propounds that a test for murder by those who may be caught by the doctrine of common purpose which is less strict than the test for manslaughter or the test for aiders and abetters. 

The test for aiders and abetters has been laid by the Court of Criminal Appeal in New South Wales in the case of Phan, which is in the additional bundle of cases we sent over, to require this – and I am reading from page 485:

mere acquiescence or assent to a crime does not make a person liable as a principle in the second degree.  What was needed in such a case is proof that the principal in the second degree was linked in purpose with the person actually committing the crime, and was by his or her words or conduct doing something to bring about, or rendering more likely, through encouragement or assistance, its –

that is the crime’s –

commission.

So we say that they have misapplied what Justice McHugh and with what your Honour Justice Callinan agreed with in Osland; they misapplied Powell and McAuliffe; they failed to order a new trial notwithstanding that jury verdicts had been obtained as a result of directions, that the liability of the applicant was derivative and not primary, and the directions which wrongly placed self‑defence as referable to a derivative case, not a primary case.

May I say in conclusion the only relevance of self‑defence in this whole case was that it rendered it less likely that there was any contemplation of a murder.  The situation where self‑defence was said to be mentioned by all these men should have been looked at from terms of what the applicant contemplated or what might the applicant have contemplated, not in fact what happened, which is the way the judge directed the jury. 

Taking all that into account, it is our submission that it was open to a jury, properly directed, to acquit the applicant of charges of murder or, at the very worst for him, to convict him of manslaughter and not murder.

CALLINAN J:   Thank you, Mr Abbott.  There is no need for us to hear you, Mr Smith.

On the facts of this case, including the applicant’s voluntary participation in an assault in darkness by several assailants, some of whom were carrying guns, upon some other men who were known also to be carrying guns and which resulted in the death of the latter, an appeal would not have any prospects of success.  The application is refused.

AT 2.18 PM THE MATTER WAS CONCLUDED