Gala & Ors v Preston

[1990] HCATrans 269

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B52 of 1989

B e t w e e n -

MICHAEL GALA, JOHN CHAPMAN,
MARLENE CHAPMAN and SUNCORP

INSURANCE AND FINANCE

Appellants

and

FRANK RAYMOND PRESTON

Respondent

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 NOVEMBER 1990, AT 3.38 PM

Copyright in the High Court of Australia

Gala(3) 1 7/11/90

MR P.A. KEANE, QC:  May it please the Court, I appear with

my learned friend, MR D.V.C. McMEEKIN, for the

appellants. (instructed by Quinlan, Miller

and Treston)

MR C.E.K. HAMPSON, OC:  May it please the Court, I appear

with my learned friend, MR P.L. FEELY, for the

respondent. (instructed by Carswell and Company)

MASON CJ:	Yes, Mr Keane.
MR KEANE:	May it please the Court.  I hand up again, in

the case of most of Your Honours, outlines of our

submissions.

MASON CJ:	They remain the same, do they?
MR KEANE:	They are the same, Your Honour, yes. May we

also at this time hand up again copies of

section 408A of the Queensland Criminal Code, that

being the Queensland analogue of the Victorian

section relevant in Smith v Jenkins.

MASON CJ:	Thank you.	Yes.
R KEANE:	Thank you, Your Honour.	Your Honour, this case is

one of personal injury suffered by a passenger in a
motor vehicle in the course of the unlawful use of

that vehicle, the vehicle having been taken for the

purpose of a joy-ride by, amongst others, the

driver and the passenger. The expression

"joy-Nide" is the plaintiff's own expression, as

appears from the record at page 37, about half-way

down the page, and the general description that I

have given to the sequence of events is summarized

in the judgment of Mr Justice Williams, with whom

Mr Justice Connolly agreed, in the Full Court at

page 62 of the record, lines 1 to 30.

Your Honours, the Full Court, contrary to the

learned trial judge and notwithstanding the
decision of this Court in Smith v Jenkins, took the

view that the ordinary duty of care between driver

and passenger applied so that the driver was liable

in negligence for the plaintiff's injuries.

In our submission, the present case is

indistinguishable from Smith v Jenkins and we

propose to take Your Honours, in a moment, to the report of the case in Smith v Jenkins. Before we

do that, might we say that both cases, in our

respectful submission, involve the negligent

driving of a motor vehicle by one of the
participants in the unlawful use of the vehicle for

the purpose of a joy-ride which resulted in injury

Gala(3) 2 7/11/90

to another participant in the crime. The very act

of which the plaintiff complains was the criminal

act in which both plaintiff and defendant were

engaged.

In neither case, Your Honours, in our

respectful submission, was there any element of

increase in risk in the activity of driving the
motor vehicle derived or arising from the

exigencies and the criminal nature of the joint

activity.

So far as this case is concerned, can we take

you, firstly, to the record at page 42, lines 10

to 35, where His Honour the learned trial judge

briefly summarizes the sequence of events:

The incident apparently occurred shortly

before 11.50 pm ..... The vehicle had been

unlawfully taken from Maryborough earlier that

night, probably somewhere about 7.30 to

8.00 pm. The plaintiff was a party to that

unlawful taking and to the unlawful use of the

motor vehicle ..... According to the plaintiff

he had driven the motor vehicle for the first

part of the journey north, firstly to get fuel

and then from Maryborough. The first

defendant had taken over the driving some

short distance north of Gin Gin. The

plaintiff said in his evidence that the first

defendant seemed to be driving all right after

he commenced driving. He said neither his

condition nor his driving gave him any cause

for alarm.

Now, we take Your Honours then to Smith v Jenkins

which is - - -

TOOHEY J: Just before you do that, Mr Keane, could you

formulate the principle that you say is applicable

in this particular case? It may be enough,

perhaps, to go to the grounds of appeal, I am not

sure, but I would just like to understand what the

principle is.

MR KEANE: 

Your Honour, we submit that the principle of the

decision in Smith v Jenkins is that, as between the
parties to the unlawful taking and use of a motor

vehicle, no duty of care arises by the driver to

his co-participant in the use of the vehicle.

TOOHEY J: 

Does arise and, I take it, you would say, or can

arise?

MR KEANE:  We submit, does arise or can arise. It might be

said, and indeed, there is some suggestion in a

later decision, Jackson v Harrison, that the

Gala(3) 7/11/90

position may be different at some later stage, that

is to say, some days after the immediate taking and

implementation of the unlawful purpose which

motivated the original taking. It may be that that

is a relevant confining factor but, in our

submission, whether or not that be so, the present

case is covered by the decision in Smith v Jenkins,

even if so refined and confined.

TOOHEY J:  In other words, while driver and passenger are

engaged in the unlawful act of stealing a motor

vehicle, no duty of care in relation to the driving

of that vehicle exists between driver and

passenger?

MR KEANE:	Yes, Your Honour.
TOOHEY J:	Thank you.
MR KEANE:	If we can take Your Honours then to the decision

in Smith v Jenkins to illustrate to Your Honours

our point that the decision in that case did not

turn upon any suggestion of some increase in risk

relevant to, or arising from, the exigencies of the

criminal nature of the activity. Smith v Jenkins

is reported in (1969) 119 CLR 397. May we take

Your Honours first of all to the judgment of

His Honour Mr Justice Windeyer in whose judgment

the fullest discussion of the facts of the case

appears. At page 405 in His Honour's judgment in

the first full paragraph of text His Honour sets

out the sequence of events there relevant.

Your Honours will see that the driver and

passenger, the plaintiff and defendant there

concerned:

came upon a man named Hicks ..... They jostled

and punched him -

took his car keys, forced him to show them where

the car was and drove away:

They drove away from Ballarat along the Ross

Creek road. Where they were making for does

not appear from the material before us. The

plaintiff was driving when they started.

After they had gone about four miles Windmill

took a turn for a short time. Then the

defendant took the wheel and drove on at about

eighty or ninety miles an hour. When

approaching the Glenelg Highway near
Smythesdale, the plaintiff is said to have

warned the defendant to slow down. He did not

do so. The car ran off the road and hit a

tree.

Gala 4 7/11/90

Now, Your Honours, at page 406, under the

general rubrick, The issues at the trial, in the

second paragraph under that heading,

Mr Justice Windeyer sets out "the matters relied

upon for the defendant as relieving him from

liability". Your Honours will see that the second

of those matters is:

They were at the time of the accident "fleeing from the scene of the said felony".

The third of those was:

the use of the car was, in the circumstances,

an offence under s. 81(2) of the Crimes Act

1958 (Viet.).

Your Honours will see at page 407, in the second

full paragraph of text on that page, in the third

sentence:

The evidence that the plaintiff and the

defendant and their companions were fleeing

from the scene of a crime was abandoned by the

defence at trial. However, the evidence

established without any doubt that they were

engaged in a crime when the accident occurred.

So that, in our respectful submission, the relevant

facts of Smith v Jenkins were that without any
suggestion of prior concert as to driving the

vehicle at high speed and indeed contrary to the

evidence that the plaintiff complained,

remonstrated with the defendant and asked him to
slow down, there was no suggestion in the case that

the activity in which they were engaged was

rendered more hazardous by the actual apprehension

of pursuit.

TOOHEY J: But, on your argument, Mr Keane, I take it the

facts really do not matter much, do they? I mean,

so long as you have a situation in which driver and

passenger are engaged, as in this case, in

unlawfully using a motor vehicle, is that not

enough on your argument to negate the existence of

a duty of care?

MR KEANE:  Your Honour, in our submission, it is. The

reason we take the time to take the Court to a

comparison of the facts is that the Full Court took

the view that because of the subsequent history of cases involving this type of question but not this

precise question, Smith v Jenkins was to be

confined narrowly to its facts and they did so and

concluded that in the circumstances the ordinary

duty of care arose and that the principle for which

we contend Smith v Jenkins stands as authority had

Gala 7/11/90

no application and we conceive it to be relevant to

take Your Honours to that aspect of the reasoning
of Their Honours in the Full Court to show that the

point of distinction that Their Honours seek to

make is illusory, with respect.

TOOHEY J:	Yes, thank you.
MR KEANE:	Your Honours, before we go to that, can we simply

take you to the judgment of Mr Justice Kitto, at

page 402, at about point 8 where His Honour makes

the point that we have been trying to make, quite

succinctly. At about point 8, His Honour said:

The likelihood of the respondent's being

injured by carelessness in the driving was the

same as it would have been if the parties had

been using the car lawfully.

Your Honours, the third point of coincidence

between the present case and Smith v Jenkins is

that the very object of the taking was still being

pursued at the time of the injury. We apprehend

that it is necessary and relevant for us to address
that point because that was a point that appeared
to be relevant to Mr Justice Jacobs, with whom

Mr Justice Aickin agreed in the later decision of

Jackson v Harrison. Can we take Your Honours very

briefly to that decision and to the passage in the

judgment of Mr Justice Jacobs.

The decision in Jackson v Harrison is reported

in (1977-78) 138 CLR 438. The relevant passage in

the judgment of Mr Justice Jacobs commences in the

last paragraph on page 459:

I do not think that this approach is

inconsistent with the decision in Smith v

Jenkins. The reasoning of the various members

of the Court differed in certain respects which have been analysed at length in the

judgments delivered in the present case in the

Full court. I do not think that it is

necessary to embark on a further analysis, but

it is to be noted that in that case the
plaintiff and defendant had jointly robbed the

owner of a motor car of his money and his car

keys. They had forced him to tell them where

his car was. They had used the keys to take

his car and some time later in the same

evening, after they had each taken turns at

driving the car, when the defendant was
driving it at 80 or 90 mph the car ran off the

road and hit a tree. These additional

circumstances appear in the enunciation of the

facts by Windeyer J. Barwick CJ stated:

Gala(3) 6 7/11/90

The driving of the car by the appellant,

the manner of which is the basis of the

respondent's complaint, was in the

circumstances as much a use of the car by the
respondent as it was a use by the appellant.

That use was their joint enterprise of the

moment.

Mr Justice Jacobs would, I think, if he were

reading that passage out have emphasized the last

four words.

Owen J referred throughout his judgment to the

crime as the taking and using of the motor

vehicle, not simply the illegal using of the

vehicle.

Importantly, Mr Justice Jacobs concludes this

passage:

It appears to me that these facts lie at

the basis of the conclusion that there was a
relevant joint criminal enterprise. It was a

jaunt, an escapade, a joy-ride even though of

a most serious kind from the beginning to the

end. How could a standard of care be

determined for such a course of criminal

activity? I doubt that the decision would

have been the same if the accident had

occurred days, weeks or months later when the

circumstances of the taking of the vehicle had

ceased to have any significant relationship to

the manner in which the vehicle was being

used.

With respect, as a matter of logic, we would

contend, first of all, that where the use is

unlawful there is no basis for confining the

principle for which Smith v Jenkins seems to stand.

If, as we have acknowledged it would be correct to

confine it in the manner in which Mr Justice Jacobs

would confine it by saying that the position may be different some time later, then it is relevant for	us to point out that on the facts of this case the
very object of the taking, that is to say the joy-ride from Maryborough to Gladstone, in the case of the plaintiff, and on to Rockhampton, in the case of the defendant, was still in train at the time the injury occurred.

TOOHEY J: Mr Keane, could I just ask you a question about

that paragraph. What is the relevance of the

course of criminal activity to the difficulty of
discerning a duty of care? Could I just put
another aspect of it so that you can see the

problem that I have. When His Honour refers to "a jaunt, an escapade, a joy-ride", and you may

Gala(3) 7 7/11/90

well have that sort of situation where no offence

is committed at all - you may have two people in a

car driving in circumstances that resemble this

one, save for the fact that they are not driving in

a stolen car - what is it that distinguishes one

case from the other?

MR KEANE:  Can I seek to answer Your Honour by taking

Your Honour to the passage in Mr Justice Jacobs'

judgment at page 457. Your Honour will see there

that there is a citation by His Honour from his

reasons for judgment in Progress & Properties v

Craft with which Justices Stephen, Mason and Murphy

agreed, and His Honour said there that:

A plea of illegality in answer to a claim of

negligence is a denial that in the
circumstances a duty of care was owed to the
injured person. A duty of care arises out of

the relationship of particular persons one to

another. An illegal activity adds a factor to

the relationship which may either extinguish

or modify the duty of care otherwise owed.	A
joint illegal activity may absolve the one
party from the duty towards the other to

perform the activity with care for the safety

of that other. That, it seems to me, is the

effect of Smith v Jenkins. Where there is a

joint illegal activity the actual act of which

the plaintiff in a civil action may be

complaining is done without care may itself be

a criminal act of a kind in respect of which a

court is not prepared to hear evidence for the
purpose of establishing the standard of care

which was reasonable in the circumstances.

TOOHEY J:  Yes, I understand that, in the sense that there

may be a rule of public policy that simply

precludes recovery in such a case, but that is
perhaps rather different from saying that, as

His Honour did on page 460, or asking:

How could a standard of care be determined for

such a course of criminal activity?

I have some difficulty in seeing what the course of

criminal activity has to do with the events that

caused the plaintiff's injuries in that case.

MR KEANE:  In our submission, what His Honour is seeking to

identify is the circumstance that where the

relevant relationship between the participants in

the relevant activity is overwhelmingly
characterized as one of thieves rather than driver
and passenger, the Court will not entertain or will
not concern itself with the proper manner in which

the activity ought to be conducted.

Gala(3)	7/11/90
TOOHEY J:	Well, I understand that if it is put as a rule

of public policy, or of some doctrine of public

policy. I have difficulty with it if it is put in

terms of discerning the standard of care because

the activity is criminal in nature.

MR KEANE:  Your Honour, when one goes to the judgments in

Smith v Jenkins one will see, for example, in the

judgment of Mr Justice Walsh, he seems to put the

point as one involving matters of policy but

leading to the refusal to recognize an enforceable

duty of care. That, in our respectful submission,

is the same approach as is taken by

Mr Justice Jacobs, and whether one gets at it by saying that it is a matter of policy, or whether

one gets at it as, for example, the Chief Justice

in Smith v Jenkins did by simply saying, "The law

will not recognize an enforceable duty in those

circumstances", the result is the same, and perhaps

the policy that leads the Court to refuse to

recognize a duty is the same. There it, it has to

be said, some difference in the language by which

Their Honours in Smith v Jenkins reached

unanimously the same result.

Your Honours, we mention that the Full Court

considered that the subsequent decisions of this
Court in Jackson v Harrison and in Progress and

Properties v Craft and Cook v Cook compelled a

strong or a severe narrowing of Smith v Jenkins to

confine it to, what was referred to as, its narrow

facts and the Full Court sought to do that at

pages 74 and 75 of the record. Once again, I am

referring to the judgment of Mr Justice Williams

with whom Mr Justice Connolly agreed.

TOOHEY J: There is a sentence at the top of page 74 that

perhaps illustrates the difficulty that I was

expressing. The sentence reads:

The deliberate racing of a car recently stolen

for that purpose against another constitutes

special or exceptional circumstances affecting

the hazards to which the duty of care owed by

driver to passenger is directed.

One might ask, "Well, what about the deliberate

racing of a car not recently stolen?".

MR KEANE: Well, Your Honour, the problem Your Honour raises

was one that was addressed by the New South Wales

Court of Appeal in Bondarenko v Sommers. In that case, a vehicle had been stolen evidently for the

specific purpose of engaging in speed trials with

another vehicle. The New South Wales Court of

Appeal dealt with the question on two bases: one

volenti, the other illegality.

Gala(3) 9 7/11/90

In relation to the volenti question, or the

volenti point, the Court of Appeal held that the

learned trial judge had misdirected the jury on

volenti on the footing that a willingness to engage

in races of the vehicles does not necessarily

constitute a voluntary assumption of all the risks

that might be inherent in that activity, but there

was still some room for obligations of reasonable

care to operate.

In relation to the illegality point - and I

should say that it was on that point that the

learned trial judge's decision was overturned. On

the illegality point, the relevance of the use of

the vehicle for speed trials appears to have been

only that that was the purpose that informed their

original plan to take the vehicles so that on that

approach, the approach of the Court of Appeal in

Bondarenko v Sommers, the answer to Your Honour's

question would be, it would not matter whether the

vehicle was taken with the deliberate purpose of

engaging in speed trials to the illegality point,

it would not matter at all. What would matter

would simply be whether the vehicle was being used

for the purpose of their relevant joint enterprise

at the time when the injury occurred.

TOOHEY J: It is just a bit hard to see how the fact that

the vehicle stolen necessarily bears upon the

hazards to which the duty of care is directed, and

one could well imagine that it could in a

particular situation.

MR KEANE:  Yes, quite. It could bear upon those hazards.

There could be a perception or a concern about

pursuit but, in our respectful submission, what is clear from the decision in Smith v Jenkins, having regard to its facts and from the way it was dealt

with by Mr Justice Jacob subsequently, the possible
hazards of pursuit, the exigencies of flight, had

nothing to do with the decision and, in our

respectful submission, nothing to do with the

principle.

TOOHEY J:  You would put all that to one side and say the

principle is clear and applies to the situation

that you have described irrespective of what the

plaintiff and defendant happened to be doing at the

moment that the injuries are caused to the

plaintiff?

MR KEANE:  Yes. We were taking Your Honours to

pages 74 and 75 to show Your Honours how it was

that Mr Justice Williams and Mr Justice Connolly

sought to distinguish Smith v Jenkins that the

process, in short, starts at the passage to which

Your Honour Mr Justice Toohey has just now

Gala(3) 10 7/11/90

referred.	Can we take you to about line 50 where
it said:

Smith v Jenkins is therefore a decision on the

special and exceptional facts as seen by the

Court, and interpreted in that way is not

inconsistent with the later decisions. But

for present purposes this Court must apply the

principle as established in Craft, Jackson and

Cook to the facts of this case.

And then importantly on the next page, the present case as being one outside the facts of
Smith v Jenkins and they do that at lines 5 to 30. And, in our respectful submission, the factual features there identified do not establish any rational basis for distinguishing Smith v Jenkins

from the present case.

We say that because we do not apprehend that there is any suggestion in Smith v Jenkins or in

Jackson v Harrison that matters of a distance in

numbers of kilometers from the place of the

original taking has anything to do with the

decision in the case.

Might we say as well, with respect, that in

none of the three cases to which the Full Court

referred in - none of the cases, Jackson v

Harrison, Progress and Properties v Craft and Cook

v Cook - was there any disapproval of Smith v

Jenkins save that in Jackson v Harrison

Mr Justice Murphy disapproved it, and the relevant

passage at which His Honour did so is at

pages 463 to 465 of the report of that case.	We do
not propose to take Your Honours to that now.

May we say, however, that in those two cases

the other members of the Court who sat on those
cases have either affirmed or perhaps one might say

more neutrally, assumed the correctness of Smith v

Jenkins and, in relation to Jackson v Harrison, can

we take Your Honours, firstly, to the judgment of

Your Honour the Chief Justice at page 453, in the

last paragraph of text, where Your Honour said:

It is quite incorrect to assert that

Smith v Jenkins decided that the participants

in a joint illegal enterprise owe no duty of

care to each other. It decided no such thing.

The case was limited to its particular facts.
They involved the illegal use of a motor

vehicle contrary to s. 81(2) of the Crimes Act

1958 (Viet.).

Gala(3) 11 7/11/90

And, we accept that even so stated, the decision governs the facts of this case.

Might we say that the contention as we have

sought to advance it is not the broad contention

which Your Honour there rejected and we do not

submit that Smith v Jenkins is authority for that

proposition. One can see, for example, or one can

recall the example given in the cases of two professional housebreakers on their way to a professional engagement and the driver causes an

accident by his negligent driving of the vehicle.

There would be no question of an absence of duty in

that case but that is, with respect, different· from

the case where the act complained of is the joint

illegal act which is the very object of the moment,

as the then Chief Justice said in Smith v Jenkins

in the passage which Mr Justice Jacobs referred to

again in Jackson v Harrison, to which we took Your

Honours earlier.

TOOHEY J: · Is the touchstone illegality and, if so, what

does that mean? Does it mean that so long as at

the time of the injury both of the persons

concerned are engaged in some act which is contrary

to law irrespective of the seriousness or otherwise

of the breach?

MR KEANE:	Your Honour, with respect, we could not put it so wide and we do not put it so wide as to say that
just because the parties are engaged in some
activity which is contrary to law no duty is owed.
What we say, with respect, is where the very
activity said to be done negligently is the activity in which they are both then jointly
engaged, and that activity is criminal, then no
duty arises.

McHUGH J: But why? Why should the law - I mean, I know the

courts say you cannot determine the appropriate

standard of care; that strikes me as just

window-dressing; that is just a label to disguise a
decision reached on other grounds.	Even in the

case of safe-breakers, you could work out what the
appropriate standard of care was and a fortiori

this sort of case. Why can not volenti deal with

this sort of case unless the statute discloses an

intention to prevent any civil recovery?

MR KEANE:  Your Honour, volenti cannot do the work of this

principle.

McHUGH J:	I know it cannot but I am just - - -
MR KEANE:	Your Honour is saying, "Why should it not cover

the field".

Gala(3) 12 7/11/90

McHUGH J:	Why should it not cover it?
MR KEANE:	Because, Your Honour, if one wants to say as a

matter of policy and the type of policy that
informs many of the decisions of courts of common
law in relation to questions of common law, the

courts have decided that in respect of this type of

activity, this type of case, the court will not

concern itself with how relations between thieves

ought properly to be ordered. And in relation to
that the most eloquent expression of that point of

view is contained in the judgment of

Mr Justice Sugerman with whom Mr Justice Brereton

agreed in Godbolt v Fittock, (1963) 63 SR(NSW)

617 - - -

McHUGH J: That is a classic case, arguably, where there

should have been a duty of care. They were

carrying some stolen cattle on board. Supposing

they had stolen a drum of petrol and they had it on

board would there be a duty of care owed in that

situation?

MR KEANE:  If they had stolen a drum of petrol?

MCHUGH J: Yes.

MR KEANE:  Your Honour, I would not have thought that what

they had stolen makes any difference.

McHUGH J: Well, that is the point, is it not? I mean it

really seems absurd. Supposing they stole some

small object from a shop, they had gone there for

the specific purpose of doing it and were

transporting it away. It might have been a shirt

or something.

MR KEANE:  Can I try to answer Your Honour's question why

should it be so, simply by taking Your Honour to

the passage in the judgment of Mr Justice Sugerman

in Godbolt v Fittock at page 623 of the report.	In
the first full paragraph of text in the sentence
that begins a little below half-way down the page,

where His Honour said:

Whatever else might be said in this case, it would at least seem strangely opposed to sound

notions of public policy that gangs of thieves

or burglars should be encouraged to use motor

vehicles in the execution of their nefarious
plans (even including the theft of motor

vehicles) by the comfortable assurance that

untoward consequences to any of their number

resulting from the careless driving of another

of them would be compensated by the owner's

insurer.

Gala(3) 13 7/11/90

McHUGH J: Is this a special principle only applicable in

insurance cases?

MR KEANE:  No, Your Honour, not at all. But the point that

His Honour makes is, that is a consequence. This

question, as is noted earlier in passage, earlier

in that paragraph - this type of question only

seems to have surfaced after the enactment of the

compulsory third party motor vehicle insurance

legislation, and His Honour's point is simply that

it is an extraordinary result that the

arrangements, compulsory motor vehicle insurance,

should be made available to ensure that everything

is made right for those who steal cars.

TOOHEY J: Well, I would not like to think that public

policy had disappeared from the law, but the

problem is to give it some definition that either

does apply or has no application to the present

case.

MR KEANE:  Your Honour, and in our respectful submission,

that is what the judgments in Smith v Jenkins do

and, having regard to the time, if it is convenient

to Your Honours, we propose to do that tomorrow.

McHUGH J: But with great respect to what

Mr Justice Sugerman said, public policy does allow

thieves to recover from each other per medium of
insurance when they are using motor vehicles to go
to a job. If they are going off to rob a bank they
are using a motor vehicle; the cases seem to say

they can recover from each other provided it is

their own motor vehicle.

MR KEANE:  And, Smith v. Jenkins, Godbolt v Fittock and

Bondarenko v Sommers, say thus far and no further, and they draw the line.

McHUGH J: It seems strange if two people are using a car to

go and hold up a bank, they can recover from each

other but if they are carrying some relatively

valueless object on them which is stolen, as in

Godbolt v Fittock, then they cannot recover.

MR KEANE:  But less strange if they are complaining about

the way in which one of them drove the car they

were stealing.

DAWSON J:  It is really that the law will not lend its

labours to making it safer to commit a crime.

MR KEANE:  That seems to be the basis upon which

Mr Justice Walsh put it and Mr Justice Windeyer put

it, in Smith v Jenkins, Your Honour, with respect.

Gala(3) 14 7/11/90

DAWSON J: If they are proceeding to the crime, they have

not yet got to the point of committing it. I know

that is a non-technical view but it is a viewpoint

you could hold.

MR KEANE:  Yes, that is so, Your Honour.

TOOHEY J: Well, I do not think your argument requires you

to define the parameters of public policy, but it

does require some definition that allows us to

decide whether public policy is attributable in the

circumstances of the present case, because I take

you to be really putting your argument in terms of

public policy.

MR KEANE:  Your Honour, we put our argument in the same

terms in which it is put, that is to say, in Smith

v Jenkins we put it in the terms of duty. We

recognize that the way in which it is put in terms
of duty clearly reflects notions of public policy

about the law lending its aid to enforce a duty

said to arise between those engaged in criminal

activity and in the specific case, in the very

specific case where the complaint is as to the

manner of performance of the particular criminal

act in which they are both jointly engaged.

MASON CJ:  We will adjourn now until 10.15 am tomorrow.

AT 4.19 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 8 NOVEMBER 1990

Gala(3) 15 7/11/90