COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Clarke v Tasmania [2013] TASCCA 11
PARTIES: CLARKE, Scott Thomas v TASMANIA, State of
FILE NO: 422/2013 DELIVERED ON: 6 November 2013 DELIVERED AT: Hobart HEARING DATE: 2, 9 October 2013 JUDGMENT OF: Porter, Wood, Estcourt JJ
CATCHWORDS:
Criminal Law – Ancillary liability – Complicity – Common purpose – Generally – Relationship of joint criminal enterprise to complicity provisions in Criminal Code (Tas) – Participation in joint criminal enterprise by presence alone – Proof of participation by presence pursuant to an agreement or understanding to commit the crime sufficient to establish liability – Proof of intention to assist or encourage not required as an additional and separate element.
Criminal Code 1924 (Tas), s3(1)(a). R v Webb, ex parte Attorney-General [1990] 2 Qd R 275, followed. R v Lowery and King (No 2) [1972] VR 560; Huynh v R (2013) 87 ALJR 434, applied. R v Tangye (1997) 92 A Crim R 545, considered. Aust Dig Criminal Law [2130]
REPRESENTATION:
Counsel:
Appellant: E Hughes Respondent: A Shand
Solicitors:
Appellant: Rae & Partners Lawyers Respondent: Director of Public Prosecutions
The appellant faced trial on one count of arson. He was found guilty after a trial before Tennent J, and convicted. He appealed against that conviction. The sole ground of appeal alleged a misdirection by the trial judge concerning criminal liability as part of a joint criminal enterprise. On 9 October 2013, the Court dismissed the appeal, saying it would later publish its reasons. These are my reasons for joining in the making of the order.
I have had the advantage of reading the draft reasons for judgment of Estcourt J. His Honour has set out the ground of appeal, the relevant features of the trial and those of her Honour's memorandum to the jury and summing-up. There is no need for me to repeat the detail of them. In short, the Crown case was that the appellant was responsible for setting fire to an abandoned house along with another man, Nigel Apted. Diesel had been used as an accelerant and fires had been lit in about four places. The appellant's liability was asserted primarily on the basis that he was party to a joint criminal enterprise. He had agreed that the house be burnt down, and he was there and participating with Mr Apted when fires were lit. As alternatives under s3(1)(b) and (c) of the Criminal Code, aiding or abetting Mr Apted were relied on, and left to…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Clarke v Tasmania [2013] TASCCA 11
Case
[2013] TASCCA 11
Decision Date
CaseChat Overview and Summary
The Full Court of the Supreme Court of Tasmania heard an appeal in the matter of *Clarke v Tasmania*. The appeal concerned the appellant's criminal liability for offences arising from a joint criminal enterprise.
The central legal issue before the Court was the nature of participation required to establish liability for complicity under the *Criminal Code* (Tas) in the context of a joint criminal enterprise. Specifically, the Court considered whether mere presence at the scene of a crime, pursuant to an agreement or understanding to commit that crime, was sufficient to establish participation, or if an additional element of intending to assist or encourage the principal offender was also required.
The Court reasoned that the provisions of the *Criminal Code* relating to complicity, when applied to a joint criminal enterprise, do not require proof of an intention to assist or encourage as a separate and additional element beyond participation in the enterprise. The Court held that proof of participation by presence alone, where that presence is pursuant to an agreement or understanding to commit the crime, is sufficient to establish liability. This approach aligns with the established principles of joint criminal enterprise, where each participant is liable for the criminal acts of the others within the scope of their common purpose.