Clayton v The Queen

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.