Clarke v Tasmania - [2013] TASCCA 11

[2013] TASCCA 11

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

Judgment Number: [2013] TASSC 11
Number of paragraphs: 151

Serial No 11/2013
File No 422/2013

SCOTT THOMAS CLARKE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PORTER J
WOOD J
ESTCOURT J
6 November 2013

Order of the Court

Appeal dismissed.

Serial No 11/2013
File No 422/2013

SCOTT THOMAS CLARKE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PORTER J
6 November 2013

Introduction

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 the jury.
The issue of the appellant's presence in the context of a joint criminal enterprise arose in the following way. Mr Apted's evidence in the trial was equivocal. He said he could not remember who poured the diesel, but as far as he could remember the appellant lit some of it, they both used the fuel to set fire to the house, and they left together. In a police interview, the appellant admitted that he had agreed when Mr Apted said he wanted to burn the house down, that they searched for and obtained the accelerant, but that it was Mr Apted who poured the diesel in the rooms, and lit the fires.
In his evidence in the trial, the appellant resiled from the statement that he had agreed with Mr Apted to set fire to the house. He said that he was in the house with Mr Apted. He saw him pour diesel on the floor and then crouch over, at which point he knew Mr Apted was going to set it alight. He then left. He maintained that he did nothing at all in relation to setting fire to the house. The jury might have rejected Mr Apted's evidence, and might not have been satisfied beyond reasonable doubt that the appellant did any preparatory acts. At the same time, it might have rejected the appellant's evidence denying an agreement that they set fire to the house, but accepted that he was only present and did not do any physical acts.
The trial judge's written memorandum, upon which the directions were based, first dealt with the "primary position of the Crown"; that the two had "acted together in in a joint enterprise, pursuant to an understanding that they had reached to commit the crime of arson. That is they were each principal offenders". The memorandum stated that if the jury was satisfied beyond reasonable doubt that the appellant and Apted had reached an understanding to commit the crime of arson, and that:
·     while that understanding was still on foot,
·     they were both present at the scene of the crime, and
·     one or other, or both of them between them,
·     did all of the things necessary to commit arson
then they are equally guilty of the crime regardless of the part each played.
As will be seen, these directions are essentially the accepted ones to be given in where an accused person is alleged to be "acting in concert". As will also be seen, that expression is interchangeable with "joint criminal enterprise". The boundary of the concept of joint criminal enterprise extends beyond what may be viewed as the traditional notion of acting in concert: Likiardopoulos v The Queen (2010) 30 VR 654 at 666 – 667 [50] – [56]; Arafan v The Queen (2010) 31 VR 82 at 97 [64]. Because of the facts of this case, that area of extension does not need to be considered.
The appellant's complaint concerns the directions which ought to have been given in relation to his presence at the scene of the crime. The appellant argues that the trial judge ought to have directed the jury that in order for him to be guilty on the basis of a joint criminal enterprise and his presence at the scene, "he must whilst present at the time the crime is committed and with knowledge that the crime is to be or is being committed, intentionally assist or encourage" another party to the enterprise. That direction was sought at the trial. Crown counsel did not disagree, but the trial judge refused to accede to the request. The appellant argued that the requirement for this direction comes from the judgment of Hunt CJ at CL, (McInerney and Sully JJ agreeing), in R v Tangye (1997) 92 A Crim R 545 at 556 – 557. The starting point is the relationship between s3 of the Code and joint criminal enterprise.

Joint criminal enterprise and s3(1)(a) of the Criminal Code

Section 3 of the Criminal Code provides as follows:
"3 Which parties to crimes to be deemed principals in the first degree
(1) Where a crime is committed, each of the following persons is deemed to be a party to, and to be guilty of, the crime, and may be charged with actually committing it:
(a) every person who actually commits the crime;
(b) every person who does any act or makes any omission for the purpose of enabling or aiding another person to commit the crime;
(c) every person who abets another person in committing the crime;
(d) every person who instigates any other person to commit the crime.
The section sets out the number ways in which a person is taken to have actually committed the crime. The relevant conduct must fall within one of the provisions. In the appellant's trial, Crown counsel used the expressions "joint criminal enterprise" and "joint enterprise" to describe the primary basis for the appellant's criminal liability. The primary case against the appellant was conducted on that express basis. As I have noted, the trial judge used "joint enterprise" in the memorandum and summing-up. It is clear that it was s3(1)(a) which was contemplated.
On face of the provision, of course, joint criminal enterprise is not formally part of it. However, counsel for the appellant explicitly accepted that the provision extends to a person liable by way of participation in a joint criminal enterprise. That is, such a person is, on that basis, said to have "actually committed the crime". The point was not argued in the appeal. The issue was whether there was a miscarriage of justice caused by a misdirection, but in order to assess the sufficiency of the directions it will pay to examine this issue a little further.
Section 3 is the equivalent of s7 of the Queensland Criminal Code 1899. It has been said that the expression "joint criminal enterprise" is not used in s7, that it adds nothing, and is not usually helpful in explaining the provision and may lead to confusion when discussing criminal liability: R v Walton and Harman [2001] QCA 309 per Thomas JA and Jones J at [30]; R v Palmer [2005] QCA 2 per Davies JA at [17] – [18], Fryberg J at [35]. (See also R v Sherrington and Kuchler [2001] QCA 80 per McPherson J at [11] in relation to "acting in concert".) At the same time, it is accepted that where two or more persons are charged, and the prosecution cannot designate which acts were committed by each, but can show that criminal acts were performed by one or other or both making each either a principal or an accessory, the question of whether they were engaged in a joint criminal enterprise might be relevant: R vWalton and Harman (above) at [31]. The term might also be "helpful as a shorthand description of a particular complex of facts ...": R vPalmer (above) per Fryberg J at [35].
It is trite that the correct approach to construing provisions of the Criminal Code is not to take them as simply restating the existing law: Brennan v The King (1936) 55 CLR 253 per Dixon and Evatt JJ at 263. Recourse may be had to the existing law where for instance, the meaning of a provision is doubtful or words of accepted special meaning are used in the same context: Stuart v The Queen (1974) 134 CLR 426 per Gibbs J at 437. As is demonstrated by those two cases, existing law may assist in interpreting code provisions dealing with criminal complicity. For instance, in Murray v R [1962] Tas SR 170, all judges of the Court of Criminal Appeal drew from the common law when determining the meaning of "abets" in s3(1)(c).
The question is, what is encompassed by the words of s3(1)(a)? Traditional notions of accessorial liability are dealt with in paragraphs (b), (c) and (d), and s5 deals with accessories after the fact. In dealing with what in usual terms are principal offenders, it would be unlikely that subs(1)(a) does not have a wide meaning. At the least, the proposition that two or more persons can commit the one crime as principal offenders is a long established one. As I will attempt to show, whilst the operation of it in this way will only arise in particular factual situations, a person acting in concert or otherwise pursuant to a joint enterprise may be said to have "actually committed the crime" within the meaning of the provision. That is because a person so acting is responsible for the acts of other parties to the agreement, which go to make up the crime.
Section 7(1)(a) of the Queensland Code is essentially to the same effect as s3(1)(a). The former provides that when an offence is committed, "every person who actually does the act or makes the omission which constitutes the offence" is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it.
In R v Wyles, ex parte Attorney-General [1977] Qd R 169, common law principles which applied when the Code was enacted were used to interpret s7(1)(a); (then s7(a) but in the same terms). The provision was held to include cases where there are several persons, acting in concert, each doing some act which in their totality would constitute an offence if done by one person: Hoare J at 179 – 182, Matthews J agreeing. (At 177, Lucas J effectively came to the same conclusion by a process of statutory construction, extending the provision to persons who actually did the act or one or more acts in the series which constitutes or constitute the offence. Matthews J agreed with this process also.)
Wyles' case was referred to in R v Webb, ex parte Attorney-General [1990] 2 Qd R 275. As it involved the crime of arson, the case is particularly relevant in the present matter. Unlike R v Wyles, the crime under consideration involved one external physical element, that of setting fire. A number of questions were posed for the Court's consideration, one of which related to the liability of one person acting in concert with another, where the evidence did not reveal which one of them actually did the act. Was each of them deemed to have taken part in committing the offence?
At 283 Macrossan CJ (Lee J agreeing) held:
"If two persons are together and are acting in concert to do an act which, if done, would amount to the commission of a criminal offence and that act is done, by one or other or both, but the evidence does not reveal which of them actually did the act, each of them is deemed to have taken part in committing the offence."
Section 7(a) of the Western Australian Criminal Code 1913 is in the same terms as s7(1)(a) of the Queensland Code. An issue similar to the one in R v Wyles, ex parte Attorney-General arose in Warren and Ireland v The Queen [1987] WAR 314. The offence was one of doing grievous bodily harm, it being alleged that both appellants participated in the assault. Burt CJ at 319 – 320 said that each was criminally responsible for the grievous bodily harm done, and it did not matter who had struck the blow, if it were a single blow, which caused that harm. "Each is directly responsible and no question of derivative responsibility arises. Each is guilty of the offence of doing grievous bodily harm. Under the Code that is so because of the application to the facts of s 7(a) and (c); and it would be so at common law: see Mohan v The Queen [1967] VR 554; and R v Lowery (No 1) [1972] VR 554."
At 328 – 329, Franklyn J found that it was open to the jury applying s7(a) of the Code to find both appellants guilty of doing grievous bodily harm. His Honour held that the observations and findings of Hoare J in R v Wyles, ex parte Attorney-General "are good law and are equally applicable to the Criminal Code 1913 (WA), the common law relating to principals and joint perpetrators not being significantly different in 1902 when the Code (WA) was enacted than it was in 1899 when the Queensland law was codified".
More recently, in Lacco v State of Western Australia [2006] WASCA 152, Buss JA said at [54] that s7(a) of the WA Code "includes case where there are several persons, acting in concert, each doing some act which in the aggregate, would constitute an offence if done by one person." In support of the proposition, his Honour referred to R v Wyles, ex parte Attorney-General per Hoare J at 179 – 180, Warren and Ireland v The Queen per Franklyn J at 328 – 329 and R v Webb, ex parte Attorney-General per Macrossan CJ at 283.[1]
[1] There is discussion in several other Western Australian cases about proof of joint criminal enterprise, but in an evidentiary context. The applicability of the doctrine to criminal liability under the provision is accepted, but the question has been whether joint enterprise was sufficiently made out in order to make evidence of what was said or done by one party in furtherance of the alleged common purpose, admissible against another: Santos v State of Western Australia (No 2) [2013] WASCA 39 at [62] – [63]; Michaels v State of Western Australia [2009] WASCA 174; Heaton v State of Western Australia [2008] WASCA 32.
It is clear that common law principles of joint criminal enterprise, in the form of acting in concert, were adopted in relation to the construction of provisions akin to s3(1)(a) in the above cases. I accept that care might be needed as to when the concept of joint criminal enterprise is applied in the context of s3(1)(a), and in what terms it is explained. In some cases involving multiple parties, the question will be whether an accused actually committed the crime in the strict sense, or whether he or she is said to be guilty by way of the "accessorial" provisions of s3. In other instances however, the nature of the case and the evidence will present a much less clear picture. Further, the situation will sometimes arise in which it is less complicated to approach the assessment of liability simply on the basis of a person's direct and primary responsibility. I see nothing which compels the view that the concept of joint criminal enterprise does not fall within the ambit of s3(1)(a), and that a person cannot be said to have committed the crime on the basis of a liability for the acts of another by participation in such an enterprise.
The discussion in these cases of acting in concert at common law leads to a consideration of R v Lowery and King (No 2) [1972] VR 560, a case which Estcourt J has discussed in his reasons, and some relevant extracts of which he has set out. In my view, the following parts of the direction of Smith J in that case have significance:
"The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime.
…
The facts of which the Crown has to satisfy you in order to establish its case on this basis of acting in concert are these: first, that there was an actual understanding or arrangement reached in some manner between these two accused men that the girl should be killed; and secondly, that while they were both present for the purpose of the understanding or arrangement being carried out the girl's death was in fact caused by a conscious voluntary act or acts done by one or the other or both of them, acting under or in accordance with the understanding or arrangement between them and done with the intention of killing her." [My emphasis]
As to the relationship between acting in concert and joint criminal enterprise, in McAuliffe v The Queen (1995) 183 CLR 108 at 114, the Court (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ) said:
"The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms – common purpose, common design, concert, joint criminal enterprise – are used more or less interchangeably to invoke the doctrine which provides a means, often additional means of establishing the complicity of a secondary party in the commission of a crime."
In Gillard v The Queen (2003) 219 CLR 1, Hayne J at 35 [109] noted the comments in McAuliffe about the interchangeable terms, and said that the doctrine referred to is one:
"… which is separate from the liability of an accessory before the fact, who counsels or procures the commission of the crime; it is separate from the liability of a principal in the second degree, who aids or abets in the commission of the crime. Joint criminal enterprise, or acting in concert, depends upon the secondary party … sharing a common purpose with the principal offender … or with that offender and others."
At 35 – 36 [110] his Honour, by reference to McAuliffe, continued:
"In its simplest application, the doctrine of joint criminal enterprise means that, if a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime, and one or other of the parties to the 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, all are equally guilty of the crime regardless of the part played by each in its commission." [Original emphasis]

Statements in the acting in concert type cases which I have examined, refer to the liability of a person present pursuant to an agreement or understanding to commit the crime where one or other does the relevant act or acts. Those statements are self-evident. Plainly, they contemplate the liability of one party to the agreement who is present but doing no more. The appellant's submission is, as I have noted, that proof of presence accompanied by an intention to assist or encourage is necessary. Mere presence is insufficient. As I have also noted, for this proposition the appellant relies exclusively on an oft cited passage from the judgment of Hunt CJ at CL in R v Tangye (above).
There is, however, no suggestion in these cases that where an accused is present at the commission of a crime pursuant to an agreement or understanding, proof of anything more than that is required. That is to say, it is only necessary to prove that the person's presence be pursuant to the agreement or understanding, and not merely accidental; that is, happening by chance or coincidence. Presence otherwise than pursuant to the agreement or understanding may be properly described as "mere presence". The prosecution would need to establish more than mere presence in that sense.
I will now examine a number of High Court cases which deal with joint criminal enterprise at common law and participation by presence, but there is nothing which suggests that in particular, R v Webb,ex parte Attorney-General should not be followed, and that it cannot be applied in this case. On the basis of the following analysis, which includes a consideration of Tangye, I do not see that there is any doubt that a person's presence, pursuant to an agreement or understanding to commit a crime, makes that person criminally liable for the act or acts committed by another or others who are party to the agreement. Such presence is sufficient participation in the enterprise to establish liability. That liability is a primary liability, and not a derivative one.

Joint criminal enterprise and participation by presence

In Huynh v The Queen (2013) 87 ALJR 434, the three appellants had been convicted of murder. The victim died as a result of a single stab wound during an assault by an armed group. Multiple injuries were sustained in addition to the fatal wound. The prosecution relied on a number of bases of liability, one of which was that each accused was a party to an agreement to kill or do serious bodily harm, and that while the agreement was on foot, one person as the principal offender stabbed the victim with that intention.
In dismissing the appeals, French CJ, Crennan, Kiefel, Bell and Gageler JJ said at 437 [5] that joint enterprise liability required proof that the appellant participated in some way in furtherance of the enterprise; see also 439 [22]. At 442 their Honours went on to say:
"37 … The doctrine of joint criminal enterprise provides the means of attaching liability for the agreed crime for all the parties to the agreement regardless of the part played by each in its execution. [McAuliffe v The Queen (above) at 114; Gillard v The Queen (above) per Hayne J at [110]] Of course there will usually be no occasion to have recourse to the doctrine in the case of a party who does some or all of the acts constituting the actus reus. The work done by the doctrine is in making other parties liable for those acts … Liability attaches to all the parties to the agreement who participate in some way in furthering its execution.
38 A person participates in a joint criminal enterprise by being present when the crime is committed pursuant to the agreement. … If, at any time prior to the stabbing, the appellant whose case was under consideration was found to have come to an understanding or arrangement with others, including the principal offender, that a knife or similar bladed weapon would be used to kill or to inflict really serious bodily harm on a person or persons at the Vartue Street premises, his presence as one of the hostile group amounted to participation in furtherance of the agreement. [My emphasis]
Later, in dealing with the case of an appellant other than Huynh, at 443 [42], the Court said:
"In the event that the jury was satisfied that Sem had come to such an agreement [to kill or to do grievous bodily harm], his presence at the … premises pursuant to the agreement amounted to participation in furtherance of it."
As authorities for the final proposition in par[38] which I have highlighted, their Honours referred to Osland v The Queen (1998) 197 CLR 316, and Hui Chi-Ming v The Queen [1992] 1 AC 34. In relation to Osland, their Honours made specific reference to the joint judgment of Gaudron and Gummow JJ at [27], and to the judgment of McHugh J at [73] citing R v Tangye (above).
It pays to examine the cases and judgments referred to. In Osland, it was alleged that the appellant had agreed with her son to kill the man who was her husband, and step-father to her son. The prosecution case was that both did preparatory acts, but that the son killed the man in his bed with his mother present. At the joint trial, each relied on provocation and self-defence. At a joint trial, Mrs Osland was convicted with the jury being unable to agree on a verdict as to the son. He was later acquitted at a second trial. Mrs Osland appealed her conviction, one of the grounds being that her conviction was inconsistent with the jury's failure to reach a verdict in relation to her son. The appeal was dismissed. An issue was whether her actions made her equally responsible for the acts of her son, and whether her conviction depended on his conviction.
At 329 [27], Gaudron and Gummow JJ said:
"… [P]rinciple dictates the conclusion that those who form a common purpose to commit a crime together are liable as principals if they are present when the crime, or any other crime within the scope of the common purpose, is committed by one or more of them. The crime having been committed in accordance with the continuing understanding or arrangement, all are equally guilty as principals regardless of the part played by each. [McAuliffe (above) at 114]. That result follows from the reasoning in McAuliffe v The Queen. 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."
In Osland at 341 – 351 [69] – [95], McHugh J carried out a detailed examination of criminal complicity, included in which was consideration of the liability of a person present at the scene of a crime but not physically participating. At 342 [72], his Honour identified a category of case where a person is not only present at the scene with the person who committed the acts alleged to constitute the crime, but is there by reason of a pre-concert or agreement with that person to commit the crime. His Honour said that in that category, the liability of the person present as the result of the concert is not derivative but primary, and the person is a principal in the first degree. By reference to R v Lowery and King (No 2) (above), his Honour noted that "[i]n that category each of the persons acting in concert is equally responsible for the acts of the other or others". [His Honour's emphasis.]
At 343 [73] his Honour went on to say (omitting footnotes):
"In [Lowery and King, Smith J] directed the jury that 'they are all equally guilty of that crime'. But as subsequent cases show, and as principle requires, the correct statement is that they are all equally liable for the acts that constitute the actus reus of the crime. The principle is accurately stated by Brett, Waller and Williams in the 8th edition of their work on Criminal Law:
'[E]ven if only one participant performed the acts constituting the crime, each will be guilty as principals in the first degree if the acts were performed in the presence of all and pursuant to a preconceived plan. In this case, the parties are said to be acting in concert.' (Emphasis added.)
So far as is presently relevant, these principles were accurately and more fully stated by the New South Wales Court of Criminal Appeal in R vTangye. The Court said:
'(1)The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
(2)A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.
(3)A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed.' (Emphasis added.)"
The passage from R v Tangye which his Honour quoted, is from the judgment of Hunt CJ at CL at 556 – 557. As I have noted, the principles stated in that judgment are relied on by the appellant in this case, but the relevant part is not reproduced in the quotation set out by McHugh J. The full text of the paragraph numbered (3) at 557 is as follows:
"(3)A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime."
It can be seen that in Osland, McHugh J quite deliberately removed from the third line, the comma after "committed" and all that followed. (I will refer to these as the "additional words".) In my view, that his Honour dealt with the passage from Tangye in that manner is significant. It demonstrates his Honour's view that presence pursuant to the joint criminal enterprise is a sufficient participation in its pursuit to make the person criminally liable for the acts of another. This was made quite clear in later parts of his Honour's judgment.
At 343 – 344 [75], McHugh J said that as a result of the stated principles, a person may be found guilty of murder although he or she did not commit the acts which physically caused the death. By reference to English authority, his Honour stated that if the person acting in concert, as distinct from the actual perpetrator, has the relevant mens rea, he or she is guilty of the principal offence because the actus reus is attributed to him or her by reason of the agreement and presence at the scene. Later at 345 [79], his Honour repeated the principle, when referring to the need or otherwise for the actual perpetrator to be convicted:
"The principle that those who act in concert and are present at the scene are responsible for the acts of the actual perpetrator operates to make a person guilty of the principal crime, event though the actual perpetrator is acquitted completely."
Before moving on from Osland, I should add a reference to the judgment of Callinan J at 399 – 402 [204] – [220][2]. At 401 [215], his Honour referred to the doctrine of concert as having been invoked in some cases, R v Lowery and King (No 2), being an example. His Honour noted that in R v Demiran [1989] VR 97, the comment was made that in none of the other cases did the court decide that all persons present at the crime and acting in concert were to be treated as principals in the first degree. Rather, what was decided was that all were liable to be convicted of the crime. At 402 [217], Callinan J said:
"With respect, the passage in Demiran overlooks that it is an important aspect of concert that it does not depend upon derivative liability. This is because those who act in concert are to be treated as being causatively jointly responsible for the commission of the crime."
[2] I have not summarised the analyses of McHugh and Callinan JJ in their entirety. At this point, I note that in my view those analyses show that the law as stated was the law at the time the Tasmanian Code was enacted. Later case are referred to by their Honours in relation to the applicable principles, but there is no suggestion of later developments.
I turn to Hui Chi-Ming v The Queen (above), which was another case in which a person was killed as a result of the actions of one member of a group. At the trial in that case, it was not suggested that the appellant was anything other than a person acting in concert and present at the commission of the killing pursuant to an agreement or understanding. At 44 – 46, the Judicial Committee of the Privy Council set out the trial judge's directions as to the doctrine of acting unlawfully in concert. One discrete aspect of the directions was the subject of complaint, and which is not relevant for present purposes. However, the directions included the following:
"2 The Crown in this case relies on the well known doctrine of acting in concert, and the law on that is this: where two or more persons embark upon a joint unlawful enterprise ... and also for the unusual consequences of such acts if these arise from the execution of the agreed joint enterprise.
...
8 The Crown may establish the count of murder against the [defendant] by proving the [defendant] was present and that the deceased was killed in accordance with an understanding or arrangement to which the [defendant] was a party and that that understanding or arrangement included the intent charged, that is either to kill or to cause grievous bodily harm."
At 53 the Judicial Committee rejected "all the criticisms of the judge's directions to the jury on joint enterprise". In Osland, McHugh J considered this case, and at 345 [78] said:
"It is true that the above directions are not those that were the subject of criticism by the appellant (that in itself suggests that they were not regarded as controversial). But it is difficult to believe that their Lordships would not have criticised these directions if they had thought that they contained error or said, as they did, that they 'reject all the criticisms [of the directions]'. Nor could their Lordships have found the conviction was not an abuse of process unless the true theory of persons acting in concert is [that] it is the acts of the actual perpetrator which are attributed to a non-participant who is acting in concert and present at the scene." [His Honour's emphasis]
The High Court returned to a consideration of joint criminal enterprise in Likiardopoulos v The Queen (2012) 86 ALJR 1168. This was another case of a murder committed in the course of a group attack, there being a question as to the presence or involvement of one of the group members. The Crown's primary case was put on the basis of joint criminal enterprise, with accessorial liability put as an alternative. The issue was whether the appellant could be convicted of murder, the co-offenders having pleaded guilty to lesser charges. At 1173 – 1174, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (French CJ agreeing) said:
"19 On the principal case, the appellant was liable for the murder of the deceased under the principle of criminal responsibility variously described as joint criminal enterprise, common purpose or concert. On this analysis, it was necessary to prove that the appellant was a party to an understanding or arrangement, whether formed expressly or tacitly, with [others] to inflict really serious injury on the deceased and that, while that arrangement was on foot, one or more of the parties to it did the acts which caused death intending thereby to do really serious injury to him. The appellant's participation in the enterprise while possessed of the requisite intention (here, to inflict really serious injury) operates to fix him with liability for the acts of the other parties carried out in pursuance of it. On the principal case, the appellant's liability is direct … .
…
21 This Court was informed that the accessorial case had been advanced out of the concern that the principal case might founder on the inability to establish that the appellant had been present throughout the whole of the infliction of violence on the deceased. Counsel for the Crown submitted that this concern stemmed from a mistaken belief as to the essentiality of presence, arising out of Smith J's charge to the jury in R v Lowery and King (No 2). Be that as it may, the trial judge entertained no such misapprehension. Her Honour directed the jury that it was not necessary to prove that the appellant had been present throughout the whole of the time during which the assaults took place in order to establish his guilt as a party to the joint criminal enterprise. The Court of Appeal correctly rejected the appellant's challenge to that direction." [References omitted; emphasis added.]
Leaving aside the issue of the requirement of presence, this analysis contains no suggestion that for a person to be primarily liable as part of a joint criminal enterprise, there needs to be proof of an intention to encourage, and actual encouragement in line with the additional words from Tangye. I note that in Tangye, Hunt CJ at CL did not cite any authority for the concept expressed in the additional words.
In my view, this examination of the authorities makes the position clear. The principle is that a person who is a party to an agreement or understanding to commit a crime, and who is present pursuant to that agreement or understanding when that crime is committed, is guilty of the crime on the basis of a primary liability. Presence pursuant to the agreement or understanding amounts to participation in the enterprise, and demonstrates the requisite degree of complicity in the crime agreed upon. Subsumed within such presence are the notions expressed in the additional words from paragraph number (3) at 557 of Tangye.Nothing more than such presence needs to be established. An intention to assist or encourage is not an additional and separate element.
In other words, a person participating by presence pursuant to an agreement or understanding is taken to have the required knowledge and intention. In the absence of proof of an agreement or understanding, a person who is merely present at the scene of a crime may be an abettor, and must be shown to have had an intention to encourage and in fact encourage the offender: Hutt v The Queen (1989) 14 Tas R 182 at 199 – 200 [51] per Underwood J with whom Cox and Crawford JJ agreed (as all of their Honours then were).
A direction in the terms of the additional words might assist in understanding why it is that presence pursuant to an agreement amounts to participation in the enterprise, and hence gives rise to a primary liability for the crime. But that additional wording does not represent an element of liability by virtue of a joint criminal enterprise. Alternatively, the circumstances of the commission of the crime and the presence of the accused at the time the offences were committed, coupled with intentional assistance to, or encouragement of, another participant or other participants may be matters from which the existence of an agreement to commit a crime may be inferred: Sever v The Queen [2010] NSWCCA 135 at [45] per Latham J, with whom Schmidt J agreed.

I am conscious that the direction sought by the appellant in this case may well be one often given in this context. However, as has been shown, it does describe something which is not necessary to make out in relation to participation in a joint criminal enterprise by presence pursuant to that enterprise. If it were intended to mean that something additional is required, in my respectful opinion the analysis of the authorities shows that to be incorrect. The additional words are superfluous and the trial judge did not err by refusing to direct the jury in the terms sought.

The directions in this case

The appellant did not challenge the trial judge's directions in any way other way. Despite that, I should say something about the directions because of the issues raised by the preceding discussion. I have already set out the trial; judge's memorandum. In her summing-up, her Honour referred to joint enterprise at two different times; one dealing with the facts of the case, the second when explaining the memorandum. The relevant passages are as follows:
"Now, if you accept that the accused and Mr Apted had that understanding and that they went to the house together to set fire to it and that they were both there when these steps were taken to set the house on fire were done, you don't necessarily have to be satisfied about which one of the men took those steps, that is, poured the accelerant or actually lit the fire. It's enough that you're satisfied that one of them did.
…
So you can draw that inference from the surrounding facts but you still have to for there to be a joint enterprise - have to be satisfied that there was that understanding that they reached together to go and set the fire together …
…
If you're satisfied beyond reasonable doubt that the accused and Apted had that understanding – and that's important that you're satisfied as to that, and that while that understanding was still on foot, that is, one or other of them hadn't in effect withdrawn from the situation, they were both present at the scene of the crime and that one or other or both of them did all the things necessary to amount to the crime of arson, then they're equally guilty of the crime regardless of the part each played.
…
Dealing with joint enterprise you have to be satisfied beyond reasonable doubt that the accused and Apted decided together to set the fire or to set fire to the house … that they both went to the house on the night of the 5^th of July 2010 to do what they decided to do, and that one or other or both poured diesel around and one or other or both set fire to that …".[3] [My emphasis]
[3] Of course, the reference to all of the things necessary to commit the crime could, as a matter of law, only mean the act of setting fire to the building. The trial judge correctly directed the jury on the ingredients of the crime of arson. If the reference to all the things necessary to amount to the crime of arson were understood to include preparatory acts of pouring accelerant on the floor, the appellant would properly have been convicted on this basis of joint enterprise if the jury was satisfied beyond reasonable doubt that, in addition to the agreement or understanding, one did that act whilst the other actually set fire to the building.
Although not in express terms, the requirement for participation in the joint enterprise was made clear. It is true that no express separate direction was given that presence amounts to participation in a joint enterprise provided it is pursuant to the agreement or understanding. The issue of the presence of the appellant without any physical acts on his part was, however, squarely raised in the directions by the stated requirement that both be present, and by the use of the phrase "one or other of them [committed the crime]". The use of that phrase is consistent with R v Webb, ex parte Attorney-General and R v Lowery and King (No 2), discussed above.
Further, although there was no express direction that the appellant's presence had to be pursuant to an understanding they had reached to commit the crime of arson, the need for that element was made quite plain. I am in no doubt that the jury would have understood that to have been required. As I have set them out above, the directions were to the effect that the jury had to be satisfied that the two men had the understanding, and that while the understanding was still on foot, they were both present at the scene. In assessing the directions, it should be borne in mind that the real issue was whether there was an agreement or understanding to set fire to the house, not whether or not the appellant was present when it happened: see Huynh v R (above) at 442 – 443 [40] – [44].
I do not think that the jury could have been left in any doubt that for the appellant to be found guilty on the basis of joint enterprise, he at least needed to be have been party to an agreement or understanding that the house be set on fire, that he was present at the house when that was done, and that he was so present by virtue of that agreement or understanding. I am not satisfied that any miscarriage of justice occurred by virtue of the trial judge's directions.

Section 4 of the Criminal Code; crimes committed in the prosecution of a common purpose

Section 4 of the Code provides that where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose a crime is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the crime.
The appellant's potential criminal liability under this section was not raised in the Crown's opening, nor was it left to the jury. I mention the provision though, because it is relied on by the Crown in answer to the appellant's argument, but in a way which I am afraid I do not understand. In the Crown's written submissions, it is thought that the Crown case was that the appellant either lit the fire "or planned with Mr Apted to set fire to the house as part of the common purpose", or aided or abetted him. It is put that the trial judge's directions:
"… in part cover the ingredients the jury had to be satisfied of the appellant to be found guilty as part of the common purpose (s4 Criminal Code). That is, that the appellant, with Mr Apted had formed a common purpose to prosecute an unlawful purpose (to set fire to the house), and in the prosecution of which the house was set fire to, which was a probable consequence."
It is expressly asserted by the Crown that there can be a common purpose liability under s4 where the unlawful purpose and the completed crime are one and the same. Although it is not necessary for the purposes of resolving this appeal to decide the point, and it was the subject of argument, I want to make some observations about it. I do so because it is an assertion often made in criminal cases in this State. In my view, the assertion is wrong. I agree with Estcourt J in this respect.
It seems to me that the accepted approach in this State is that if two or more persons form a common purpose to commit crime X, and crime Y is committed, the liability of each is to be first assessed under s3, with resort had to s4 if necessary. The assessment under s3 proceeds on the subjective basis of whether the accused contemplated that crime Y was a possible incident of carrying out the intention to commit crime X: Frost v R [1979] Tas SR 172 per Crisp J (Chambers J agreeing) at 180 – 181; Murray v The Queen [1962] Tas SR 170. If that is not made out, the accused may be liable under s4 on the objectively assessed basis.[4] Where the common purpose is to commit crime X and crime X is committed, there is no need to go beyond s3.
[4] This is similar to the provisions which relate to instigation. A person who instigates a crime is, by virtue of s3(1)(d), deemed to be a party to, and guilty of that crime. Where a different crime is actually committed to that which was instigated, s5 operates to deem the instigator to have committed the different crime, provided it is a probable consequence of carrying out the instigation. Depending on the circumstances, a person who forms a common intention to prosecute an unlawful purpose, might also be viewed as an instigator.
In R v Barlow (1997) 188 CLR 1 at 9, Brennan CJ, Dawson and Toohey JJ said that s8 of the Queensland Code, (the equivalent of s4), "complements s7 [s3] and extends the net of criminal liability for an offence to the parties who have formed a common intention of the kind therein mentioned, … " [my emphasis]. That strongly suggests that s4 has no operation in a situation covered by s3, but it seems to me that the point is put beyond argument by the statement of Kiefel J in R v Keenan (2008) 236 CLR 397 at 428 [102], (Hayne, Heydon and Crennan JJ agreeing). The passage is set out in the judgment of Estcourt J but I will repeat it:
"The purpose of s 8 is to extend the criminal responsibility of the parties to a common purpose to an offence other than that which was intended to be committed."
Were anything additional required to dispose of this assertion, I would add a reference to a Canadian authority of much weight. The Canadian Criminal Code 1892 is, like the Tasmanian Code, based on the revised Stephen Code. Section 21(2) is in similar terms to s4, except that it makes each person a party to the offence, as distinct from deeming them to have committed it. Further, rather than the requirement that objectively the crime committed be a probable consequence of the prosecution of unlawful purpose, it requires that an accused knew or ought to have known that the commission of the offence would be a probable consequence. Section 21(1) is similar to s3, and makes a party to an offence, every person a party to who actually committed it, or who aided or abetted any person in committing it.
In R v Simpson (1988) 38 CCC (3d) 481, a five member bench of the Supreme Court of Canada unanimously decided the very point. It was held that the two sub-sections dealt with different circumstances, and that the unlawful purpose in s21(2) must be different from the offence which is actually charged: see the judgment of McIntyre J (delivering the judgment of the Court) at 488 – 491.
In my view, the statement from Keenan (above) and what was held in the Canadian case of Simpson, represent the law in relation to s4 of the Tasmanian Criminal Code. That is, s4 only applies where the crime committed is different from the unlawful purpose. At the risk of stating the obvious, the reference in Keenan to the provision extending the responsibility of parties to a common purpose "to an offence other than that which was intended to be committed", should not be read as imposing some form of limitation on the section's operation by way of the generic description of crimes. The inquiry focuses on the nature and scope of any common purpose. It is that which is to be compared to the crime committed.
Some crimes have different forms. For example, different forms of assault are created by s182 of the Code for the purposes of Ch 19 of Pt 5. Section 4 could be invoked, for instance, if there was an unlawful common purpose to commit an assault by way of deprivation of liberty, and an assault by way of an intentional application of force was committed.
File No 422/2013

SCOTT THOMAS CLARKE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
6 November 2013

There is a fundamental question arising on this appeal. Does the Criminal Code (Tas), s3(1)(a), in terms of the criminal liability of "every person who actually commits the crime", extend to the common law concept of joint criminal enterprise? The learned trial judge directed the jury in her summing-up that there were potentially three bases of criminal liability in relation to the appellant. These were: aiding, s3(1)(b); abetting, s3(1)(c), and joint criminal enterprise. The trial judge's directions with regard to this common law concept were given pursuant to s3(1)(a) and were meant to reflect the primary position of the Crown, that the accused was a principal offender with another person, Nigel Apted. The learned trial judge described her directions as involving the elements of the accused as principal offender. The common law concept attaches to offenders who are present at the scene of a crime pursuant to a common understanding to commit the crime, and while that understanding is on foot, one or all of them between them carry out the crime. It is sufficient if only one of the offenders carries out the crime; thus, it embraces mere physical presence. There is no express reference to the concept in the Code.
The question I have described as fundamental was not the main focus of submissions on appeal. It is clear though that the parties have joined issue on the question. The appellant's contention on appeal is that there was error in the direction regarding the elements of joint criminal enterprise. The respondent did not resile from written submissions which conceded error by the learned trial judge in that the directions given as to joint criminal enterprise were not directions in accordance with the bases of criminal responsibility provided for in the Code, ss3 and 4. In any event, even if this question had not been raised in argument, the interpretation of statutory provisions rests with the court, and the court is not confined by rival arguments: Saif Ali v Sydney Mitchell & Co (A Firm) [1980] AC 198 per Lord Wilberforce at 212; Accident Towing and Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 per McGarvie J at 547.
It is my conclusion that the common law concept of joint criminal enterprise is not the law in Tasmania; that resort to the common law concept was neither necessary nor desirable, and that by directing the jury in accordance with it, the learned trial judge has erred. Before providing my reasons I note that a summary of the evidence, and references to pertinent aspects of the summing-up and the memorandum are helpfully set out in the judgment of Estcourt J.
I begin by considering some well known authorities that guide the court's interpretation of the provisions of the Code and which explain when resort to the common law is justified.
The proper course is to examine the language and to interpret the Code according to its natural meaning. It should not be presumed that it was intended to do no more than restate the existing law: Bank of England v Vagliano Bros [1891] AC 107 per the speech of Lord Herschell at 144. In Brennan v R (1936) 55 CLR 253 at 263, Dixon and Evatt JJ, referring to s8 of the Western Australian Code stated:
"But it forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered (Cf, per Lord Herschell, Bank of England v Vagliano Brothers)."
It may be justifiable to resort to the common law for the purpose of aiding in the construction of the Code, where the Code contains provisions of doubtful import or contains language which had well established meaning when the Code was enacted. As stated by Windeyer J in Vallance v R (1961) 108 CLR 56 at 74 – 75, "In some places the Code states common law principles in words that have long been familiar … The Code uses many words and phrases that, when it was enacted, had well established meanings: and 'in construing an Act of Parliament it is a general rule … that words must be taken in their in their legal sense unless a contrary intention appears'." However, if the text is clear, the common law is of no relevance: Stuart v R (1974) 134 CLR 426 per Gibbs J.
An example of reference to the common law for the purpose of determining the meaning of a word in s3 of the Code is Murray v R [1962] Tas SR 170. The common law was applied in considering the meaning of "abets" which had acquired a technical meaning in the law prior to the passing of the Code: per Burbury CJ at 172, Gibson J at 189 and Crawford J at 195.
It seems that there could only be three conceivable reasons for the course taken by the learned trial judge in importing the common law in the context of criminal responsibility under the Code. First, words in s3(1)(a) are of technical meaning; second, words are employed that are of doubtful meaning; and third, there is binding precedent or persuasive authority providing justification which needs to be followed for reasons of consistency.
Before turning to a consideration of the terms of the Code, I note the object of the Code. It is captured in the title: "An Act to declare, consolidate, and amend the criminal law, and to establish a code of criminal law". It is interesting to note that according to the Attorney-General's speech on the second reading of the Criminal Code Bill, reported in The Mercury, 29 February 1924, page 3, the object was described as consolidating "the whole of the existing criminal law of Tasmania with amendments considered desirable by the joint committee of both Houses". One of the departures from the existing criminal law was noted to be in dealing with parties to crimes; that s3 does away with any necessity for the employment of the term "accessory before the fact", and simplifies the statement of the law. Also noted in the speech was the Code's unity and coherence, and that the definitions, the principles of responsibility, the matters of justification, and the procedure are all interdependent and must necessarily go together.
Noting the coherence and unity of the Code, I have regard to its structure in dealing with criminal liability before turning to the specific words of s3(1)(a).

Structure of the Code

The structure of the Tasmanian Criminal Code, ss3 and 4, provides various avenues for finding that a person is deemed to be guilty of the crime or deemed to have committed the crime:
• s3(1)(a): as principal;
• s3(1)(b), (c) and (d): as a secondary offender, where the offender has aided, abetted or instigated the commission of the offence;
• s4: as a secondary offender, where two or more persons form a common intention to prosecute an unlawful purpose, and in the prosecution of such purpose a crime is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose.
It may be noted that this case falls within s3, and liability by reference to common purpose and s4 did not properly arise on the facts of this case. It was not contended on appeal that s4 should have been left to the jury as a basis of liability.
In the provisions of the Code regarding accessorial liability, there is comprehensive coverage of accessorial liability. It is difficult to conceive of any types of liability not covered by the provisions. By illustration of their scope, the allegations of the appellant's conduct fell comfortably within the terms of s3 without any reference to the common law. According to the Crown case the accused was: the person who set alight a fire or fires; or, he aided the person who set the house alight; or, he abetted by his presence. The abetting provision expands the reach of the Code to involvement by presence provided that the necessary state of mind is held by the abettor, and there is, in fact, encouragement of the principal offender. A consideration of the scope of the categories of liability provides a strong indication that the provisions were intended to not only be comprehensive, but exhaustive.
The effect of s3 is significant in simplifying the process for the jury. If the jury can be satisfied that the accused was either the principal or accessory with reference to the categories in s3(1), the basis of liability need not be determined. The result is that each of the persons, whichever subsection of s3 applies, is "deemed to be a party to, and to be guilty of, the crime": s3(1). There are provisions to similar effect in the Codes of Queensland and Western Australia. For judicial comment on their effect: R v Lowrie and Ross (1999) 106 A Crim R 565 per McPherson JA at [14] and Thomas JA at [35]. As noted by McPherson JA, in Sherrington v Kuchler [2001] QCA 105, this means that in a trial it is ordinarily necessary for the trial judge directing the jury to focus on whichever of the paragraphs seem applicable in order to ensure that the case against the accused is covered by at least one of them. The jury is to be directed that there is no necessity to determine which particular role the accused had, providing the jury is satisfied that one of the paragraphs applies.

A consequence of broadening the bases of liability, or any one of them, by including the common law concept of joint criminal enterprise is that it would conflate the categories or pathways of liability set out in s3(1). Another consequence is that it would introduce a concept of common purpose which is provided for in the Code but confined to s4. Presumably, that was deliberate. A result of having a basis of liability which exists beyond the scope of the Code provisions is that it would fall outside the deeming effect of s3. It seems unlikely that such a consequence was intended.
However, it may be argued that this concept is incorporated within the scope and language of s3(1)(a). I turn to consider the terms of that subsection.

The words of the section

Section 3(1) is in the following terms:
"3 Which parties to crimes to be deemed principals in the first degree
(1)   Where a crime is committed, each of the following persons is deemed to be a party to, and to be guilty of, the crime, and may be charged with actually committing it:
(a)   every person who actually commits the crime;
(b)every person who does any act or makes any omission for the purpose of enabling or aiding another person to commit the crime;
(c)   every person who abets another person in committing the crime;
(d)   every person who instigates any other person to commit the crime."
There is in the terms of the section a dichotomy between those who actually commit the crime and those who enable, aid or abet, or instigate a person to commit the crime. It is worth noting that an accessorial role such as aiding or abetting is distinguished from a person who actually commits the crime. The purpose of the section is to render the distinction immaterial for the purpose of guilt. Any one of those nominated persons is a party, and guilty, and may be charged as if they actually committed it.
On a natural construction of the section, the words "person who actually commits the crime" would involve the carrying out of the crime. These words are not defined in the Code. They have an ordinary meaning. The ordinary meaning of "commit" is to perform or perpetrate (The Shorter Oxford English Dictionary, Oxford University Press, 1973), or to "be the doer of" (The Shorter Oxford English Dictionary, Oxford University Press, 1993). It would be at odds with the natural meaning of the words "every person who actually commits the crime" in the context of the section and the dichotomy that I have mentioned, to interpret the commission of the crime as being mere presence and a co-existent shared agreement or understanding.

Importation of the common law?

Is the concept of joint criminal enterprise incorporated in the Code, s3(1)(a)? Does this paragraph employ a technical term or an ambiguous term capable of embodying an established common law concept of joint criminal enterprise? In R v Wyles; ex parte Attorney-General [1977] Qd R 169, the common law as it applied when the Code was enacted was considered in the interpretation of s7(a) of the Queensland Code, the equivalent of s3(1)(a).
In Wyles, Hoare J reached the conclusion that "s7(a) of the Code includes cases where there are several persons, acting in concert, each doing some act which in their totality would constitute an offence if done by one person". His Honour reasoned that where s7 of the Code refers to a "person who actually does the act", it should be construed in the light of the common law which then applied. A number of cases were given as examples of the state of the criminal law at the time of enactment of the Code. In all examples the offenders had an active part. Hoare J referred to Russell on Crimes and Misdemeanours, 6^th ed, 1896, being the most recent edition at the time the Queensland Code was enacted. There was reference to principals in the first degree, "those who have actually and with their own hands committed the fact" and principals in the second degree, aiders and abettors, accessories before the fact or accessories after the fact. Hoare J's conclusion was based also on a consideration of the Acts Interpretation Act 1954 (Qld), that the words expressed in the singular clearly include the plural. His Honour considered a case regarding the meaning of the words "to do" which supported the conclusion reached. Lucas J considered s7(a), and concluded that as a matter of statutory construction and the application of the provision in the Acts Interpretation Act, requiring a word in the singular to be read as including the plural, its meaning coincided with the common law at the time of enactment. Matthews J agreed with the reasons of both Hoare and Lucas JJ.
The reasoning of Hoare J may be applied to the words of the Tasmanian Code, s3(1)(a). At the time the Code was enacted, an established part of the criminal law was joint principals in the sense of: "joint perpetrators ... (when) part of a crime may be committed by one principal another by another": Glanville-Williams, 2^nd ed, quoted by Hoare J. Arguably, there is no need to resort to the Acts Interpretation Act, s24(d), for the proposition that the singular denotes the plural. The Tasmanian section denotes the plural with the words "every person …". Section 3(1)(a) covers cases where there are several persons, acting in concert, each doing some act which in their totality would constitute an offence if done by one person.
Resort to the common law at the time of enactment confirms that the words in s3(1)(a) reflect that it was contemplated that more than one person may carry out the crime. However, there is a significant difference between that situation where two people carry out the crime "with their own hands", and the current common law concept that whilst one does so, the other is present pursuant to a joint understanding. Reference to the common law at the time of enactment could not result in importing this concept. There is no suggestion that the current common law concept of joint criminal enterprise was an established part of the criminal law at the time the Code was enacted.

Precedent?

I turn now to consider decisions from other jurisdictions to ascertain if there are decisions on similar provisions of other Codes that should be followed because they provide a rationale for importing the common law concept which has persuasive value or force, or that should be followed as a matter of judicial comity. There is no applicable authority in Tasmania. In considering authorities from Queensland and Western Australia, it must be noted that the Codes from those jurisdictions do not expressly provide for abetting, and arguably are less comprehensive than our Code. It is unnecessary to explore the ramifications of differences in the relevant provisions. The provision in relation to principal offenders is, for all intents and purposes, the same.
I have referred to Wyles and the approach taken in determining that the Queensland provision extended to multiple principal offenders each doing some act which, in combination, constituted the offence. Warren and Ireland v R [1987] WAR 314 reflects a similar approach. Two accused were jointly charged with grievous bodily harm upon a police officer. There was evidence that they joined together in the assault. The Court of Criminal Appeal held that both appellants had been criminally responsible. Burt CJ stated, at 319, that it would not matter who struck the blow which caused the grievous bodily harm, and that each offender is directly responsible as principal, and no question of derivative responsibility arises. Under the Code, the section concerning aiding would have application as well as the paragraph concerned with principal offenders.
Kennedy J, at 321, considered that the fact that it was not possible to identify the person doing the act, does not provide an obstacle to the application of s7, if it was established, as it was in that case, that whichever of the two persons did the act, the other aided him. Franklyn J, at 328, referred to the judgment of Hoare J in Wyles and the conclusion reached that the Queensland Code, s7(a), extends to several persons acting in concert, each doing some act which, in their totality, would constitute an offence if done by one person. Franklyn J described the approach of Hoare J as good law and equally applicable to the Criminal Code (WA), as the common law relating to principals and joint perpetrators was not significantly different in 1902 when the Western Australian Code was enacted, than it was in 1899. The Wyles approach that s7(a) extends to a number of principals, acting in concert, each doing some act which, in aggregate, would constitute an offence if done by one person, represents the law in Western Australia.
In R v Webb, ex parte Attorney-General [1990] 2 Qd R 275, consideration was given to Wyles in the context of points of law that arose on a reference by the Attorney-General. The accused and his companion entered a laundry under a dwelling house and there set fire to a towel on a chair. The chair caught fire. The fire began when the towel was lit with a lighter. Both the accused and his companion were engaged in attempting to ignite the towel, but it was uncertain which of the two succeeded in setting it ablaze. Having correctly stated the conclusion reached in Wyles by Hoare J, Macrossan CJ reached a conclusion which is accurately set out in the headnote: "if two persons were together and were acting in concert to do an act which, if done, would amount to the commission of a criminal offence and that act was done by one or other or both of them but the evidence did not reveal which one of them actually did the act, each of them was deemed to have taken part in committing the offence".
That determination, and in particular the words I have underlined, expand significantly the principle in Wyles, and echo the common law concept of joint criminal enterprise. Yet, there is a lack of analysis leading to that determination. I respectfully conclude that the determination does not follow from the reasoning in Wyles. It is noted too that the expansion is obiter dicta, as according to the evidence at trial, the accused was either the principal offender or he aided the principal. Lee J agreed with the reasons of the Chief Justice, without providing additional reasons. Thomas J, at 287, took a different approach and adhered to the approach in Wyles, stating the case was adequate even if the Crown could not establish whether the accused personally performed the acts, or he aided his companion.
Under our Code too, given the structure of s3, as I have mentioned, if the Crown could establish that the accused was either the principal offender or an aider, the case was adequate.
In R v Sherrington and Kuchler [2001] QCA 105, McPherson JA considered the ambit of s7(1)(a), previously s7(a), concerning principal offenders, "every person who actually does the act", and expressed the view at [11] that it applied to a case such as the one before him if both (or all) of the participants inflict a blow or blows that combine to cause or contribute to the resulting death. A strict approach to the interpretation of the section was taken. McPherson JA stated he would avoid importing into the Code words that do not appear there. He rejected the expression "in concert" used by Hoare JA in Wyles, and Franklyn J in Warren and Ireland v R (above). His Honour stated that incorporating the expression involves a reversion to the common law "which (unless perhaps all else fails) is considered a form of heresy".
Of particular relevance here, McPherson JA noted at [12] the common law position with respect to aiding and abetting, and the concept of joint criminal enterprise, and referred to R v Lowery and King (No 2) [1972] VR 560. He noted too that the common law implies the existence of a pre-arranged plan of some kind, and which his Honour noted is not a requirement under s7(1) of the Queensland Code. Wilson J agreed with the reasons of McPherson JA. The judgment of Ambrose J noted the relevant cases regarding the common law concept, but considered that the concept did not arise because the evidence enabled the jury to find that the two accused were both responsible as principals in that they both inflicted blows with the requisite intention on a charge of manslaughter.
In R v Walton and Harman [2001] QCA 309, the Court of Appeal of Queensland considered a summing-up in a rape trial involving two accused, one who had sexual intercourse with the complainant while the other indecently assaulted her. The accused who indecently assaulted the complainant was charged with rape on the basis of aiding in s7(1)(c). In directing the jury about aiding, the trial judge informed the jury of the essential requirements, and included a reference to joint enterprise. The jury was directed that there needed to be a joint enterprise, encouragement by actions or presence, knowledge that the criminal offence was likely to be committed, and an intention to encourage the other person to engage in the criminal conduct. In explaining "joint enterprise" the trial judge referred to conduct which may be seen as acting in a co-operative way. The direction referred to the concept of joint criminal liability as an additional requirement to those arising from s7.
The joint judgment of Thomas JA and Jones J, agreed with by McMurdo P, remarked that the language of joint criminal enterprise is not usually helpful in terms of criminal liability under s7, as distinct from s8 (equivalent to s4, crimes committed in prosecution of common purpose). It was noted that there may be circumstances in which a direction using the concept of joint criminal enterprise might be relevant. The circumstances were described as limited to the situation where two persons are charged and the prosecution cannot designate which acts were committed by each, but the prosecution can show that each must have been either the principal offender under s7(1)(a) or an aider or assister under s7(1)(b) or s7(1)(c). The reasons set out a suggested direction drawn from the common law which employed the full Tangye (1997) 92 A Crim R 545 direction, including "intentionally assisting or encouraging another participant", at [31]. Significantly, it only condones the direction in an aiding or assisting case, "assisting" requiring identification of an act which could be relied upon for the purpose of s7(1)(c), [36]. The case does not support the giving of a direction in a case of mere presence as opposed to aiding and assisting, and the factual scenario before the court was not one of mere presence.
The present case falls outside the factual matrix considered by the Queensland Court of Appeal which may attract the direction at [31]. Here, the prosecution has not shown that the appellant was exclusively either the principal offender, or an aider or assister. Walton and Harman does not provide support for the giving of the direction in this case. In any event, it has not been followed in a subsequent decision of the Queensland Court of Appeal.
In R v Palmer [2005] QCA 2, the appellant was charged with two counts of murder. The Crown case was that she had a lesser role in the killings, which were committed by three others. The trial judge's direction referred to the common law concept of joint criminal enterprise in the context of "aiding", and counselling and procuring, s7(1)(b), (c) and (d). There was an appeal. Davies JA at [17] - [18] was critical of the trial judge's use of the phrase "joint criminal enterprise":
"[17] It is submitted, correctly in my opinion, that the phrase 'joint criminal enterprise' is not used in the Criminal Code and adds nothing to the provisions which are there contained. If an accused's conduct comes within the operation of any of the subsections of s 7(1) or within s 8 then she is deemed to have committed the offence whether or not she was a party to a joint criminal enterprise. And if she was a party to a joint criminal enterprise, as defined by the learned trial judge, but her conduct does not come within any of the subsections of s 7(1) or within s 8 then she is not deemed to have committed the offence.
[18] Thomas JA and Jones J pointed out in R v Walton and Harman that the language of joint criminal enterprise is not usually helpful when discussing criminal liability under s 7(1)(b) or s 7(1)(c). To that I would add that it may lead to confusion. It may describe an agreement to carry out an offence, participation in which may constitute counselling or procuring within s 7(1)(d) but even here it is not helpful to so describe it. In all these cases, as already mentioned, the question is not whether the accused was a party to a joint criminal enterprise but whether she did something which brought herself within one of the paragraphs of s 7(1). The language of joint criminal enterprise may be more appropriate to s 8 because that section requires a common intention to prosecute an unlawful purpose in conjunction with one another. That is the sense in which that or a similar phrase appears to be used in common law cases. However, because of the risk, even with respect to s 8, that its use may lead to confusion, in my opinion the phrase should be avoided in directions with respect to s 8 as well as in directions with respect to s 7."
His Honour's reasoning as to the elements of ss7 and 8, and that joint criminal enterprise adds nothing to those provisions and may lead to confusion, has real force. It is just as valid to note that the language of joint criminal enterprise is not helpful when discussing criminal liability under the Tasmanian Code. The question is not whether the accused was a party to a joint criminal enterprise but whether he did something which brought him within one of the paragraphs of s3(1).
The judgment of Davies JA was agreed to by Mullins J and also Fryberg J, who, at [35], expressed particular agreement with the comments of Davies JA relating to the notion of "joint criminal enterprise". He added:
"Whatever those words convey at common law, they are at best unhelpful in explaining to a jury the effect of either s 7 or s 8 of the Criminal Code. At worst they are capable of misleading a jury. They might occasionally be helpful as a shorthand description of a particular complex of facts, but they do not describe the law in this State."
A shorthand description of a complex of facts is not under consideration here. The learned trial judge was not merely attaching a convenient label to a factual scenario; but rather, giving a direction about joint criminal enterprise as a legal concept, as the law to be applied by the jury.
The recent Queensland decision of Palmer rejects any resort to the common law concept. The weight of authority from Queensland does not support the approach taken by the learned trial judge in this case. There is a lack of any persuasive authority regarding similar provisions that would warrant importing the common law concept and directing the jury as the learned trial judge did.

Conclusion

The common law concept of joint criminal enterprise as expounded by Tangye is not the law in Tasmania. It is contrary to the correct approach to be taken with respect to construction of the Code. Resort to the common law is without justification.
Furthermore, the authorities identify sound reasons why it is undesirable to direct the jury in accordance with this common law concept. It leads to confusion. The confusion arises because the common law concept conflates the discrete categories in the Code, and elides the distinctions embedded in ss3 and 4.
Even leaving aside well settled and sound principle precluding resort to the common law, and taking a pragmatic view, I can see nothing to gain by grafting common law concepts of liability onto a cohesive and unified statutory scheme of criminal liability. Section 3 applies perfectly well to the situation where the Crown is able to prove presence at the scene of the crime and can establish he was the perpetrator, or an aider or an abettor, but not which one.

There is too a very real benefit in retaining the ordinary meaning of the words of the section, as well as the distinctions drawn in the section. Observations of Mason, Wilson and Deane JJ, at 21, in Boughey v R (1986) 161 CLR 10 have relevance here: "A basic objective of any general codification of the criminal law should be, where practicable, the expression of the elements of an offence in terms which can be comprehended by the citizen who is obliged to observe the law and (where appropriate) by a jury of citizens empanelled to participate in its enforcement".
The observations I have made do not deny the relevance of a shared understanding as an evidentiary consideration in proving liability. The understanding would be evidence that the secondary offender was aiding, abetting or instigating, or which would ground an inference of the necessary intent under s3, such as an intention to encourage or assist. That, of course, is a different matter. It is not the shared understanding that must be proved; it is not an independent element of criminal responsibility.
Accordingly, the learned trial judge erred.
My consideration of the common law concept rests with this conclusion. I have not addressed the argument raised by the appellant of the constituent elements of the joint criminal enterprise at common law. The reason is implicit in the conclusion I have reached. Unless there is justification for resorting to the common law, the common law is irrelevant.

The proviso

The misdirection importing the common law concept of joint criminal enterprise does not necessarily mean that there was a miscarriage of justice. The direction given as to the essential elements of the common law concept is close to the essential requirements of abetting under s3(1)(c). Those essential elements of abetting are an intention to encourage the commission of the crime and encouragement in fact by some means, something said or done or by continued presence. The direction to the jury emphasised the need for a joint enterprise pursuant to a shared understanding to commit the crime of arson, and that the "understanding was still on foot" at the time the crime was committed. According to the direction, the presence of the appellant was essential. The memorandum provided that the jury needed to be satisfied beyond reasonable doubt that the two men decided to set fire to the house and went to the house "to do what they had decided to do".
An intention to encourage falls within the direction given to the jury of the requirement of an ongoing agreement, and the necessity that the appellant went to the house with the intention of setting fire to it. The same is said of encouragement in fact. If the appellant and Nigel Apted went to the house to bring about the agreement to set fire to the house, and if the appellant remained present whilst the principal set fire to the house, it is bound up in these conclusions of fact that the appellant encouraged the principal in committing the crime. It is difficult to imagine that there was not an intention to encourage, and encouragement in fact, unless the appellant withdrew from the agreement, and that was not suggested by the defence. The Crown case was that he was present and carrying out an agreement to set fire to the property, if not as the principal then present with that purpose in mind. The defence case was that he had not reached an agreement to set fire to the house and refuted the existence of a joint enterprise. In any event, that contingency was adequately covered by the learned trial judge's direction that the appellant's shared understanding to set fire to the house needed to be on foot at the material time. If the jury found the appellant guilty on the basis of the pathway containing error, a finding of guilt on the basis of abetting was, in the context of this trial, inevitable. I consider that there is no possibility that a miscarriage of justice has occurred and the proviso contained in the Code, s402(2), applies. As a consequence of this conclusion, and for the reasons I have given, I joined in the order dismissing the appeal.

File No 422/2013

SCOTT THOMAS CLARKE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J
6 November 2013

The Appeal

The single ground in the notice of appeal in this appeal asserts that the learned trial judge, Tennent J, erred in law by failing to direct the jury that in order for the appellant to be guilty on the basis of a joint criminal enterprise, he must "either commit the agreed crime itself or, whilst present at the time the crime is committed and with knowledge that the crime is to be or is being committed, intentionally assist or encourage another participant in the joint criminal enterprise." (Emphasis added.)

The case against the accused

Upon the appellant's trial on one count of arson by unlawfully setting fire to a derelict house at East Devonport, that was about to be demolished, the State's case was that the appellant and another man, one Nigel Apted, were together responsible for lighting the fire or fires.
The State alleged that on 5 July 2010, the two men, in company with each other, sourced diesel fuel from a crane that was parked next to the house and together entered the house, spread the diesel around, and then each set alight to the diesel in at least four places in different rooms in the house. Two of the fires apparently self-extinguished before the fire brigade arrived and the State could not establish which of the two men lit which of the fires.
Counsel for the State at trial opened the case against the accused on the basis that the appellant could be criminally responsible for the arson, either by actually setting fire to the building himself, or by aiding or abetting Mr Apted, or by being part of a joint criminal enterprise.
The appellant's counsel at trial replied to the State's opening on the basis that the sole responsibility for the acts constituting the crime rested with Mr Apted, who had earlier pleaded guilty to the crime and had been convicted and punished, and that the appellant had merely been present when Mr Apted commenced to light the fires, and had thereupon called Mr Apted "a wanker", and walked away, leaving the scene and Mr Apted.
Mr Apted gave evidence at the trial. In his evidence-in-chief, he said that he and the appellant were inside the house together but there were many different rooms and doors in the house and it was like a maze. He said that he did not remember who poured the diesel. He was asked whether the appellant lit any of the diesel. He answered, "I couldn't – I can't say that I witnessed him lighting it, but as far as I remember, yes".
In cross-examination, Mr Apted's evidence was that he did not remember who poured the fuel, but that the two had both used the fuel to set fire to the house, and that they were both in the house and they both left the house together.
The appellant, on 5 October 2010, had participated in a record of interview with police in which he implicated himself in the commission of the crime, but he gave evidence on his trial in which he claimed that he had merely been present at the scene. He endeavoured to explain away the express and implied admissions contained in his record of interview.

The closing addresses

In closing the State's case its counsel told the jury that the appellant was present, knowing what was going on and actively participating in it, and that the jury need not be troubled about which one of the two men actually lit a particular fire because they were both acting together. Counsel went on to say that, even if the jury were not satisfied that the appellant lit any of the fires or any of the diesel, it could still be satisfied that he was a party to the crime because he was part of the plan in that he was with Mr Apted from start to finish in pursuance of what they were doing.
Counsel for the State also told the jury that in any event it could be satisfied that the appellant had aided Mr Apted by going to look for oil because it would burn better and that he had, in effect, abetted Mr Apted by following him throughout the house, thereby encouraging him. There was considerable contention at trial in relation to the factual and legal bases for both the postulated aiding and the postulated abetting, however, it is not, in my view, necessary for the purposes of this appeal to canvass those matters.
Counsel for the appellant told the jury, as to the alleged joint enterprise:
"So when it comes to the question of whether Mr Clarke has acted in pursuance of a joint enterprise you need to be satisfied that there was an understanding between himself and Mr Apted and that upon entering the home that they had a full understanding of the crime that was to be committed and Mr Clarke had that meeting of minds with Mr Apted and that the crime was committed in that circumstance."
Counsel went on to tell the jury that the evidence available to support the asserted joint enterprise, namely that of Mr Apted and of the appellant's record of interview by police could not be relied upon for various reasons. He then went on to disparage the suggestions of aiding and abetting.

The summing-up

The learned trial judge provided the jury with a written memorandum in which she dealt with the question of criminal responsibility as follows:
"CRIMINAL RESPONSIBILITY
1. Nigel Apted has pleaded guilty and been sentenced in relation to the crime of arson. That relates to the setting of fires at the premises at 5 North Caroline Street in Devonport on the night of 5 July 2010. The accused Scott Clarke is also charged with arson arising out of the same incident.
2. The primary position of the Crown is that the accused and Nigel Apted acted together in a joint enterprise, pursuant to an understanding that they had reached to commit the crime of arson. That is they were each principal offenders.
3. If you are satisfied beyond reasonable doubt that
-       the accused and Apted had that understanding,
-       that while that understanding was still on foot,
-       they were both present at the scene of the crime, and
-       one or other of them or both between them,
-       did all the things necessary to amount to the crime of arson
then they are equally guilty of the crime regardless of the part each played. If you are satisfied as to those matters, the accused would also be guilty of the crime.
4. However the accused can be found guilty of the crime of arson in other ways, namely as an aider or abettor. If you are satisfied beyond reasonable doubt that the accused
(a) did any act for the purpose of enabling or aiding Nigel Apted to commit the crime of arson,
or
(b) abetted Nigel Apted to commit that crime,
then the accused may be found guilty of the same crime that Nigel Apted has been convicted of.
5. For the accused to have aided Nigel Apted to commit the crime of arson, the accused must have done an act by which he intended to facilitate or help Nigel Apted to commit that crime.
6. For the accused to abet the commission of the crime of arson by Nigel Apted, the accused by some action must have intended to encourage or urge Nigel Apted to commit the crime and in fact have encouraged him to do so. A person abets the commission of a crime if they deliberately use words or gestures intending to encourage another offender to commit a crime knowing that the other offender is about to commit the crime.
7. Mere presence at the scene of a crime without more, cannot be aiding or abetting."
Her Honour went on in the memorandum under the heading "TO CONVICT THE ACCUSED", to point out that for the jury to convict the appellant it had to be satisfied beyond reasonable doubt that:
·     The accused and Apted decided together to set fire to the house at 5 North Caroline Street
·     They went to the house on the night of 5 July 2010 to do what they had decided to do, and one or other or both, poured diesel around, and one or other or both, set fire to that, and as a consequence the house.
·     The act of setting the fire or fires was voluntarily and intentional.
·     Neither the accused nor Apted had any lawful right to light the fire or fires.
·     The act of lighting any fire was deliberate with the intention of setting fire to the building, or was committed recklessly in that the likely consequence of the act was the setting fire to the building.
The learned trial judge took the jury almost word for word through the memorandum, but before the jury was provided with copies of the document, her Honour gave the jury the following charge as to criminal responsibility by way of joint enterprise:
"There are in effect three ways by which the accused in this case could be found guilty of the same crime as Mr Apted.
Now, the first way in which the – and this is the manner that the Crown primarily relies on in their case – in which Mr Clarke could be found guilty of the crime of arson is on the basis of what I might describe as a joint enterprise. Now, the Crown alleges that the accused and Mr Apted had an understanding or an agreement to set fire to the house, that they went to the house with an accelerant to set fire to the house and deliberately set it alight.
Now, if you accept that the accused and Mr Apted had that understanding and they went to the house together to set fire to it and that they were both there when these steps were taken to set the house on fire were done, you don't necessarily have to be satisfied about which of the men took those steps, that is, poured the accelerant or actually lit the fire. It's enough that you're satisfied that one of them did.
… I've talked about there being an understanding. Now, there doesn't have to be evidence that for example the two men met together at a particular time and place and they had a lengthy discussion about lighting a fire and that they formally agreed in words to light a fire.
You can infer from the circumstances surrounding how the fire was lit, how the men got there and that type of thing that they may have had an understanding that they were going to light a fire. So you can draw that inference from the surrounding facts but you have to be satisfied that there was that understanding that they reached to go and set the fire together even though as I said you don't need to be satisfied that there was an understanding that – who actually poured the fuel and lit the fire or that one or other of them did it, but you do have to definitely be satisfied that there was an understanding that they would both go and commit this crime."

The appellant's submission

Counsel for the appellant, Mr Hughes, who was also counsel on the trial, submitted to this Court on appeal, that the elements that the jury needed to be satisfied of beyond reasonable doubt in order to find the accused guilty upon the basis of a joint criminal enterprise, are those set out in R v Tangye (1997) 92 A Crim R 545 at 556 - 557. Counsel submitted that in addition to the elements detailed within the learned trial judge's memorandum, the jury ought to have been directed that a person participates in a joint criminal enterprise either by committing the agreed crime itself, or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. Counsel submitted that the presence of that person at the time when the crime is committed, and the readiness to give aid if required, is sufficient to amount to an encouragement of the other participant in the joint criminal enterprise to commit the crime.
Counsel for the appellant contended that the learned trial judge, in effect, left it open for the jury to convict the appellant on the basis that there was simply an agreement and a completed crime, without finding that the appellant had either acted in furtherance of the joint criminal enterprise by intentional assistance, or encouragement towards another participant in that joint criminal enterprise.

The law

The italicised words in the notice of appeal set out at par[110] above are taken directly from R v Tangye (supra) in the passage at 556 - 557 set out below. The learned trial judge was referred to that passage by counsel for the appellant in discussion with her Honour concerning her proposed memorandum to the jury. Hunt CJ at CL, with whom McInerney and Sully JJ agreed, said, commencing at 556:
"So far as a straightforward joint criminal enterprise is concerned, the jury should be directed along these lines:
(1)       The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
(2)       A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.
(3)       A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. (Emphasis added.)
(4)       If the agreed crime is committed by one or other of the participants in   that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission."
In R v Lowery and King (No 2) [1972] VR 560 at 560, Smith J directed the jury as follows:
"The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime."
This direction was referred to without comment by the Full Court of the Supreme Court of Victoria in R v Lowery and King (No 3) [1972] VR 939 at 950, and was not called into question on that appeal, or by the Privy Council on the appeal to it in Lowery v R [1974] AC 85. Moreover, Smith J's direction was cited with approval, indeed, referred to as "the law as to the liability of persons who act in concert in committing a crime" by Gibbs J (as he then was) in Matusevich v R (1977) 137 CLR 633 at 636 (see also Gillard v R (2003) 219 CLR 1 at 35 - 36, [110] - [111]).

Discussion

The learned trial judge in the present case charged the jury as to the joint enterprise relied upon by the State, in the terms of her written memorandum to the jury, which broke down into its component parts precisely the entirety of Smith J's direction set out above.
There can, in my view, be no error of law in the learned trial judge's summing up on this issue in these terms, unless somehow, Hunt CJ's suggested direction in R v Tangye (supra) is to be regarded as specifying that something more is required for the principle of joint criminal enterprise to operate than the preconditions referred to by Smith J in his charge in R v Lowery and King (No 2) (supra).

I do not believe that Hunt CJ had any such additional requirement in mind, or that he had in mind in any way departing from Smith J's exposition of the law in R v Lowery and King (No 2). Indeed, Hunt CJ in R v Tangye at 557 referred to the example of the operation of the principle involving "break enter and steal" given by Smith J in R v Lowery and King(No 2), as a better example of a spontaneous type of joint criminal enterprise than that often given of a bank robbery where some degree of planning is involved. Hunt CJ at CL set out that example at 557. The full text from Smith J's direction is as follows:
"The typical case of persons acting in concert that comes before the Court is in charges of house-breaking. Let me illustrate it by an example. Suppose that, say, three men are driving along at night and they see a house in darkness with a lot of newspapers and milk bottles at the gate and one says to the others: 'That looks as if it would do.' The car pulls up, two of the men get out, and one of them stays in the car behind the driving wheel with the engine running. The other two go to the front door and there one of them breaks a glass panel beside the door, puts his hand through and unlatches the door and throws it open. The third man goes inside and collects valuables and comes out while the man who opened the door goes back to the gate to keep watch, and never enters the house at all. Now in law each of those three men can be found guilty of the crime of house-breaking, the elements of which are breaking, entering and stealing, yet obviously the man who sat throughout behind the driving wheel outside ready to drive the other two away when they had got the goods did not break anything, and he did not enter anything, and he did not with his own hands steal anything, and the man who broke the glass never touched the goods. But in law if a jury is satisfied that the three were acting in concert under an understanding that they had reached - communicated between them more by actions than by words - an understanding under which, between them, they were to commit this house-breaking, then in law they are all guilty of the offence and it does not matter which part each played in the commission of the offence. You can imagine that cases can often arise in which, in circumstances such as I have described, the Crown is not able to prove which man did which act. It may not even be able to prove which was the man behind the wheel. Now that is an illustration of the operation of this doctrine of acting in concert."
In my view, this appeal raises only a question of linguistic semantics, specifically one of denotation and connotation.
Hunt CJ in R v Tangye (supra) at par(3) of his postulated direction, by his use of the words "present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise" specifically denoted that a person so acting participates in the joint criminal enterprise as much as a person who commits the agreed crime itself. However such "intentional assistance or encouragement" is clearly connoted by Smith J's words in R v Lowery and King (No 2) (supra) at 560, "while the understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime." (Emphasis added.)
It is impossible to my mind to envisage a situation where an understanding or arrangement between two people to commit a crime is still on foot, and has not been called off, and they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, but yet are not in a situation where they were "intentionally assisting and encouraging each other". The former necessarily includes the latter.
Even if only one of two participants does all things necessary to constitute the crime, then the other, because of the subsisting understanding or agreement, and because of his presence at the scene, must be taken as intentionally encouraging or assisting the other, or as ready to give aid if required. Arguably, with respect, it was unnecessary for Hunt CJ to spell this out at all in the way that his Honour did at par(3) of his suggested direction. It is, as was observed by the learned trial judge in discussion with counsel for the appellant on this issue, implicit in the very notion of the joint criminal enterprise.
In my view the learned trial judge's direction to the jury in the present case could not possibly have left the jury with an understanding that the appellant could be convicted as a principal offender on the basis that he was a participant in a joint enterprise, present at the scene and so present during the subsistence of an arrangement or understanding to commit the crime, without knowing that the crime was being committed and without intentionally assisting or encouraging Mr Apted in the joint enterprise, or having a readiness to give aid if required. Put another way, the jury could not have understood that it could convict the appellant on the basis of his mere presence at the scene at which a completed crime was committed and nothing more.
The members of the jury were clearly and unambiguously told that they had to be satisfied beyond reasonable doubt that the appellant and Mr Apted were both present, with the understanding between them to commit the crime still on foot, and that one or other or both between them, did all the things necessary to amount to the crime. Such satisfaction, in my view, would necessitate satisfaction that they were each, as an absolute minimum, intentionally assisting or encouraging each other.
The element of "intentional assistance or encouragement" denoted by Hunt CJ in R v Tangye (supra) is connoted by the use of words used by the learned trial judge taken from R v Lowery and King (No 2) (supra) requiring the existence of all of the following elements:
·     a subsisting understanding between the two men to commit the crime;
·     continued presence of each man at the scene of the crime;
·     joint or separate commission by one or other or both of them of all elements of the crime.
Whilst the learned trial judge could have referred to "intentional assistance and encouragement" it was not necessary for her to do so in my view. In fact, I would go further. In R v Tangye (supra) at 556 Hunt CJ criticized the learned trial judge in that case for an "unnecessary and confusing" referral to both the principles of joint criminal enterprise and the extended concept of the doctrine of common purpose as if they were interchangeable. In my view, again with respect to Hunt CJ, if the learned trial judge had, in the present case, specifically articulated the element of his Honour's suggested direction concerning intentional assistance or encouragement in the context of the appellant's asserted primary liability as a principal based on joint enterprise, that would have given rise to the same criticism.
It would have been unnecessary in the sense that I have just outlined, that is that it was connoted by what her Honour said, and it would have been confusing because her Honour separately charged the jury as to the appellant's asserted liability as an aider and abettor, about which charge, as was noted by counsel for the respondent, Ms Shand, in her submissions, no complaint is made on this appeal. It is in the context of that potential secondary or derivative liability that the notions of intentional assistance and encouragement have their clearest relevance as discrete preconditions. Far from overlooking these considerations, the learned trial judge made these very points to counsel for the appellant in discussion with him concerning the content of her Honour's memorandum to the jury.
Counsel for the respondent noted in her submissions that R v Tangye (supra) is a "common law case", however she also correctly noted that the learned trial judge's directions, whilst not given by direct reference to the bases of criminal responsibility described in the Code, ss3 and 4, nonetheless encompassed the Code, s3(a), (b) and (c), which specify which parties to crimes are to be deemed principals in the first degree. There was no error in such a course. As was noted by Fryberg J in R v Palmer [2005] QCA 2 at [35], whatever the words "joint criminal enterprise" may convey at common law, they did not describe the law in Queensland and they were usually unhelpful, but, "they might occasionally be helpful as a shorthand description of a particular complex of facts…", (see also Davies JA at [18]). In my view the complex of facts in the present case made it one in which it was helpful to use the notion of "joint criminal enterprise".
In so saying I again note that whilst her Honour's directions as set out in the first three paragraphs of her memorandum under the heading "CRIMINAL RESPONSIBILITY" and parts of her summing up, were given by reference to "joint enterprise", they encompassed, albeit without specific reference, the provisions of the Code, s3(a), (b) and (c), and her directions in the memorandum at pars 4 to 7 were specific to aiding and abetting, about which, I have already noted, no complaint is made on this appeal.
There was no misdirection or error in her Honour's references to "joint enterprise" in her summing-up, including in the memorandum. Her Honour, in my view, could have dealt with the law by reference to the appellant as a person who actually committed the crime by intentionally or recklessly setting fire to the building himself and then, in the alternative, as a person who aided or abetted Mr Apted to do so, but the provisions of the Code, s3, are not misstated or misapplied by explaining some or all of the alternatives for which the section provides, in terms of "joint enterprise" (also referred to as the doctrine of common purpose).
The overlapping nature of the doctrine of common purpose and accessorial liability was explained by the learned author in Gillies, P, The Law of Criminal Complicity, Law Book Company, 1980 at 90 in the following way:
"The so called doctrine of common purpose has been frequently referred to in the cases and textbooks. According to this doctrine, a person becomes liable as an accessory for any crime committed by another person, in that circumstance where the two of them are concurrently party to a conspiracy for the commission of this crime. Where this conspiracy expressly comprehends the subject crime and no other, the evaluation of the alleged accessory's liability will generally be a straightforward process. Issues of liability raised in this situation would scarcely have required the enunciation and application of any such doctrine of common purpose, for the incrimination of the defendant in his co-conspirator's crime would be readily explicable in terms of standard complicity principles, ie that he deliberately encouraged the prospective principal to commit the crime by agreeing with him for its commission while possessed of the mens rea appropriate to this crime." (Emphasis added.)
In my view, in the present case, where there was scant evidence of the appellant actually lighting a fire that set alight to the fabric of the building and where the State could not designate which acts were committed by each man, it was not inappropriate to utilise the notion of joint criminal enterprise to explain one of the bases of the appellant's potential criminal liability to the jury. In R v Walton and Harman [2001] QCA 309 at [30] Thomas JA and Jones J observed that whilst the language of joint criminal enterprise is not usually helpful in terms of criminal liability under the Queensland equivalent of the Code, s3, it could nonetheless be relevant in circumstances such as the present, where each of two persons charged could either be the person who actually committed the crime or an aider or abettor. Moreover, in the present case both counsel for the appellant and counsel for the respondent conducted their respective cases at trial by reference to the concept, (see Doggett v R (2001) 208 CLR 343 at 346, [2]).
This case is precisely the sort of case where it was appropriate to do so. As was noted by Hunt CJ in R v Tangye (supra) in the following passage at 556:
"The Crown needs to rely upon a straightforward joint criminal enterprise only where — as in the present case — it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose, only where the offence charged is not the same as the enterprise agreed. This Court has been making that point for years, and it is a pity that in many trials no heed is taken of what has been said."
It is also clear from that passage that counsel for the respondent's written submission (not expressly abandoned on the hearing of the appeal), that the Code, s4, has application where the unlawful purpose and the completed crime are one and the same is not correct. Any doubt about that is resolved by reference to the judgment of Kiefel J, with whom Hayne, Heydon and Crennan JJ agreed, in R v Keenan (2008) 236 CLR 397 at 428. There, her Honour said of the Criminal Code (Qld), s8, which is for practical purposes identical with the Code, s4:
"The purpose of s8 is to extend the criminal responsibility of the parties to a common purpose to an offence other than that which was intended to be committed." (Emphasis added.)
I can find no error in the learned trial judge's summing-up, and I am satisfied that there is no substance to the appeal.
It will be obvious from what I have said about the overlapping of the doctrine of common purpose and the law as to aiding and abetting that if her Honour, contrary to my view, somehow erred in law in her summing-up or in her memorandum in the manner contended for, then I would be of the view that, given her charge taken as a whole, and given the evidence available to the jury, no miscarriage of justice actually occurred, (cf R v Palmer (supra) per Davies JA at [19]). I would therefore nonetheless dismiss the appeal pursuant to the proviso contained in the Code, s402(2).

Disposition

I would dismiss the appeal.