Garve v The Queen

[1995] HCATrans 246

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A12 of 1995

B e t w e e n -

WILLIAM KURT GARVE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 23 AUGUST 1995, AT 2.33 PM

Copyright in the High Court of Australia

MR M. DAVID, QC:   If the Court pleases, I appear with MR V. CONDELLO, for the applicant.  (instructed by Condello & Co)

MR S. A. MILLSTEED:   If the Court pleases, I appear with MS. S. McDONALD, for the respondent.  (instructed by P.J.L. Rofe, QC, Director of Public Prosecutions (South Australia))

BRENNAN CJ:   Yes, Mr David?

MR DAVID:   If the Court pleases, the point of special leave in this matter concerns the state of mind of an accomplice to a charge of murder where the principal offender faced and was convicted of murder pursuant to the felony murder rule at common law which at that time existed in South Australia and that principle, as it existed then, is set out in the decision of R v Van Beelen 4 SASR 353 at page 403 which I will read very briefly. Half‑way down the page:

it is murder to cause death in the commission of or in furtherance of the commission of a felony involving violence or danger.

That is a very pithy description of the felony murder rule as it applied in South Australia at the time of this matter.  It has since been replaced by statute but in such a way that it does not affect the point that I am making in this case and the Court of Criminal Appeal said that also.

In the present case the owner of a restaurant was stabbed and killed by one of two intruders during the course of a robbery with knives.

BRENNAN CJ:   Before you go further, in Van Beelen’s Case where that proposition was laid down that became the law and was the law of South Australia.  Is there any attack made upon that proposition?

MR DAVID:   No, and, indeed, the argument that was put before the Court of Criminal Appeal, and it was argued with the learned trial judge about, was the application of that principle of law to accomplices.  In this matter two men were charged with murder pursuant to the felony murder rule.  The principal offender was convicted pursuant to that rule.  The applicant was the accomplice and at trial he said on oath that firstly, he did not do the stabbing.  He said that he went there with the principal offender with knives to commit a robbery and then described his state of mind, that is, of the accomplice.

If I could read that very short passage of evidence where he describes that, that is in the second appeal book at page 8 and it is from line 4.  This evidence was given in a leading and truncated form by direction of the judge concerning a matter which does not concern us here because there was a joint trial and it was part of his ruling that this could only be led in this way to protect the interests of the co-accused because what he really wanted to say was to talk about the things the co-accused had told him of his previous experiences, so it was put in this truncated way by direction:

Am I correct in saying that your state of mind was that Bob had told you that once they see knives they will just throw money at you?   Yes.

As a result of that did you not have any intention of doing anything with the knife other than showing it to the occupants?   Yes, that is right.

Did you consider the possibility of any actual violence taking place?   No.

Did you want anyone to get hurt?   No.

Now, if the Court pleases, that was the basis of his defence.  The trial judge, in his charge to the jury, told the jury that that was in fact no defence and that was in the first application book at page 72.

BRENNAN CJ:   Does it come down to this, whether the felony murder rule applies only where the conduct is one of actual violence as distinct form immediate threats of violence.

MR DAVID:   No, that is not the point, no, if your Honour pleases.

BRENNAN CJ:   Does it apply to immediate threats of violence?

MR DAVID:   Yes.

BRENNAN CJ:   Well then, how does this evidence touch it?

MR DAVID:   Because, in this case his state of mind was such that he would have had a defence under the Johns’ principle of common purpose but, in other words, he did not think that it was a possibility that grievous bodily harm would take place.  If this was not a felony murder case but a straight common law normal murder that defence which he put to the court which the learned trial judge says was not a defence would, in fact, be a defence under Johns. 

The point I am raising in this matter is this, that where you have a situation of a Johns’ defence, two people going to commit a crime, and then grievous bodily harm causing death takes place, the contemplation of the accomplice for him to be guilty is that he must have thought it was a possibility.  He did not even have that defence in this case because it was classified as a felony murder case and strictly speaking, under the decision of Reg v McBride, a decision of our Court of Criminal Appeal which seems to be the only other case on this topic, that is so.  That is why five judges sat on the Court of Criminal Appeal to decide this matter, but it is my submission that if that is the law now that really leaves no room for the operation of the Johns’ principle because under the operation of the Johns’ principle where an offence takes place and from that death follows, and you go to the state of mind of the person who does not do the actual killing, did he think it was a possibility, all or indeed most of those situations would involve the felony murder situations.

Iso i comes to a situation where it really just depends upon how the prosecution want to lead the case, whether they want to lead it as a felony murder ‑ ‑ ‑

GUMMOW J:   But Johns came from New South Wales.  Chief Justice King pointed all this out.

MR DAVID:   Yes.

GUMMOW J:   There is no felony murder rule in New South Wales.

MR DAVID:   No, but the principle of Johns and common purpose murder applies to South Australia in those cases which are not felony murder but my point is that most cases which will be presented will only not be felony murder because the Crown does not choose to run them as felony murder.  They will mostly envisage felony murder situations.  In my submission, that is worthy of the attention of this Court because there is no room for the application of Johns and Johns  is applied in this State in relation to common purpose murder and has been applied, but if the Crown says, “No, this is felony murder” then it is another matter what Mr Garve or the applicant said ‑ ‑ ‑

GUMMOW J:   Well, it was another matter.  Felony murder has gone here now.

MR DAVID:   No, but as it exists at the moment it would make no difference and would still be a point of principle as far as this Court is concerned.

BRENNAN CJ:   What is that?

MR DAVID:   As it exists under statute here it makes no difference to this point and the Court of Criminal Appeal said that.  I mean, it has only changed in the sense of its wording and the fact that it abolishes the old distinction between felonies and misdemeanours.  What it says is that death caused by an act of violence in the course of an offence for which the penalty is more than ten years is murder without the appropriate intention as is needed by common law murder.  So, it really makes no difference to this point as far as ‑ ‑ ‑

BRENNAN CJ:   What you are saying is the felony murder rule remains under the statute.

MR DAVID:   Exactly, slightly more restricted but not much.

BRENNAN CJ:   It has perhaps expanded, if it is ten years.

MR DAVID:   Yes, it may be expanded.  We have not had to deal with that in South Australia yet, the new statute, but what, in my submission, is of concern is that whether it is the old rule or the new rule and Johns has always been the law in this State when it comes to common purpose murder, there is a vast difference between the two when it comes to a defence and if the Crown had led this as a normal common law murder as distinct from felony murder, the jury would have had to have taken into account what Mr Garve says as a defence.

TOOHEY J:   Both accused were charged with murder, were they not, but in the end, how did the Crown put its case in respect of the present applicant?

MR DAVID:   As the accomplice and I suppose, with respect, the fact is the accomplice said he was the accomplice and did not commit the crime and the accomplice said what his state of mind was and that defence was not even allowed to be entertained by the jury and that is the complaint.  They might have rejected it or not, although it is very interesting that they came back part way through the deliberations and wanted some instructions on the constitutional verdict of manslaughter, but that is, I suppose, by the by.  So, that defence as he put it, whether he was going to be believed or not, was not even allowed to get to the jury.

TOOHEY J:   What defences would be available. 

MR DAVID:   None.

TOOHEY J:   May I take it your complaint is that where there are co-accused and it emerges that one is the principal offender in the sense that that person, as in this case, uses the knife, there are no defences available to the co-accused other than those that are available to the principal offender.  Is that what you are putting to us?

MR DAVID:   Not so much that.  It might be what I am putting, if I could put it in my own way, with respect, what I am saying is in a felony murder situation there are no defences open to the perpetrator and, of course, as your Honour says, there is no defences open to the co-accused and, in my submission, there should be, to give some allowance to the principle in Johns which should really take over this area.

TOOHEY J:   That is what I thought was the basis of the complaint you were making.

MR DAVID:   That is what I say should be, in a sense, changed by this Court.

BRENNAN CJ:   Is this the proposition that if a party is liable for a felony under the Johns’ principle then a murder committed by another party to that felony, in circumstances which attracts the felony murder rule to that party, automatically and inexorably attracts the felony murder liability to the first party?

MR DAVID:   Yes, exactly.

BRENNAN CJ:   Even though the first party had no contemplation of the possibility of murder?

MR DAVID:   Exactly, and that is my point.

TOOHEY J:   Is that on the hypothetical footing that if the co-accused was not aware that there was even a knife being carried by the principal offender, that the felony murder rule as construed by the authorities would not allow that as a defence to the co-accused?

MR DAVID:   Yes, and another situation where it might be so, that if they indulge in the way that the applicant says they indulged and his state of mind was as he said it was, in other words he had a defence under Johns, and the perpetrator went and did something totally of his own volition outside any contemplation of any agreement he would be caught by that under the present situation.

BRENNAN CJ:   Now, let me take you back to the facts of the case.

MR DAVID:   Yes.

BRENNAN CJ:   There is no doubt that both were involved in a robbery.

MR DAVID:   Yes.

BRENNAN CJ:   There is no doubt that the robbery was intended by both to be committed by the brandishing of knives.  There is no doubt that the principal offender is liable for conviction for murder because it was committed by the use of knives in the course of committing the robbery.  How could it be said that when the robbery was intended to be committed by the brandishing of knives such as to inspire the victims with the threat of immediate violence that the possibility of the use of the knives was outside the contemplation of your client?

MR DAVID:   On his own evidence.

BRENNAN CJ:   No, his own evidence was that he did not consider the possibility of actual violence, but he did contemplate, for the purposes of this proposition, the possibility of the brandishing of knives offering an immediate threat.  Now, if there is an immediate threat of violence intended by him, is it realistic to put the proposition that he did not contemplate the possibility of actual violence?

MR DAVID:   In my submission, yes, in the light of what he was told by the co-offender and, indeed, if one is going to apply Johns, it is his state of mind that is important and, in my submission, the important factor was that that was not even allowed to be entertained by the jury.

BRENNAN CJ:   What were the words used which withdrew that possibility of consideration from the jury?  Can you direct me to that?

MR DAVID:   Yes, I will read it to you.  At the bottom of page 72.

GUMMOW J:   It says “violent and dangerous” not violent or dangerous.

MR DAVID:   Yes.  I think halfway down the page, if your Honour pleases:

Now I’ve already explained what all of those ingredients of a felony murder require.  The law says that, when a death amounting to felony murder actually occurs in those circumstances, the perpetrator’s companion or partner will also be guilty of murder.  It must be proved that the companion knew that he was engaged in a knife-point robbery involving the threatening of any occupant or occupants of the restaurant with knives at close quarters, and that such robbery, in fact, amounted to a felony involving violence and danger to life.  I say amounting ‘in fact’ to such a felony; that will be a matter for your judgment.

If it were such a felony, that is, a felony involving violence and danger to life, it does not matter whether the companion, or the perpetrator for that matter, realised at the time that he was engaged in a violent and dangerous crime.  It would be no defence for the companion to say that he did not intend to use his knife, and did not expect that the perpetrator would either, that he thought that any occupant or occupants would simply hand over their money, as soon as they saw the knives, without a struggle.  That would not be a defence, because the policy of the law is that, if a man knowingly joins in what is, in fact, a violent and dangerous crime of the kind that I have described, in partnership with another, then he shares the responsibility for a murder that takes place in the course of, or in the furtherance of that crime.

BRENNAN CJ:   Now, that is not contrary to Johns because he is not speaking about the absence of a possibility being contemplated.  He is speaking about an expectation, a positive state of mind.

MR DAVID:   May I just read it again, if your Honour pleases, with respect?

BRENNAN CJ:   Yes.

MR DAVID:  

It would be no defence for the companion to say that he did not intend to use his knife and did not expect that the perpetrator would either, that he thought ‑ ‑ ‑

BRENNAN CJ:   Now, just pausing there, that is right, is it not?

MR DAVID:   Yes, as far as that goes:

that he thought that any occupant or occupants would simply hand over their money, as soon as they saw the knives, without a struggle.  That would not be a defence -

et cetera.  If your Honour pleases:

It would be no defence for the defendant to say that he did not intend to use his knife, and he did not expect the perpetrator would either, that he thought that any occupant or occupants would simply hand over their money, as soon as they saw the knives, without a struggle.

The thinking that any occupants would do that precludes him thinking of the possibility that violence would take place, in my submission.

TOOHEY J:   But is that not the problem that the sentence that begins on page 73, “That would not be a defence” really has to be looked at in the context of what is being said, that joining in a violent and dangerous crime.  You suggested, I think, in answer to a proposition that I put to you that if the co-accused were not aware that the knife was even in the possession of the principal offender and that that knife was suddenly produced, that the felony murder rule would operate to hold the co-accused guilty of murder.

MR DAVID:   Yes.

TOOHEY J:   That may not be right unless thereafter the co-accused engages in what is a violent and dangerous crime.  In other words, the felony murder rule as it is enunciated here does not necessarily catch somebody who is unaware of what the principal offender intends to do.

MR DAVID:   But in this case, on his evidence, in my submission, he would very clearly because he said they were brandishing knives around and they had knives and, in my submission, the full import of the judge’s charge to the jury, no matter what words he used, was to take away that defence which was based upon that evidence which he gave, if the Court pleases.

BRENNAN CJ:   Mr David, was there any relevant application for redirection along the lines of the argument you are now advancing?

MR DAVID:   Yes, extensively throughout the trial.

BRENNAN CJ:   Where do I find that?

MR DAVID:   I will go to that, if the Court pleases, in fact, the matter was argued very fully during the course of the trial and his Honour gave a judgment on that which I will go to on page 23 of the application book.

BRENNAN CJ:   Yes.

MR DAVID:   Particularly at page 26, that is his Honour’s ruling on the matter before he gave his summing up to the jury.  It was argued before that.

BRENNAN CJ:   What was argued?

MR DAVID:   It was argued as to how he should leave liability as far as the co-accused was concerned.

BRENNAN CJ:   But when that direction was given at page 73, that was immediately followed by an adjournment where his Honour asked for any further directions with reference to this matter.

MR DAVID:   Yes.

BRENNAN CJ:   And the only reference on your part to that was whether or not the verdict of manslaughter was to be left.

MR DAVID:   Yes, but it was said to his Honour that we have already argued this point, there is no need to bring the jury to argue it ‑ ‑ ‑

BRENNAN CJ:   But argue what point?

MR DAVID:   The point as to what should be left to the jury, what head of liability as far as the co-offender was concerned, the point I am arguing now.

BRENNAN CJ:   But, if I might say so, with respect, it seems to me from what appears on 72 and 73, the argument did not really focus on the distinction between the necessity for proof of an expectation on the part of the accused that violence would be used and the possibility that violence might be used, that is, fatal violence might be used.  Now, unless that appears quite transparently this is simply not a case which warrants the grant of special leave.

MR DAVID:   With respect, might I put one point?  It is really a semantic point and I do so with the greatest of respect.  To say that a person expects

something to happen or to say that he thinks it is possible that it might happen in the context of this case really makes very little difference, in my submission, and really, the judge was putting to the jury what amounts to a denial of the Johns’ principle and in a sense using his own verbiage to do that, but he is saying he did not expect it to happen, he did not think it was a possibility.  In my submission, the difference is really nothing and that was argued fully, as I say, as far as what he should be putting to the jury and whether what the applicant said amounted to a defence or not and he ruled that it did not amount to a defence.

BRENNAN CJ:   But it was critical, was it not?  I mean, here was a crime that was to be committed with a threat of imminent fatal violence and the question of whether or not there was an expectation that the violence would ensue as distinct from the possibility that violence might ensue seems to me to be a most critical one to the correct legal resolution of the case and if that distinction was not being drawn in argument then it is a hard road to hoe to suggest that we should grant special leave to consider it.

MR DAVID:   If the Court pleases, his Honour said in his reasons:

An accessory, who was present, will be guilty of felony murder, in the circumstances I have described, if he took part in the foundational crime and he knew of the circumstances that made the felony one involving violence and danger to life, whether or not he intended or foresaw any risk of danger.

That is, as he informed everyone, he was going to charge the jury and that is how his Honour said that the defence which was put forward in evidence would not amount to a defence.

BRENNAN CJ:   Where is that?

MR DAVID:   Halfway down page 26 of the application book.  As it was, he used those words ‑ ‑ ‑

BRENNAN CJ:   Is that the direction he gave to the jury?

MR DAVID:   No, that is the reasons given during the course of the trial, if the Court pleases.

BRENNAN CJ:   Yes, Mr Millsteed?

MR MILLSTEED:   May it please the Court, in the respondent’s submission, the principles governing secondary party liability under the common law doctrine of felony law are clear and it is submitted that those principles are not inconsistent with the principles enunciated by this Court in the case of Johns.  It is clear that under the felony murder rule is not a requirement that the principal offender intends to kill or cause grievous bodily harm and, indeed, he does not even have to contemplate the possibility of any harm being caused as a result of his felonious conduct.

The question of whether the felonious conduct involved violence or danger is to be determined objectively by an examination of the character of the Act.  The intent of the actor is completely irrelevant.

GUMMOW J:   But with the felony murder you do not need a Johns anterior understanding, do you?

MR MILLSTEED:   That is right, your Honour.  In my submission, if the principal offender is required to accept that responsibility for the unintended consequences of a felony involving violence or danger to life, there is no reason in principle why the secondary party should not also accept responsibility under that doctrine for unintended consequences.

TOOHEY J:   What do you mean by a secondary party?  I mean, somebody who happened to be present or what?

MR MILLSTEED:   Somebody who intentionally participates in a felony which can be objectively characterised as a felony involving violence and danger to life and, in my submission, the decision in McBride in this State accords with established authority.  The authorities which are cited in the applicant’s summary of argument in paragraph 3.7 in cases of Ryan and Walker, Betts and Ridley, Grant and Gilbert and Solomon all indicate that the source of a secondary party’s liability under the doctrine lies in his intentional participation in a violent or dangerous felony in the course of which death is caused and those authorities establish that it is not a requirement that the secondary party, like the principal offender, foresee the possibility of death or serious injury.  Those cases require no greater mens rea on the party of a secondary party than a contemplation ‑ ‑ ‑

GUMMOW J:   Why do you keep using this expression, “secondary party” in terms of felony murder?

MR MILLSTEED:   In the sense of being an accessory before the fact or a principal in the second degree to the foundational felony, your Honour.

BRENNAN CJ:   That begs the question.  There is no doubt about the liability for the felony, the question is the liability for the murder and there is no purpose in speaking about a secondary party to the felony when the issue is was he a secondary party to the murder.  I mean, the felony murder rule is that which fixes the person who causes death with liability for murder because he causes it in the course of committing the felony.

MR MILLSTEED:   Yes, if your Honour pleases.

BRENNAN CJ:   This accused has not committed any act of murder, he has been participating in a felony.  What is it that makes him liable for the murder?

MR MILLSTEED:   In my submission, it lies in his intentional participation in the violent and dangerous conduct from which death ensues.

BRENNAN CJ:   Even though he does not foresee the possibility?

MR MILLSTEED:   Yes, your Honour.  It is clear under the authorities relating to felony murder that the principal offender can be responsible for a felony murder even though he may not have foreseen that as a consequence of his conduct someone might be accidentally killed.

BRENNAN CJ:   Of course you fix the principal offender with it because he has caused the death.  We are now dealing with the criminal liability of someone who has not caused death and who did not foresee the possibility of death being caused on this hypothesis.

MR MILLSTEED:   Yes.  It is true, your Honour, that even under the doctrine of felony murder or constructive murder, and this is made plain by the High Court in a case of Ryan v The Queen, that the principal offender must perform a voluntary act from which death ensues and so ‑ ‑ ‑

GUMMOW J:   But I think things get blurred, do they not, by at that stage introducing Johns’ notions?

MR MILLSTEED:   Yes, your Honour.

TOOHEY J:   Well, the curious thing is looking at the headnote to McBride it reads in part,  “The Queen v Van Beelen and Johns v The Queen followed”, and there is reference to Johns in one of the judgments, but it is not apparent on a quick reading that Johns was in fact followed in McBride, although it was referred to undoubtedly.

MR MILLSTEED:   It was applied in this sense, your Honour ‑ ‑ ‑

TOOHEY J:   I mean, if it had been followed, it is hard to see that the felony murder rule would operate in the way in which you suggest it does.

MR MILLSTEED:   Well in my submission, your Honour, the Johns’ principle is this, that a secondary party is liable for a criminal act which falls within the contemplation of the parties as a possible incident of the originally planned venture.  That defines the outer limits of the common purpose.  Now, in the circumstance of this case, the common purpose involved the commission of a felony that was violent and dangerous to life, the jury so found.  If in the course of the commission of that felony, the principal offender, either intentionally or accidentally, stabbed the victim, then liability as against him would be granted under the felony murder rule, and it is the respondent’s submission that the principal offender is liable for an accidental killing in the course of a felony which involves violence and danger to life, then responsibility must be grounded as against a secondary party.  In my submission, it comes does to this, that the applicant’s argument blurs the distinction between foresight as to the actus reus and foresight as to the consequences of the actus reus.

Now even under the felony murder rule or constructive murder, the principal offender must perform a voluntary act from which death ensues, and it may be that if one attempted to apply the Johns’ notion of extended liability arising out of common purpose and applied it to a case of constructive murder, it might be said that the secondary party had to foresee the possibility of the actus reus, but not the consequences of the actus reus.  Now if that is the requirement, if that is a requirement of the notion of extended liability applied to constructive murder, then it must be foresight of an act which does not result in intentional death.  I say that because the principal offender, under the doctrine of felony murder, can be liable for an accidental death, and in this case the principal offender could have been liable if he performed an act in the course of the felony, let us say brandishing knives at close quarters and the victim came to be accidentally impaled on the knife, in those circumstances the principal offender is guilty of felony murder.

TOOHEY J:   But that may be a result of identifying what it is that is the violent or dangerous act.  You are tending to use that as if it is a sort of an umbrella expression which might involve the whole scope of the conduct engaged in by the principal offender.  I mean, take the example that I put to Mr David of two persons who are engaged in a robbery and completely unknown to one, the other has a knife which he draws and immediately stabs somebody.  On the law as you put it to us, the other person, who had no knowledge at all of the presence of the knife, would be guilty of felony murder.

MR MILLSTEED:   No, he would not.

TOOHEY J:   Would he not?

MR MILLSTEED:   No, your Honour.

TOOHEY J:   Why not?

MR MILLSTEED:   Because, in those circumstances, he has not intentionally participated in a felony which exhibits features that enable it to be objectively characterised as a felony involving violence and danger.  What he has done is participated in a felony, so he believes, which is unaccompanied by some form of violence.

TOOHEY J:   Well it might involve violence, but not violence associated with a knife.

MR MILLSTEED:   Well ii might, but if a principal offender, unbeknown to a secondary party, has in mind some form of violence - well let us say it is a break and enter; breaking into a shop at night - it is a felony, but the secondary party is unaware that the shop is occupied and the secondary party is unaware that the principal offender has in mind violence, because he is aware that the shop is occupied, then plainly the secondary party in those circumstances could not be guilty of felony murder; he has not intentionally participated in a foundational crime which can be objectively characterised as one involving violence and danger.

TOOHEY J:   Well, if he does participate in a crime on the basis that some violence may be used - not involving a knife, but just involving physical force - and the knife is produced, on the law as you propounded it, is that felony murder in the case of the co-accused?

MR MILLSTEED:   It would be felony murder if the dangerous or violent conduct could be characterised as one which was likely to cause death; that was the objective test that was applied in this case.  The jury were directed that they could not convict ‑ ‑ ‑

TOOHEY J:   Well why do you introduce the notion of likely to cause death?

MR MILLSTEED:   Because that was the degree of danger required before it could be said that the foundational crime was one which involved violence and danger to life.  The jury were clearly directed that before they could convict the applicant, they had to be satisfied that he participated in a felony which involved the presentation of knives, by both of them, at close quarters, and that the jury were also satisfied that, objectively speaking, a reasonable man would appreciate that that conduct was likely to cause death.

BRENNAN CJ:   Now where does that appear?

MR MILLSTEED:   At page 77 to 78 of the appeal book, your Honour, at the commencement of the second paragraph on page 77:

I mention this again for this reason, that I said yesterday in my description of the circumstances that you have the case of these two men, it would seem, moving up the stairs to confront any occupant or occupants in that room upstairs.  That is, perhaps, a little misleading, by concentrating your attention upon what actually took place in this particular case.  It might be better to take your attention back a short space in time to the entering of the restaurant by these two men, whoever they were, entering the restaurant, if you so find on the facts, knowing that it was or could well be occupied.  Would a reasonable observer say ‘This is dangerous, someone could easily be killed’; because as I said to you more than once, it has to be a felony involving violence and danger to life.

I might say another word about that expression ‘danger to life’, because it might pose the question ‘What degree of risk to life does that expression import?’  It does not mean that the danger to life must amount to a high degree of certainty; nor, on the other hand, would a remote possibility of someone losing his life be enough.  What ‘danger to life’ means in this context is ‘likely to cause death’ -

So, the jury found, in the circumstance of this case that the applicant, in conjunction with the principal offender, engaged in a felony which could be objectively characterised as one likely to cause death.

TOOHEY J:   Well, on the submissions you put to us, that was an unduly favourable direction.

MR MILLSTEED:   It was, your Honour, yes.  But if I could go back to foresight of the act, as I have said, as a matter of general principal it is clear that the act which causes death must be voluntarily performed in cases of felony or constructive murder, but nevertheless, in the respondent’s submission, it could not be requirement under the doctrine of common purpose that a secondary offender foresee that the principal offender might, in the circumstance of this case, voluntarily or deliberately insert a knife into the body of the victim, because that would be tantamount to requiring foresight as to the deliberate infliction of harm, and that is not a requirement, even for the principal offender, under the doctrine of felony murder.  So, under the felony murder rule a principal offender can be responsible for an act which accidentally causes death.  If you apply that proposition to the facts in this case, if the principal offender voluntarily and deliberately wields a knife at close quarters and the victim somehow becomes accidentally impaled on that knife, then the principal offender is guilty of felony murder, and the jury was so directed in this case.

In my submission, that suggests that if foresight of some actus reus is required, it must be foresight of a voluntary act which is a step back from the insertion of the knife into the body, in other words, an act which can result in either accidental death or intentional death;. in the circumstance of this case, a brandishing of knives at close quarters.  And I should point out that in the Court of Criminal Appeal, his Honour Chief Justice King took the view that the facts in Johns was not one relating to constructive murder.  In fact, at trial, the case against Johns was pitched on two bases:  complicity in what I will call ordinary murder, and complicity in constructive murder under section 18 of the New South Wales Crimes Act, and the trial judge in that case directed the jury that, in relation to complicity in ordinary murder, Johns had to foresee, as a possibility, that the principal offender would intentionally inflict grievous bodily harm or cause death. 

Under the second definition, to be guilty of the complicity in constructive murder, he had to foresee the possibility that, in the circumstance of this case, the gun would be accidentally discharged.  He did not have to foresee the possibility that, as a result of the gun being discharged, someone might be shot.  He did not have to foresee the possibility that the finger on the trigger would cause the gun to discharge accidentally or intentionally and, in my submission, the trial judge had in mind the sort of concept to which I am referring, that you cannot require, in the context of constructive murder or felony murder, foresight of an act which intentionally results in death.  It must be foresight of an act which can either cause death accidentally or intentionally and in this case, the brandishing of knives at close quarters.

If that be the requirement, and in my submission it must be, then it was satisfied in the circumstances of this case, because it fell within the scope of the common purpose.  The common purpose was that the applicant and the principal offender go into the restaurant at night, each armed with a knife, for the purpose of brandishing those knives at close quarters, in order to induce the victims to part with their money.

TOOHEY J:   Are you using the language of common purpose, Mr Millstead, because of Johns?  I mean, what part does it play in the felony murder?

MR MILLSTEED:   In my submission, common purpose plays this part in the felony murder:  under the Johns’ doctrine, for it to be said that parties had been acting pursuant to a common purpose, there must be an agreement to commit a crime or foresight as to the possibility of an incidental crime.  All I am saying is, that in the circumstance of this case, the scope of the common purpose was one which involved the commission of a foundational felony which could be characterised as one violent and dangerous to life; that is, one likely to cause death.  Now if, in carrying out that common purpose, the principal offender is guilty of murder, even if he performs an act which results in an unintentional death, the same basis of liability must apply to the secondary party.  In this case the jury were directed that the principal offender was guilty of felony murder if, in the cause of carrying out the felony, he either intentionally or accidentally stabbed the victim and, in my submission, those principles must apply equally to the secondary party.  And if that be the case then it cannot be said that the conviction in this case was granted on any error of principal; it was within the scope of the common purpose, a   felony involving violence and danger to life from which death ensued.

In my submission, one cannot apply the notion of extended liability, which was discussed in Johns, to criminal acts for which a principal might be guilty of, even though he might not foresee the consequences of his act and, in my respectful submission, that is the distinction that needs to be made and it is a distinction that has been blurred by the argument of the applicant.

BRENNAN CJ:   Your time has expired, Mr Millsteed.  Yes, Mr David.

MR DAVID:   I have nothing in reply, your Honours.

BRENNAN CJ:   Having regard to the direction given by the trial judge as to the violent and dangerous nature of the crime in which the applicant voluntarily engaged, the jury could not have failed to find that the applicant forsaw the possibility that the knife being brandished by the co-accused might be used with fatal consequences.  The relationship between the felony murder rule and the principle stated in Johns v The Queen, (1980) 143 CLR 108, may have to be considered in some case where the facts and the judge’s direction to the jury clearly raise the question. This case is not a

suitable vehicle for that purpose and for that reason special leave will be refused.

AT 3.23 PM THE MATTER WAS CONCLUDED