Gillard v Director of Public Prosecutions

[2003] HCATrans 632

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A200 of 2002

B e t w e e n -

KEVIN WAYNE GILLARD

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 APRIL 2003, AT 10.20 AM

Copyright in the High Court of Australia

MR D.H. PEEK, QC:   May it please the Court, I appear with MR J.A. RICHARDS, who is also my instructing solicitor, for the appellant.  (instructed by Lipson Street Chambers)

MR S.A. MILLSTEED, QC:   May it please the Court, I appear with MR A.P. KIMBER for the respondent.  (instructed by the Director of Public Prosecutions of South Australia)

GLEESON CJ:   Yes, Mr Peek.

MR PEEK:   Thank you, your Honour.  If I can pass straight to Part 4 and here only to identify the fact that the ‑ ‑ ‑

GLEESON CJ:   Would you just move in front of the microphone a little.

MR PEEK:   I am sorry, your Honour, thank you for that.  I go to Part 4 just to mention that the facts in the view of counsel for the appellant and the respondent are quite fully and adequately set out by the Court of Criminal Appeal at that page reference at volume 8.  I do not know whether the Court wants me to take you through those facts in detail or whether the Court has had a chance to read them.

GLEESON CJ:   We have had a chance to read them, thank you.

MR PEEK:   Thank you, your Honour.  If I can go back to some of those facts then in the context of my argument as I come to them, rather than go through them now then.

GUMMOW J:   You have an amended notice of appeal, have you not?

MR PEEK:   I think the date was wrong, your Honour.

GUMMOW J:   All right.

GLEESON CJ:   Is there any objection to the amendment?

MR MILLSTEED:   No, your Honours.

GLEESON CJ:   You have that leave.  Go ahead.

MR PEEK:   Going to Part 5 then, it is quite clear that the prosecution case was that Gerald Preston was the only person who went into the premises and that he fired all three shots.  The first two were, of course, fatal shots.  They were well within the premises and a deal away from where the van was parked outside and there is no suggestion that Gillard in the van could have seen those shots.  There is a question of whether he could have heard them and, of course, he said to the police, as the Court knows, that his windows were up and the radio was on.

GLEESON CJ:   Mr Peek, there is one aspect of the facts that goes to this issue that I would like to be a little clearer about.  I realise that when your client was interviewed he said that he thought the purpose of the exercise was a robbery.

MR PEEK:   Or something similar, yes.

GLEESON CJ:   But, apart from the fact that that is what your client said when confronted about this matter, what were the objective features of the case or the circumstances that might have indicated that what was going on was a robbery, as distinct from a murder or a homicide?

MR PEEK:   Yes.  From Gillard’s point of view – and I come to it but I am happy to mention it now in overview – he and Preston had a relationship which extended back quite a few years during which Gillard had been involved in theft matters, and similar, with Preston but never anything involving violence, let alone a firearm or a shooting, that, as I will take the Court to the passages, of the two Preston was the dominant person.  He dominated Gillard who had all sorts of personality problems, had been in a mental hospital at Glenside in South Australia on a number of occasions, in and out, had severe alcohol problems and was in fact a person who had very few friends, was a person who looked up to Preston as a leader, if I can put it that way, and on quite a few occasions in the past Preston had suggested, “You do this, you do that” to effectuate a crime, including, I should add, stealing an Econovan on a previous occasion – at least one previous occasion – for the purposes of carrying out a crime of theft.

So, when Gillard said to the police – and I delineate a number of the occasions that he did – that he thought it was more of the same, namely, they were going “nicking” to use one of his phrases, they were going stealing, or it could have been drugs, whatever, but that he had no idea that it was something like homicide and there was nothing to put him on guard that it would be.

Now, the objective facts, of course, were that he was asked to steal a van on this occasion a couple of days before the incident.  He did so in the full knowledge that it was to be used in some criminal episode.  He took it on Preston’s instructions around to Gerald Preston’s house, who is the brother of the accused Preston, where it stayed for those two days at that unit.  It was then used in the crime and in circumstances where Gillard soon after burnt the vehicle.

KIRBY J:   Was he aware of the fact that there might have been a very large sum of money on the premises of Mr Knowles?

MR PEEK:   Your Honour, I do not think I can go so far as to say that Gillard positively had that knowledge.  What I do put to the Court, and it is at paragraph 11 – I will deal with it now rather than repeat it when I come to it – is that Knowles was objectively a likely target for a robbery or a swindle or a rip‑off or whatever because, of course, there had been this ongoing police investigation into his activities concerning the amphetamines, that there were rumours alive in the district that he was a drug dealer, that Traeger – and I should add that Traeger was the victim of count 3, the attempted murder, but the shot only grazed his wrist; he later died of cancer, I think, completely unrelated – but Traeger gave a statement, which is in the appeal books, in which he said that he thought that Knowles was involved in drug dealing, had seen huge amounts of money in plastic bags and suspicious behaviour.

KIRBY J:   The police found $70,000 or something ‑ ‑ ‑

MR PEEK:   Yes, $70,900 to be precise.

KIRBY J:   And $1,000 on his person.

MR PEEK:   $1,100 on his person, yes correct.

KIRBY J:   And was the suburb in which your client lived or stayed at any time the same suburb as Knowles?

MR PEEK:   Yes, Christies Beach.  Both of them were living in that suburb at various times, but I cannot point to an assertion by Gillard that he definitely knew about that, but what I do say is that the scenario of a robbery, drugs deal or something is most certainly not unlikely in the objective circumstances.

KIRBY J:   What was Knowles’ premises?  What were they ostensibly?

MR PEEK:   A crash repair shop, a motor vehicle crash repair shop.

KIRBY J:   Is there any other objective evidence that gives a robbery scenario, the air of verisimilitude?

MR PEEK:   I really submit that the main thing is ‑ ‑ ‑

KIRBY J:   So against the background of their relationship.

MR PEEK:   Yes, he presumed that it could only be that, “What else could it be?” said he to the police.  “I do not do anything else but go nicking”.

KIRBY J:   He did see Mr Preston leave with a gun?

MR PEEK:   I have to come to that.  Your Honour, I wonder if I can come to that in the course of the submissions because that is a not unimportant aspect, but can I say just now in direct answer to your Honour, that was a matter that was postulated by the prosecution but the accused, Gillard, in fact said to the police he did not see a gun.

KIRBY J:   How big was the gun?

MR PEEK:   We have it in Court and I was going to actually give a very brief demonstration of the cocking procedure later.  Would it suffice if your Honour looked at it at that time rather than now?

KIRBY J:   Is it a big gun or a pistol?

MR PEEK:   It is a pistol, I am sorry, your Honour.  It is a Luger pistol and not a particularly big pistol.  It is an automatic pistol, or a semi‑automatic to be quite precise, rather than a bulky revolving cylinder pistol.

GLEESON CJ:   If you are going to point it at us would you mind pointing it in the direction of Justice Callinan?

MR PEEK:   I see.

KIRBY J:   I am glad I was excluded.

MR PEEK:   I will be very careful not to be pointing it at anyone and I assure the Court we have most definitely checked that the weapon is safe.  In any event, perhaps the Court will see precisely how big the gun is at that stage.  It is not particularly big, but the argument, of course, is that it was strongly put to the jury that Gillard would have seen it in the course of a cocking procedure to activate the weapon and the judge put that argument to the jury and that has certain ramifications in relation to the enlivening of the manslaughter aspect in the case.  But before I develop that I just wonder if I could take the Court through the submissions.

GUMMOW J:   We have read them, too. 

MR PEEK:   Yes, to expand it. 

GUMMOW J:   Is there any statutory provision in South Australia dealing with common purpose? 

MR PEEK:   No. 

KIRBY J:   Is there any statutory provision relating to manslaughter always as an alternative to murder, or not? 

MR PEEK:   Is your Honour asking me whether there is a requirement on the judge to direct the jury as to that matter?  No, there is not. 

KIRBY J:   Or any provision on that aspect or on manslaughter.  We had better have a look at ‑ ‑ ‑

MR PEEK:   The statutory material is annexed to the outline, your Honour.  It is, with a couple of exceptions that I will come to, pretty much common law.  Your Honour can see at section 13 of the Act that it simply specifies the penalty for manslaughter rather than delineates it, and there is nothing in the Act addressing the topic of the jury being informed of that verdict. 

GLEESON CJ:   At some stage – and I am not suggesting this is the appropriate time, but at some stage you will tell us what actually happened at the trial about the arguments of counsel to the trial judge as to what should and should not be put. 

MR PEEK:   Yes, and I think I have the page references pretty well in the outline.  I will be taking the Court to them. 

KIRBY J:   That is a little bit of a hole in your case, given the disavowal of the arguments that you are now pressing on us. 

MR PEEK:   Well, of course, I will come to that, but ‑ ‑ ‑

KIRBY J:   A 4½ month trial where you said, “We do not want this put”.  You ran your case, you had your chance, now you are before appellate courts saying you should be given a second go to reframe your case and have a different outcome.  It is not immediately very attractive.  It may be what the law requires, but 4½ months of trial and public money. 

MR PEEK:   Yes, well, I have to face up to that and the Court may have seen that I have collected together a group of High Court authorities addressed to that very situation that I will take the Court to. 

KIRBY J:   I doubt if they were in 4½ month trials, but that may not be a relevant matter. 

MR PEEK:   I do not want to split hairs.  I accept exactly what your Honour puts to me.  I suppose the only thing I could say is that the Court will appreciate that, by far, most of the trial time was in relation to Preston, of course, in the sense that there was a defence run by him of identity and alibi.  Indeed, he contested each and every aspect – there were aspects of telephone intercepts and various other matters.  Preston came to be unrepresented, so a great deal of the time was taken up by that, but nevertheless still a lengthy trial. 

KIRBY J:   Did your client – and this may not have been a proper course, I am not sure – say to the Court of Criminal Appeal of South Australia that if he succeeded on this point he would offer to plead to manslaughter? 

MR PEEK:   That topic just never arose, if it please, your Honour. 

KIRBY J:   Because what you are essentially asking us is for a new trial where you get a second chance of acquittal.  You have had that chance.  Anyway, you will come to all of this when you get to the end, because we have a proviso argument, but it is a sort of practical concern.  You do not want to reach a conclusion that the trial judges of Australia and the community generally will say is absurd, that you get a second chance at acquittal in a lengthy trial where you expressly disavowed the point you are now pressing. 

MR PEEK:   Well, I would not want to say too much about the likely disposition of what would occur if the conviction were set aside.  The Court can see that there are a number of possibilities that might occur.  It is not necessarily the case there would be a lengthy trial at all, if it please, your Honour.  But I do not want to say anything more than that. 

The only other thing I might say, since your Honour has raised it, there have been cases in the past where the Court – and Pemble, of course, was one – substituted a verdict of manslaughter in cases such as this.  But I do note – and it is not on the list, it is not a matter that I was going to refer to particularly – that in a relatively recent case of Spies, it seems to me that this Court has said that that should not be done.  A verdict of manslaughter should not be substituted as distinct from a new trial being ordered. 

KIRBY J:   There are factual assessments to be made.

MR PEEK:   Yes, but as a matter of general law really rather than facts, as I understood Spies, your Honour.  I have not looked at it lately, I must admit.

KIRBY J:   Well, the reason the case is here is because issues of principle are raised.

MR PEEK:   Yes.

KIRBY J:   So I think we just have to address the issues of principle.

MR PEEK:   That is right, yes.

GUMMOW J:   But if there were an order for new trial, there is no logical reason why the same thing could not happen again, is there?

MR PEEK:   The same thing being - I am sorry, your Honour?

GUMMOW J:   Yes.  You take your chance again.

MR PEEK:   He could be convicted of murder again on a trial for murder, there is no question about it.

GUMMOW J:   So do not talk about manslaughter, but by the way if this gamble does not work we can set the appellate motions in process again.

MR PEEK:   I understand what your Honour puts to me.  In terms of a gamble, to be representing my client, that, I would respectfully submit, is not really an accurate way of putting what occurred at this trial.  I would simply indicate ‑ ‑ ‑

GUMMOW J:   Whatever adjective one uses, it is right, is it not, that it could all happen again, and again, and again?

MR PEEK:   No, your Honour, because, of course, the trial judge would put manslaughter irrespective of any opposing attitude, if there were to be one, by counsel.  So, with respect, it could not happen again.

GUMMOW J:   So that is the point really.

MR PEEK:   Yes.  The point here is that the judge should have put manslaughter irrespective of the tactics supposedly being constructed by the accused.

KIRBY J:   The Crown always asked that manslaughter be put.

MR PEEK:   That manslaughter be put, exactly so, yes.

KIRBY J:   It is very hard for a judge to put it where it is being resisted by the accused.  I know that the judge must do the lawful duty, but in the practical situation of a trial it is asking a lot.

MR PEEK:   It is, but as I say in the cases that I come to you had situations a fortiori to hear where, of course, the prosecutor was not suggesting that manslaughter be put.  Here at least you did have one counsel suggesting that it be put but, of course, the defence saying no.

GLEESON CJ:   It even goes a little further in this case, does it not?  You had questions from the jury indicating that they were very concerned about what the outcome ought to be if they found that your client was in it for what I will call financial reasons, that it was a robbery rather than a ‑ ‑ ‑

MR PEEK:   Yes, sorry.  Yes, I am with you, your Honour.

GLEESON CJ:   There were questions that the jury asked that indicated that at least one member of the jury ‑ ‑ ‑

MR PEEK:   And he did use the plural but ‑ ‑ ‑

GLEESON CJ:   ‑ ‑ ‑ was concerned that there was a viable robbery theory.

MR PEEK:   Yes, and, of course, I come to that in due course, but that is a very important aspect of the case.  I have in fact dealt rather more fully with that aspect in the reply, rather than in the main submissions, but I will deal with it all in the one address.  So if I can just perhaps come back to those matters which we have had a bit of an airing about shortly, but just to set the scene, there ‑ ‑ ‑

GUMMOW J:   What did the Court of Criminal Appeal say about cases like Pemble?  I mean, it is an appeal from the Court of Criminal Appeal.

MR PEEK:   Yes.  No, I think there was no doubt that they recognised the authority of that line of the decision but it was not ‑ ‑ ‑

GLEESON CJ:   Did they not decide the case on the basis that there was no viable manslaughter theory?

MR PEEK:   Exactly, that is right.  It was not on the basis of a failure to take the point but simply that there was not an available, as your Honour puts it, viable theory.

KIRBY J:   Is that the issue of principle that is tendered to us, the first step, that is to say, whether in that collection of facts that you have just mentioned there was necessarily a viable case of manslaughter on the facts?

MR PEEK:   It is not just a question of whether there is a viable case, although that is certainly a very important part of it, but the question of whether you should ‑ as is perhaps exemplified in that decision of Chief Justice King which I have contrasted with a decision of our present Chief Justice Doyle at pages 12 to 13 of my outline ‑ take a line which says that you need an absolutely strict common plan, as it were, or whether you can take a line such as in Zappia and the other cases I have – the New Zealand case of Tomkins and the English case of Reid, to say that – I will just paraphrase it now very briefly – when a person knowingly involves himself in an unlawful act in circumstances where he knows that a firearm is to be present on the postulated basis that it was put to the jury by the prosecution and the judge, that even if he does not have that intent which was requisite to murder but, unknown to him, the main perpetrator does, that that secondary party can still be liable for manslaughter.

GLEESON CJ:   Was felony murder an issue in this?

MR PEEK:   No, because there was no foundational felon at the end of the day, your Honour.  The only felony involved was a premeditated contract killing.  Although Gillard thought it was a robbery, there was never any robbery.  So your Honour can see that there was no act done in the course of a different felony which you would need for a felony murder situation.

GLEESON CJ:   What is the position in relation to murder/manslaughter if the person in the position of Gillard says, “I believed that he was going to commit a felony and he was going to use a firearm in the course of the felony”?

MR PEEK:   Objectively you need for the activation of the felony murder rule, as I say, the foundational felony and then an act done in the course of it which causes death.  Now, when we say felony murder rule, of course, the position is not the common law felony murder rule in South Australia, but rather 12A – I was just looking for it in my annexure there, 21 actually in the running pagination.

KIRBY J:   What is the differentiation between Chief Justice King and Chief Justice Doyle?

MR PEEK:   Can I just read that three lines out and then I will come back to what your Honour just asked me.  Just in answer to your Honour the Chief Justice concerning felony murder, 12A:

A person who commits an intentional act of violence while acting in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more (other than abortion), and thus causes the death of another, is guilty of murder.

GLEESON CJ:   And would an intentional act of violence include presenting a pistol, aiming a pistol at somebody?

MR PEEK:   Well, we say that that is simply not acting in the course of the furtherance of the major indictable offence that is required, because it was one and one only act of murder, an intentional shooting of a man by Preston.  It is simply not the situation that this legislation addresses, if it please your Honour.

KIRBY J:   He was just sitting in the car?

MR PEEK:   Gillard was in the car.

GLEESON CJ:   Preston was in there doing something.

MR PEEK:   Preston was in there very deliberately carrying out a contract killing, that is right, but never a murder and, of course, the money was still there and the police found it.  There was no suggestion anything was taken.

GLEESON CJ:   It really has to come down to the proposition that on the Crown case, as far as Preston was concerned, it really was murder or nothing.

MR PEEK:   Yes, there was never any suggestion that 12A was brought into bear against Preston.  What your Honour says is exactly right.  I mean, it was a very clear case against Preston in terms of legal dynamics; either it was him, or it was not him, in terms of at least count 1 and 2.  The attempt aspect might be slightly different, but there it is.

HAYNE J:   Just looking for a moment at the way in which the Court of Criminal Appeal dealt with it, at page 2085 paragraph 346 of the judgment, the conclusion is expressed:

that the learned trial judge was correct in not directing the jury that a verdict of guilty of manslaughter was available on the facts of the case.

That is their Honours’ conclusion.  That stands in contrast with what appears in paragraph 13 and 14 of the respondent’s submission, which is that there was a legal basis for manslaughter to be left.  So you have the benefit of a concession by the respondent to the appeal that there was a legal basis for manslaughter to be left.  Is that not then the starting point for your argument?  At the moment we seem to be on the fringes.

MR PEEK:   We are on the fringe, I agree.

HAYNE J:   But is the starting point not the one I have identified?

MR PEEK:   I accept that and ‑ ‑ ‑

HAYNE J:   What follows from that start?

KIRBY J:   Presumably the Court of Criminal Appeal thought the Crown’s submission was erroneous.  Courts do not have to accept submissions.

MR PEEK:   That is right.  With respect, I think that is correct.

KIRBY J:   Or concessions.

MR PEEK:   Yes.  So, it is for me to develop the legal aspect to show that in fact the Crown is right in that regard, (a) that as a matter of law manslaughter can be left in these circumstances – that is the first question – and (b) was there a viable case, which I suppose is the proviso question, really, or similar to it, and provided I can satisfy both of those then we would suggest that the matter is a fairly simple one and that the convictions must be quashed and a retrial ordered.

KIRBY J:   Subject to the miscarriage of justice point, you waived the point or have not pressed it.

MR PEEK:   That is right.  We need to come to that as well, yes.

GLEESON CJ:   But it does put us in this awkward position that we do not have a contradictor.  We do not have anybody at the Bar table seeking to support in argument the reasoning of the Court of Criminal Appeal, which presumably means we have to find out for ourselves what that reasoning was and what we think of it.

MR PEEK:   Yes.

GLEESON CJ:   The reasoning is in paragraph 344, is it not?

MR PEEK:   That is a very important part of the reasoning, if it please your Honour.

GLEESON CJ:   We are confronted with a situation, argumentatively, in which counsel for the accused at the trial successfully persuaded the trial judge that there was no viable case of manslaughter.  The Court of Criminal Appeal agreed with that proposition and now in front of us counsel for both sides disagree with it.

MR PEEK:   Yes, except this, that if one looks at the dialogue that passed between my learned friend, Mr Millsteed, and the trial judge, the trial judge was always very doubting of the proposition in terms of manslaughter being left and so I do not know that it was really a case of the solicitor for the appellant actually persuading the judge in that regard so much.

GLEESON CJ:   You may not have to devote much time to this but at some stage could you tell us what you say is wrong with the reasoning in paragraph 344?

MR PEEK:   Yes, I certainly will.  If I can just go quite quickly through just to expand and add a couple of things to the paragraphs of my judgment so that I can undertake that task.  If I can go back to paragraph 7, it is to be noted that the matters there which had to be established of stealing the van, telephoning Knowles, being present outside in the van, driving Preston from the scene and later burning the van were the things, and really the only things, that the prosecution could put to the jury to say, “Infer from that that he was a party to a plan to murder as distinct from a party to a plan to rob or to thieve”.  Of course, we would say that those things, against the background, were really completely equivocal.

KIRBY J:   They were neutral, were they not, because they were equally consistent with being a party to a murder, as being party to a robbery?

MR PEEK:   They were neutral, they were equivocal, I agree.

KIRBY J:   Except, I suppose, you could say this, that failing to see that Mr Knowles, personally, was there is more consistent with going to murder Mr Knowles because if you are going to commit a robbery you do not need to have the general manager present when you do so.

MR PEEK:   It all depends what it was.  You see, Gillard did not know exactly what it was, whether it was a robbery - and he used that term very loosely because he makes it quite plain that when he says robbery he really means assorted matters of theft.  He himself had never taken part in an armed robbery or robbery with violence.

KIRBY J:   All the more reason that you do not need to know that a specific person is present.

MR PEEK:   Well, Gillard says ‑ ‑ ‑

KIRBY J:   Just a friendly little robbery, you do not need to know that Mr Knowles is around.

MR PEEK:   Perhaps not, but the point is that Gillard said to the police on a number of occasions that the reason he rang Knowles was at the request of Preston, that Preston always called the shots and if Preston said, “Okay, ring this person to see if he’s there”, he does so.  Now, there could be a number of reasons.  If it was some sort of a drug rip‑off or picking up drugs and so forth, which are other possibilities that he gave in the interviews, why you would need him there.  Or he might have money on his person, as he indeed did have $1,100 on his person.

GLEESON CJ:   Mr Peek, let us cut to the chase.  Forget questions of onus of proof for the moment.  What is the law of South Australia in the following fact situation?  Two men are in a car; one is at the wheel and the other is a passenger.  The man who is the passenger says to the man who is at the wheel, “Please pull up alongside this service station.  I have a gun with me.  I intend to go in there and rob them by pointing the gun at them and getting them to give me all the money out of the till, and then when I come running out I want you to drive away as fast as you can”.  The passenger goes into the service station.  The gun discharges, the person behind the till is killed.  In what, if any, circumstances might the driver of the motor vehicle be guilty of manslaughter?

MR PEEK:   He might be guilty of manslaughter if he did not envisage that the gun would be used other than for threatening a person in the course of that robbery.  He could be found guilty of manslaughter rather than murder, whereas the actual participant, the principal, could, in fact, be found guilty of murder in those circumstances.

GLEESON CJ:   So one possibility is that the driver is guilty of nothing, nothing by way of homicide.

MR PEEK:   Yes, that is a possibility.

GLEESON CJ:   Another possibility is that the driver is guilty of manslaughter if the driver contemplates as a possibility the doing of a dangerous and unlawful act by the passenger.  Is that right?

MR PEEK:   That would be our submission, yes, and, indeed, the prosecution’s submission for that matter.

GLEESON CJ:   So that is the point of departure between the two of you and the Court of Criminal Appeal?

MR PEEK:   And the Court of Criminal Appeal, I think that is right.

GLEESON CJ:   Because the Court of Criminal Appeal would say, rightly or wrongly, that if all the driver of the motor car knew or believed was that the passenger was going in to conduct an armed robbery, then the driver of the motor vehicle bears no criminal responsibility in relation to a death that results from the use of the firearm.

MR PEEK:   That is right, unless that was, of course, part of the expressed plan between them, but what your Honour says is right.  We are, in fact - when I say we, I say the appellant and, indeed, the Crown, are submitting for, if anything, an extended purview of manslaughter in these circumstances based on the approach in New Zealand in Tomkins and, indeed, in Reid in England we would say, and, indeed, in the latest case of the South Australia Court of Criminal Appeal in Zappia where it would seem that this case of Gillard and Preston was not cited to the court.  So that is the not entirely straightforward situation in which we are.

KIRBY J:   You were going to tell me the point of difference between Chief Justice King, who was a very much respected judge in criminal law ‑ ‑ ‑

MR PEEK:   Yes, indeed.

KIRBY J:    ‑ ‑ ‑ and Chief Justice Doyle, who is also respected in this area, so what is the point of difference?

MR PEEK:   Your Honour, I do take the Court through that fairly fully in my outline.  Would your Honour mind if I just come back to that at the appropriate place because it is there and not to be avoided by any means?

KIRBY J:   Yes.

MR PEEK:   Just going back to paragraph 8, the situation, of course, was that Gillard, the less dominant of the two, a man who said more than once to the police that he was in great fear of Preston, had told the police that it was indeed Preston who was the shooter.  When I say that, he did not say that he saw him fire the shots, but it inevitably followed from Gillard’s version to the police that it was Preston who departed and then returned to the van, that he was saying it was Preston who was the killer.

In those circumstances, you had a situation where Preston, of course, was saying in the joint trial, “It was not me at all there”, contrary to what Gillard said to the police, “I have an alibi”.  In those circumstances, Gillard ran a voir dire in which he tried to have the confessions excluded, and that was unsuccessful and there is no appeal about that, and Preston ran an argument for a separate trial, and that was unsuccessful.  So you then had a situation where Gillard insisted on running this very farfetched approach, that is to say, cross‑examining the police to suggest that everything they said that he said was fabricated, made up, whatever.

Of course, one cannot run away from the fact that that was the least worst approach from Preston’s point of view.  If Preston was to have any chance, that was the approach that had to be taken.  When one sees it in the broad concept of the fear that Gillard had in relation to this man and his background, one can perhaps see what developed and the question, of course, at the end of the day is that this leads to a miscarriage of justice because at the end of the day, whatever machinations are going on and why they are going on, it was for his Honour to fully direct us to the law because, of course, Gillard had a very viable defence.  It was obscured by this thing that was being put on his behalf, namely, he had said from day one that he was there thinking it was something entirely different, that the circumstances were very consistent with that and there was really nothing to the contrary.

In those circumstances, he did not give evidence before the jury but the result was you had those uncontested admissions to the police.  On the one hand, of course, they establish that he was there and did all these various things, and I do not repeat them, but on the other hand inextricably part of those statements was his protestation that he would never involve himself in anything involving murder, such as violence, murder, never had before, never would, he is a petty thief.

I do not want to take up the time of the Court in going to the case of Griffiths but I refer to it at my page 2, Griffiths v The Queen. I do say it is, of course, a very important case as establishing the proposition for which I contend. Perhaps I could simply give the Court some page references to that case rather than take up the time at the moment. That case, as the Court will remember, was a situation where a body of a rather young lad was found out in the bush. The accused was a classmate of that lad and they had gone up into the bush with a .22 rifle and only one had returned. The accused told a pack of lies to the police and to various of his classmates, pretended that the person was alive long after he had in fact died and so forth, threatened one of his classmates that the same would happen to him or to her but also claimed in one conversation with one classmate, namely one Leeanne Clack, that it had been an accident. Now, against that background – perhaps I can just briefly go to the case because it is an important decision. It is (1994) 69 ALJR 77.

KIRBY J:   What is the principle that you are citing this for?

MR PEEK:   The principle is that even if there has been a great deal of lying, even if the accused, as here and in Griffiths, does not give evidence on oath, nevertheless, even if there is one statement amongst the lies which says or puts forward and exculpatory version, then that must be dealt with properly by the judge and considered by the jury.  It was against the background of the facts that I have put and which are delineated, for example, by the majority at page 78 that the majority made the statement of principle at page 80, column 1, if I can just read half a dozen lines at D:

To establish that the appellant was the person who had the gun when the fatal shot was fired, the Crown relied, inter alia, on the admission he made to Leeanne Clack.  The Crown had to take that statement as a whole so that the version of facts that it contained at once implicated and tended to exculpate the appellant.

Now, Justices Deane and Toohey came to the same result.  Their Honours were even more scathing as to the strength of the case against the appellant and the extent to which he had lied and so forth, but it was a strong case, but, nevertheless, that it was necessary for the learned trial judge to direct the jury about the essential ingredients of manslaughter pursuant to the Code, as distinct from putting it to the jury, “Either this was the person who fired the shot or it was not”, because in Griffiths – and this is an important aspect – the trial was run on the basis of the appellant not killing the victim.  So the trial was run on a completely different basis to that upon which the High Court allowed the matter.  So, if anything, it is an even starker situation than what we have here.

GLEESON CJ:   Was the Court of Criminal Appeal referred to the decision of this Court in Markby?

MR PEEK:   Yes, and, indeed, mentioned Markby in the course of its judgment, your Honour.

GLEESON CJ:   How did they distinguish that?

MR PEEK:   We would say they were in error in relation to their consideration of Markby, your Honour.  That is our simple submission, but I come to that ‑ ‑ ‑

KIRBY J:   What Chief Justice Gibbs said in Markby on 16 of your submissions is:

the verdict of manslaughter is open to them if there is a basis in the evidence for a possible verdict.

Presumably they distinguished it on the basis that they thought a verdict of manslaughter was not open in the circumstances.

MR PEEK:   Perhaps they did.

GLEESON CJ:   The facts of Markby were on all fours, were they not, with the factual basis on which it was suggested manslaughter might be put in this case?

MR PEEK:   It is very close and we rely on Markby.

GLEESON CJ:   Yes.

MR PEEK:   So we say that, echoing the words of this Court in Griffiths, there was a substantial onus of disproof once you have a statement and, of course, the statements here are all one way, whereas, of course, in Griffiths there was only that one exculpatory statement and the rest were in fact inculpatory or lies.  So I then collect for the Court – and I do not intend to go through these in extenso – the police interviews and conversations chronologically there and then at page 3 I break it up into the topics, should the Court want to go further in relation to what Gillard said concerning these various important matters.

Now, I wonder if I can just read three passages.  The second two are very short.  The first passage extends over three pages but I will not read the whole three pages, but rather identify it as a useful passage which touches upon all the topics.  Then if the Court wants to go and look at the more detailed questioning, the Court will have the references.  So the longest of the three passages is at appeal book 1 page 25.

KIRBY J:   Where are you now in your outline, I am sorry?

MR PEEK:   Your Honour, I am at paragraph 10 and I am just taking a representative passage to inform the Court as to what the position of Gillard was in relation to these matters and then leaving the other passages, basically.  That representative passage is at appeal book 1 page 25.  If I can take the Court to line 21 perhaps, without rereading it all, but indicating the points as we go through.  One sees there that he asserts that he is in fear of his life from Gerald Preston.  He agrees that he stole the Ford Econovan shortly before the incident, did it by himself, but at the behest of Preston.  He was not told why he was to steal it.  At line 18:

I thought I was going nicking.

Line 20:

I thought I was going nicking, stealing.

He talks about the method he used to take the vehicle and the fact that he then dropped it off at Preston’s brother’s home.  There is some more detail about that.  Then on the next page, page 27, thought it was a robbery, talks about the phone call.  At other places in the interview he makes it clear that that was at the behest of Preston.

GLEESON CJ:   I think this ultimately might support your argument now, but if he thought that Preston was going alone into premises occupied by a number of men for the purpose of carrying out a robbery, he must have known that Preston was armed.

MR PEEK:   That is probably the sort of argument that the ‑ ‑ ‑

GLEESON CJ:   Unless he thought that Preston was either a very brave or a very strong man.

MR PEEK:   Yes.  I mean, I cannot dispute what your Honour puts in that regard.

KIRBY J:   Did he know that there were a number of people there?

MR PEEK:   Well, only this, that when he made that phone call at the request of Preston, he did not actually speak to Knowles, he spoke to someone else who said Les Knowles is there.  So that, at least, puts two in there, I suppose, your Honour.

GLEESON CJ:   It was an apparently functioning car repair shop, was it not?

MR PEEK:   True, so there could have well been more than two ‑ ‑ ‑

GLEESON CJ:   During business hours?

MR PEEK:   Yes, of course.

GLEESON CJ:   He presumably did not think that Preston was going to go in there and, without being observed by any of the others, conduct a sneak theft.

MR PEEK:   No, that would not be viable, and I am not trying to push away what your Honour puts to me because I do submit that this, in fact, does raise the question of the manslaughter scenario.

GLEESON CJ:   Exactly.  I would have thought it was an argument in your favour.

MR PEEK:   Yes.  I will just finish off that passage at page 28 line 14, and I do not read any further from this passage:

Q.  When you drove there what did you think was going to happen.

A.  A robbery.

Q.  For what?

A.  Money.

Q.  How much money?

A.  No idea, just a large amount of money.

And so on.  Now, he did deny seeing the pistol, but there are other arguments in favour of the proposition that he, in fact, did.

GLEESON CJ:   Well, even if he did not see it, he must have known that Preston was armed, must he not?

MR PEEK:   Yes, that is a fair point, your Honour, with respect.  Even if he did not see it, it would follow as a matter of logic.

GLEESON CJ:   How else did he think that Preston could achieve his purpose?

MR PEEK:   Yes, but the point is this, your Honour, that the prosecution put a number of arguments to the jury asking them to positively infer that he in fact saw that pistol.  The judge endorsed those arguments and the questions of the jury certainly proceed on the basis that they are accepting of such arguments and asking what the legal ramifications are.  So, that fits very well with what your Honour is putting.

Now, there was a differentiation between the situation of Preston and Gillard, of course, and this is at my page 3 paragraph 11.  I simply delineate the topics.  There was a close relationship between Preston and Tognolini and the Hell’s Angels, that the prosecution case, of course, was that this was a contract killing on behalf of those persons, and that there was also substantial evidence of recent wealth – quite compelling evidence actually – by Preston shortly after the shootings and when he went to Melbourne and, on the prosecution case, no doubt correctly, collected $10,000 for his part in the shootings.

Now, there was no corresponding evidence in relation to Gillard.  He had nothing to do with the Hell’s Angels.  There was no evidence of any wealth on his part after the shootings.  Then I go to simply collect for the Court, if it wishes to look at the detail in due course, the evidence in relation to the personal history and nature of Gillard and the relationship between him and Preston at my page 14. 

It really is quite eloquently summarised by my learned friend who put to Preston, in the course of a long cross‑examination, “You were the ringmaster, weren’t you?  He was your errand boy”.  That is absolutely right.  Gillard was a drunken errand boy with psychological problems who would not question what was being asked of him because he assumed it was for yet more “nicking”, as they had always done in the past.  Now, I summarise that evidence in that table there, at paragraph 15.  I do not think the Court wants me to go through all of that now, but it is there. 

I summarise the proposition, at paragraph 16, that Preston dominated Gillard.  Gillard had few friends, looked up to and trusted Preston, depended on him, drank to excess, itinerant, living in shelters and hostels.  I have extracted some comments from one of the witnesses as an indication – I do not read those, but at my page 17, to give an idea of what the brother, Ronald, who was a Crown witness and therefore gave evidence of his direct observation of the relationship between his brother the accused Preston and Gillard and made those comments.  Preston himself had stated to Ronald Preston that Kevin is “like an idiot” – my paragraph 19. 

GLEESON CJ:   I realise that your client did not give evidence, so nobody had the opportunity to ask him this at trial, but did the police, in the course of their interview of your client, when he said he thought that Preston was going in there to take money – if I can use a neutral expression – from the people in the premises, did the police ever ask him how he thought Preston was going to achieve that? 

MR PEEK:   They certainly asked him did he have “anything to assist him in this robbery”.  That was the last two lines of that passage I just read out at page 28, and that would be what your Honour is asking me.  He said, “Not that I know of”.  Now, they did ask him on a number of occasions, “Did you ever see a pistol?”, and those references are at my page 3, paragraph 10, under the heading “The Luger” in the table there.  He simply said that he did not. 

GLEESON CJ:   Well, it may be that the explanation lies in your client’s mental problems, but the expression “nicking” does not sound like something that somebody is going to do in a car smash repair shop occupied by some people thought to have association with some Hell’s Angels in broad daylight. 

MR PEEK:   Well, I cannot really disagree with that, your Honour. 

KIRBY J:   He did firm up on saying he thought it was going to be a robbery. 

MR PEEK:   He certainly used the word “robbery” more often than anything else. 

GLEESON CJ:   Well, on page 2085, the Court of Criminal Appeal addressed the possibility that “Gillard contemplated no more than robbery”, but presumably that is a reference to no more than an armed robbery. 

MR PEEK:   I think that is right, yes. 

GLEESON CJ:   What other kind of robbery could there have been in contemplation? 

MR PEEK:   As a matter of logic, none. 

GLEESON CJ:   Well, if you are contemplating an armed robbery why is there not “an ever‑present and real risk of a killing”?

MR PEEK:   Exactly.  That is our point, and we made that point to the Court of Criminal Appeal.  We certainly made all of the points we seek to make to this Court to the Court of Criminal Appeal and we respectfully suggest they got it wrong.  Now, if I can just finish off the references.  At my paragraph 19, the aspect of his medical problems, can I just add a reference there to Raeside’s evidence at appeal book 4, 820, where he delineates the admissions into Glenside Hospital? 

Then the submission we make at paragraph 20 is that Gillard leaves and goes to Queensland but, of course, consistent with his rather strange behaviour ‑ ‑ ‑

GUMMOW J:   He uses his own name.

MR PEEK:   He uses his own name.

GUMMOW J:   Yes, we know that.

MR PEEK:   It just paints a picture that this is just a bumbling errand boy and, of course, I make those comments as to why the fact that he does not come forward and nominate Preston as the shooter to the police really carries the matter no further at all in those dot points - I do not read them now.

KIRBY J:   Mr Preston did give evidence, did he not?

MR PEEK:   Certainly.  Voluminous evidence.

KIRBY J:   What was his answer to the question, “He was your errand boy, you were the ringmaster”?

MR PEEK:   I cannot remember offhand, your Honour.

KIRBY J:   Well, would you give us a reference to that in due course?

MR PEEK:   Yes, certainly I will.  Now, the situation developed, as I outline at paragraph 21, that originally, of course, the prosecution case was that Gillard was guilty on the basis of his own statements, guilty of murder I should say.  His Honour rightly found that that was not correct, but the situation came to be that the prosecution, in the face of that imminent ruling against the way that they wished to pitch their case, urged the jury to find that Gillard must have seen the Luger pistol in the possession of Preston just before the shootings and that such sighting was strong evidence that Gillard was party to a plan to murder.

Now, that argument to the jury is perhaps best seen at appeal book 7, 1522 commencing at line 11 where my learned friend puts his argument as to why it would follow that Gillard would have seen the gun.  I will not read all of that, I will just identify the place.  His Honour’s directions, we say, forcefully put that prosecution argument to the jury, and those directions are to be found in appeal book 8 at page 1790 at line 10 down the right‑hand margin, the paragraph beginning:

Ladies and gentlemen, the next matter is the submission of the Crown . . . Your attention is drawn to these matters ‑

and then his Honour goes into the matter of the gun and the closeness of the people sitting in the van, that:

Preston had to produce the gun from whatever he had been carrying it in . . . He would have had to have cocked the gun . . . you have heard the descriptions of how it worked by Sergeant Golding ‑

and put that as a matter for the jury to consider.  His Honour also made a further reference to that argument, and I will not read this but simply give the reference of volume 8 page 1808, the shorter reference at that time.

Now, of course, we say that, particularly in the light of the questions, that argument and those directions were important and at 28.3 of my submission I come to those two questions.  Now, it may be convenient if the Court would go to the reply that was filed by the appellant because that really deals with what I want to put in that regard.

GUMMOW J:   It is your paragraph 13, is it not, of your reply?  It gets to Gilbert, does it not?

MR PEEK:   It gets to Gilbert.  I would want to start a bit earlier than paragraph 13.  I want to deal with those jury questions, if I may, and then come to Gilbert.

GUMMOW J:   The question is, is it not, looking at 353(1) of the Criminal Law Consolidation Act whether there was “a wrong decision on any question of law”?

MR PEEK:   Yes.

GUMMOW J:   And, if so whether, nevertheless, there was “no substantial miscarriage”.

MR PEEK:   That is the matter I have to come to, I appreciate that.

GUMMOW J:   Sooner rather than later.  It is 20 past 11.

MR PEEK:   Quite so, your Honour.

GUMMOW J:   It is not an easy question.

MR PEEK:   No.  Can I just go the appeal books where one finds these questions.  Appeal book 8 1817 is the first.  There the question is:

You were saying the bit about if one went with the intention of murder and one went with the intention of robbery.  No common purpose at all.  If the gun was seen by the person who was going for the robbery are they still guilty of murder?

Now, we say that there is a certain amount of confusion in the way that the jury have put that, and I make those submissions at my paragraph 5 of the reply, that it shows difficulties in understanding the essential concepts and the answer by his Honour was not adequate in the circumstances.  The question was predicated on the specific basis that there was “No common purpose at all”.  Therefore, to answer that “there is no common purpose” was not particularly helpful to the jury.  Such an answer was predicated on the basis that the jury understand that the consequence of there being no common purpose is that on his Honour’s directions the appellant was to be acquitted, but the very terms of the question show that the jury, at least at that stage, did not appreciate that.

HAYNE J:   This is all very interesting, Mr Peek, but this is a passage that occurs in the middle of a summing up.  Really, where are we getting to?  Taking what happens in the middle of a summing up and saying, “Oh, at that stage they mightn’t have understood” really does not help us much.  Now, where are we going?

MR PEEK:   We are going to the second question which was, of course, the question that was put by the jury while they were deliberating, and had been for several days, I think.  That I deal with at paragraph 6 of the reply and the question and answer appears in the transcript at 2076.

GLEESON CJ:   Mr Peek, I have to say that I am still concerned about whether we are doing justice to the reasoning of the Court of Criminal Appeal, bearing in mind that there is no one here to support that reasoning, and it is related to the point that you are on at the moment.  Did the Court of Criminal Appeal look at it this way.  Did they say, “Preston was there to carry out a contract killing.  Gillard says he thought that Preston was there to carry out a robbery.  The jury found that Preston was there to do no such thing.  There was, therefore, on Gillard’s account, no common purpose between Preston and Gillard.  So, the trial judge was right to tell the jury that either Gillard was guilty of murder because he was part of a common purpose, being a contract killing, or he was guilty of nothing because the purpose of Preston was quite different from the purpose of Gillard.”

MR PEEK:   That is right.

GLEESON CJ:   That is the reasoning of the Court of Criminal Appeal?

MR PEEK:   That is the reasoning, if the Court pleases.

GLEESON CJ:   What is the error in that?

MR PEEK:   We submit that that is not the appropriate principle and I come to those cases ‑ ‑ ‑

GLEESON CJ:   If you look at Markby 140 CLR at the bottom of 112 and the top of 113, that is all about two people who have a common design.

MR PEEK:   Yes.

GLEESON CJ:   Markby was a case in which two men set out to rip off a drug dealer and one of them was armed with a weapon and the drug dealer ended up being shot and the law was explained by Acting Chief Justice Gibbs in terms of a common design between the two of them.  But what would the result in Markby have been if Holden had been given a contract to kill Syrch and Markby had thought, erroneously, that what Holden was doing was robbing Syrch?

MR PEEK:   Knowing that Holden had a weapon?

GLEESON CJ:   Yes.

MR PEEK:   Yes.  We would submit that that, of course, was not a matter that was discussed in Markby but that the proper result would be that manslaughter would be available in those circumstances.

GLEESON CJ:   What is the common design?  This area of the law is all based on an assumption of common purpose.  What is the common purpose shared by Preston and Gillard on your theory of the case?

MR PEEK:   The common purpose is a willingness to indulge in an unlawful and dangerous act involving at least the presentation of a loaded firearm.  We say you have that beginning of the agreement and that is true insofar as both of them view it, but the point is that unknown to one, Gillard, Preston has a further intention above and beyond that, that is to in fact actually discharge that firearm deliberately as distinct from what might occur in the course of a robbery of the firearm being discharged accidentally or impulsively.

GLEESON CJ:   What I am uncomfortable with at the moment – and I am not suggesting that you are not ultimately right about this – is analysing in terms of common purpose a fact situation like this.  You seem to be characterising Preston’s purpose as merely a more serious form of the purpose that Gillard had.

MR PEEK:   We say that one can delineate a common purpose between the two for which there should be, and we say clearly is in England and New Zealand, a liability for the manslaughter.  In Markby one can see that that page your Honour has given me, page 113, his Honour does cite without any disapproval the important passage upon which I rely in the English Court of Appeal decision in R v Reid but I have to immediately say that the factual situation with which are faced was not then under consideration by Acting Chief Justice Gibbs.

GLEESON CJ:   Rightly or wrongly, as I understand their judgment, the Court of Criminal Appeal decided this case on the basis that either Gillard and Preston had a common purpose, which bearing in mind what we know about Preston’s purpose must have been murder, or they simply had no common purpose at all, in consequence of which Gillard should have been acquitted, as the trial judge said to the jury.

MR PEEK:   They put it in that very black and white way, and we say that was erroneous.  Now, can I just, at least, identify the location of that second jury question because this was, of course, a critical time when they had been out deliberating on their verdicts for some days - I gave an incorrect page reference before, the correct page is book 8, 1944 for the second jury question and ‑ ‑ ‑

KIRBY J:   Page?

MR PEEK:   Page 1944, your Honour.  I am sorry for the rather indistinct pagination of these books, I can only apologise.  But the question is this, person A goes with the intention of murder, person B goes with the intention of robbery.  Person B sees the gun beforehand.  Can person B be innocent of murder if he could, and I would like to underline that word, “could” have foreseen someone could have been killed?

Now, his Honour went off on an incorrect tangent here, with the greatest respect, because what his Honour says at the bottom of that page, five lines from the bottom:

What is the position of a person who is duped into thinking that there is a robbery and at the last minute discovers that it’s not?  It seems to me that liability for murder can attach if there is an adoption of the new purpose.

But the point is that all the predicated spotting of the firearm would tell Gillard is that, as one would logically expect, this man has a firearm.  It cannot logically convert what was previously a presumption of robbery or theft into, he has a firearm, therefore, it is a contract killing or a deliberate plan to murder.

CALLINAN J:   But how do you reconcile that with the fact that Gillard telephoned to ascertain whether Knowles was present, because Knowles’ presence or otherwise might be totally irrelevant to whether they were going to steal from the workshop?  Why was Knowles’ presence essential to a robbery?

MR PEEK:   But, your Honour, it was not Gillard’s idea to ring up Knowles.

CALLINAN J:   Yes, I know that.

MR PEEK:   You see, he was a person of not high intelligence – if I can at least put that in relation to my client.

CALLINAN J:   It does not matter how intelligent he was, what was the relevance of ascertaining whether Knowles was present or not?

MR PEEK:   If Knowles was a person who was known to carry around large amounts of cash on his person and was a person known to go around the various used‑car trade or whatever he did, if you wanted to, for example, rob him ‑ which would be one reasonable scenario that Gillard might be thinking about ‑ you would need to have him there.  I mean, on this particular occasion, he only had $1,100 on him, although that is not a trifling sum.  He may well been thought to have more on him.

CALLINAN J:   Except the element of surprise - to turn up if Knowles was not there, too bad, if he was there, he could be robbed.  But the telephone call does not sit comfortably, I do not think, myself, with ‑ ‑ ‑

MR PEEK:   Your Honour, of course I understand what you are putting, but, with respect, we say it is completely equivocal in a situation where this whole thing was haphazard.  I mean, can one imagine a less logical process of reasoning of a contract killer than one who goes into the premises and has not got a clue what the man, Les, looks like and we get to this almost farcical situation where he is saying to the first person, “Are you Les?”  The person says, “I am not Les”; bang; “Are you Les?” bang.

GLEESON CJ:   You would have to be pretty slow on the uptake to say “yes”.

MR PEEK:   You would, but you would have to be pretty slow on the uptake not to have done a bit of homework to at least have an idea what he looked like.

CALLINAN J:   Not if you did not care.  I mean, he shot more than person.

MR PEEK:   He did.

CALLINAN J:   Utterly ruthless.

MR PEEK:   Absolutely, but what I am saying – and I do not controvert that for a moment – what I am saying is one cannot necessarily reason entirely logically as to the way that he was going about it, but, more particularly, the way that Gillard would have perceived what was happening, given their past history of probably equally illogical thieving, but at a much lower level.  In other words, what Preston did was not particularly logical and efficient in that regard.  What Gillard would have perceived would not have been something appointed to a murder, but simply ring up and see if this bloke is there.  Okay, he rings up, yes, he is there, right, on we go.

There is nothing within that to suggest a murder as distinct from, “Right, we need him to open the safe.  We need him to get the money off him.  We need him to tell us”, whatever.  Who knows?  None of this was explored.  Gillard just goes on past experience and goes along with it.

KIRBY J:   Now, with this second question, the transcript does not show that the jury then withdrew.  It says that the jury returned.  This is on 1940.

MR PEEK:   Yes.

KIRBY J:   Was it understood that they withdrew after the question and then there was that discussion that followed?

MR PEEK:   I am going to have to ask Mr Millsteed to tell us that in due course because I was not there and I just do not know, your Honour.

KIRBY J:   Anyway, the question that they ask was pretty well on the problem that is now before us.

MR PEEK:   Well, it was, but it was not picked up on by the learned trial judge because he somehow interprets it as a situation of a changed purpose from what was previously thought to be a robbery now to be a deliberate murder simply by seeing the gun.  In fact, the seeing of the gun would simply confirm, if anything, that this was a robbery.

KIRBY J:   It could have.  You see, all of this depends on factual determinations.  A jury could reject entirely your client’s statements and say all of the evidence is consistent with his being involved in the contract killing.  It could say that.  That is why I said earlier that there are factual decisions to be made that either involve your client in the common purpose to murder or in some other lower level common purpose yet to be explicitly defined.

MR PEEK:   But you see what the jury were worried about, both in the first question and now in this one, is not a deliberate predetermined murder but rather a - from the point of view of Gillard - going along, thinking it to be a robbery, a person is in fact shot, could a person possibly foresee that someone might be shot in a robbery, if so, liability for Gillard.  That is really what the question connotes at that page 1944, but his Honour misinterprets the purport of it, to think that perhaps what it means is that here at the last gasp is a sudden flash of light on the part of Gillard, “It’s a murder and my purpose now changes”, and accordingly his Honour directed at the bottom of page 1947, those last four lines:

Ladies and gentlemen, as a matter of fact what you have to consider and decide is whether the purpose of Mr Gillard could change.  Did he go to the workshop with the intention of committing a robbery?  If he saw the gun and the gunman go into the workshop with a gun did he join in a common enterprise to murder Mr Knowles?  Did he become part of that enterprise by participating in that common purpose?  That is a matter that you would have to find proved beyond reasonable doubt ‑

and so forth.  That was not what the jury were on about at all.  What they wanted to know is, look, on the assumption, as Gillard has told the police many times, he thought it was a robbery, but on the further assumption as put by the prosecutor and the judge that he saw a gun, if he could have – and I emphasise that “could” – could have foreseen – not actually foresaw but could have foreseen that someone could have been killed, well, what is his liability then?  Now, in this they have not been adequately assisted by the judge, and what was required was for them to be told it is not a matter of could possibly have foreseen but did in fact become part of the plan or foresee.  That is the first point.

The second point is, of course, the manslaughter scenario because at this stage really that intermediate position is what was really being considered by the jury it would seem.

GLEESON CJ:   Are there any decided cases in which the facts were as Gillard was putting, that is to say in which the driver of a getaway car believes he is aiding an armed robbery and the passenger in the car is a contract killer intent not on robbery but on murder?  Is there any case in which it has been held that those two people relevantly share that common purpose?

MR PEEK:   I am coming to the cases of Reid, albeit not in a car, and Tomkins, which I would suggest are of that type that your Honour has just put to me.  I would suggest both of those are in fact of that type.  So, if I can just finish off on that matter of question 2, one will see that my full submissions in relation to that question 2 are to be found in the reply, and I will not take up the Court’s further time as to what we say about that.

As to the matter of manslaughter, the Court of Criminal Appeal seems to have taken this “all or nothing” approach and it really commences at appeal book 9 2081; if I can go to that now.  The court, just a little prior to that page, noted, on the previous page, 2080 at paragraph 331 that:

The prosecution also submitted to the trial judge that the alternative verdict of manslaughter should be left to the jury.  It was said that if the jury found that Preston intended to commit the crime of murder, but Gillard contemplated that a robbery only might be committed and if Gillard was aware of the fact that Preston was carrying a gun, then there would be a sufficient basis for a finding that Gillard committed the offence of manslaughter.

Then at page 2081 paragraph 332 the Court accepts the authority of a decision of this Court in Gilbert v The Queen and, in those circumstances, paragraph 334:

it is necessary to determine, in the first place, whether a verdict of guilty of manslaughter was open in the case of Gillard.

We have pointed out that Gillard’s claim that he thought he was engaged in a robbery was made in the course of his interviews with the police –

the “nicking, stealing” and so forth.

The prosecution argued that, in addition to these admissions, it was appropriate to take into account that it was open to the jury to find that Gillard was aware that Preston was carrying a gun.  Earlier we expressed the view –

and I should give a page reference; that is at volume 9 page 2079 paragraph 327 of their Honours’ judgment –

that it was open on the evidence for the jury to find that Gillard saw Preston with a gun.  However, if it is assumed that he contemplated only a robbery, it is more difficult to find support for a finding that he nevertheless knew the gun was loaded.  Nevertheless, as we have said, the prosecution based its argument that manslaughter was open in these circumstances on the ground that Gillard contemplated that the robbery attempt would involve an unlawful and dangerous act.

Now, the ballistics evidence was not unimportant in this regard as to the observation that would have been made of that gun if it had been observed that the gun was being cocked, as the prosecution said that it must have been.  Sergeant Golding gave that evidence at volume 2 pages 381 to 382, in particular.  There is a question as to how the magazine is inserted – that does not really matter so much.  Then at line 32:

Can you demonstrate to the jury what’s involved in loading the pistol and then firing it.

Now, if I can have the Marshal hand to me that exhibit ‑ ‑ ‑

HAYNE J:   Why should we have the benefit if you conduct an experiment with a gun when we know nothing of your training in firearms, and why should any gun be presented in this courtroom?

MR PEEK:   I do hold a firearms licence, as a matter of fact.

HAYNE J:   I am not interested in that, Mr Peek.  I am not interested in, for my own part, having counsel produce and start operating the mechanisms of firearms.

KIRBY J:   It sounds like new evidence, anyway.  It is a different evidence; it is not in the record.

MR PEEK:   No, I was not going to do anything more than exactly what was said by Mr Golding in those lines immediately following line 32, simply, in fact, indicating to the Court what was indicated to the jury, namely, the cocking lever and the apparent movement of the pistol.

GLEESON CJ:   What was the point of all this?  Was the point of all this to demonstrate that bearing in mind what he ultimately did when he got into these premises, Preston must have, in the presence of Gillard, gone through a procedure that could hardly have escaped Gillard’s attention?

MR PEEK:   Yes, that is part of it, your Honour, but what followed from that, importantly, was that the very fact that that cocking procedure was performed was redolent of the fact that this was a loaded, as distinct from an unloaded, gun because there was no point in going through that cocking procedure other than to charge a cartridge into the chamber from the magazine.

GLEESON CJ:   We know the gun was loaded.

MR PEEK:   We do.

GLEESON CJ:   Preston went in and started blazing away, did he not?

MR PEEK:   Yes, your Honour, but the question is whether Gillard knew that the gun was loaded.

GLEESON CJ:   But I suppose the factual question was how Preston could have got himself into a position to go in and start blazing away without Gillard having noticed that he had put himself in that position.

MR PEEK:   Yes, your Honour.  I am not disagreeing, but the point I am making is this.  The Court of Criminal Appeal seemed to perceive a difficulty in the sense that they considered that there was not evidence, or may not have been evidence to show that Gillard knew that a loaded gun, as distinct from an unloaded gun, was being used and to that extent and for that reason the court ended up by rejecting a proposition put by the appellant because, for example, they said at page 2085, about halfway down:

it cannot be said in the present case that, if Gillard contemplated no more than robbery, that there was an ever‑present and real risk of a killing in some way.

Now, we say that it is important to know that if you are accepting the cocking procedure and so forth, bringing to the attention of Gillard the presence of the gun upon which the jury have based their second question, what that also brings to the attention of Gillard is that you are talking about a loaded gun rather than an unloaded gun as indeed was the point made by Justice Windeyer in Pemble v The Queen.  Can I just read from the passage that I have reproduced in my submission at page 7, paragraph 32?  It was a rifle but the situation is exactly the same, namely, a cocking procedure which would be observable.  His Honour said of the accused:

The only explanation that he gave was that he had the rifle intending only to frighten the deceased with it and that he discharged it accidentally.  This does not stand easily with his having first sawn the weapon to make it shorter, and later having cocked it carried it close to his victim keeping his finger on the trigger.  His statement that he did not think the weapon was loaded hardly accords with what, in that event, would be a purposeless pulling back of the cocking piece –

and their Honours go on.

KIRBY J:   How do we know when the cocking took place?  I mean, there was evidence that the actual shooting did not take place in the sight of Mr Gillard.  He is sitting out there in the car with the radio on, so he says to the police, so that for all we know the cocking took place on the way that Mr Preston was - on his way into Mr Knowles’ shop.

MR PEEK:   The answer is this, that in that ‑ ‑ ‑

KIRBY J:   These are factual matters that have to be elucidated or decided by the jury.

MR PEEK:   In that way that the prosecution put it in their argument, and I think I have given the Court the reference to this, much was ‑ ‑ ‑

KIRBY J:   It all seems rather remote.  There are factual determinations to be made.  One of them – one of them – is that Mr Gillard thought he was going to a robbery.  He may have known about the gun; he may not have known about the gun.  The judges can have their speculation and so on, but the issue is whether or not the jury should have had a chance to pass upon an innocent – or not completely innocent, but a non‑murder possibility apart from acquittal. 

MR PEEK:   That is right.  All I wish to say in answer to that, your Honour, is that it was an important part of the Crown argument put to the jury that you can infer that Gillard saw the gun by virtue of the fact of the necessity of a cocking procedure, by virtue of the fact that the gun had to be removed and made ready and so forth. 

KIRBY J:   Yes, but it requires a factual determination.  You cannot have judges usurping the function of the jury in making that determination, it seems to me. 

MR PEEK:   But one needs to proceed, in my submission, on a basis that the jury may well have accepted that argument, bearing in mind it was endorsed strongly by the trial judge, and bearing in mind that they prefaced their second question on the basis of an acceptance of Gillard seeing the gun.  Now, we say the prosecution cannot have it both ways.  If they use that evidence of a cocking procedure being necessary and therefore it being established that Gillard saw the gun, one also sees the logic of the fact that that would be redolent of a loaded rather than an unloaded gun for the reasons that I have given.  I rest on the evidence of Golding, who makes it pretty plain as to the observable nature of the cocking procedure in this weapon, and the comments, which are on all fours in this regard, of Justice Windeyer in Pemble.  The matter of cocking could only be referable to the charging of a loaded gun.  Now, if I can go to the New Zealand case of Tomkins, which the Court was referred to ‑ ‑ ‑

GUMMOW J:   What will that show us? 

MR PEEK:   Well, this is actually a case of the type that his Honour the Chief Justice put to me earlier, and it will show an acceptance by the New Zealand court of the principle for which we contend.  So if I can just ‑ ‑ ‑

GUMMOW J:   Sir Robin Cooke’s judgment. 

MR PEEK:   Yes, indeed, that one. 

KIRBY J:   Actually, I found Sir Robin Cooke’s judgment quite helpful here, because he does explain one reason why, if there is a possibility, manslaughter should be there in the practical world of jury assessment, that they may think it is too harsh to return the verdict of murder.  It seems to me that this is the practicality of what the alternative verdict of manslaughter is doing, and the questions to the jury in this case seem at least to indicate that they were worried that their choice was between murder or an acquittal. 

MR PEEK:   Yes, and that is one of the reasons we heavily rely on this case of Tomkins.  Can I just take the Court ‑ ‑ ‑

GUMMOW J:   But there is no issue, is there, that murder was open, that there was a view open of common purpose which would encompass liability for murder? 

MR PEEK:   There had to be evidence which established that ‑ ‑ ‑

GUMMOW J:   No, I am just trying to find out – did you agitate that in the Court of Criminal Appeal? 

MR PEEK:   If the evidence established that Gillard was an express party to a plan with Preston to murder, of course, he would be liable for murder.  He was there taking part in it, on that hypothesis. 

GUMMOW J:   Yes, I understand that, but you did not say that there was no evidence that could rise to that submission ‑ ‑ ‑

MR PEEK:   Yes, we did.  Most certainly. 

GUMMOW J:   You did.  What happened to it? 

MR PEEK:   We failed on that ground. 

GUMMOW J:   That is right, and you do not renew it here, or you did not get special leave. 

MR PEEK:   Well, your Honour, we did, in the draft grounds of appeal at the special leave hearing. 

GUMMOW J:   Yes, I know, but you do not have special leave to deal with that. 

MR PEEK:   That is the problem.  It is not for want of trying, as it were.  I do not know that the draft grounds of appeal for special leave are in the appeal books, but certainly ‑ ‑ ‑

GUMMOW J:   The question is – anyhow, I will not say that. 

MR PEEK:   Certainly, it was being pressed at all available stages that ‑ ‑ ‑

GUMMOW J:   Unsuccessfully. 

MR PEEK:   Unsuccessfully, yes. 

CALLINAN J:   All that you would need is a common understanding or a common arrangement, is it not?

MR PEEK:   For murder, your Honour?

CALLINAN J:   Yes.

MR PEEK:   It has to be gauged to the crime of murder.

CALLINAN J:   Yes, but a common understanding or arrangement between Preston and Gillard.

MR PEEK:   That Preston would go and kill?

CALLINAN J:   Yes.

MR PEEK:   Yes, that is true.

CALLINAN J:   Yes.  That is all you would need.

MR PEEK:   Yes.

CALLINAN J:   That inference could be drawn from the evidence?

MR PEEK:   We would not abandon our submission that in fact it could have.

GUMMOW J:   You are not ‑ ‑ ‑

MR PEEK:   I know but I mean ‑ ‑ ‑

KIRBY J:   You are not here on that submission.  We are not going to go back on that.

MR PEEK:   No, we are not on that submission.

KIRBY J:   The question is, given what he said to the police and given his general situation, there was an alternative.

MR PEEK:   Yes.

KIRBY J:   A legally admissible hypothesis.

MR PEEK:   Yes.

KIRBY J:   It just seems to me it is pretty hard to say there was not.

MR PEEK:   That is our contention.  We are limited to that contention.

KIRBY J:   And the Crown agrees that there was and has always been saying – you are in furious agreement about this.

MR PEEK:   Yes.  Can I just take the Court through Tomkins because it is probably one of the most important cases we say.

GUMMOW J:   This is for the purpose of showing that the Full Court in South Australia was wrong?

MR PEEK:   Yes, it is.

GUMMOW J:   Did they refer to Tomkins?

MR PEEK:   Yes, they did.

KIRBY J:   They referred to Markby.

MR PEEK:   They did refer to Tomkins as well as Markby, your Honour, yes.

GLEESON CJ:   Page 2085.

MR PEEK:   Yes, 2085 is where they reproduce a portion of that judgment upon which we attempted to rely, but appear to have dismissed it in the following four lines immediately below.  We submit that there is indeed an ever present and real risk of a killing occurring in the course of an armed robbery because of the exigencies of the situation that may occur.

HAYNE J:   That may be, but their Honours begin their reasoning in this respect at paragraph 339, or in fact earlier, but 339 is relevant and the first sentence of 339 where their Honours say that:

If Preston had murder in mind and Gillard contemplated a robbery only, it is difficult to identify a relevant common criminal purpose.

So their Honours are searching for common purpose in pursuit of common criminal design which appears to be defined with a degree of precision.  The common criminal design that their Honours say would need to be established is criminal design either to rob or criminal design to murder and if one thinks one but the other thinks the other, no common criminal design.  That seems to be the essence of their Honours’ reasoning, does it not?

MR PEEK:   We would wish to contend against that and instead suggest that, for example, the case or the approach as we see it in Tomkins and some of the other cases is to be preferred to such an approach.

GLEESON CJ:   It does seem to produce an odd consequence.  It seems to produce the odd consequence that if you think you are acting as the getaway driver for an armed robber and you are, you are up for manslaughter, but if you think you are acting as the getaway driver for someone who is actually a contract killer, you are innocent.

MR PEEK:   Exactly our point, your Honour, with respect, whereas in fact there should be open to the jury fulfilment of that innate wish to find an appropriate verdict against a person who, ex hypothesi, is guilty of serious conduct.

GLEESON CJ:   As Justice Hayne’s questions indicated, it depends on the level of particularity at which you identify the common enterprise.

MR PEEK:   It does but we would go with the approach of Sir Robin Cooke in that regard.  In that case, and it points it up in a quite interesting fashion, as his Honour says, what originally happened in the matter of Tomkins was that there had been an earlier appeal against a conviction for murder in which the matter had not been considered at the depth in which it was in the second decision and as a result of submissions that were then put the court quashed the original conviction of Tomkins for murder and ordered a new trial.

In that original judgment of the New Zealand Court of Appeal the decision in Reid and, indeed, Markby, had been relied on to say that there could be that differential or that intermediate position of manslaughter.  So it was at that retrial counsel for Tomkins relied on that approach and Tomkins indeed was found guilty of that intermediate verdict.  What happened then was that apparently a gaolhouse lawyer got into the ear of Tomkins, who was in custody, and suggested that manslaughter was not open in such circumstances, and consequently Tomkins appealed a second time out of time to argue that manslaughter would not be appropriate.

The court on this occasion, therefore, found it necessary to consider very much the point with which this Court is concerned, and found after a consideration of the relevant authorities that manslaughter was appropriate.  At page 255 just above line 15 his Honour says:

The availability of manslaughter as a verdict in such cases gives effect to the community’s sense that a man who joins in a criminal enterprise with the knowledge that knives (or other weapons such as loaded guns) are being carried should bear a share of criminal responsibility for an ensuing death; but that, if he did not think that the weapons would be intentionally used to kill, it may be unduly harsh to convict him of murder.

Then his Honour immediately goes on to say that that had been “rationalised in various ways” in the past, but then going on to approve the view expressed by Lord Justice Lawton in Reid in that passage which his Honour then sets out and which indeed was the passage set out in Markby, set out by Chief Justice Gibbs in Markby, with apparent approval.  So that is the approach that his Honour takes.

KIRBY J:   It does get down to whether the common enterprise has to be precise and in agreement as to the homicide, or whether it is enough that the common enterprise is doing some serious criminal offence.

MR PEEK:   Yes.

KIRBY J:   It really presents an issue of principle that we have to resolve, it seems to me.  Do the English courts take the same view as the New Zealand court?  Is Reid Lord Justice Lawton’s judgment, is it?

MR PEEK:   Yes, can I just read one further passage ‑ ‑ ‑

GUMMOW J:   Well, wait a minute.  Did we not solve this in McAuliffe?  The plan in McAuliffe was just to go to this place at Bondi and bash them.  In fact they murdered someone.

MR PEEK:   Yes, but I do not think this particular matter with which we are presently concerned as to the differential verdicts ‑ ‑ ‑

GUMMOW J:   But there was no common purpose, no common purpose to kill anybody.

MR PEEK:   I do not know that the present matter ‑ ‑ ‑

GUMMOW J:   Does it not illustrate the point that what is involved is the level of abstraction at which you find the common purpose?

MR PEEK:   Yes.

GUMMOW J:   And what is that level of abstraction.

MR PEEK:   We would submit it is ‑ ‑ ‑

GUMMOW J:   And you will not find it in that New Zealand judgment.  You will just find notions about what seems to be a fair thing from the point of view of the public interest.  But we are trying to work out the principle of criminal liability.

MR PEEK:   Yes.  We submit that his Honour Sir Robin Cooke was intent on that principle of criminal liability and how it should be formulated.

GUMMOW J:   How is it formulated?  According to Lord Justice Lawton?

MR PEEK:   Can I just read the last passage on the last page of Tomkins ‑ ‑ ‑

GUMMOW J:   That is so, is it not?  It is an adoption of what Lord Justice Lawton said.

MR PEEK:   Yes, but there is something more that Sir Robin Cooke says at line 23 on the last page of the judgment, where he says:

The common feature of the rather less grave cases is that the subjective foresight necessary to make the accused guilty of the murder as a party is lacking.  Nevertheless he will be guilty of manslaughter if the jury are satisfied that he knew that, as knives were being carried, a killing could well eventuate - even by their use in some way or circumstances totally unexpected.  Of course manslaughter varies greatly in gravity . . . 

Accordingly in joint enterprise cases where an accused is charged with murder as a party it may be appropriate to direct as follows.  He will be guilty of the murder if he intentionally helped or encouraged it.  He will also be guilty of it if he foresaw murder by a confederate, and in the kind of situation which arose, as a real risk.  But if he knew only that at some stage in the course of the carrying out of the criminal plan there was a real risk of a killing short of murder, he will be guilty of manslaughter.  So too if he foresaw a real risk of murder but it was committed at a time or in circumstances very different from anything he ever contemplated:  so different that the jury are not satisfied that the murder should fairly be regarded as occurring in the carrying out of the plan.  In the latter case they can still convict of manslaughter if satisfied that he must have known that, with lethal weapons being carried, there was an ever‑present real risk of a killing in some way.

Now, that is exactly in point in what we have here, those last comments by his Honour, where his Honour is specifically saying that if this secondary party thinks that something is happening which is entirely different to the reality but, nevertheless, on the knowledge that he has or on the belief he has there would be a real risk associated with such conduct, then he may be guilty of manslaughter, even though ‑ ‑ ‑

GUMMOW J:   What do we mean here by manslaughter is another question too.  It is not just some sort of fall‑back idea.

KIRBY J:   It is a homicide other than murder.

MR PEEK:   Yes.

KIRBY J:   The danger of this theory is that it lends itself very much to compromises by juries, that instead of focusing their attention rigorously on whether there was a common design for the actual offence that occurred with what I will call the principal, they could be tempted into obfuscating that common design and saying, “Well, we think it is a serious matter and, therefore, we will not convict him of murder but we will convict him of manslaughter”.  Sir Robin’s answer to that is that is just because if you go around with knives or shotguns and other weapons of that kind, then you have to be aware that sometimes people will get killed.

MR PEEK:   That is right, and that area is really the area of debate in Gilbert to a large extent because, of course, in Gilbert it was being said if you take a very rigorous approach to the matter, then if you have an accurate direction on the elements of murder and a finding of murder, what does it matter that manslaughter was not put to the jury.  That is where the majority and the minority differed in Gilbert, but the majority approach was that it very much matters because that is to put context and reality to the debate in the jury room because, of course, the obverse of the position that your Honour Justice Kirby puts to me is that you may have a situation where people in the jury room are horrified at the use of a firearm in this case, as, of course, they would be, and, of course, are driven to the necessity of convicting for murder rather than doing what they consider to be ridiculous and find not guilty of any offence in a situation where, clearly, Gillard has been guilty of a serious criminal offending.  So either way can be put.

HAYNE J:   Can I just take you back to what the Full Court said at 339.  One has murder in mind, the other contemplates robbery.  There is a distinct ambiguity in what their Honours are there saying when they speak of Gillard contemplating robbery only, the ambiguity that has been elucidated by the Chief Justice’s several questions to you.  There could be several levels at which these men had a common purpose:  one, they could have both intended that there should be a killing; two, they could have both intended that there would at least be the commission of grievous bodily harm; three, there could have been a common intention that a weapon would be presented to frighten – perhaps to frighten for the purpose of robbery, perhaps to frighten simply for other purposes – or there could be the circumstance which seems to be what the Full Court is speaking about where one thinks that all that is intended is to steal, to take the bag of sweets off the reception counter while no one is looking, whereas the other is going in to commit an assault.  Now, what do you say is the relevant level of abstraction of description of common purpose?  Would it suffice if both men intended that a weapon should be presented to frighten?

MR PEEK:   I take it your Honour is putting to me it would have been sufficient if Gillard thought that a weapon was to be presented to frighten but Preston, of course, always had the underlying purpose of a contract killing.

HAYNE J:   He intended to present a weapon and fire it.

MR PEEK:   And fire.  That is what I assumed that your Honour was putting to me.  On that basis we would say that Gillard could be convicted of manslaughter, on the right approach, because the prosecution is putting in advancing its case of murder, “Look, there is evidence to suggest and to establish that Gillard saw the gun”.  The Court of Appeal said that there was evidence upon which that could be found.  The jury has clearly proceeded along those lines, at least by the time of the second question, so what we have then is a situation where, on the one hand, Gillard is of the belief that a man is going in with a loaded gun, or a gun that is quite possibly loaded, for the reasons that I have already put, and that on the other, Preston is in fact going in with a loaded gun.

The upshot is that one or more persons are tragically killed.  The point we make is this, that that can happen in the situation where the man in the position of Preston was indeed going in for a robbery, but because of some sudden movement or a fall or a slip the gun goes off.  Now, the harm, therefore, is exactly the same.  You have a dead victim.  The behaviour contemplated by the man in the position of Gillard is serious criminal behaviour running the risk of that result which eventuates.

Our contention, in line with, for example, the case that I have just been on in New Zealand, Tomkins, is that in that situation manslaughter is and should be available.  Insofar as the court took a more rigid approach in South Australia it was wrong and to some extent, of course, that would appear to proceed from a failure to appreciate that there was a real risk associated with the carrying in of this gun and that Gillard would have appreciated that.  If I can go to the case of Reid (1975) 62 Cr App R 109, at my page 10, paragraph 41.

GUMMOW J:   Have you quoted from more than the passage at page 112?

MR PEEK:   No.  That is really the pith and substance of it, your Honour.

GUMMOW J:   We have been taken to Markby, have we not?

MR PEEK:   And Markby approved of ‑ ‑ ‑

GUMMOW J:   Why do we go to the English Court of Criminal Appeal when this Court has endorsed something?  We go to what this Court said.

MR PEEK:   Your Honour, I have to be careful in not putting ‑ ‑ ‑

GUMMOW J:   South Australian counsel always do this.

MR PEEK:   I am trying to be careful, your Honour, because I appreciate that in Markby the particular question that is taxing this Court is not perhaps directly in issue, whereas it was directly in issue in Tomkins and it was directly in issue in Reid, so that is why I am just trying to be a little bit careful about the matter.  But, in Reid what happened was that the accused accompanied two other persons, apparently members of the IRA, to the house of the victim.

Now, the appellant was convicted only of manslaughter in circumstances where the others were found guilty of murder.  The appellant was found, on a separate count in the indictment, to have been in joint possession of a revolver, a knife and an imitation pistol with the other offenders.  In those circumstances Reid argued consonant with the approach of the South Australian Court of Criminal Appeal, I suppose, that he could not be convicted of manslaughter in such circumstances.

It is against that factual background that we have these statements of principle, and I will just take it from my extracts at page 10 of the outline.  First, you have to ‑ ‑ ‑

GUMMOW J:   Just a minute.  Now, you took us to Tomkins.

MR PEEK:   Yes, your Honour.

GUMMOW J:   Did Tomkins disagree with Markby?

MR PEEK:   No, Tomkins did not disagree with Markby.  In Tomkins (No 1), which I have not taken you to ‑ ‑ ‑

GUMMOW J:   Well, it says, in a rather dismissive way, does it not: 

Without dismissing the alternative theories as untenable, we prefer –

as expressed by Lord Justice Lawton.  Are you inviting us to depart from Markby because of what is said in Tomkins?

MR PEEK:   I am suggesting that Markby does not address the matter presently before the Court.  In other words ‑ ‑ ‑

GUMMOW J:   But Tomkins does.

MR PEEK:   Tomkins does, so does Reid.  Insofar as Markby goes, it is in our favour, because it is very strong in terms of differential words, that you may have manslaughter for one, murder for another.  It is just a question of refining the matter to the present factual situation.  Tomkins makes that bridge, so does Reid, we say, because in Reid you had that situation where it was being contended that manslaughter was not open, because you had a situation where all you could infer from the evidence against the appellant was that he knew that offensive weapons were being carried, and you could predicate against him a knowledge of a kind of harm, namely causing fright by threats.  You could not predicate anything further.  So the question was, could his verdict of manslaughter be upheld on the basis of that factual matrix?  The answer was that it could.

The appellant, as the court said, did not intend either death or serious injury, but what happened was that the others went way beyond anything that he ever envisaged or agreed to and, in those circumstances, we submit that the court decides that a deliberate murder by person B will lead to a verdict of manslaughter against A, when A has no more than a belief that weapons may be used to frighten.  That then takes us to that passage of principle – and I do not read it again – which was, in fact, endorsed in Markby and Tomkins.  Namely, you look at the joint possession of offensive weapons, you look at circumstances justifying an inference that the very least that is intended is to use to cause fear and you have an actual death; it follows from that that manslaughter is available, say these decisions.

We do submit, at my paragraph 42, that Chief Justice Gibbs does reproduce the passage in Reid with apparent approval and we say that it should be accepted in relation to the factual situation here.

GLEESON CJ:   Do you, in your written submissions, or could you in your oral submissions, state shortly what the direction should have been?

MR PEEK:   Yes.

GLEESON CJ:   In other words, leaving aside questions of onus of proof, what possible view of the facts could the jury have taken that would have resulted in the verdict of manslaughter?

MR PEEK:   Can I just go back to my page 8 paragraph 36 and onto the next page, which I think addresses that, and it is the principle contended for by the appellant.  Paragraph 36, we say this, disengaged from the onus of proof, that, first of all:  a person will be guilty of unlawful and dangerous act manslaughter if he or she deliberately performs an act which is unlawful in circumstances where a reasonable person would have realised that he or she was exposing another to an appreciable risk of serious injury – Wilson v The Queen.  It, to that extent, is largely objective. 

Secondly, that the Court of Criminal Appeal erred in its consideration and application of that doctrine to the situation where more than one person is charged with murder.  Thirdly, the law is, or should be declared to be, as follows, and then there is – it should be 37.1, not 15.1 ‑ where A intentionally takes part in an enterprise with B knowing that it involves the commission of an unlawful and dangerous act ‑ ‑ ‑

GLEESON CJ:   Maybe you would like to add, after the word “involves”, knowing that it involves “at least” commission. 

MR PEEK:   Yes, your Honour, thank you.  It involves at least the commission of an unlawful and dangerous act – but, of course, your Honour, apropos that, in my footnote 37, you must not go so far as to have the mental element for actual murder – so that is the caveat – against a particular person or class of persons, and that person or a member of that class of persons is killed by the infliction of violence by B, A will be guilty of manslaughter provided that a reasonable person in the position of A would have realised that the type of enterprise in which he believed he was taking part would expose another to an appreciable risk of serious injury. 

Now, that is the principle for which we contend, and that will be so despite the following matters which may occur:  that the person who inflicted the violence had a different object, intention or motive than A, as in the present case; that he harboured from the beginning an undisclosed intention to murder; that he misrepresented his true object or intention; or indeed, that he is convicted of murder for the conduct. 

It is submitted that when you are talking about the scope of the enterprise, such as one finds in cases such as Anderson and Morris, Varley v The Queen and Markby, you are not concerned with subjective intent really but rather what is seen to be, as a matter of reality, the scope of the enterprise.  In Varley, for example, the cosh was produced and used, whereas that had never been known by the accused.  The Court, Chief Justice Barwick, approached the matter as to whether that could objectively be said to be within this scope. 

Such cases proceed to adjudge the degree of possible violence that should be deemed to be within the possible range of outcomes or incidents of the type of enterprise that was envisaged by the accused.  We say that is largely a public policy approach, really, when one comes right down to it. 

KIRBY J:   You say that, but I can understand the alternative view that it is fundamental to our criminal legal system that you have to have concurrence, normally – its statute apart – of the criminal act and the criminal intent, and if there is not concordance of the criminal intent, if the criminal intent of A is to go there being a driver in a car, and in goes B and murders somebody, that the problem with this theory is it gives a very easy way out.  I can see why the Crown would want it because it in a sense invites a jury, if they think, well, it is a pretty nasty thing to go in a car and you may see there is a weapon, and weapons tend to go off, and therefore you should be liable, you should not walk away free, it has a tendency to take your eye off the ball of the criminal justice principle that there has to be the coincidence of the criminal act and the criminal intent with a high degree of specificity.  That is the argument to the other side. 

MR PEEK:   That is, but within that formulation that your Honour puts to me, one just remembers a case such as Varley, where the accused thought that they were going around to give someone a beating of some sort, but he did not realise that weapons were going to be involved, and in fact a fairly lethal cosh was involved.  It was held that that was within the objective ambit of that sort of enterprise.  So, to some extent, there is consideration, as a matter of public policy, what sort of incidents should be considered to be part of an enterprise, even though they were not specifically agreed upon or actually foreseen. 

Now, we say, proceeding from that basic premise, that you have here a different class of case to those cases.  Here, on the postulated argument to the jury and as put by the judge, you can make a direct comparison between the appreciable risk of serious injury envisaged by the accused person – here, on the prosecution case, the knowledge by Gillard of the proposed use by Preston of the loaded Luger pistol – and the act causing death, namely, the use of that very pistol. 

It is submitted that in that sort of case, which is rather different to the others, there is no need to be concerned with objective assessments of whether the use of a particular weapon might be said to be within “the enterprise” since it is already known that such use was actually envisaged by the accused person.  So in that type of case we say that the approach in Reid in England and in New Zealand comes to the fore and that indeed would have been, if it had been specifically formulated, approved by Acting Justice Gibbs in Markby, from what he did say.

KIRBY J:   It does involve an extension of this semi‑fiction that a person is liable, though on your client’s say‑so he had no knowledge or intent that the gun should be used.  It is true he is liable only for manslaughter but as the judges say, as Sir Robin Cooke says, that covers a whole range and you deal with that in part in sentencing, but it, as it were, links him in whereas on his say‑so he is simply a getaway man.

MR PEEK:   He is, but as the Chief Justice put to me earlier it would seem very strange that a person who thinks he is in on a robbery and the gun goes off accidentally is guilty of manslaughter, whereas if he thinks it is a robbery but in fact the other person was there for a murder and the gun goes off deliberately he is not guilty of anything.

KIRBY J:   You say it is strange, but in our system of criminal justice you punish people for criminal acts that they intend.  The fact that somebody else has an intention is not burdened on his conscience and on his criminal liability.  He can be perhaps prosecuted for some aiding and abetting offence or for some other offence.  I am sure there would be offences of which he could be charged, but to link him in with a homicide when he just thought he was a getaway person is, as it were, obfuscating the principle in order to make it easier to get a conviction of some kind.

MR PEEK:   Yes.  We say two things in response to that.  First, the obverse side of the coin is that the jury is faced with an unrealistic choice between a complete acquittal and a complete conviction of manslaughter which may drive them to the conviction, whereas they would be much more discerning and scrupulous if they had the full ambit before them.

Secondly, but allied to that, is the fact that, of course, although Gillard could be said to be guilty of a range of matters such as accessory after the fact, the theft of the van, the arson of the van and so it goes on, none of those are on the indictment.  So once again a very stark position is being put to the jury, “Let him off entirely or convict him”.

KIRBY J:   Could the jury not be told that there may well be other offences ‑ ‑ ‑

MR PEEK:   They never were.

KIRBY J:   No, but I am saying if you are looking - you have to look at this as a matter of principle you see.

MR PEEK:   Yes.

KIRBY J:   What worries me a little is that this then becomes the easy way out, and no doubt that is attractive to the Crown, for a lesser serious involvement but without the homicidal intent.  People get linked in to the homicide which is far from their mind, absent from their mind.

MR PEEK:   Your Honour, it is no different really if the man were charged with manslaughter per se.  In other words, that charge can be defended rigorously.  If he is charged with murder but with the alternative verdict of manslaughter, manslaughter can be resisted if that is the factual scenario being put forward by the accused.  It is hardly unusual for there to be a graduation of offences in the criminal law, from attempted murder, wound with intent, all the way down the card.  Now, no one suggest that the availability of those alternative verdicts necessarily means that there is some compromise by the jury in selecting one.  Rather, we assume and go on the basis that the jury will follow the directions of the judge in relation to the various verdicts.

Here we are simply saying that rather than a cascade of alternatives there is just the one really and that is manslaughter, and if manslaughter is being resisted by the accused, then it is a matter of a rigorous summing up as to what is required and a rigorous defence.

HAYNE J:   But the premise for that is that the lowest common denominator of agreement between the two men was that there would be the presentation of a weapon and that in the course of that unlawful and dangerous act death resulted, but you start from the identification of a common design to the extent that there was a common design that a weapon would be presented.

MR PEEK:   Yes, that is our argument, that is right, and we say that the proof of that common design, coupled with the death, really means this, that here is a man who in fact made a decision, “I will run the risk of aiding and abetting” – he is the driver so he is aiding and abetting – “a person who is going to carry out a robbery in circumstances where there is a real and appreciable risk of someone being killed” – because guns do go off – “I will run that risk”, and he is in fact in a situation where a man is killed.

KIRBY J:   You are sounding more and more like Crown counsel, Mr Peek.  You see we have to be guardians of legal principle here and you have to try to win the appeal for your client, but your predecessor took what on one view was the stance of principle and you lost that and so it is natural and proper that you are now trying to get something less.  But I am just anxious that you are going to jointly lead us into a deviation from where principle seems to lead in this case.

MR PEEK:   We would say, no, because can I come now to the latest position of the South Australia Court of Criminal Appeal which is in fact in accordance with the principle for which we contend and, as I say, unfortunately this case of Gillard and Preston does not appear to have been cited to the Court of Criminal Appeal in Zappia, but can I take the Court to Zappia.

KIRBY J:   Are you going to start with Chief Justice King because he is always worth reading if ‑ ‑ ‑

MR PEEK:   Yes, Zappia does deal with Chief Justice King, but I am quite happy to deal with that standing alone.  I am at page 12 of ‑ ‑ ‑

KIRBY J:   He was a great Chief Justice and a South Australian.

MR PEEK:   Yes, your Honour, I am certainly not going to quarrel with that.  Collie Kranz and Lovegrove is referred to at my page 12 paragraph 47 and I think we can get the pith and substance from it from that extract really where what occurred was the deceased was abducted by several men, including Lovegrove, deliberately shot by someone other than Lovegrove, everyone was convicted of murder.  The question was as to whether Lovegrove should have had manslaughter left to the jury.  His stated position was:

that he thought that the deceased was being abducted for the purpose of interrogation only and that he was unaware of any intention to kill . . . The effect of the statement is that, unknown to Lovegrove, his companions harboured from the beginning an undisclosed intention to murder the deceased.

In those circumstances, his Honour Chief Justice King considered that manslaughter was not open.  His Honour said:

The statement also conveys that murder was not within Lovegrove’s contemplation.  In those circumstances, if the death of the deceased resulted from the unlawful and dangerous act, Lovegrove would be guilty of manslaughter . . . But not all deaths occurring in the course of an unlawful and dangerous enterprise which does not include murder in its scope results in criminal liability for manslaughter on the part of the participants.  Questions of causation arise.

In the particular circumstances, his Honour thought that causation was not satisfied.  Now, of course, the facts are not on all four with what we have before us and the present case really presents a stronger case for manslaughter, we would say.  Secondly, the decisions in Tomkins and Reid do not appear to have been considered in Collie Kranz and Lovegrove.  Thirdly, we come to Zappia in which a factual situation very much closer to what we presently have before us was in contemplation and in which those other decisions were carefully considered.  I am now at page 13, paragraph 49 of the outline.  Perhaps I should take the Court to Zappia (2002) 223 LSJS 155.

The first passage that I have extracted appears at page 159 paragraph 27.  So we have the trial judge directing the jury that if one found that the man who fired the shot:

Mr Kamleh’s purpose was similar or even went further and involved the killing or inflicting of grievous bodily harm on Mr Rasti, then this element is made out.

That is to say the relevant common criminal purpose or joint criminal enterprise.

Now, it was in that context that Zappia was convicted of manslaughter and appealed on the basis that the circumstances left no room for manslaughter, relying on the approach of Chief Justice King in Collie.  Chief Justice Doyle at page 160, paragraph 66, much later in the judgment after his Honour dealt with other matters, picks up the appellant’s submission.

KIRBY J:   Which paragraph?

MR PEEK: Paragraph 66 LSJS 170, not 160. In that paragraph 66:

Mr Cuthbertson submits that the Judge erred in failing to tell the jury that if, unknown to Mr Zappia, Mr Kamleh intended to kill Mr Rasti from the outset, or if he formed an intention to kill during the course of the incident, and then killed Mr Rasti deliberately, the jury could not convict Mr Zappia of manslaughter unless satisfied that the deliberate killing of Mr Rasti was not an unexpected event completely outside the scope of the joint enterprise.  Underlying the submission is the proposition that Mr Zappia could be liable only for a consequence of the joint enterprise that was within his contemplation as a likely or possible incident or outcome of the joint enterprise.

Now, his Honour notes and considers just about all of the cases that are usually referred to.  His Honour at page 171 paragraph 70 considers the case of R v Anderson and Morris, at page 172 paragraph 72 considers Varley v The Queen, at page 173 paragraph 74 considers Markby, then the next page 174 considers Reid, or the extract from Reid, and at page 175 paragraph 75 considers Tomkins and then considers, of course, the case of Collie Kranz and Lovegrove.

GLEESON CJ:   And this is the point of Chief Justice King’s reference to causation.

MR PEEK:   Yes.

GLEESON CJ:   It is picked up in paragraph 78 of Chief Justice Doyle’s judgment and he explains the decision in Collie on the basis of causation.

MR PEEK:   Yes, that is right, and that is partly why I say we have a stronger situation here than we did in that case, much more in line with Zappia.  The contention that was just below where your Honour was just ‑ ‑ ‑

KIRBY J:   Why is that?  Why is that from the point of view of your client because on his statement he is just a dupe, a getaway person, a dog’s body?  What links him in with the homicide if the other man goes into the shop and shoots three people immediately, ruthlessly, dead, or two of them dead?

MR PEEK:   Only in the sense that he is running the risk that the presentation of a loaded gun will or may cause a homicide, to the use that neutral term, and deliberately runs that risk and a homicide eventuates.  The only difference is whether Preston deliberately from the outset and in concealment from Gillard always intended that or whether he did so on the spur of the moment or by accident.  At page 176 paragraph  79 counsel for the appellant:

Mr Cuthbertson submitted that if it was reasonably possible that Mr Kamleh had an intention from the outset to kill Mr Rasti, then the cause of death was that murderous intention entertained from the outset, and not the dangerous nature of the enterprise into which Mr Zappia entered.

So there is the point being crystallised following on from what your Honour the Chief Justice ‑ ‑ ‑

KIRBY J:   So this is a new offence of being involved in a dangerous enterprise and thereby being convicted of a homicide?

MR PEEK:   Not really, your Honour.  We submit that the way that his Honour looked at it from then on ‑ ‑ ‑

KIRBY J:   On one view, if that is going to the law, Parliament should state it, not the courts.  The invention of new offences is not really the role of the courts now.

MR PEEK:   We submit that this is not being postulated as a new offence but rather a consideration and rationalisation of a number of disparate authorities dealing with different factual situations.

KIRBY J:   But it is a fiction.  It is linking a person into a homicide because of somebody else’s clear intent, though he did not have the intent at the relevant time of that homicide, he had another intent.

MR PEEK:   We would say that really that is not discordant with the overall approach of manslaughter.

KIRBY J:   But you burden him with the homicide intent because he is involved in a dangerous enterprise.

MR PEEK:   Yes, but if a person is singularly charged with manslaughter, the last thing he may have wanted was for a person to die but either through his criminal negligence or an unlawful and dangerous act that comes about.  Now, insofar as you are saying there is some sort of intent to kill or cause death, really that could also be said to be a fiction.  But one does not look at it from that point of view.  One looks at it from the point of view of the willingness to commit an unlawful act and run the risk or, alternatively, from the intention that is associated with the performance of grossly negligent conduct, but either way ‑ ‑ ‑

KIRBY J:   Homicide by gross negligence on your part for the homicide intended deliberately by another.

MR PEEK:   Well, we are not actually talking about gross negligence in our particular case at bar, but what I am saying is that the nature of manslaughter is always to impute rather than to look at actual intention.  It is the very nature of the offence.  Now, when one appreciates that, it is not discordant that you should have a situation where you have more than one person the same sort approach being taken to the participant who does not fire the shot.  The participant in fact has done the same thing.  He has elected to run the risk that a man will be killed as a result or in the course of an illegal enterprise that he is part of.

GLEESON CJ:   Is that a convenient time, Mr Peek?

MR PEEK:   If your Honour pleases.

GLEESON CJ:   We will adjourn until 2.15 pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.20 PM:

GLEESON CJ:   Yes, Mr Peek.

MR PEEK:   Thank you, your Honour.  If I could first answer Justice Kirby’s inquiry of me from this morning as to the ringmaster quotation.  That, in fact, appears at the bottom of appeal book 6 at 1344.  It is not just a one-word answer to your Honour though, because the actual answer by Mr Preston to that question was:

A.  I have just told you the situation.

That in turn is referring to that which preceded that particular last question and what my learned friend at that point was questioning Preston about was a telephone intercept, a conversation between Preston and Gillard, the terms of which, according to the prosecutor – and we say rightly so – showed Gillard in a very subservient role to Preston.  The particular page 1344 – and I invite the Court to look at the rest of it – shows Gillard, for example, ringing up and asking Preston if he was allowed to steal a computer, and so it went on.

Finally, in answer to your Honour Justice Kirby, it would be useful for me to put that into a chronological sequence, which is this, there are three dates to be noted.  On 20 June 1996 Gillard was released from Glenside Psychiatric Hospital.  The reference for that is Dr Raeside at appeal book 4820.  Pretty well exactly two months after that occurred the shootings – two months after he came out of the medical hospital.  The telephone intercepts went in not long after the shootings and then this particular conversation at page 1344 occurred on 2 October 1996 and then, shortly after that, Gillard left and went to Queensland.  So that is how that links in together.

Now, finally other references to the prosecutor’s cross‑examination of Preston in relation to Gillard in a generally similar vein, one can find the references in my table in the written submissions which are before the Court, at page 4 of those submissions, paragraph 15 under the heading “Preston”.  May it please your Honour.

KIRBY J:   The point you originally made was that the significance of the fact was that the Crown asked that question in those terms.

MR PEEK:   Yes.  We say that that question or comment, however you want to put it, was well justified by the whole of the cross‑examination by the Crown, which I have given the references to, and it was a pithy and adequate summary of the true relationship between them.

GLEESON CJ:   How long do you expect to require?

MR PEEK:   I should be finished in half an hour, because my learned friend and I have had a discussion about something which, if the Court accepts that proposition, will significantly shorten what I had to otherwise say; if it please the Court, and I will come to that very shortly.  Prior to lunch I had, I think, got to the end of Zappia and that took me to paragraphs 52 and 53 of my outline at page 14.

KIRBY J:   Has there been any academic writing or professional writing about the problem of principle that we were discussing before lunch?

MR PEEK:   I have looked and I have not been able to find anything that addresses precisely the point we are talking about.  I have nothing to offer in that regard, your Honour.

CALLINAN J:   No commentary about Gilbert, for example?

MR PEEK:   There may well be some comments about Gilbert, and I do want to make a couple of submissions about Gilbert, your Honour.  I was not really talking about that as much as the question of the precise way in which one formulates a joint enterprise, your Honour.

KIRBY J:   It is actually a very interesting and important issue, one would think, of scholarly commentary.  I am surprised that there is nothing on it.

MR PEEK:   Yes.  Well, there may be but I just have nothing to offer either for or against my submission.

KIRBY J:   If you find anything on that, please keep in mind that we do not now require authors to die before we look at what they have to say.

MR PEEK:   So that I could forward that to the Court.

KIRBY J:   A copy to your opponent, but I think it should be sent to the Registrar pretty quickly.

MR PEEK:   Yes, indeed.  So I got to the statement of principle by the present Chief Justice Doyle in Zappia and, of course, Justices Lander and Martin concurred in his Honour’s judgment and approach.  That brings me then at page 14 of my submissions to the matter of the approach of counsel at trial.

KIRBY J:   Have you done an analysis of the other Supreme Courts, the Courts of Criminal Appeal, as to how they stand on this issue, because one would think this is coming up quite often?  I mean, robberies of petrol stations that go wrong and so on.

MR PEEK:   Yes.

KIRBY J:   You have not done an analysis of the other States?

MR PEEK:   Well, I have certainly tried to ‑ ‑ ‑

KIRBY J:   I am not sure whether the Code States would be different, but New South Wales would be sufficiently similar that if it has arisen there in the Court of Criminal Appeal, I would like to be sure that I am aware of the latest jurisprudence of the other States.

MR PEEK:   Certainly.

GLEESON CJ:   Do the facts of Gilbert not actually bear some resemblance?

MR PEEK:   They do.

GLEESON CJ:   The point of disagreement in the Court in Gilbert was not on the question of whether there was a viable case of manslaughter to be left to the jury.  In fact, everybody at all stages of the appellate proceedings agreed that there was a viable case to be left to the jury.  It was the significance of the fact that the jury had returned the verdict of guilty of murder, having been instructed that they could only convict him of murder if they found certain things.

MR PEEK:   That is right, and the application of the then doctrine in Evans and Lewis which has been ‑ ‑ ‑

GLEESON CJ:   Yes, but what actually happened in Gilbert, as I understand it, was that the driver of the car transported another man to a location.  He thought the other man was simply going to assault the victim, whereas the other man intended to do him a great deal more violence.  It is quite similar to the present case, in that regard.

MR PEEK:   Yes, indeed.  If I can jump forward to where I was going to address Gilbert, that is at page 19 paragraph 70, and I wanted to add a reference to the facts in Gilbert which I think your Honour has already sufficiently stated and also to point, without necessarily reading them, to some salient passages in that decision. First, in the joint judgment of your Honour the Chief Justice and Justice Gummow at 201 CLR at 418, paragraph 6, where your Honour says:

From one point of view it might appear that such a direction was unduly favourable to the appellant.  Such an appearance, however, may be deceptive.  Sometimes, when there is a misdirection of law, it is risky to seek to assign the advantage of the misdirection exclusively to one party and the disadvantage exclusively to another.

That has some relevance to the present case.  Then at 420, paragraph  13:

The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges.  It does not involve the assumption that their decision‑making is unaffected by matters of possible prejudice.

Then at 422, paragraph 21, the way that your Honour applied the principles to the case with the test as to:

a rational jury, properly instructed, could have failed to reach the state of satisfaction necessary for a conviction of murder.

We would say that the application for principles and bearing in mind the facts in Gilbert, leads to ‑ ‑ ‑

GUMMOW J:   Is there anything in Justice Callinan’s judgment?

MR PEEK:   Yes, I am just about to come to that, your Honour, and I want to add something to what Justice Callinan said if I can.  The passages in Justice Callinan’s judgment I would like to refer to are at page 440, paragraph 96, where your Honour said:

This is to recognise the reality that a jury room might not be a place of undeviating intellectual and logical rigour.  It is not to say that a jury should not perform their sworn duty to determine a case before them according to the evidence.

Other views have however been expressed.

Then your Honour referred to MacKenzie about:

“[T]he appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count:  a function which has always been open to, and often exercised by, juries.”

Then your Honour’s reference to that proposition in Kirkman which was approved in MacKenzie:

“Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law.”

KIRBY J:   Now, could I ask you to pause there.  I was a party to the decision in MacKenzie, and I was sympathetic, when I read it, to Justice Cooke’s judgment that you read to us this morning in Tomkins, but I wonder if, on a true analysis, the propositions you are urging on us are not such as will result in a merciful verdict, but by obfuscating the principles will lead to the conviction of people who otherwise ought not to be convicted by a correct application of legal principle.  It may be a very small mercy.  You see, that is the aspect of it that worries me.  We have been through it all before. 

MR PEEK:   Yes, I do not know that I can really add to what I have said, with respect, your Honour. 

GLEESON CJ:   The passages that you have read from Gilbert are passages about the matter on which there was a disagreement between the Court.  I would have thought that you would be relying on Gilbert for the point on which everybody was agreed, and you can get that point by looking at the second paragraph in the headnote beginning with the words “The accused” and ending a few sentences later with the words “intended to assault the victim”. 

MR PEEK:   Yes, well, we do submit – and I am sorry, I thought that I was sufficiently taking that up from what your Honour said as to the facts before ‑ but we do submit that the facts are very close as between Gilbert and the present case, such as to, in fact, lead to a certain result in the present case.  I do not know whether the Court wants me to go in detail through the facts in Gilbert, but I invite - the Court already knows them ‑ ‑ ‑

KIRBY J:   I think Justice Hayne on the special leave suggested that Gilbert stood against the proposition which the respondent was putting on the special leave hearing.  I have read the special leave hearing again this morning. 

MR PEEK:   Stood against the proposition that the appeal should not be allowed.  Well, that is right, we agree with that.  It stands in our favour.  The point about MacKenzie and ‑ ‑ ‑

KIRBY J:   Was Justice Hayne’s – I was not a party to Gilbert and I will have to read it carefully, but was his Honour’s dissent along the propositions of principle that I have been raising with you, or different, in your submission? 

MR PEEK:   It is my submission that both Justice McHugh and Justice Hayne, if I can say so, with respect, took the line that the Ross or Evans and Lewis line of cases was determinative of the matter.  That is to say, if you have a correct direction on murder and a finding of murder, then that is the end of the debate. 

HAYNE J:   Because you must assume that jurors listen to what they are told and obey it. 

MR PEEK:   That is right.  That is the approach that your Honour took, as I understood it.  Against that is the approach of the majority and, as I have referred to Justice Callinan’s reference to Kirkman and then MacKenzie, now can I just add an important reference to the latest decision of this Court of which I am aware in this area and that is MFA v The Queen [2002] HCA 53 which, of course, is the latest case on inconsistent verdicts and in which the MacKenzie/Kirkman approach was approved first by your Honour the Chief Justice, together with your Honours Justices Hayne and Callinan, at paragraph 34 and then in the other judgment, being that of Justices McHugh, Gummow and Kirby, at paragraph 85. 

So there were only six Justices sitting.  All, in a fulsome way, if I can say so, refer to and approve the MacKenzie/Kirkman approach.  Now, that approach is an approach away from the strictly legalistic and so as to recognise that juries do wish to, and sometimes do, apply a degree of flexibility, and, importantly, according to the Court, that is no bad thing. 

KIRBY J:   Yes, but I have just suggested to you that the logic of merciful verdicts is all very well and good, but what is of concern in this case is the illogic of unmerciful compromises with principle. 

MR PEEK:   We would submit – and all I can say in relation to that is that if you have a situation where manslaughter is to be put, then it has to be put carefully and with proper directions which restrict the jury to finding, and finding only, a proper verdict of manslaughter as distinct from some sort of compromise guess.

KIRBY J:   Yes, but the facts are infinitely different.

MR PEEK:   Yes.

KIRBY J:   And the extent of the involvement, and extent of the proper knowledge or presumed knowledge or reasonable knowledge of the co‑offender is going to be infinitely different and you say, give proper directions, but in the infinite variety of facts lies the difficulty of formulating words that will give the jury sufficient guidance.  Get this degree of involvement and proper knowledge of the risk of homicide and you can find manslaughter.  Get that degree and you cannot.  I am still in a state of uncertainty as to what your propositions are and how a judge would direct a jury on those matters and in the end we have to say something that gives guidance on that very practical problem.

MR PEEK:   All I can say, I think, is that in many other areas of the law you will find the jury faced with a plethora of alternative verdicts and there too you need proper directions as to the ingredients of each and yet the law shoulders that burden without a feeling of, well perhaps they are going to pick one as a compromise; they are put together with proper directions.  What is being said here is no more than one only proper alternative to murder should be put, namely manslaughter, with proper directions.  So, in other words, it is not a greater burden than faced every day in relation to other charges, such as attempted murder was one example, I think.

KIRBY J:   It is not a great burden, but you have to get the directions clear.  You have to get the concept clear in your brain otherwise you cannot give directions to a lay jury.  That is the difficulty.

MR PEEK:   True.  Well, I have formulated as best I can, and I of course do not repeat it, what I say is the principle in reasonably precise form and I say that fits both with the law as properly interpreted and the public policy as it should be.

HAYNE J:   Does it come to this, that the direction which you say should have been given to the jury would have invited the jury’s attention to what did the accused agree?  One, did the accused agree that Preston would kill the deceased?  Two, did they agree only that Preston would go in, presenting a weapon or, three, did they not agree at all, because Preston was going in to kill and Gillard thought that Preston was going in only to steal?

KIRBY J:   And on that tripartite division of the world, one is, you convict of murder, two is, you acquit of murder but convict of manslaughter and, three, you acquit.

MR PEEK:   That is as I understood Justice Hayne as he was putting to me and, on that basis, I think that is not inconsistent with what I have been putting and no doubt is an improvement on it, but that is our position.  So I have made my submissions in relation to Gilbert.  Can I just go back just to tidy up what I had left out, and I will not be long on this?

HAYNE J:   Well, just before you do that, here we are at 20 to 3 and it would seem to me that we are at last getting to the point of the matter.  The case against you by the respondent is that the proviso should be applied.  I would have thought that the answer that is to be made to that, good, bad or indifferent, is that you can apply the proviso if, but only if, you take account of what the jury found about Gillard’s intention as he was sitting outside the panel shop, and if Gilbert denies the capacity to take account of the jury’s finding on that issue, the proviso cannot be engaged.

MR PEEK:   Yes, I would agree with that.

HAYNE J:   But does it come to that?

MR PEEK:   It is certainly one way of putting it, and I would agree with that.  The other way of putting it is that, of course, the test of the proviso is a very high test.  It has to be inevitable ‑ ‑ ‑

HAYNE J:   That is jury stuff, Mr Peek.  Can we start dealing with a bit of principle rather than the jury address about it.  What is the proposition you are going to advance?

MR PEEK:   Sorry, your Honour.  The proposition I was going to advance was at the appellate level in relation to the application of the proviso on appeal, namely that Mraz and all of those cases say that the court must be of the view that an adverse verdict would have been inevitable before the proviso can be applied.  In other words, the prosecution would have to satisfy the court that the jury inevitably would have rejected a manslaughter verdict had it been left.  We say the facts are redolent of manslaughter, so are the questions put.  There was a deliberation of some seven days in this case, and quite clearly it was in relation to Gillard rather than Preston, and therefore it is simply not an application of the proviso situation.

GLEESON CJ:   Now, what, if any, significance attaches to the way the trial was conducted?

MR PEEK:   Right.  Now, that was what I wanted to tidy up and I wanted to take the Court back to page 14 of my argument at paragraph 54, the topic being approached by counsel at trial.  I there give the references to the submissions by the prosecution that manslaughter should be left.  Well before that stage Mr Gillard had lost his counsel in certain circumstances ‑ ‑ ‑

GLEESON CJ:   Gillard or Preston?

MR PEEK:   Both actually.  Mr Preston initially had counsel.  He then went on unrepresented for certain reasons.  Then Gillard’s counsel, Mr Tilmouth, withdrew after that, and then at short notice my instructing solicitor was approached and took over for Mr Gillard.  It was only after that ‑ ‑ ‑

KIRBY J:   Had Mr Richards been there earlier instructing earlier counsel?

MR PEEK:   No, he had not.

KIRBY J:   So he came in mid-trial.

MR PEEK:   He came in mid-trial, very cold indeed.  It was quite a burden that he took on in doing so.  Your Honour has read the special leave and, of course, we said there that it was a mistake in relation to the matter of manslaughter, but we have to, of course, face what did happen, and the fact was that Mr Richards did make submissions which were contrary to the prosecution position.

The only thing I would add, and I think I said it this morning anyway, was that if one reads the dialogue that flowed between Mr Millsteed QC and the trial judge, it would appear that the trial judge was adverse to the matter of manslaughter being left in any event.  But the end result was that manslaughter was not left.  Now, we submit in these circumstances the propositions – and I will not stolidly read them out from paragraph 55 and onwards – that there are certain high obligations on the trial judge irrespective of the way that the case is conducted and that appeals will be allowed irrespective of the approach by counsel at trial in the best circumstances.  These were very far from the best circumstances.

KIRBY J:   Did the primary judge give a ruling on the Crown’s submission, explaining why he would not give the direction on manslaughter?

MR PEEK:   No.  One can only pick that up from the dialogue which I have I think ‑ ‑ ‑

KIRBY J:   Just give me the page references and I will read them myself.

MR PEEK:   Yes.  Your Honour, it is my footnote 65 on page 14, and you will see there the page references are delineated.

KIRBY J:   Yes, very well, thank you.

MR PEEK:   And there may be something at 1525 to 1526.  As part of that, there may be an additional reference.  There is some dialogue by his Honour indicating how will he rule direct and so obviously that is important, the 1525 to 1526 but it is not really in the form of a formal ruling as such.

GLEESON CJ:   The remarks on sentence were before the Court of Appeal and the Court of Criminal Appeal, were they?

MR PEEK:   I do not believe - in fact, no.  There was no appeal on sentence and I do not think the remarks were before the court.

KIRBY J:   The judge said when the jury came back, when he discharged the jury, that he agreed with their verdict.  I read that this morning.  Anyway, that is not really relevant, do not worry about it.

MR PEEK:   So we submit, of course, the case of Pemble v The Queen is important, but I think ‑ ‑ ‑

KIRBY J:   We know all those cases.

MR PEEK:    ‑ ‑ ‑ it would be tiresome for me to take the Court through that.  What I have done instead, rather than reading them out ‑ ‑ ‑

KIRBY J:   You have helpful extracts from those and that is enough.

MR PEEK:    ‑ ‑ ‑ is to give a number of High Court extracts which cover quite a number of High Court Justices and hopefully that would be at least helpful.

HAYNE J:   The outcome in Pemble was for the Court to set aside the conviction and substitute a conviction, manslaughter.

MR PEEK:   Yes, it was, your Honour.

HAYNE J:   What do you say as to that kind of course?

MR PEEK:   Your Honour, I think I mentioned this morning that in the case of Spies, the ‑ ‑ ‑

HAYNE J:   I am familiar with Spies.

MR PEEK:   Your Honour is familiar?

HAYNE J:   Yes.

MR PEEK:   Yes, I have not looked at it over lunch, but my memory is that the Court was of the view that the appropriate course would have been to order a retrial rather than a substitution in such circumstances as a matter of interpretation of the appellate legislation.  There was quite a deal of analysis of the various decisions in the area where verdicts of manslaughter have been substituted.  It does not affect my main argument, of course, merely the disposition or appropriate order.

KIRBY J:   Do you submit that this Court does not have power in the case of the South Australian appellant to substitute the conviction of manslaughter?  The Judiciary Act says that we should substitute the order that ought to have been made.  Presumably, that is the order that ought to have been made by the Court of Criminal Appeal?

MR PEEK:   Well, certainly that order has been made by the Court of Criminal Appeal from time to time over the years in cases of this nature, but it did seem to me – and perhaps I should have brought Spies along – that that approach was being distinctly blown upon by this Court in that case.  Indeed, I thought the case went so far as to say that that aspect of Pemble was wrong.

GLEESON CJ:   In any event, we have a case - and this may be part of the lingering significance of some of the line of authority referred to in Gilbert ‑ in which the jury were instructed that they could only convict of murder if they found that your client was a party to an agreement to kill the victims and the jury did find beyond reasonable doubt, therefore, that your client was a party to an agreement to kill the victims.

MR PEEK:   Therefore, the traditional approach might be that he should face his trial again on a charge of murder rather than manslaughter.

KIRBY J:   But with the correct instruction as to the availability of manslaughter.

MR PEEK:   Exactly.

KIRBY J:   Yes.

HAYNE J:   The essence of that submission is that section 354(2) of the Criminal Law Consolidation Act is not engaged.  That seems to be a matter that you may be right about, I do not know.

MR PEEK:   Yes.

HAYNE J:   But it may be that that is a matter on which some further submission might be appropriate, it might not.  It is a matter for the court ‑ ‑ ‑

MR PEEK:   I thought it my duty to refer the Court to Spies in the circumstances.  The only other thing that I can do is, and I think I have done that, to delineate various passages which would seem to compel the conclusion that the failure to ask for a manslaughter direction in this case does not save the verdict. 

Can I just read from one passage and one passage only at my page 18 and that is indeed from the Victorian Court of Longley which, in my respectful submission, puts the matter very well in terms of the rationale of this approach - just the underlined portion, if I may:

on the whole it is a wise rule.  It is aimed at the greater protection of accused persons, lest they suffer greater punishment than their deeds actually merit.  It is designed to protect them from the possible consequences alike of their own optimistic falsehoods, forensic or otherwise, or of the misplaced ingenuity, erroneous judgment, or mere incompetence of their advisers.  At first sight it might seem sound to say that an accused should be bound by the case he or his advisers make at the trial.  In a civil case, there is a lot to be said for that proposition, and generally speaking, that is the law in the civil courts.  But in the criminal courts, though it might still be poetic justice, it is not legal or social justice.  To apply such a principle would, in effect, be to risk, eg punishing perjury with the penalty appropriate to murder, or misguided advocacy by imprisonment of the advocate’s client.

KIRBY J:   I have the case but what page?

MR PEEK:   [1962] VR at 140.

KIRBY J:   Thank you.

MR PEEK:   I then, I think, have covered what immediately follows, that a verdict of manslaughter was a real possibility, and I do not dwell on that and then I go to Gilbert and the proviso, which leaves me with only one other matter and this is the matter upon which my learned friend and I have

spoken and that is count 3, because, of course, count 3 was a charge of attempted murder as distinct from murder.

The submission that I was going to make was that, first of all, the consideration of that count was contaminated by the failure to put manslaughter in relation to counts 1 and 2, should that have been a failure, and the whole factual matrix would have been different.  Secondly, or alternatively, the judge should have put attempted manslaughter because in South Australia we have a statutory provision which we would contend the proper interpretation of is to enable a verdict of attempted manslaughter in a case like this.

KIRBY J:   Mr Millsteed says that it does not fit the actual language.

MR PEEK:   No, Mr Millsteed has said that if the Court is with the appellant in relation to counts 1 and 2 and those verdicts should be set aside then he would not contend against the proposition that count 3 should also be set aside for one or other of those reasons.

GLEESON CJ:   I thought he had a slightly different argument on the proviso.  I thought he said that what happened in relation to the jury’s verdict on count 3 takes the Gilbert issue a stage further.

MR PEEK:   That is a different point.

GLEESON CJ:   I understand that, but I thought that was the main point that he was making about count 3.

MR PEEK:   And I think he probably still makes that point as a matter of inferring from the facts from what happened at trial but if at the end of the day the Court considers that manslaughter should have been left on counts 1 and 2 and therefore those counts should be set aside, he would agree that count 3 also should be set aside.

GLEESON CJ:   All right, thank you.

MR PEEK:   If the Court is prepared to accept that proposition, there is no point in me making the submissions that otherwise I was going to.  So if that is acceptable, then those are my submissions, if it please the Court.

GLEESON CJ:   Thank you, Mr Peek.  Yes, Mr Millsteed.

MR MILLSTEED:   May it please the Court.  Both at trial and before the Court of Criminal Appeal the respondent submitted that there was a basis for manslaughter to be left to the jury and with respect to the learned trial judge and the Court of Criminal Appeal that is a submission from which I do not resile.  In my submission, it accords with legal principle and it was not a submission that was made lightly.

The respondent’s proposition is that the failure to leave manslaughter in the circumstances of this case was not productive of a miscarriage of justice and that the proviso should be applied.  Before I elaborate on that proviso argument, can I put to the Court the respondent’s submission as to why there was a basis for manslaughter to be left.

KIRBY J:   There is an inherent tension, as you no doubt recognise, between your two submissions, that once you say it ought to have been put and therefore that there is a factual foundation on which a jury could find manslaughter, as I presently think there was, then the possibility of a shorter sentence, if the jury returned that verdict, is available and therefore it is not something that the accused should have been deprived of in a trial according to law because it has significance.

MR MILLSTEED:    Yes, I will come to that, your Honour, but my basic proposition is that one can discern from the verdicts as a whole that the jury was satisfied beyond reasonable doubt of the accused’s guilt in relation to all charges.

KIRBY J:   You have come to it, but how can we say that if the point was never offered to the jury and therefore they have never passed on it?

MR MILLSTEED:    If I could develop that in a moment, your Honour.  In my submission, if the jury were not satisfied that the prosecution had proved that Mr Gillard was a common purpose party to murder then it was nevertheless open to the jury to be satisfied that he intentionally assisted Preston knowing that he was armed with a gun in circumstances where Gillard possibly believed that Preston contemplated a robbery.

Now, on that hypothesis, the appellant was a party to a common purpose to commit an unlawful and dangerous act.  He was a party to an act in confronting and threatening Knowles with a gun ‑ ‑ ‑

KIRBY J:   But it was not necessarily a common purpose to commit homicide or an act occasioning grievous bodily harm.

MR MILLSTEED:   No.

KIRBY J:   Now, do we obfuscate or narrow the extent of the common purpose sufficiently to catch him in a common purpose which is of an entirely different character from that which was committed?

MR MILLSTEED:   What I put to the Court is that if Mr Preston went there with murder in mind and Gillard went there with robbery in mind that there was an element of commonality to the extent that they were parties to the presentation of a gun, then the intersection, if you like, of their differing objectives gives rise to an underlying common purpose at least to the extent of producing a loaded gun or a gun.  In other words, whilst they had different motives, those motives intersected to create this underlying common purpose which involved an unlawful and dangerous act.

HAYNE J:   I had earlier referred to that as a lowest common denominator approach.  More accurately, it is probably highest common factor.  It is the highest common factor of agreement between them.

MR MILLSTEED:   Yes, your Honour.

HAYNE J:   Yes.

MR MILLSTEED:   Now, in my submission, such conduct would amount to not only an assault, the gist of the offence being intimidating the victim, but it would also constitute a breach of section 47A of the Criminal Law Consolidation Act which, in essence, provides that:

A person who . . . threatens another person with a firearm . . . is guilty of an . . . offence.

KIRBY J:   Guilty of an offence?

MR MILLSTEED:   Yes.

KIRBY J:   Charge him with that offence, but do not fix him with a fiction that he is guilty of someone else’s offence, which is what you are saying ought to be available.

MR MILLSTEED:   We say there is no fiction here.  We say that Mr Gillard was guilty of murder, or, in the alternative, of manslaughter.  There is no fiction here.  He was guilty of those crimes upon an application of established legal principle which I will come to.  What we put to the Court is this, that if Preston’s actions in confronting the victim with a gun amounted to a common assault or a breach of section 47, it was also inherently dangerous upon an application of the test in Wilson, that is, that a reasonable person would appreciate that such conduct would give rise to an appreciable risk of serious injury.

KIRBY J:   Where is that said?

MR MILLSTEED:   Wilson v The Queen (1992) 174 CLR 313, and in particular at pages 331 to 335. It is on our list of authorities. Wilson clearly establishes that if a person participates in an unlawful and dangerous act which causes death then they will be guilty of manslaughter, and the test of dangerousness being, did a reasonable person in the position of the accused realise that he or she was exposing another person to an appreciable risk of serious injury. 

Now, the submission that I put to the learned trial judge and to the Court of Criminal Appeal was this, that if that submission is correct and that Mr Gillard, at the very least, was a common purpose party to an unlawful and dangerous act, then that conduct would provide the platform for an additional basis of murder to have been left to the jury and for manslaughter to have been left as well.

There are, in my submission – and I am assuming that we are talking about the armed robbery hypothesis – three possible approaches to Mr Gillard’s criminal liability on the basis that he was a party to an unlawful and dangerous act.  The first approach is the one that your Honour Justice Gummow referred to.  It is an application of the McAuliffe principle.  The principle in McAuliffe is that a party to a common purpose bears a criminal liability for an act committed by one of his confederates which falls outside the scope of common purpose but which he or she contemplates as a possible incident of the original planned venture.  Now, McAuliffe is at 183 CLR 108 and that relevant principle of extended liability is discussed at page 117.

So, on this first approach we have Mr Gillard being a party to a common purpose involving an unlawful and dangerous act.  If we apply the McAuliffe principle to that factual scenario, then if the appellant was aware that Preston had a loaded gun, he could be found guilty of the murders of Knowles and Richards on the basis that he foresaw the possibility that Preston might deliberately shoot the victims with the requisite intent for those offences, that those murders might occur as a possible incident of the unlawful and dangerous act which was being committed, in Gillard’s mind, for the purpose of carrying out a robbery.

Alternatively, under the McAuliffe principle, he could be found guilty of manslaughter, the manslaughters of Knowles and Richards, if he foresaw the possibility of fatal shootings, but in circumstances falling short of murder.  In other words, he foresaw the possibility that such shootings might take place but absent an intention on Preston’s part to kill or to cause grievous bodily harm.  So, that is the first approach, in my submission, that could give rise to criminal culpability on the robbery hypothesis.

The second approach, your Honours, involves Mr Gillard being a party to an act which caused the death.  This approach involves looking at criminal culpability without resort to issues of foreseeability that you have to consider under McAuliffe.  You see, under the doctrine of an unlawful and dangerous act, manslaughter, the prosecution is not required to prove that the principal offender or an accessory, a secondary offender, foresaw death or even appreciated that his behaviour would give rise to an appreciable risk of serious injury.  All that has to be proved is that the offender performed an unlawful and dangerous act which, objectively speaking, was dangerous and which caused death.

So, if Mr Gillard was a party to an unlawful and dangerous act involving the presentation of the gun, he would be guilty of manslaughter if the act to which he was a party caused death and, on that approach, one does not look at issues of foreseeability and, on that basis, he could only be found guilty of manslaughter.  There would be no scope for murder on that basis.  Approached in this way, his liability for manslaughter would depend on an application of principles of causation in accordance with the principles expressed by this Court in Royall v The Queen, that is, did ‑ ‑ ‑

CALLINAN J:   Significant contribution.  Is that Justice McHugh’s judgment?

MR MILLSTEED:   Yes, your Honour.

CALLINAN J:   Mr Millsteed, could I just ask you a question, and you can tell me whether I have left out anything?  Is it right that the appellant must have known at least these matters:  that Knowles was the target of a crime intended to be committed by Preston; that crime was at least the theft of either cash or drugs from Mr Knowles; the appellant knew that Mr Knowles’ personal presence was necessary for the crime to be committed; the appellant must have known that Preston intended to threaten to do something to or in relation to Mr Knowles personally to induce him to hand over money or drugs.  He also knew that Mr Knowles was not alone in the workshop and that at least one other man was present.  It must also be assumed - be aware that a means of protection or a repulsion of a physical threat would be readily to hand in an automatic repair shop, and he was aware that whatever Preston proposed to do he would need to make a fast departure.  Now, is there anything else?

MR MILLSTEED:   No, your Honour.  Your Honour has very succinctly encapsulated the Crown case.  The Crown’s argument at trial was that if the unlawful and dangerous act scenario was left as a basis of liability, there was an additional basis for murder as well, and that is that in the circumstances that your Honour has summarised how could Mr Gillard fail to foresee that Preston might murder.

GLEESON CJ:   Say that again please?

MR MILLSTEED:   How could Mr Gillard fail to foresee that Preston might murder in those circumstances?

KIRBY J:   Yes, but the jury might conclude, having regard to his mental incompetence, his subsidiary role, his past lack of any involvement in acts of criminality and his assertions to police, though not in evidence, that this was Mr Gillard’s position.  At least it is an available position if manslaughter is there available to the jury.

MR MILLSTEED:   I accept that that is a jury issue.  The point that I am making is that if this additional basis of liability for murder had been left, in my submission, it is inevitable he would have been convicted of murder.  Have a look at the second question that was asked by the jury, towards the end of his Honour’s summing up, appeal book 8.

KIRBY J:   How can you say inevitable if the jury takes some of the points that were urged upon us this morning favourably to the accused?  It may be that it is the better view.  It may be it is the view we would hold.  It may be that there is a powerful Crown case, but if you deprive the accused of the opportunity of a manslaughter verdict you have deprived the jury of the opportunity to pass upon a view of the facts more favourable to the accused than acquittal which the jury resiled from.

MR MILLSTEED:   Your Honour, I do not deny anything your Honour has said.  I am just pointing out the strength of the Crown case on this alternative basis, and it may have relevance in your Honour’s view to the issue of the proviso.  The second question was at appeal book 8 page 1944, towards the top.  The jury were not present at this stage, but his Honour set it out:

I have a question from the jury which I will read out to you:  ‘Person A goes with the intention of murder, person B goes with the intention of robbery, person B sees the gun beforehand.  Can person B be innocent of murder if he could have foreseen someone could have been killed?

Now, in the respondent’s submission the correct answer to that question would have been he would be guilty of murder.

GLEESON CJ:   That question, though, seems to reflect the confusion between robbery and stealing. 

MR MILLSTEED:   Yes. 

GLEESON CJ:   Which arises, perhaps originally out of Mr Gillard’s statement that he thought that somebody was going to “nick” something.  What he thought you would “nick”, or how he thought you would “nick” something by going into a car repair shop occupied by some people of fairly substantial propensities, as I understand it ‑ ‑ ‑

MR MILLSTEED:   I will say something about that, your Honour. 

GLEESON CJ:    ‑ ‑ ‑ is not easy to understand. 

MR MILLSTEED:   He used the words “robbery” and “nicking” interchangeably during the course of the interviews. 

GLEESON CJ:   The robbery that was contemplated must have meant armed robbery, must it not? 

MR MILLSTEED:   As a matter of commonsense, it must.  There was no way that Mr Knowles was going to hand over the proceeds without being confronted with a weapon, and Gillard must have appreciated that.  So I agree with your Honour.  What must have been contemplated was an armed robbery and nothing less.  In any event, I was putting to the Court the bases of liability and how you could arrive at them.  The first one was the McAuliffe approach.  The second one was Mr Gillard simply being a party to an unlawful and dangerous act and, without considering questions of foreseeability, the act to which he was a party having caused death. 

The third approach is the one that Mr Peek has urged upon the Court and I will call it the Reid approach.  In essence, it relies upon the passage from the judgment of Lord Justice Lawton in Reid’s Case.  I will not take the Court to that again, but essentially it is argued that Gillard would have been liable for manslaughter because Preston’s deliberate shooting of the victim fell within the scope of the common purpose, namely, the presentation of the loaded gun to threaten or to frighten.  As Mr Peek has pointed out, the approach in Reid seems to be one based upon public policy and it has been referred to with approval in a number of subsequent decisions.  It was referred to in Markby, it has been referred to in Tomkins, it has been referred to in Zappia. 

Now, it is not necessary, for the purposes of this argument, for the respondent to develop this any further, but, in my submission, there is a real question mark over the legitimacy of that approach, because what it is doing, it is inviting the Court to almost impose an objective test.  Was the deliberate discharge of the gun something that falls within the scope of the common purpose, because people would realise that that is the likely outcome of that sort of enterprise?  In my submission, that is utterly inconsistent with the principles expressed by this Court in Johns v The Queen and by this Court in McAuliffe v The Queen. 

Johns makes it quite plain that the scope of the common purpose is determined by a consideration of the foresight of all the parties to the common purpose.  Did they jointly contemplate that an act might be committed?  If they jointly contemplate that, then it falls within the scope of the common purpose.  McAuliffe takes it one step further.  If the act falls outside the scope of the common purpose that a party – it does not have to be all the parties – foresees its commission as a possible incident of the originally planned venture, then that party will be guilty of that crime if it is committed by one of his confederates.  But the test under Johns and the test under McAuliffe is purely subjective. 

I do not need to take it any further, but I submit that there is a real question mark over the appropriateness of the Reid approach.  There is a discussion about this in a text – it is Smith’s text, A Modern Treatise on the Law of Criminal Complicity, and in particular, at pages 223 to 231.  The point that Smith makes, and, in my submission, it is a valid point, is this, that in Reid the court considered that the firing of the pistol fell within the scope of the common purpose because it was nothing more than an unforeseen consequence of the actions on the part of the accused in participating in the joint presentation of a loaded gun.  The court then went on to say, well, was it: 

“a mere unforeseen consequence” . . . We adjudge it was. 

We adjudge that it was an unforeseen consequence because, page 112: 

there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use his weapon in some way which will cause death or serious injury. 

The Court is making a determination of whether something falls within the scope of common purpose.  That might be an entirely pragmatic point of view.  It might make a lot of commonsense that that sort of conduct would be readily appreciated by the parties to a joint enterprise involving the production of a loaded gun, but it is not the test.  The test is, did the parties foresee that consequence, and for that reason I invite the Court to look at Reid and the decisions which rely upon it and consider whether that line of authority sits comfortably with Johns and McAuliffe.

KIRBY J:   What is the citation for Johns? It is 143 CLR 108.

MR MILLSTEED:    Yes, I am sorry, your Honour, 143 CLR 108 at 130, 131, and I think I gave the Court, did I not – and McAuliffe 183 CLR 1.

CALLINAN J:   Mr Millsteed, is there anything is Osland which touches on this?

MR MILLSTEED:    Your Honour, I think the important point about Osland is that in Osland Justice McHugh pointed out that when you are dealing with the doctrine of common purpose the parties are not responsible for the crimes committed by a confederate, they are responsible for the actus reus of the criminal acts committed by a confederate, so that way you can have differential verdicts of murder and manslaughter.

A party might foresee that a stabbing is going to occur but it does not follow that he is necessarily guilty of murder.  He has to foresee that the stabbing will be accompanied with the requisite intent for murder.  If he does not foresee that and he simply foresees the stabbing in circumstances which amount to manslaughter, then he can be convicted of that lesser crime.  So, yes, I agree, your Honour, that Osland is helpful in that sense in that it points up that the parties are responsible for the acts committed by others, not necessarily their crimes, and that permits deferential verdicts.

GLEESON CJ:   Was the Crown case here ever put on the basis of aiding and abetting?

MR MILLSTEED:    No, your Honour, the Crown case was always common purpose.  The Crown case from beginning to end was common purpose murder.  What we put to the jury was this, “Even if you think it is a reasonable possibility that Mr Gillard contemplated robbery, it doesn’t matter a jot, because if he knew that the Preston had a gun, then you apply the principles in McAuliffe and he can be found guilty of murder if he foresaw murder.  If he did not foresee murder, then my argument, which was effectively refuted by the trial judge, was that he could be found guilty of manslaughter.  That was essentially the way the Crown approached this at trial and with respect to the Court of Criminal Appeal I maintain that it is a correct approach.

GUMMOW J:   The citation of Osland is 197 CLR 316 at 341 to 343 of Justice McHugh’s judgment.

MR MILLSTEED:    Thank you, your Honour.  Your Honours, for those reasons, I submitted that there was at least two legitimate bases for manslaughter to be left to the jury and for murder as well.  The Court of Criminal Appeal seems to have disagreed with the prosecution’s propositions at three levels.  First, the court seems to have reasoned – and I will give the Court the page references without going through it – that the appellant could not be a party to an unlawful and dangerous act involving the presentation of the gun if Preston contemplated murder and Gillard contemplated robbery.

Now, that is at page 2083 of appeal book 9 and, in particular, paragraphs 336 and 340.  In essence, the court seemed to have taken the view that there could not be a common purpose to commit that act because their motives were different.  Secondly, the court expressed doubts as to whether the appellant could be a party to an unlawful and dangerous act unless he knew that the gun was loaded.  In that regard, the court considered that it was difficult to find a basis for inferring that Mr Gillard knew that the gun was loaded.

GLEESON CJ:   Mr Preston would have been a very brave man to go into that smash repair shop and take the people on with an unloaded weapon.

MR MILLSTEED:   Absolutely.

CALLINAN J:   There would be a few car jacks and things of that kind lying around, I would have thought, perhaps the odd detached bumper bar.

MR MILLSTEED:   But the other point I was going to make about this, your Honours, I was going to come to it, but I will raise it now ‑ ‑ ‑

GLEESON CJ:   Somebody who had never been into a car repair shop might have that theory.

CALLINAN J:   Perhaps a bit of spray paint in your face too.

KIRBY J:   Justice Callinan’s imagination is carrying him away.

CALLINAN J:   Not at all.  Not imagination – realism ‑ ‑ ‑

GLEESON CJ:   This was not somebody with a toy pistol going in to frighten a gas station attendant.

MR MILLSTEED:   In any event, and I am going to come to this ‑ ‑ ‑

KIRBY J:   Yes, but Mr Gillard is a fairly simple and disturbed person sitting in a car outside with the radio on.

MR MILLSTEED:   Your Honour, there is not a jot of evidence led at trial that this man did not have the ability to appreciate what was going on.  Some very general evidence was led from the psychiatrist named Dr Raeside as to Mr Gillard suffering from post-traumatic stress disorder and from an anti‑social personality disorder.

CALLINAN J:   He seemed to acquit himself quite well in the interviews.

MR MILLSTEED:   Yes.

GLEESON CJ:   That is why I was interested to know if there are any remarks on sentence floating around.  They are often a very useful reality check.

MR MILLSTEED:   Your Honour, the Court of Criminal Appeal discusses this in its judgment, that there was no evidence put before the court, put before the jury, through Dr Raeside to indicate that this man suffered from any psychiatric condition.

KIRBY J:   But he was in and out of mental hospitals, was he not?

MR MILLSTEED:   He might have had mere depression.  We do not know.

KIRBY J:   I am sorry?

MR MILLSTEED:   There was no evidence that he had a condition which rendered him more likely to being duped than anyone else.

KIRBY J:   Yes, but there is the objective fact that at least on one occasion not long before the offences he was discharged from a mental hospital and there is the other objective fact that he says in his interview that he discarded his mask at the Salvation Army home and it is said that he lived his life in places of that kind.

MR MILLSTEED:   Your Honour, a lot of people live their lives in an itinerant way.  It does not mean they lack intelligence.  It does not mean they do not have the ability to comprehend situations such as the ones that we are discussing now.

KIRBY J:   But nowadays the whole pressure of society is to keep people out of mental hospitals, and yet this is a man who apparently was admitted.

MR MILLSTEED:   Well, your Honour, all I can say about that is that he has acquitted himself pretty well in the past with his criminal efforts and he acquitted himself pretty well on the day of this offence.

KIRBY J:   But never on crimes of violence.

MR MILLSTEED:   So he says.

KIRBY J:   The Crown could have countered that, one would think.

MR MILLSTEED:   Well, he says – and I did not suggest to the contrary – that he had criminal convictions for crimes of violence, but there is a limit to what we know about Mr Gillard’s lifestyle and about his past.

CALLINAN J:   Keeping his true name might be explained by a need to apply for and obtain social security benefits, too.

MR MILLSTEED:   He was on social security benefits, your Honour.

CALLINAN J:   Yes, because he would have to manufacture a false identity to continue to receive them and that would not be easy.

MR MILLSTEED:   Yes.  In fact, that is how the police tracked him down to Brisbane.  They tracked him down through social security.

CALLINAN J:   That is in the evidence, is it?

MR MILLSTEED:   I think it is.

CALLINAN J:   I will get you to give me that at some stage.

MR MILLSTEED:   Yes, thank you.  I am sorry, your Honours, I was going through the reasons why the court thought that this scenario that I was putting to the court ought to be rejected.  The third basis was that even if the appellant was a common purpose party to an unlawful and dangerous act involving the use of a gun, that he could not be liable for the fatal shootings because the shootings would have fallen completely outside the common purpose.

Now, in my submission, that cannot be reconciled with cases like Markby, cases like Johns and McAuliffe.  They are cases which deal with situations where people have been held guilty of murder on the basis that they have participated in an unlawful purpose, knowing that their confederate is armed and foreseeing the possibility that the crime might be committed.

GLEESON CJ:   So far you have devoted your efforts to telling us why you agree with your opponent.

MR MILLSTEED:   No.

GLEESON CJ:   Is there a point of disagreement ‑ ‑ ‑

MR MILLSTEED:   Can I correct one thing.  I am explaining why my opponent agrees with me.  It was the Crown.

GLEESON CJ:   Well, you are telling us why you are both right, but can you tell us at some stage why he is wrong.  In other words, what is the point of departure between the two of you?

MR MILLSTEED:   In terms of the common purpose argument?

GLEESON CJ:   In terms of the appeal.

MR MILLSTEED:   In terms of the appeal.  I think Justice Hayne hit it on the head an hour and a half ago when he said that this hinges on the application of the proviso.

KIRBY J:   What is the section in South Australia?

MR MILLSTEED:   Section 353(1), your Honour.  It is couched in the traditional terms based on section 4(1) of the English Criminal Appeals Act.  Before I do that, your Honour – I am not trying to move away from this argument – can I invite the Court to consider several points in relation to why I submit the Court of Criminal Appeal was wrong in saying that common purpose did not apply to this situation.  First, there is the case of Barlow 188 CLR 1 and, in particular, at page 14 your Honours will see that there is a passage in the judgment of Justices Brennan, Dawson and Toohey which – now, I know that the Court was dealing with the provisions of the Criminal Code but the Court made it quite plain that the common law principles operated in the same way. The relevant passage is at the top of page 14 and it states:

Once s 8 does its work of deeming the secondary party to have done the act or to have made the omission which the principal offender did or made in so far as that act or omission is of a nature covered by the parties’ common intention, the sate of mind of the secondary party may again require consideration.  If, at the time that the act was done or the omission was made, the secondary party had a state of mind which, in combination with an act or omission of the nature which s 8 deems him to have done or made, renders him guilty of a more serious offence than the offence of which the principal offender is guilty, the secondary party is liable to conviction for the more serious offence.

This is the part that I would emphasise:

Thus the mastermind who, having greater knowledge of the circumstances or the likely result of a minor criminal offence which he and a comparatively innocent principal offender agree to commit, or who has an evil intent not shared by the principal offender, will be liable according to his (the secondary party’s) state of mind, although the common plan was merely to commit the minor offence.

We are dealing with the obverse situation here.  We are dealing with a sinister principal offender who had an evil intent that was not disclosed to the secondary party.  But that passage in Barlow, in my submission, supports the proposition that I have been putting to the Court.

GLEESON CJ:   Does it make a difference here that it was no part of the intent of Preston, if I have his name right, to frighten the victim or any of the other people in the paint repair shop?  His specific and sole intent was to kill Les.  Does that make a difference?

MR MILLSTEED:   In my submission it does not, because the presentation of the gun was an act preliminary to the commission of the fatal shootings.  It was an assault in itself.  He had to threaten Knowles initially with the gun.

GLEESON CJ:   Why?  If he had been able to sneak up behind Knowles he would have shot him in the back of the head presumably.

MR MILLSTEED:   That did not happen, but what I am putting to the Court is that taking a gun into premises, carrying a gun into premises when there are persons present, for no lawful purpose, is inherently dangerous.  There is always the risk that the gun will go off, deliberately or otherwise.  The point of distinction that your Honour the Chief Justice has mentioned was one which was not followed in Zappia’s Case.  In my submission, the submission that I am putting to your Honour is supported by the passage in Barlow.  It does not matter that the principal offender has an evil intent which he had formed prior to the formation of the common plan provided there is a common plan and here there was, at least to the extent of presenting the gun.

Another case that I invite the Court to consider, and I will not spend any time on it, is Miller (1980) 32 ALR 321, a decision of this Court. The importance of Miller is that the Court held that the principles expressed in Johns’ Case apply where there is a lawful common purpose.  In Miller, Miller who was the secondary offender was assisting Worrell the principal offender to pick up women for lawful sexual intercourse.  They were working together to seduce women.  However, from time to time Mr Worrell would murder, and the Court held that Miller could be found guilty on the Johns principle even though the underlying common purpose was a lawful one.

Now, in my submission it would be quite incongruous for a person to be held responsible for foreseeing a crime arising out of a lawful common purpose and for someone like Mr Gillard to escape any form of criminal responsibility, when he is engaged in conduct which at the very least involves the presentation of a gun in a workshop where people are located and when, on his own case, he believes that they are going to be held up.

So I point to Miller as well and I rely upon the policy point that your Honour the Chief Justice made in the course of argument with Mr Peek.  If the doctrine of joint enterprise does not apply to the robbery hypothesis that is under consideration here, what it means is that if Gillard and Preston joined together to commit a robbery and that was a true common purpose, and Preston killed, Gillard could be guilty of that murder if he foresaw the possibility of its occurrence, or guilty of manslaughter if he foresaw the possibility of its occurrence.  But if Mr Gillard joins in the venture believing robbery only is going to be committed and in fact Preston has a more serious intent, he escapes any form of criminal responsibility though his mens rea and the level of assistance that he has provided is exactly the same.

KIRBY J:   Well, it is not exactly the same.  This was the one who goes in to do a homicide, which is the gravest offence in the calendar.  He is sitting out there, he may know of it, but he does not actually take part in it.

MR MILLSTEED:   No, that is the principal offender’s state of mind.  I am talking about the secondary offender’s state of mind.  It is no different.  He foresees that someone might be murdered.  His means rea is the same, his physical level of assistance is the same, but he would escape any form of criminal responsibility in those circumstances where the only variable is that the principal offender has a more serious state of mind.  In my respectful submission, that is an inconsistent approach to ‑ ‑ ‑

KIRBY J:   Well, he is liable, as was pointed out, to a number of other offences:  accessory after the fact, destroying a motor car, theft of a motor car and various other – you could throw the book at him for the other offences.

MR MILLSTEED:   It does not mean much when two people have died, your Honour, to throw the book at him for offences of that nature.  In the Crown submission there is a basis for liability for their deaths on the basis of established legal principle.

GUMMOW J:   Are you ever going to get to the proviso?  It is 20 minutes to 4.

MR MILLSTEED:    I am sorry, your Honour, yes.  Your Honour, in my submission, this case is distinguishable from Gilbert for one reason.  In this case I submit that even if manslaughter had been left, the jury would necessarily have convicted the appellant of the murders.  That conclusion can be inferred from the verdicts and, in particular, the attempted murder verdict necessarily implies that the jury was satisfied beyond reasonable doubt that the appellant was guilty of complicity in that crime and in the two murders as well.

CALLINAN J:   But I thought that was exactly what Gilbert denied.

MR MILLSTEED:    Gilbert is different in that ‑ ‑ ‑

CALLINAN J:   The verdict of the worst offence, the verdict of murder – I think the view, with respect, that you have put is close to Justice Hayne’s view of the matter in dissent.  I may be wrong, but I think so.

MR MILLSTEED:    Your Honour, there is an important difference in this case and that is there was a conviction for attempted murder.

GLEESON CJ:   Your argument, as I understand it, is that Gilbert would be spot on if there was only a conviction on the first two counts, but because of the conviction on the third count, the case goes a step beyond the position that applied in Gilbert.  I would like to understand that better than I do at the moment.

CALLINAN J:   So would I.

MR MILLSTEED:    Certainly, your Honour.  In essence - and I will give the Court the page references to the directions, appeal book 7 1580 to 1581 and appeal book 8 1799 to 1800 - and I can summarise to the Court, the juries were directed that the appellant could not be convicted of the murder of Richards, count 2, or the attempted murder of Traeger, count 3, unless they were satisfied beyond a reasonable doubt that the appellant, one, was a party to a common purpose to murder Knowles and, two, foresaw that Preston might murder Richards and attempt to murder Traeger in the course of carrying out that plan.

Now, in my submission, if the sole basis upon which liability for attempted murder that was left to the jury required the jury to be satisfied beyond reasonable doubt in relation to the two murders, then it follows from the appellant’s conviction for attempted murder that the murder charges must have been proved to their satisfaction beyond a reasonable doubt.

KIRBY J:   Yes, but that is in a context where they were obviously concerned, they sent back the questions, and we just will never know what they would have done had they had the opportunity to return a verdict of guilty of manslaughter.  They might have been confronted by the self‑same dilemma that you were relying on a few minutes ago.

MR MILLSTEED:   Your Honour, in this case the jury were given quite clear directions as to the elements of the offence of murder and attempted murder.  They were given correct directions with respect to complicity.  They convicted this man of attempted murder, and they were instructed that they could not convict him of attempted murder without following the route which required the convicting of the two murders.

GLEESON CJ:   What was the Crown case on the question of why Richards was shot and Traeger was shot at?  Was it the Crown case that it all arose out of Preston’s uncertainty as to who was left?

MR MILLSTEED:   Yes, that is one, yes.

GLEESON CJ:   Were they the only three people in the repair shop?

MR MILLSTEED:   No, there was another man who was working under a car at the time and ‑ ‑ ‑

KIRBY J:   He stayed there.

MR MILLSTEED:    ‑ ‑ ‑ he stayed there, he was very nervous.  He saw part of what took place and he was called at trial.  That was Mr Lean.

GLEESON CJ:   I am still groping to understand what is so special or different about the verdict on count 3 as compared with the verdict on count 1 in relation to the Gilbert point.

MR MILLSTEED:   Perhaps if I put it this way, your Honour.  In Gilbert the accused was charged with a single count of murder in a case where manslaughter should have been left.  So the Court, the majority, took the view that the jury had been left with an inappropriate murder or nothing approach, and that there was a risk in those circumstances and a basis for inferring that they may have chosen to convict of murder rather than let him get off scot‑free.

Here we have a dimension that was not present in Gilbert.  Here we have a conviction for attempted murder which, on the directions given to the jury by the trial judge, could only mean that they arrived at that conclusion as a result of finding him guilty of the two murders.

KIRBY J:   I will not say it again, but that is in a context where they do not have the option of a manslaughter verdict.

CALLINAN J:   It seems to me that what you say is no answer to the statements of principle in paragraphs 16 and 17 of Gilbert in the joint judgment of the Chief Justice and Justice Gummow at 421, because, in the case of murder, the directions with respect to murder are no different in substance, so far as intention is concerned, from the directions in respect of attempted murder.  There has to be a satisfaction beyond reasonable doubt in the mind of the jury of the formation of the requisite intent, whether it is attempted murder or murder.  So I do not see at the moment what the directions in respect of attempted murder and the verdict of attempted murder add, or cause it to differ in any way from Gilbert.  Perhaps it is my misunderstanding, Mr Millsteed, but I do not see how.

MR MILLSTEED:   I suspect it is my fault, your Honour.  Can I put this to you.  What I am putting to the Court is that the decision‑making process that the jury had to go through in relation to the attempted murder could not have been affected by a failure to lead manslaughter in relation to the two murder charges.  Manslaughter was irrelevant to the charge of attempted murder and, indeed, on the Crown argument ‑ and I will not travel over it in great detail – attempted manslaughter was not open in this case. 

So what I am putting to the Court is that the decision‑making process in relation to the charge of attempted murder could not have been affected by the failure to lead manslaughter and that, in those circumstances, there is no sound basis for apprehending that the jury did not comply with the express directions that the trial judge gave on the topic of complicity in attempted murder.  If one accepts that, then it follows by reason of the nature of the trial judge’s direction, which to the effect provided that the only route to conviction for attempted murder was to go via murder means that if manslaughter had been led, it would not have made a jot of difference.  That is my argument.

HAYNE J:   Now, let us look at that.  Let us look at it particularly by reference to the trial judge’s directions at 1799 and following. 

MR MILLSTEED:   Certainly, your Honour.

HAYNE J:   That is his directions about the common purpose and its application to Gillard, is it not, at lines 20 and following? 

MR MILLSTEED:   Yes, your Honour. 

HAYNE J:   A passage which is to be read in light of what he had earlier told the jury, principally directed to the position of Preston, at pages 1579 and following.  Is that right? 

MR MILLSTEED:   Yes, your Honour. 

HAYNE J:   The launching pad for the whole of the debate was, was it not, whether there was a common purpose to murder ‑ ‑ ‑

MR MILLSTEED:   Knowles. 

HAYNE J:   ‑ ‑ ‑ Knowles.  That is, the trial judge reflected a view of the matter which we also see reflected in the Court of Criminal Appeal, or in the Full Court, rather, namely, that the jury had to choose between common agreement to murder or no common agreement because Gillard thought there was only going to be a bit of nicking, robbery, thieving and the like.  The jury never was asked, was it, “Find out, you decide for yourselves on the evidence, how much had been agreed between these men.  What had they agreed?” 

MR MILLSTEED:   No.  I agree with that, your Honour. 

HAYNE J:   Once that happens, it seems to me that the platform for the argument is a flawed platform and that you come square against the point that Gilbert stands for.  Unless you can pray in aid the findings made by the jury in support of the argument on the proviso, the proviso must fail.  Now, I expressed my view in Gilbert.  It was not a view that commanded the assent of the majority. 

MR MILLSTEED:   Well, the Crown was approached from a different direction.  We were approached from the direction of attempted murder and working back.  I accept what you say, your Honour. 

GLEESON CJ:   Yes, but the trial judge approached it from a different direction.  The trial judge and the Court of Criminal Appeal had a different theory of the case from you, a theory based upon the proposition that robbery is an offence of dishonesty, not an offence of violence. 

HAYNE J:   It is a novel idea. 

MR MILLSTEED:   I accept what your Honour Justice Hayne says.  I see the force in that argument, but the argument that I put I invite the Court to consider.  I maintain it is correct.  It is not an argument that can be improved with repetition.  I simply say that bearing in mind the way this was left, bearing in mind that the decision making in relation to the charge of attempted murder could not have been affected by manslaughter, that there is no reason to apprehend that their evaluation of that charge has been affected in any way and if that be the case then one can infer that the jury was satisfied beyond reasonable doubt that the elements of murder and the principles of complicity applying to those acts of murder were satisfied in the circumstances of this case.

HAYNE J:   Now, the tendentious way of putting the argument you advance about the proviso is that unless you begin by assuming the jury was faithless to its oath, the proviso is engaged.  That is the tendentious way of putting it.

MR MILLSTEED:   It is, your Honour, and I say that that can be done in this case because the whole rationale of Gilbert, the logic of Gilbert was that there was a basis for inferring that the jury might not have acted in accordance with its oath, because it was left with a murder or nothing choice on those charges.  That is not so with the charge of attempted murder.  That logic does not apply to the charge of attempted murder.

There is no basis for inferring, as there was in Gilbert, that the jury might have compromised its approach in relation to that charge.  If that be so, this Court, in my respectful submission, should not speculate and reach a view that the jury’s approach to the charge of attempted murder may not have been done in accordance with the requirements of their oath, acting on the evidence and in compliance with the trial judge’s directions.

GLEESON CJ:   If the jury had been told - and I understand you to say correctly told - that there was a basis upon which they could have convicted Gillard of a serious offence short of murder, why might that not have had just as much effect on their decision in relation to count 3 as in their decision in relation to count 1?

MR MILLSTEED:   Your Honour, I may be oversimplifying Gilbert, and forgive me if I have, but the logic in Gilbert was that faced with the “all or nothing” approach the jury may have convicted of murder rather than see him get off scot‑free.

GLEESON CJ:   No, Gilbert went on the basis that everybody agreed by the time it got to this Court, as everybody agrees in this case, that the jury were never told – and that the jury should have been told – that there was a basis upon which they could have convicted the accused of a serious offence short of murder.  The argument was about whether or not the proviso applied in circumstances where it was agreed there was a misdirection and the argument about the application of the proviso was that if you looked at the jury’s verdict you found that they had in fact decided beyond reasonable doubt that he had been guilty of murder, therefore you must assume that if they had manslaughter available for consideration they would nevertheless have come to the same conclusion as they did.

MR MILLSTEED:   Your Honour, taken to its logical conclusion that would mean that the jury in this case, not being satisfied that Mr Gillard was guilty of the murder of Knowles, not only convicted him of that crime but then proceeded to convict him of another murder, not being satisfied that he committed that offence, and then proceeded to convict him of attempted murder, not being satisfied that he committed that offence.

GLEESON CJ:   No.  We know that the jury were satisfied in circumstances where they were told that the only possible alternative states of satisfaction they could reach were either satisfaction of guilt of murder or to acquit him.  The jury were not told of the competing possibilities.  The solution to the problem might be contentious but the problem exists because by hypothesis the jury were not told what the law provided as available alternative conclusions to them, and it was against the background of incomplete information on the available alternatives that they selected one alternative.

MR MILLSTEED:   Yes.  Your Honour, I accept that.  I understand that that is the ‑ ‑ ‑

HAYNE J:   And, on one view, this case is stronger than Gilbert where the “all or nothing” choice involves multiple offending.  The notion of acquitting a person of multiple offences, if Gilbert reasoning is right, as it must be accepted to be, is even stronger.  The jury might be quite repelled by the notion that a man walks free when he has been involved in three crimes.

MR MILLSTEED:    Your Honour, in my submission, it is difficult to accept that a jury would feel compelled to convict this man of an attempted murder after having convicted him of two crimes of murder that they knew he did not commit, bearing in mind that the charge of attempted murder is less serious.  Mr Traeger only suffered a graze.  He suffered no serious injury.  He had four stitches inserted in his left forearm.  It was, in comparison with the fatal shootings, quite a minor offence.  In my submission, it is unrealistic to think that a jury would take the view that – would not only convict of the two murders he did not commit, but would toss in an attempted murder as well, which was far less serious in nature than those crimes.

GLEESON CJ:   Do you put an alternative argument on the proviso?  What happened here was an episode of extreme violence and these references to robbery as though it is an offence of dishonesty involve an approach to the case that might be thought to be highly theoretical.  What was the time that elapsed between when Preston left Gillard’s car and when he started shooting?

MR MILLSTEED:   Thirty seconds or something like that.  It was very short.  I think Gillard said in his interview with the police that Preston was in the vehicle for about two minutes.  I am not sure that that is strictly correct.  The witnesses in the workshop gave the impression that it was a fairly short period of time.  In essence he got out of the van, he walked through the workshop to the office, walked into the workshop office, saw Richards and Knowles, said to Knowles, “Are you Les?”.  He said, “No.”  He was shot between the eyes ‑ ‑ ‑

GLEESON CJ:   What, on the basis that he was not Les?

MR MILLSTEED:   Yes.  He then turned to Richards and said, “Are you Les?”  He said, “No.”  He was shot in between the eyes.  He then left the office and as he was leading the workshop he saw Traeger and he said, “Are you Les?”  He said, “No”, and produced his driver’s licence, and Mr Preston fired at him and Traeger dropped to the ground and as he dropped the bullet grazed his arm.  Your Honours asked me whether I would run a proviso ‑ ‑ ‑

GLEESON CJ:   What was the criminal background of Preston?

MR MILLSTEED:   Very bad.  Mr Preston ‑ ‑ ‑

GLEESON CJ:   But Mr Gillard was in some very heavy company here.

MR MILLSTEED:   He was in some very heavy company, but there was no evidence before the court as to the nature of Preston’s violent background.  He had convictions for shooting people.  That was not before the court but the fact ‑ ‑ ‑

GLEESON CJ:   He was obviously a person of very violent propensities.

MR MILLSTEED:   Yes, of very violent propensities, but the fact that he was involved in armed robberies was before the court.

KIRBY J:   But there was no suggestion Mr Gillard, whom we are focusing on, had been involved in offences of that kind?

MR MILLSTEED:   There was no evidence of that.  Your Honour, I would be tempted to run a proviso argument on the basis that the robbery story was so fanciful that no reasonable jury could accept it.

KIRBY J:   That is for the jury, that is not for us, surely?

MR MILLSTEED:   I was about to add something, your Honour.  I would have been tempted to run that because it was so vague and so fanciful that no one could accept it ‑ ‑ ‑

GLEESON CJ:   Well, it is a very good reason ‑ ‑ ‑

MR MILLSTEED:    ‑ ‑ ‑ but unfortunately there were two questions asked by the jury towards the end of the trial which the Court of Criminal Appeal has acknowledged showed that at least one member of the jury was attracted to the armed robbery hypothesis.

GLEESON CJ:   At least it may be a very good reason for not substituting a verdict of manslaughter.  The theory of Mr Gillard’s case, as I understand it, was that Preston gets out of the car driven by Gillard, walks in and, within a space of about 30 seconds, opens up, shoots two men and has a go at shooting a third man, and this all comes as a great surprise to Mr Gillard who thought that he was there on an occasion of dishonesty.

MR MILLSTEED:   Yes.  Your Honour, if the Court is against the respondent’s submission, in my submission, this matter should go back for retrial.

KIRBY J:   Is it true that much of the first trial of four and a half months was concerned with the guilt of Mr Preston and the way Mr Preston conducted the case?

MR MILLSTEED:   No, it is not correct at all.  The evidence that was presented against Preston was common in the case against Gillard.

HAYNE J:   It has to be, has it not?  It is a joint enterprise trial.  It is going to be the same trial again, is it not?

MR MILLSTEED:   But there is another reason, your Honour.  The primary defence of Gillard was that the interviews with the police were untrue, so if the Crown proved Preston’s guilt it tended to support the voracity of the confession or the admissions.  So it is not correct to say that this four month trial focused on evidence concerned predominantly with Preston’s guilt.  On the contrary, the evidence was essentially common to both men, the exception being the interviews that Gillard had with the police which were inadmissible in the case against Preston, and there are a couple of conversations that Mr Preston had with his wife and brother which amounted to confessions which were not admissible against Mr Gillard.  But for those items of evidence, the balance of the evidence at trial was admissible against both men.

KIRBY J:   I saw the judge said this was the longest trial in South Australian history at the time.

MR MILLSTEED:   It was.  The record has been broken since.

GLEESON CJ:   I imagine Snowtown has overtaken it by now.

MR MILLSTEED:   It was broken by a trial last year that unfortunately I was involved in again.  That was Mr Grosser, which went for eight months, and now Snowtown has overtaken that.

HAYNE J:   Is there something common then between the examples, is there?

MR MILLSTEED:   Your Honour, I will stand and have a good look myself in the mirror.  I thought I might have been responsible for all of these.

KIRBY J:   You did everything at the trial to avoid being here today.

MR MILLSTEED:    Thank you.  Your Honour, they are my submissions.

KIRBY J:   Is there anything in the idea of miscarriage in the way the trial was conducted that attracts the proviso in a case of this kind?  Does one properly take into account the great length of the trial and the fact that the point was pressed but rejected by the accused?  Is there anything in that or do we just have to say, well, it is a pity it is such a long trial but the principle is applicable to long and short trials?

MR MILLSTEED:   Your Honour, I think I have to say that the weight of authority is against me on the question of whether the failure to leave manslaughter can be put to one side simply because defence counsel expressly disavowed that line of defence.  That has been made plain in a number of cases.  There is a feature here which ‑ ‑ ‑

HAYNE J:   Well, Pemble is ‑ ‑ ‑

MR MILLSTEED:   Pemble, your Honour, yes and Van Den Hoek and a number of other cases.  There is a slightly different feature here in that the resistance to manslaughter which was offered by Mr Richards also meant that the Crown was denied the opportunity of putting before the court an additional basis of liability for murder.  As I put to the court, in my submission, that additional basis of liability was so strong ‑ ‑ ‑

GLEESON CJ:   Why was the Crown denied that possibility?

MR MILLSTEED:   Because, as I put to the Court, if there was an unlawful and dangerous act which amounted to a common purpose, if one applies the McAuliffe principle to that, Mr Gillard can be found guilty of murder if he foresaw murder as an incident of that venture.  The Crown was not allowed to put that before the court because the trial judge’s view was that there was no common purpose unlawful and dangerous act.  It was for that reason that manslaughter was not put before the court.

GLEESON CJ:   That presumably was because the trial judge was of the view that Preston had no purpose other than to shoot Knowles.

MR MILLSTEED:   Yes.

GLEESON CJ:   In particular he had no purpose to frighten Knowles or to assault him.  His purpose was to kill him.

MR MILLSTEED:   No, I think it went further than that, your Honour.  What his Honour said was that there was no common purpose because they had different objectives.  One had in mind murder and one had in mind robbery.  In those circumstances, you could not suggest that the commonality involved in presenting a loaded gun amounted to an unlawful and dangerous act could be relied upon.  That was essentially his Honour’s reasoning.

GLEESON CJ:   That is the threshold question that we have to decide.  It is a question on which there is no disagreement between counsel but it is the point at which you are both in disagreement with the Court of Criminal Appeal.

MR MILLSTEED:   Yes, it is an unusual situation that I find myself in.  I am in disagreement with Mr Peek to some extent.  I do not agree with the Reid approach, but apart from that I think on the principles enunciated in McAuliffe and Johns that there was a basis.

GLEESON CJ:   But it is not the case that the way the trial was conducted on behalf of the defence prevented the Crown from putting a case of murder of the kind you are now talking about.  That resulted from the way the trial judge saw the case.  In other words, the way the trial judge saw the case both cut off the manslaughter argument and the additional basis of murder.

MR MILLSTEED:   Your Honour, I think that is fair to say.  The judge had made his views reasonably plain and Mr Richards essentially agreed with him and when specifically asked if he wanted manslaughter left he said, “No”.  Your Honours, I am sorry I am so long in reaching that proviso point, but they are my submissions.

GLEESON CJ:   Thank you, Mr Millsteed.  Yes, Mr Peek.

MR PEEK:   Just very briefly in reply and limited to that matter of count 3, some submissions are made in my written reply, and I do not read it, particularly at paragraphs 14 and on to 16 and beyond.  At paragraph 15 I refer to a direction by his Honour at appeal book 8, page 1800 where his Honour said in particular:

you may well reach the same conclusion with respect to both the second and the third charge.

His Honour said much the same at another place in his Honour’s summing up at volume 7, page 1580, line 20.  Now, the point is that little can really hang on the peg of the verdict on count 3 because it really was, as it were, dealt with in the particular matrix of the trial and on at least two occasions it was said by his Honour that, “You will probably come to the same conclusion in relation to that as the other charges.”  That very much supported the proposition that, of course, if manslaughter had been left in relation to the others, then the thing may well have been different.  Indeed, there is another passage that I could refer the Court to at volume 7, page 1509, the dialogue between Mr Millsteed and his Honour where his Honour says:

I suppose, technically speaking, there are alternative verdicts to the third charge.

MR MILLSTEED:   Attempted manslaughter.

HIS HONOUR:   Wounding with intent, or unlawful wounding.

MR MILLSTEED:   I think there are.  I wouldn’t invite your Honour to leave those to the jury.

HIS HONOUR:   It seems to me that, if we got to that stage, the matter would be clear one way or the other, wouldn’t it?

MR MILLSTEED:   Yes, I would have thought so.

In other words, little discrimination was, as a matter of practical reality, being placed on count 3 and hence we can place very little weight on inferences to be drawn from the verdict.  That is the only point I wanted to make in reply, if it please the Court.

MR MILLSTEED:   Your Honours, I am sorry, can I just raise one matter.  It concerns a question that Justice Callinan asked about the social security evidence.  Mr Kimber has found that, your Honour.  Appeal book 1, page 16, lines 24 to 25, and also at page 61, lines 16 to 17.  That evidence relates to Mr Gillard receiving social security benefits.

GLEESON CJ:   Thank you.  We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.

AT 4.11 PM THE MATTER WAS ADJOURNED