Clayton v The Queen; Hartwick v The Queen

[2006] HCATrans 331

[2006] HCATrans 331

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M156 of 2005

B e t w e e n -

CELIA KATHLEEN CLAYTON

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Melbourne  No M157 of 2005

B e t w e e n -

JOHN DOUGLAS HARTWICK

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Melbourne  No M158 of 2005

B e t w e e n -

LISA JANE HARTWICK

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 JUNE 2006, AT 11.52 AM

Copyright in the High Court of Australia

__________________

MR C.B. BOYCE:   May it please the Court, I appear on behalf of the applicant Celia Clayton, with my learned friend, MR J.P. WHEELAHAN.  (instructed by Patrick W. Dwyer)

MR L.C. CARTER:   If the Court pleases, I appear with my learned friend, MR M.J. GUMBLETON, on behalf of the applicant John Hartwick.  (instructed by McNamaras)

MR M.J. CROUCHER:   May it please the Court, I appear on behalf of the applicant Lisa Hartwick with my learned friend, MR J. HUGHES.  (instructed by Robert Stary and Associates)

MR C.G. HILLMAN, SC:   May it please the Court, I appear with my learned friend, MS C.M. QUIN, on behalf of the respondent.  (instructed by Director of Public Prosecutions (Victoria))

HAYNE J:   Is there any reason why we should not hear the three applications together by first hearing from the applicants and then hearing from Mr Hillman in answer to the applicants?

MR BOYCE:   No, your Honour.  Your Honours, in order to save time, counsel have divided up the argument between us.  It would be appropriate, in my respectful submission, if Mr Croucher were to address the Court first, if leave was so granted.

HAYNE J:   Yes.  Is there any reason not to follow that course, Mr Hillman?

MR HILLMAN:   No, your Honour.

HAYNE J:   Yes.  Yes, Mr Croucher.

MR CROUCHER:   Your Honours, may I deal firstly with ground 2 on behalf of Lisa Hartwick which concerns the complaint that doctrine ‑ ‑ ‑

HAYNE J:   I am sorry, which concerns the?

MR CROUCHER:   The complaint that the doctrine of extended common purpose should no longer be part of the law of this country or at least it should only exist in a limited form.  That requires, of course, a reconsideration of the Johns, McAuliffe and more recently Gillard line of authority.  Your Honour would be well aware, of course, the debate that went on in Gillard itself between your Honour and Justice Kirby about that issue. 

The reasons why the doctrine of extended common purpose should be either abolished or at least limited, in our submission, are these.  Firstly, it is submitted that the doctrine creates outcomes where legal responsibility and moral culpability, particularly in the area of murder, have no proper correlation.  The fisherman example given by the learned trial judge in this case appropriately are meant to reflect what we say is the true state of the law which we deal with in our other ground, illustrates the point, in our submission.

When two people go to steal fish – that is their plan, to steal fish from someone’s property – and the principal, if you like, when confronted by the owner, pulls out his fishing knife, stabs and kills the owner and does so with an intention to kill or cause really serious injury, then, assuming the owner dies, he will be guilty of murder, but the accessory, who was simply there pursuant to a plan to steal, is also guilty of murder but should not be, in our submission, if he foresaw merely the possibility of them carrying out their plan to steal, the other fellow might, with intent to do so, cause really serious injury – not even death.  That is all he has to foresee.  It is submitted that a conviction of the accessory for murder in those circumstances does not represent a proper correlation between legal responsibility and moral culpability.

HAYNE J:   How, in the facts of this case, does the question which you thus pose arise?

MR CROUCHER:   It arises because in this case the jury had three ways to a verdict of murder:  one was acting in concert; the other was aiding and abetting; the third was extended common purpose.  The Crown’s case, in this case, was not that there was an intention to kill.  They went to the jury and the judge ultimately sentenced on the basis that there was an agreement to cause really serious injury.  Therefore, the difference between murder and manslaughter in this case was very close, so that if the accused was said to have foreseen the possibility – the mere possibility – that one of their number might kill with the intention to cause – not even to kill, might cause grievous bodily harm with the intention to do so, then they were guilty of murder on this extended common purpose basis.

HAYNE J:   But in the facts of this case how did the Crown go to the jury?  Did they go to the jury on the basis that there was an agreement or understanding – let us not get hooked up on the particular form – that the victim would be subjected to really serious injury?

MR CROUCHER:   That was their principal case.  Their principal case was that it was an agreement to cause serious injury.  That was the concert basis, sometimes call the joint enterprise in New South Wales, but the extended common purpose basis was that there was an agreement to assault, just a general agreement to assault with weapons, and if ‑ ‑ ‑

HAYNE J:   The weapons concerned being iron bars and other things?

MR CROUCHER:   There was said to be a trolley pole and there was said to be knives.  The cause of death was one stab wound to the chest in the end.  But, importantly, the alternative was that in that agreement to assault that the person and the other accused had to foresee the possibility of grievous bodily harm being caused with intent only to be guilty of murder on that basis, but we say that was not properly left anyway, and we will come to that in a moment.

Can I go back, your Honour, to reasons why the doctrine should not exist in the first place?  The second reason is that the doctrine creates serious anomalies and asymmetries which bring the law into disrepute, in our submission.  If a principal offender kills, foreseeing only the possibility his actions would cause death or grievous bodily harm, he will not be guilty of murder – Crabbe’s Case in this Court in 1985 – whereas, the accessory, by extended common purpose, is guilty of murder if he foresees the possibility that the principal offender might, with intention, cause only grievous bodily harm, yet the principal offender is plainly more morally culpable than the accessory in those circumstances.

Another anomaly or asymmetry is that the mens rea required for the other principal form of complicity of the common law, or forms of complicity, namely, aiding and abetting, counselling and procuring is all the much greater than the mens rea required for extended common purpose.  For example, in Giorgianni in 1985 this Court said that recklessness, even in the sense of an Act done with foresight of its probable consequences – not possible consequences – is more sufficient mens rea for an aider, abettor, counsellor or procurer; rather, the accessory must know or believe that it is – not that it probably is or that it possibly is – what he is doing is assisting or encouraging behaviour which goes to make the elements of the offence, and in this case we are speaking of murder. 

So the aider and abettor who foresaw the probability that he was encouraging or assisting a principal to kill, with the intention to kill, is not guilty of murder by aiding or abetting or counselling and procuring, but the accessory who simply foresees the possibility that the principal offender might with intention to cause grievous bodily harm is guilty of murder.  The contrast is so stark.  It is more than an anomaly.  This creates plainly unjust results in the case of the accessory who is guilty by extended common purpose.

A fourth matter is this.  In Johns in 1980 this Court extended the scope of extended common purpose in two very important ways, as did this Court in McAuliffe in a third way in 1995, but all those extensions are inconsistent with the decisions of Giorgianni and Crabbe which occurred in the interim in 1985.  For example, firstly, Johns extended the doctrine of extended common purpose to accessories before the fact, which is the same as a counsellor and procurer, it is just the difference in the terminology between misdemeanours and felonies, yet, as indicated a moment ago, Giorgianni, five years later, required that counsellors and procurers, and therefore accessories before the fact, must have full knowledge of the essential elements of the principal offence – not knowledge of the probabilities, let alone the possibilities. 

So, plainly, it is submitted, that Johns and McAuliffe, on the one hand, cannot stand with Giorgianni.  Secondly, the other thing that Johns did, or one of the things that Johns did, held that contemplation of the possibility – not the probability, that question was expressly considered – was the requisite test for the extended common purpose accessory, yet that is inconsistent with the form of recklessness laid down by Crabbe in 1985, which was decided at about the same time as Giorgianni, and that Crabbe form of recklessness, foresight of probability, is the form of recklessness that has been adopted in all other crimes of recklessness in Victoria and it seems in many other jurisdictions in this country as well.  However, there has been no attempt in either McAuliffe or subsequently in Gillard to reconcile these inconsistencies and asymmetries, and it is submitted that they ought to be reconciled. 

A fifth anomaly or a fifth point – yet another anomaly or asymmetry is this. It is often said that the common law ought to be consistent with statutory provisions so far as it can be. The Commonwealth Criminal Code officers met for years and debated this question of extended common purpose and Giorgianni and all of those different forms of liability, if you like.  They came up with a middle road which is far more difficult to prove than extended common purpose but less difficult to prove than aiding and abetting, counselling and procuring by reason of Giorgianni‑type reasoning.  For example, under section 11.2 of the Code, for a person to be guilty as an accessory the person must have intended that:

his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.

By section 5.4, “recklessness” is defined with respect to circumstances and results as being “aware of a substantial risk” that those things will exist or will occur.  There is also an additional superadded requirement that the risk be unjustifiable in the circumstances.  In Boughey in the High Court in 1986, when dealing with recklessness under the Tasmanian Code, this Court held that terms such as “foresight of the probable consequences” – Crabbe – “foresight of the likely consequences” – also mentioned in Crabbe – “foresight a substantial risk of consequences” are all synonyms and to be contrasted squarely with “foresight of possibility”, the extended common purpose type test. 

So the mens rea for extended common purpose, or the equivalent thereof, under the Commonwealth Code by the use of the term “substantial risk”, whilst not as high as Giorgianni, is nevertheless substantially higher than that which is required for extended common purpose at common law.  It is also higher than the so‑called Crabbe recklessness because under the Code the accessory’s recklessness must extend not just to the result but to the state of mind of the principal offender who is causing the result.  So it is respectfully submitted, insofar as your Honour Justice Hayne referred to the Commonwealth Code in Gillard as, I understood it at least, supporting the view that there need not be a reconsideration, it is quite the opposite, it is submitted, in the circumstances. 

Finally, it is submitted that the so‑called policy arguments in favour of the retention of the doctrine of extended common purpose, or at least in its current form, are, it is respectfully submitted, not valid for these reasons.  Firstly, they ignore or pay insufficient regard to the serious anomalies and asymmetries I have just spoken about.  They also ignore or pay insufficient regard to the fact that a conviction for murder, in particular, by way of extended common purpose, means that a person is convicted of the most serious offence in the criminal calendar and subjected to potentially a life sentence of imprisonment or some very long term of imprisonment without intending or even foreseeing the probability that death will occur or that grievous bodily harm will occur, and all that for a person who is not the actual perpetrator of the crime.  That is one point.

Secondly, the other doctrines of complicity that do exist at common law, namely, aiding and abetting, counselling and procuring, acting in consort or so‑called joint enterprise, are sufficiently broad, it is submitted, to attract liability for those who should be guilty of murder in circumstances where those sorts of facts arise.  As a matter of practice, in almost every case in Victoria in which extended common purpose is left to a jury, so too is aiding and abetting or acting in concert, or both, as in this case.

Thirdly, it is submitted, that the doctrine of extended common purpose adds yet another layer of complexity for juries.  That is a fact which his Honour Justice McHugh bemoaned in Barlow’s Case and Chief Justice de Jersey did in the cases that led up to Barlow’s Case.  That complexity is not only difficult for trial judges and juries, but it is difficult for those running them, and it is neither necessary nor desirable, it is submitted, or at least that is arguably so.

Fourthly, whilst in Powell the House of Lords considered this question carefully and accepted that there were in fact anomalies and asymmetries, it nevertheless concluded that largely on policy grounds the doctrine ought to be retained.  Their Lordships did so in the context or against the backdrop of quite a different law of murder as it applies in England as it does here.  In England there is no such thing as reckless murder.  In the mid‑1980s, towards the 1990s, Moloney, Hancock, a series of cases held that the only head of mens rea for the purposes of murder in England is intention to kill or intention to cause grievous bodily harm or really serious injury.

Any form of recklessness, even foresight of the certainty of death or grievous bodily harm, in England is merely regarded as a matter of evidence from which was found intention might be inferred in relevant circumstances but even of itself is not a head of mens rea for the purposes of murder.  Now, had there been any equivalent of this Court’s decision in Crabbe in England where foresight of probability of death or really serious injury is sufficient for the purposes of murder, then the House of Lords might not have, and indeed probably would not have, seen the need to retain the doctrine of extended common purpose because that sort of reasoning à la the Criminal Code (Cth) can cast, it is respectfully submitted, a sufficiently broad net, whereas this doctrine as it exists now casts far too broad a net and turns those who ought to be guilty only of manslaughter into being guilty of murder.

Now, it ought to be emphasised, your Honours, the points that I have sought to make just now are not a restatement of the so‑called Odgers’ articles, if you like.  A couple of those points are included in what I have just said, but the points we have sought to make about Giorgianni and Crabbe it is submitted are different, as is the point about Powell’s Case in England.  This is a matter that is of daily importance in criminal jurisdictions throughout the country and ought to be considered and this is a good vehicle to consider it because there is a real issue in this case about whether or not, firstly, they could be guilty by reason of the doctrine of extended common purpose and, secondly, there is plainly an error which the Court can see that exists in the written directions, and I might move on to that point now, if I may, your Honours.

HAYNE J:   Just before you do, how separate is this point from the other points which it is sought to agitate on the leave application?

MR CROUCHER:   Your Honours, for what it is worth, I would be relying on what I have written about provocation, if that is of any indication.  That is the only other point I have got.  It seems to me, with respect, that the question of whether or not…..should be reconsidered is related closely to the resolution of the error point, if you like, in relation to the directions in any event.  It would not take a lot of ‑ ‑ ‑

HAYNE J:   The error point in relation to directions is how you fit together what was said in oral directions with what was said in writing, is it not?

MR CROUCHER:   Indeed.

HAYNE J:   That, it would seem to me, is a point specific to the case rather than a point of more general application, recognising, as I do, that written directions are becoming the more frequent medium of communication. 

MR CROUCHER:   Very important, though, your Honour, because they are ‑ ‑ ‑

HAYNE J:   I understand that, but can I understand whether the point you raise about extended common purpose stands separate or can stand separately from the other grounds?

MR CROUCHER:   Yes, it can.  Of course it can, or in conjunction, whatever the Court considered was appropriate, in the circumstances.

HEYDON J:   It is quite separate from Edwards’ Case and quite separate from provocation and it is also separate from the direction difficulties.

MR CROUCHER:   Your Honour, I accept that it is certainly separate from Edwards’ Case, which I do not agitate, and certainly separate from the provocation point.  Obviously it would be convenient to deal with both at once, both the error point and the reconsideration point, but, of course, beggars cannot be choosers, I suppose, your Honours.  Can I deal the with the error point, if I may.  There are several reasons why, in the few minutes that I have left, your Honours, it is submitted that the court was wrong to conclude that it was apt to imply into written directions – and that was what was found in the end – some sort of correction, because it was accepted that the written directions were wrong, both by the Crown and by the Court. 

Firstly, the so-called fisherman example was said to cure it in some way, but that was totally inapt because it was a situation totally divorced from the circumstances of this case and, secondly, was so far removed that if a jury thought, “Well, the accessory in the fisherman case, he can be guilty of murder then, a fortiori, these people can be guilty of murder”, so it was totally inapt in the first place.  Secondly, the so‑called fisherman direction did not contain any express words that were required, namely that there must be a mens rea that the accessory foresees as a possibility.  It did not contain those words. 

Thirdly, the oral directions relied on by the court as being correct were in fact wrong in the same way, in part, the use of the word “crime” is said to be the same raised by the Crown in the Court of Appeal, but in the end, your Honours, the very same error in those written directions at page 303 of the application book were erroneous.  For example, his Honour says at line 29 on 302:

So, where – you look at the second, which is complicity in an agreement to assault with weapons, which turns on the foresight of the accused under consideration as to whether death or really serious injury would occur by conscious voluntary act, etc., that is, by murder –

So the way murder has been defined there is wrong.  It is missing the mens rea element.  Further down the page on page 303, about line 22, it is apparent that the judge is reading directly from the written directions there where he says:

“The accused you are considering foresaw as a possibility in the carrying out of the agreed understanding or arrangement that death or really serious injury would occur by a conscious, voluntary and deliberate act, of one of them not done in self‑defence”.

No reference to the mens rea, again, the very thing that is wrong in the written directions.

HAYNE J:   I see the light is up, Mr Croucher.

MR CROUCHER:   Yes.  My learned friend, Mr Carter, will continue where I left off the ‑ ‑ ‑

HAYNE J:   Yes.  Yes, Mr Carter.

MR CARTER:   Your Honours, I wish to agitate one ground orally and rely on the written submissions for the rest, and it is the ground that Mr Croucher is presently on.  Before I return to that, can I indicate that, in my respectful submission, the reasons he articulates for a reconsideration of the legitimacy of the doctrine are both compelling and matters that have not been considered judicially and extrajudicially as yet in this country.  The reason why this case is a good vehicle lies in part in the fact that there was ‑ ‑ ‑

HEYDON J:   I thought you were dividing the argument, not sort of repeating it.

MR CARTER:   Yes.  Your Honours, Mr Croucher was taking you to why the oral directions were themselves defective, the Court of Appeal having reasoned that the oral directions in the wash up could cure the defect in the written direction.

HAYNE J:   Did the Court of Appeal proceed by reasoning that you have to take account of everything the jury has?

MR CARTER:   Indeed.

HAYNE J:   You cannot take it in segmented steps saying, “This standing alone would be insufficient”.  I mean, is that not what the argument comes to, Mr Carter?

MR CARTER:   It is indeed, your Honour, but the difficulty here is that the jury are given a very detailed written set of directions as to the elements of complicity.  If your Honours would look in the application book at page 596, you will see the elements of complicity…..murder.  At page 596 at about line 4 there is the impugned section, “The Accused you are considering foresaw as a possibility”, and I will not read it to the end.  What is missing is foresight of mens rea of principal offender, however expressed. 

The reasoning of the Court of Appeal is that the jury were able, notwithstanding the fact that they were provided with this document as a written checklist, we say proof, of what the Crown had to get over to get a conviction on that basis, that the jury could infer it in from the oral directions.  The two flaws in that argument is that when one looks to the old directions, as Mr Croucher was taking your Honours to, it is not there.  The second flaw is that it would not get to that point because the jury before they deliberated were told that the document – that is DPP22 – constituted a checklist that was commended to them as a statement of the elements of complicity.

HAYNE J:   What was the fate of all this at the trial?  What complaint was made at trial about the deficiency in the written document?

MR CARTER:   The submission was made prior to the directions by some counsel – and there is some reference to this in the joint reasons at page 603 at about line 25.  These discussions went on for weeks, intermittently, your Honour.  A submission was made by counsel for Ms Clayton that the written direction should include the fact that the secondary party had foresight that the deceased might be murdered.

HEYDON J:   That does not answer the present complaint, does it?

MR CARTER:   No, it is true that there was not exception taken ultimately to the direction.

HAYNE J:   Why should we get into this when there is no exception at trial, when counsel at trial are very much alive to this?  They understand the atmosphere of the trial.  The Court of Appeal say, taking the matter as a whole, no error.  Why should we come in?

MR CARTER:   Because, your Honour, it is a fundamental error and it means that the Crown have obtained potentially a conviction for murder by extended common purpose whereas in truth the applicant or the applicants were only guilty of manslaughter.  If I could illustrate that briefly by reference to Gillard where your Honours would recall – a bad case according to some because manslaughter not sought by anyone at trial, except the Crown, and ultimately there was no argument – but the basis upon which this Court spelt out the viability for manslaughter was absence of foresight of intention on the part of the principal offender.  That is what is missing from these directions that I have taken your Honours to.  That is what makes the difference between manslaughter and murder.

What we have here is extended common purpose manslaughter, if you like, under the heading of murder.  To answer your Honour Justice Hayne’s question, the reason, despite the absence of express exception at trial, is that it is a fundamental error.  The Court of Appeal’s reasoning, with respect, where they refer to this Court’s dicta in Chai about not taking juries on unnecessary essays into the law, is hardly apposite when one is talking about an element of the crime.  It is the element of the crime that, by way of example in Gillard, was said to be the difference between murder and manslaughter. 

The other point about this, your Honours, is that the Court of Appeal were wrong to state that anywhere in the oral directions could the jury find the missing element.  The approach whereby the intermediate court, despite the detail and the effort that went into the formulation of the checklist which holds that the jury somehow pauses in their deliberations when they get to the passage that I have taken your Honours to and says, “Hang on, we must imply in there now also foresight of the principal’s intention, that is, imply in something that we have not even been told about expressly orally”.

So it is submitted, your Honours, that the reasons for the grant of special leave on this ground are the individual miscarriage, but it is also submitted that because it has occurred in the context of, as your Honour Justice Hayne indicated, the increased use of written directions, because these are convictions for murder on potentially the broadest basis of complicity known, it is also submitted that those reasons give additional impetus as to why the Court should grant special leave to reconsider the doctrine from the point of view of its legitimacy and the point of view of the coherence of the criminal law as to complicity.  If the Court pleases.

HAYNE J:   Yes, Mr Boyce.  Which of the remaining points do you propose to address?

MR BOYCE:   I only propose to address your Honours why it is submitted in the case of this particular applicant, given the way the Crown put its case, there has been a miscarriage.  That is all I wish to touch upon.  May I adopt what has been said by Mr Croucher and Mr Carter.

HAYNE J:   If Mr Croucher is right that extended common purpose requires reconsideration, any question of the application of the proviso in this case would be a question which this Court would not embark on, I would have thought.  If there were any live question about that – and I do not know whether there would be – I rather doubt that this Court would be wishing to go through – Justice Heydon says it is 50 days of transcript.  Was it?

MR BOYCE:   Or any court, for that matter, your Honour, because ‑ ‑ ‑

HAYNE J:   I do not know about that.  Intermediate courts have their task.  Yes, so what is it that you wish to add?

MR BOYCE:   Can I just say this.  I recall it being said below that the proviso was not relied upon by the Crown with respect to the errors that are contended for here.

HAYNE J:   Yes.  That, I take it, was before vice was decided, was it?

MR BOYCE:   Yes.  Your Honour, the only extra matters that I would seek to put are these, that there was a real – how can I put this – the errors were material, particularly in the case of the applicant, because of the alternative manner in which the Crown put its case.  The alternative case put by the Crown was to rely upon what this particular applicant said in a record of interview.  If I could just read from the prosecutor’s final address, and the necessary parts of the transcript are referred to in the outline at paragraph 2.3 at application book 692. 

The prosecutor said, “But in particular about Celia Clayton’s record of interview I want to say this.  If you accept her record of interview – if you accept that even on her record of interview, we suggest to you that she discloses herself to be a murderer, on her own record of interview. Remember how I told you that the three people at the bank, the one who said, ‘Stick them up’, the one who was at the door, the one who was at the car, ‘I was there simply for watch out, really’, if she knew what was going to happen, that is that they were going there to kill or cause really serious injuries, she is guilty of murder on her own statement, on her own record of interview.”

So while it was the Crown’s primary position that the record of interview was full of lies, alternatively, it was put to the jury as a version of events upon which they could convict of murder what the applicant had said in her record of interview.  The interview is summarised at application book pages 203 to 255.  In fact, it is there.  It is summarised in my outline at 2.3 to 3.12.  In essence, her story was that she went along as a look‑out. She believed that they were going to extract some revenge for the car incident that occurred earlier by way of property damage.  She held Rodwell, the female occupant, hostage at knifepoint on the couch while the others ransacked the house.  They were all surprised by the deceased who entered bearing a knife.  A struggle ensued between the others and the deceased.  The deceased was severely beaten.  The applicant said she did not agree with it, that it went too far.  She did not know the precise details of the deceased’s injury but knew that he was being injured severely.

The point that is sought to be raised is this, that the most direct way to convict the applicant on that version of events was to convict her on the basis of extended common purpose, that there had been no agreement to kill or cause really serious injury, but she may have contemplated that another might kill or cause really serious injury with the intent to do so.  So the errors contended for by Mr Croucher and Mr Carter were directly material, it is submitted, to the factual basis forwarded by the Crown in support of its case for murder, but whether the applicant was guilty of murder or manslaughter depended on whether the applicant foresaw the possibility of one of the others intending to kill or cause really serious injury over and above simply foreseeing the possibility of them doing so.

It is submitted that if there was a perceptible risk that all the applicant needed to foresee on this version of events in her record of interview was the murderous act in order to establish guilt of murder, then there is a perceptible risk that this applicant was convicted of murder when she ought only have been convicted of manslaughter.  For the reasons assayed by Mr Croucher and Mr Carter, it is submitted that such a risk existed in this case.

The second point briefly that I would seek to make, and I would only seek to make two, is this.  If the extended common purpose murder was the form of murder most closely or directly related to the Crown’s case formed or based on the record of interview, then the closest form of manslaughter allied to that branch of the Crown case was unlawful and dangerous act of manslaughter based on extended common purpose or Markby.

The court, it is submitted, was in error to hold that either extended common purpose manslaughter or Markby manslaughter was not required in this case because it was not to be understood or accepted as open on the evidence or that it provided a viable alternative.  The errors appear in application book 616 to 617 and 618 to 619. 

It is submitted if manslaughter by extended common purpose had been left in this case, it would have been fairly much in the terms of DPP22,

or the impugned part thereof, directions on extended common purpose murder.  That would have either revealed the error inherent in DPP22 or by dint of the similarities between DPP22 and the direction on extended common purpose manslaughter that appears in DPP22 the jury would have understood DPP22 to have meant something more.  But, as it happens, the direction on extended common purpose manslaughter it seems was given but it appeared in DPP22 and was called extended common purpose murder.

The conclusion, therefore, is this, your Honours, that here where the jury were likely to have convicted this applicant of murder on the basis of extended common purpose or McAuliffe complicity, there is a real risk in this case that she was convicted of murder when she should only have been convicted of manslaughter, and that is because of the risk that this jury have in fact convicted her of manslaughter but have called it murder. 

Even if the Court is not concerned with the question of the principle that is raised in the application by Mr Croucher, it is submitted with the greatest respect that the risk of miscarriage of justice in this case is so great in this case by dint of the discordance between the written checklist that the jury were provided and the oral directions such as they were that special leave should be granted.  If it please the Court.

HAYNE J:   Yes, thank you, Mr Boyce.  Mr Hillman, we need not trouble you on questions of provocation, or Edwards.  What we would wish to have your submission about is whether it would be appropriate for the Court as currently constituted to refer for argument before an enlarged Full Court as on appeal the issues which are raised by Celia Clayton in ground 2.4, John Hartwick in ground 2 and Lisa Hartwich in ground 2, which I believe I have identified as being the grounds raising the matters agitated, particularly by Mr Croucher in his oral submissions, about continued application of doctrines of extended common purpose – 2.2 I am told in John Hartwick’s case.  We may have to come back and look particularly at the grounds as well.  Do you see the nature of the general question I am asking:  why should we not refer into a Full Court for argument as on appeal this question of principle which Mr Croucher and other counsel seek to agitate?

MR HILLMAN:   Yes, I understand what your Honour says.  I think for the applicant John Hartwick in the draft notice it is 2.2 but it in the submissions it becomes 2.  That is the explanation for the confusion.

HAYNE J:   Yes, rather than dyslexia on the part of this member of the Bench.  Yes, go on.

MR HILLMAN:   Yes, your Honour.  Your Honour, we say that the matter has been properly considered by this Court in McAuliffe.  It is has been considered more recently in Gillard and indeed ‑ ‑ ‑

HAYNE J:   On one point of view, it was not considered in Gillard in the sense that there was no argument advanced, and that finds some reflection in the reasons, perhaps.

MR HILLMAN:   As I understood your Honour at paragraph 113 of the judgment under the heading “Reconsideration of McAuliffe neither sought nor required” was dealing with it on the basis that it had not been sought but, in any event, it was not required.  The reason for the existence of the doctrine, if I may be permitted to do so, by adopting what your Honour says at paragraph 119, in my submission, makes it clear that the doctrine should not be questioned at all.

HAYNE J:   I think part of the difficulty, Mr Hillman, is that the matters Mr Croucher dealt with in oral argument, I think I may say without too much unfairness, do not find immediate and ready reflection in the written outline of argument and there has not yet been a proper joinder as between the parties on the matters which Mr Croucher dealt with so fully in oral argument but, dare one say it, rather less fully in written argument.

MR HILLMAN:   This, of course, was never agitated in the Court of Appeal.

HAYNE J:   I understand that, nor in a sense could it be.

MR HILLMAN:   It was never suggested that the law should not be as it had been set out by this Court in McAuliffe and to the same extent in Gillard.

HEYDON J:   Only one sentence could have been legitimately added in the Court of Appeal, namely, the formal submission that the law should be changed.  It was not for the Court of Appeal to change the law.

MR HILLMAN:   Yes, but it simply was never agitated at all.

HEYDON J:   It is not a criticism of the applicants here.

MR HILLMAN:   But the reason for the offence, as your Honour Justice Hayne says in Gillard:

If liability is confined to offences for the commission of which the accused has previously agreed, an accused person will not be guilty of any form of homicide in a case where, despite foresight of the possibility of violence by a co‑offender, the accused has not agreed to its use.  That result is unacceptable.  That is why the common law principles have developed as they have.

The liability for a person under this doctrine only arises if he or she has foresight that a person will be killed in circumstances involving murder and that in fact happens.  The extended common purpose as it is expressed in McAuliffe is that the other party has to foresee:

that another crime might be committed and continues to participate in the venture, that party is a party to the commission of that other, incidental, crime even if the party did not agree to its being committed.  In such a case, as was said in McAuliffe, “the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind”.  To hold the individual liable for the commission of the incidental crime, when its commission is foreseen but not agreed, accords with the general principle that “a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it”.

This is perhaps the nub of the proposition:

The criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight. 

So that from the point of view of the accessory, the person who is included in the offence under this doctrine of extended common purpose has to have foresight that the crime will be committed and the crime must be committed, so that there is no real anomaly, as Mr Croucher says there is, if a person who is caught up under this extended common purpose doctrine has the necessary foresight and another person involved in that joint venture actually commits that crime, and in this case it has to be the crime of murder, that is, the killing, with intent to kill or to cause really serious injury without lawful justification or excuse.  That is the way this case was put to the jury.  It must be the law as set out in McAuliffe to cover that situation. 

It is not a case where, as I understood Mr Croucher was attempting to say, if the person who is said to be involved under the doctrine of extended common purpose foresees a possibility that another person involved in the understanding or arrangement to commit the crime might kill with intent to cause really serious injury or death and the other person in fact kills without that intent, the liability of the person caught up in the extended common purpose depends on the crime that has in fact been committed.

It is not a case of the person caught up under this extended common purpose doctrine being convicted of murder in circumstances where a single offender would not be committed of murder.  For the doctrine to operate in the way McAuliffe and Gillard contemplates, one person who is a member of the agreed understanding or arrangement must in fact commit murder.  As it is said in that last sentence:

The criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight.

That is that it might possibly occur, that is, in the circumstances of this case that one of the others involved would commit murder – not would commit a reckless act which would not amount to murder for an ordinary single offender, but would in fact commit the crime of murder.  So there is a complete correlation between the foresight that is required and the necessary crime that has to be committed by the other.

We say that the law as set out in McAuliffe and as your Honour Justice Hayne restated in Gillard, which seems to have been accepted by the Chief Justice and Justice Callinan, and certainly expressly by Justice Gummow, properly represents the law, and so it should.  The references to what the House of Lords have said in Powell’s Case are to the same end, that it is simply unacceptable that a person who actually foresees the possibility that murder will be committed should be – it is necessary that a person who foresees that murder will be committed by another be responsible for the murder if in fact a murder is committed by the other in the course of the participation by them in the agreed understanding or arrangement.

HAYNE J:   All of these are arguments which you advance in support of a proposition that the current doctrine of the Court is right and should be maintained.  Is that not a matter which is better resolved once for all before a Full Court constituted differently from now?

MR HILLMAN:   If there was any reason to think it should be reconsidered.  We say there simply is not ‑ ‑ ‑

HAYNE J:   I understand that point.

MR HILLMAN:   ‑ ‑ ‑ and that it is an attempt to create a special leave point when it really did not arise in this case at all.  This case is not really a good example of the way the doctrine should and did operate and that there really is no need for this Court to reconsider it.  If the Court pleases.

HAYNE J:   We will adjourn for argument before a Full Court as on an appeal so much of these applications for special leave as concerns, in the case of Celia Clayton, proposed ground of appeal 2.4, in the case of John Hartwick, proposed ground 2.2, in the case of Lisa Hartwick, proposed ground 2.  Otherwise, in our opinion, the matters sought to be agitated enjoy insufficient prospects of success to warrant a grant of leave and otherwise the applications for special leave would stand dismissed.

May I ask counsel whether they would agree that this is a case which would occupy a day for its argument?

MR CROUCHER:   Yes, or less. We would do it jointly, obviously, and would take the ‑ ‑ ‑

HAYNE J:   There would be no duplication of argument, Mr Croucher.

MR CROUCHER:   Inside a day.

HAYNE J:   Do you think a day would see it out?

MR CROUCHER:   It would not need to go into a second day, in our submission.

HAYNE J:   Yes.  I cannot say to the parties when the case may be fixed or, for that matter, where.  It is not beyond the realms of possibility that it would be fixed in the Adelaide sittings, but I cannot say whether that would be so or not.

AT 12.44 PM THE MATTERS WERE ADJOURNED