Clark v The Queen

[2010] HCATrans 256

[2010] HCATrans 256

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S152 of 2010

B e t w e e n -

MICHAEL REX CLARK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 OCTOBER 2010, AT 10.10 AM

Copyright in the High Court of Australia

MR G.O’L. REYNOLDS, SC:   May it please the Court, I appear for the applicant with my learned friend, MR P.D. LANGE.  (instructed by Matouk Joyners Lawyers)

MS D.M.L. WOODBURNE, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

HAYNE J:   Yes, Mr Reynolds.  Mr Reynolds, we have your supplementary submissions, or supplementary summary of argument, more accurately, dated 28 September.

MR REYNOLDS:   I am grateful for that, your Honour.

HAYNE J:   And the correction that you later sent up.

MR REYNOLDS:   Thank you very much.

HAYNE J:   Thank you.

MR REYNOLDS:   Your Honours, before I commence, I need an extension of time.  I understand that is not opposed.

HAYNE J:   Is that so, Mrs Woodburne.

MS WOODBURNE:   That is so.

HAYNE J:   Yes.  You may have the necessary extension, Mr Reynolds.

MR REYNOLDS:   If the Court pleases.  Your Honours will have seen in the submissions originally filed by my client it was submitted that there was a miscarriage because the directions at the trial were contrary to the well‑established case law.  The written directions which were given to the jury are contained in our latest summary of argument at paragraph 4, conveniently. 

If your Honours look at this written direction, your Honours will see that paragraph 1 talks about an agreement to kill Mr Ernest Clark and paragraphs 2, 3 and 4 can really be telescoped down to saying then that as a consequence Ben Clark murdered Ernest Clark.  The effect of those directions is really to state that if – if I can put it in general terms – A and B agree that B will kill X, and B then murders X as a consequence, then A too is guilty of murder in accordance with the doctrine of common enterprise.

Now, in the original submissions we submitted that that direction was defective because it made no reason of the further requirement of what we have called “participation”, whether that be participation by assistance, encouragement or presence at the scene, and we have submitted that that view of the law was supported by the decision of the Court of Criminal Appeal in this State in R v Tangye. 

Your Honours’ associates have the relevant pages of that decision.  If your Honours go to pages 556 to 557, your Honours will see, beginning about two‑thirds of the way down the page, that there is a statement of the law in four numbered paragraphs.  Please excuse the highlighting, but I have done that to make things easier.  This is a statement of principle by Justice Hunt, with whom the other two judges agreed, and can I add that this statement of principle was endorsed by Justice McHugh in the Osland Case.           What your Honours will notice immediately from these four paragraphs is that it is stated in the first paragraph there are two elements, both joint criminal enterprise, which is defined in paragraph (2) as:

an understanding or arrangement amounting to an agreement -

and, secondly, also “participation”, which is defined in paragraph (3) to encapsulate all those things I have circled there, “committing” the crime, “assisting or encouraging”, or also “by being present”.  Of course, there is no reference in these directions your Honours see summarised in a note at paragraph (4) to anything which is contained in that third paragraph at all. 

Now, the problem, we submitted in the original submissions, was in short that there was a deletion of what was submitted to be a well‑established element in the law of joint criminal enterprise.  The only argument, if I may respectfully say so, of much substance raised by the Crown was to say that is all very well, but this notion of encouragement, in particular by offering the killer a share of the will, was a live issue which was raised in the evidence and the submissions.  We concede that, but the problem is ‑ ‑ ‑

CRENNAN J:   Together with the “packed” idea?

MR REYNOLDS:   Yes.  We concede that.  But the problem is it did not make its way into any of the elements, whether in writing or orally in the summing‑up.  What is more, as we have said in our latest note, the jury were expressly told that they did not have to find that aspect of the case made out in order to convict.  Now, things lay there.  I would simply be submitting to your Honours that there has been a miscarriage and, on bended knee, asking your Honours to have a look at this case fairly quickly and say that there has been a miscarriage and grant my client a new trial. 

However things, as your Honours will have seen are, we would submit, a little more complex than that.  The reason they are is because after the initial submissions were filed, I came across this general statement of principle in relation to joint criminal enterprise in McAuliffe.  We have quoted the relevant slab of the judgment, at the top of page 3 of our supplementary submissions.  May I take the Court to that ‑ ‑ ‑

HAYNE J:   McAuliffe was a case of a group of men attacking a victim, was it not?

MR REYNOLDS:   Quite, and ‑ ‑ ‑

HAYNE J:   A rather different set of circumstances from those with which we are presently concerned.

MR REYNOLDS:   Exactly, and I submit that is part of the difficulty with this statement in McAuliffe, in the sense that it is obiter.  The facts in McAuliffe involve both presence and participation, but the dicta that I am about to take your Honours to do not refer to “participation” or “presence”.  If I may read it briefly:

But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others.  Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime.  The understanding or arrangement need not be express and may be inferred from all the circumstances.  If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.

The effect of that passage, at least on one view, that obiter passage – obiter for the reason your Honour the presiding judge mentioned – is to suggest the direction that was given in this case is correct, correct because there need not be any extra element of participation or encouragement or presence at the crime.  But again, going back to the generalised example I gave at the beginning, if A and B agree that B will kill X, and B then murders X as a consequence and that is enough for murder by reason of joint criminal enterprise. 

Can I just say a few things briefly about other things about this passage in McAuliffe?  I have already said that it was obiter and I will not go on further about that.  Secondly, it is inconsistent, obviously, with other statements of the law, in particular, the judgment in Tangye, the judgment of Justice McHugh in Osland and also the judgment of Justice Smith in R v Lowery and King.

HAYNE J:   Lowery and King, again, was a case of two young men together, abducting and ultimately killing the victim.

MR REYNOLDS:   Exactly, and the passage that we have quoted in the italics brings out that aspect.  When I originally drafted this submission, if I may be permitted to say so, I thought, perhaps inadvertently, that extra element in Lowery and King has dropped out of the formulation.  But I am very wrong about that and your Honours will probably have seen in the note we sent up there was a reference to Osland and in particular the judgment of Justices Gaudron and Gummow.  Your Honours have that judgment, and in particular, pages 328 to 329.  There Justices Gaudron and Gummow – Justice Gummow was a party to McAuliffe – refer to this passage at paragraph 24 in McAuliffe v The Queen, and at the conclusion of that paragraph said that:

in this passage, reference to presence at the scene was made with respect to the case of a principal in the second degree.  The reference was not repeated when dealing with liability established by reason of a common purpose.

In other words, that omission, that alteration from the judgment of Justice Smith in Lowery and King was very deliberate.  That proposition is again emphasised at paragraph 27, where Justices Gaudron and Gummow say – this is at the bottom of page 329 – having referred to presence, which were of course the facts of Osland as well, their Honours go on to say that the result in this case follows from the reasoning in McAuliffe, but then say this, importantly:

Indeed, that reasoning would appear not to require presence at the scene of all parties to the continuing common purpose if the criteria specified in that reasoning otherwise are satisfied.

That amounts, in effect, to an embracing of the proposition, albeit obiter, that this extra element of participation or presence or encouragement need not be a part of this doctrine of common purpose. 

Now, my learned friend has not, as I read the submissions, referred your Honours to any case which deals in terms with this proposition and says that in a joint common purpose case one may put a line through this extra element of participation or encouragement or presence.  We wish to submit, if leave is granted in this case, that this obiter statement in McAuliffe does not correctly state the law in relation to joint common purpose.  If we are wrong about that ‑ ‑ ‑

HAYNE J:   As to that, McAuliffe was at least, to some extent, put in issue in Gillard.  The whole Court heard the application in Clayton and Hartwick to reconsider whether McAuliffe should be looked at again and in Clayton and Hartwick the majority of the Court said no.  What are we to make of that being the present state of authority within the Court - McAuliffe plus Gillard plus Clayton and Hartwick turning collective face against reconsideration of McAuliffe?

MR REYNOLDS:   Your Honour, my recollection of certainly some, and probably all, of those cases is that the application to reconsider McAuliffe was in relation to what McAuliffe said about extended common purpose.  Here, we are dealing with what Justice Hunt called “straightforward common purpose”.  The dicta that are made by this Court in McAuliffe in relation to straightforward common purpose have not been the subject of, as I understand it, these later cases.  I am not seeking, yet again, to ‑ ‑ ‑

HAYNE J:   The immediate riposte to that, Mr Reynolds, is that they have not been seen as controversial, that straightforward agreement to commit a crime equals, as was said in Gillard, if you give effect to the arrangement, all who are party to it are guilty.

MR REYNOLDS:   Again, we submit that one needs more than an agreement between A and B that B commit the crime, followed by B going on and committing it.  This statement of principle in Tangye is very clearly against that proposition.  I appreciate it is only a decision of the Court of Criminal Appeal, not this Court, albeit I add interpreting the decision of this Court in McAuliffe.  But I am not seeking to – I know this has been a matter of some issue in this Court to reagitate what is said in McAuliffe about extended common purpose.  I want to leave that altogether to one side.  There is nothing in this case that raises anything to do with extended common purpose.

What this case raises is what I will call the “plain vanilla” or “straightforward” doctrine of common purpose, which is obviously a very important topic in the criminal law and because I submit of this purple passage in McAuliffe, which is repeated in the Commonwealth Law Reports headnote, it has the tendency to create, we submit, confusion in the case of a straightforward case and in the case of a straightforward case, the obiter dicta in that case, we submit, contrary to principle.

HAYNE J:   If A and B agree that B will kill the spouse or partner of A in return for money, is A guilty of murder if B carries out the contract?

MR REYNOLDS:   Yes, and the extra ‑ ‑ ‑

HAYNE J:   What is it that takes this case outside that kind of example?

MR REYNOLDS:   Because the jury in that case, as we submit in this case, would also have to be instructed that in addition to there being an agreement between A and B to kill the spouse there must also have been encouragement on the part of A to B to kill the spouse and that that is an essential element.

HAYNE J:   What is it that you mean in this context then by saying that there is encouragement beyond the fact of making an agreement with B, you will kill X?

MR REYNOLDS:   In this particular case, the form of encouragement is, in effect, an offer to share the proceeds of the will and I submit that that had to be put in the form of a direction saying that in addition to an agreement between A and B to kill the victim, the jury had to find that A had encouraged B to do that by offering B a share of the proceeds of the victim’s will.

HAYNE J:   Because it is readily possible to imagine cases where the actors are not motivated by money, but by intangible considerations, honour or the like, and A agrees with B that B will kill X for reasons of honour or some intangible reason, is not A guilty of murder in that case?

MR REYNOLDS:   I submit not.

HAYNE J:   That is a very large proposition, Mr Reynolds, I suspect.

MR REYNOLDS:   Maybe, maybe not, your Honour, but it is a proposition that I submit, given the state of the authorities, is a proposition which ought be debated in this Court and be subject to something other than an obiter pronouncement by this Court.  I had a quick flick through the argument on the web in McAuliffe and these points, for the reason your Honour Justice Hayne mentioned early on, do not seem to have been agitated in the hearing in McAuliffe for the simple reason that they were talking about a case of participation and presence.  This case does not involve that.

HAYNE J:   What was foreseen and what was the like in an extended common purpose case.

MR REYNOLDS:   Quite.

CRENNAN J:   What do you say about the Crown’s argument which turns on pointing out the directions at certain points about acting in concert?  You pick these up at application book 291 and 292, and also paragraph 7 of the

response to your supplementary submissions.  How does it fit?  It is put by the Crown that those directions indicated that the joint criminal enterprise required participation.

MR REYNOLDS:   But, your Honour, they are not in the elements that are quoted.  There is a very vague reference to it by the by, and as I said this notion of encouragement only came in as a possible circumstantial evidence matter.  It is not in the written directions which are obviously very important to a jury, nor in the oral direction setting out the elements of the case.  Put another way, they might well have rejected any notion of encouragement by offering a share of the will and still convicted my client.  That is the problem.  If your Honours please, those are my submissions.

HAYNE J:   Thank you, Mr Reynolds.  Yes, Mrs Woodburne.

MS WOODBURNE:   Your Honours, there was no misdirection and no miscarriage of justice.  Further, there is no question of legal importance in this case and certainly not one that has any relevance to the facts of the case and the issue at trial because this was a trial where the Crown case and the defence cases were starkly opposed and the directions were correct and appropriate for the issues in the trial.

Your Honours would have seen at the beginning of the trial the applicant was arraigned.  Your Honours will see at application book 1 and 2 the indictment.  There, the applicant pleaded guilty upon arraignment to the alternative charge of accessory after the fact.  That plea was not accepted by the Crown, but it was a significant plea at the beginning of the trial because what it meant was that from the outset the opposing cases were plain.  It was contended by the Crown that the applicant and his son formed a pact to kill Dick Clark and your Honours would have seen at application book 289, line 12, one of the references indeed to that pact that was in the recorded telephone conversations.  The applicant:

At the start we made a pact.

His son:

Mm.

The applicant:

in it until the end.

Now, that pact, on the Crown case, was formed before the shooting and it continued for three months after the shooting as evidenced in these recorded telephone calls and the issue in the trial was simply this – whether the applicant was part of a pact to kill the deceased or whether, as the applicant asserted, he knew nothing of the shooting until his son told him about two months after the event.  Indeed, his Honour in the summing‑up set out the respective cases for the Crown at application book 23 at about point 9.  His Honour said: 

Here the Crown suggests –

and there the facts that his Honour points out are in agreement between the applicant and his son before the murder:

an agreement that [the son] would shoot Dick Clark at a time when Michael was a safe distance away . . . and had an alibi -

and that the applicant would later share part of the inheritance he hoped to receive from the deceased’s estate with his son, Ben.  I can indicate to your Honours the Crown relied upon phone records from the night of the murder which showed the applicant and his son in contact before and after the shooting by text and telephone.  The defence case was also set out in the application book at page 23 by his Honour and his Honour told the jury that, of course, the accused denied any involvement in the crime.  However, he acknowledged his involvement after the murder when he rendered assistance to his son.  His Honour at about point 35 told the jury:

So there are these two versions . . . the Crown assertion that there was this agreement and they were both involved, and the version given by [the applicant] in his sworn evidence, and indeed by [his son] in his sworn evidence, that Michael Clark was not involved beforehand.

The jury were further told at application book 24, that:

if you believe that there is a reasonable possibility that Michael Clark’s version may be true, then your verdict must be not guilty.

Now, having regard to the issues in the trial, his Honour’s directions which we have set out in our submissions, but which appear in the application book from pages 18 to 22, were correct because what his Honour did was focus on the nature of the agreement because that was the only factual issue in this case. 

His Honour correctly instructed the jury that joint criminal enterprise required joint action or participation.  In our submission, the new special leave point raised in the applicant’s supplementary submissions does not arise and it bears no relationship to the factual circumstances of the case.  In

our submission, A is guilty of murder and special leave should be refused.  May it please the Court.

HAYNE J:   Thank you, Mrs Woodburne.  Yes, Mr Reynolds.

MR REYNOLDS:   Just briefly, your Honours.  Of course, encouragement was raised evidentially and that is encouragement by offering a share in the will.  Of course, it was mentioned in the addresses and, of course, it was mentioned in the summing‑up, but only in the context of being one possible item of circumstantial evidence which could be used if it was found to be proved as relevant to whether the four elements were made out.  This notion of encouragement or participation is nowhere in those elements and this jury could well have convicted my client without finding that element proved.

HAYNE J:   I suspect that the argument against you can be put in a number of ways, but one way in which it might be put was that the only real issue in this case was whether there was an agreement of the kind which the Crown alleged.  If there was, guilt followed.  If there was not proved to be so, acquittal.

MR REYNOLDS:   Well, my client’s denial that there was any agreement beforehand or, indeed, any knowledge, carries with it a denial that there was an agreement plus encouragement.

HAYNE J:   Yes, I understand that, but the only issue in the case was, did they make the agreement the Crown alleged.

MR REYNOLDS:   Well, your Honour, there was also this other issue of whether encouragement did occur and there was, in addition to that, the element of whether there was an agreement and all this jury has found is that there was, going back to these directions – they simply found that there was an agreement to kill.  They have not found that there was a superimposed additional element of participation or encouragement.  Again, I can say that in any number of different ways, but that is what it comes down to.

HAYNE J:   Thank you, Mr Reynolds.

MR REYNOLDS:   If your Honour pleases.

HAYNE J:   We are not persuaded that it is in the interests of justice generally or in the interests of justice in this particular case that there be a grant of special leave to appeal.  Special leave is refused.

AT 10.38 AM THE MATTER WAS CONCLUDED