GLEESON CJ, GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ
Matter No M156/2005
CELIA KATHLEEN CLAYTON APPLICANT
AND
THE QUEEN RESPONDENT
Matter No M157/2005
JOHN DOUGLAS HARTWICK APPLICANT
AND
THE QUEEN RESPONDENT
Matter No M158/2005
LISA JANE HARTWICK APPLICANT
AND
THE QUEEN RESPONDENT
Clayton v The Queen Hartwick v The Queen Hartwick v The Queen [2006] HCA 58 Date of order: 9 August 2006 Date of publication of reasons: 13 December 2006 M156/2005, M157/2005 & M158/2005
ORDER
In each matter, the application for special leave is dismissed.
On appeal from the Supreme Court of Victoria
Representation
C B Boyce with J P Wheelahan for the applicant in Matter No M156/2006 (instructed by Patrick W Dwyer)
L C Carter with M J Gumbleton for the applicant in Matter No M157/2006 (instructed by McNamaras)
M J Croucher for the applicant in Matter No M158/2006 (instructed by Robert Stary and Associates)
P A Coghlan QC with C M Quin for the respondent in all matters (instructed by Director of Public Prosecutions (Victoria))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Clayton v The Queen; Hartwick v The Queen; Hartwick v The Queen
Criminal Law – Criminal liability – Complicity – Extended common purpose – Applicants carried out a common plan to assault victim, who died – Applicants tried together on counts alleging murder and assault – Prosecution could not identify which applicant inflicted fatal wound on victim – Bases on which murder left to jury included extended common purpose – Whether murder on the basis of extended common purpose should have been left to the jury – Whether extended common purpose a proper basis for conviction of murder.
Criminal Law – Criminal liability – Complicity – Re-consideration of extended common purpose – Whether maintenance of extended common purpose as common law doctrine justified – Whether there is disconformity between legal and moral responsibility where conviction for murder is based on doctrine of extended common purpose – Whether extended common purpose imposes criminal liability without requiring proof of actual intent – Availability of verdict of manslaughter where murder by extended common purpose left to jury – Whether doctrine of extended common purpose adds undue complexity to trials – Necessity for trial judge to identify, and leave to jury, only the "real issues" of fact – Role of courts in altering law of homicide – Whether doctrine of extended common purpose should be re-expressed so as to replace "foresight of possibility" with "foresight of probability", or "want", or "virtual certainty" that the incidental crime would be committed.
GLEESON CJ, GUMMOW, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ. The applicants were presented for trial in the Supreme Court of Victoria on a single presentment alleging two counts against each: a count alleging the murder of Steven John Borg and a count of intentionally causing serious…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Clayton v The Queen [2006] HCA 58
Case
[2006] HCA 58
Decision Date
CaseChat Overview and Summary
The applicants, Celia Clayton, John Hartwick, and Lisa Hartwick, sought special leave to appeal to the High Court of Australia against orders of the Court of Appeal of the Supreme Court of Victoria. These orders had confirmed their convictions for the murder of Steven John Borg. The applicants had been tried together for murder and assault, but the prosecution could not identify which applicant inflicted the fatal wound. The murder convictions were based on directions to the jury concerning extended common purpose liability.
The central legal issues before the High Court were whether murder on the basis of extended common purpose should have been left to the jury, and whether extended common purpose is a proper basis for a murder conviction. The applicants also requested a reconsideration and re-expression of the law on extended common purpose liability for murder, as previously stated in *McAuliffe v The Queen* and applied in *Gillard v The Queen*. This included questions about whether the doctrine imposes criminal liability without proof of actual intent, the availability of a manslaughter verdict in such cases, and whether the standard of foresight required for incidental crimes should be raised from "possibility" to "probability" or "virtual certainty."
The High Court, in dismissing the applications for special leave to appeal, indicated that the applicants had made out their contentions. While the provided text does not detail the full reasoning of the majority, it highlights the significant doctrinal difficulties presented by the law of extended common purpose liability, particularly concerning the potential disconformity between legal and moral responsibility and the complexity it adds to trials. The Court's decision to dismiss the applications suggests that, despite these concerns, the existing legal framework, as applied in the Court of Appeal, was not considered to be in error to the extent that special leave to appeal would be granted.
Orders
Orders of the court
In each matter, the application for special leave is dismissed.
Background
Background to the litigation
Respectfully, that is my conclusion in the present case. Upon a full analysis of the detailed arguments of the parties, the applicants have made out their contentions. Special leave to appeal should have been granted. The appeals should have been allowed.The decisional background and history Convictions and appeals: Celia Clayton, John Hartwick and Lisa Hartwick (together "the applicants") applied to this Court seeking to challenge orders of the Court of Appeal of the Supreme Court of Victoria[16]. Those orders followed applications for leave to appeal to that Court against the convictions of each of the applicants for the murder of Steven John Borg ("the deceased") at Karingal, near Melbourne, on 23 May 2001. [16]R v Hartwick (2005) 159 A Crim R 1. The Court of Appeal, constituted by Charles, Chernov and Nettle JJA, upheld the applicants' challenge to their concurrent convictions of intentionally causing serious injury to the deceased's friend, Ms Paula Michelle Rodwell. It set aside such convictions, ordered a retrial on those counts[17] and varied the sentences accordingly to a period of eighteen years imprisonment, with fourteen years non-parole period, in respect of the count of murder alone[18]. However, the Court of Appeal confirmed each of the convictions for murder. Those convictions had followed jury verdicts of guilty on the counts charging the applicants with the murder of the deceased. The guilty verdicts, in turn, followed directions given to the jury by the trial judge (Smith J). Such directions were in accordance with the authority of this Court in Johns v The Queen[19], McAuliffe v The Queen[20] and Gillard v The Queen[21].[17](2005) 159 A Crim R 1 at 50-53 [114]-[119].[18](2005) 159 A Crim R 1 at 64 [163].[19](1980) 143 CLR 108.[20](1995) 183 CLR 108.[21](2003) 219 CLR 1. Applications to this Court: Against the orders of the Court of Appeal disposing of the applications in respect of the murder convictions, the applicants made their applications to this Court. Those applications, mounted separately, raised several grounds. One issue, common to each of the three applications, was a request by the applicants that this Court should reconsider and re-express the law on extended common purpose liability for murder as stated in McAuliffe and as applied most recently in Gillard. It was that issue that the Special Leave Panel[22] reserved to the Full Court. [22]Hayne and Heydon JJ. See [2006] HCATrans 331. In my reasons in Gillard[23], I noticed a number of doctrinal difficulties presented by the law of extended common purpose liability as stated in McAuliffe. I did so because the ultimate issue in Gillard was whether the trial judge had erred in failing to direct the jury as to the availability of a conviction of the appellant in that case of manslaughter. Despite arguably strong evidence exculpating Mr Gillard from the consequences of the intention of his co-offender to kill the deceased in that case[24], if the principles in McAuliffe were applied in their full rigour, they appeared to leave little, if any, space for the conviction of Mr Gillard of manslaughter[25]. Nevertheless, in the end in Gillard, together with the other members of this Court, I found a sliver of room for manslaughter[26]. I therefore joined in the orders for the retrial of Mr Gillard, made in that case. [23](2003) 219 CLR 1 at 16‑17 [36]‑[38].[24](2003) 219 CLR 1 at 22‑23 [56].[25](2003) 219 CLR 1 at 25‑26 [67]‑[69].[26](2003) 219 CLR 1 at 27‑31 [74]‑[87].