Criminal Law (N.S.W.)—Accessory before the fact—Liability—Possible consequences of venture planned with principal in first degree—Sentence of accessory—Whether judge may impose sentence of less duration than life—Crimes Act, 1900 (N.S.W.), ss. 19, 346, 442 (1).
Decisions
1980, Feb.7. The following written judgments were delivered: BARWICK C.J. The applicant for special leave to appeal was convicted by the Supreme Court of New South Wales (1) of murder and (2) assault with intent to rob and wounding at the time of the assault, the applicant being then armed with an offensive weapon. He was sentenced in respect of murder to imprisonment for life and in respect of the assault and wounding to fourteen years with no non-parole period, the sentences to run concurrently. The applicant, though indicted as a principal along with one Dodge, was claimed by the Crown to have been an accessory before the fact by reason of his complicity in a common design to rob and, if need be, assault the deceased. (at p110)
2. Three points are raised for consideration as furnishing special reasons for the grant of leave: (1) that the doctrine of common purpose is inapplicable in the case of an accessory before the fact; (2) that the participants in a common design are only responsible for the probable, as distinct from the possible, consequences of execution of the common purpose; and (3) that the sentence of imprisonment for life is not mandatory under the provisions of the Crimes Act, 1900 (N.S.W.) in the case of the conviction for murder of an accessory before the fact. (at p110)
3. The evidence at the trial would support the following account. The applicant and a man named Watson, who had been known to the applicant for some six years, agreed that the applicant should drive Watson to Kings Cross, Sydney, where Watson intended, after meeting another associate of his, one Dodge, to rob a man named Morriss whom Watson told the applicant always had a large amount of money and jewellery in his possession, "something in the vicinity of $40,000". Morriss was said to be a "fence" with whom Watson had dealt in stolen goods. Watson said he was going to Morriss' unit in Wylde Street, Potts Point, along with Dodge, pretend he had stolen property to sell and then "hold him up, tie him up and take the money and stuff". Watson, to the applicant's knowledge, always carried a .25 calibre automatic pistol which the applicant, whilst not knowing if it was loaded on this occasion, expected it to be. After the robbery, Watson was to return to the applicant's car, deposit the stolen money and property with him, and make his own getaway. The applicant was to hold the stolen property in a convenient place until later when the applicant expected to get "something out of it, particularly with…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Johns v The Queen [1980] HCA 3
Case
[1980] HCA 3
Decision Date
CaseChat Overview and Summary
Johns appealed his conviction for armed robbery to the High Court of Australia. The central issue on appeal concerned the admissibility of evidence obtained from the appellant, which he argued was obtained in breach of his common law right to silence.
The High Court was required to determine whether the trial judge erred in admitting evidence of statements made by the appellant to police officers, despite the appellant having been cautioned that he was not obliged to answer questions. The court also considered the application of the common law exclusionary rule in relation to evidence obtained in breach of a suspect's right to silence.
The majority of the High Court held that the common law right to silence did not extend to preventing the admission of evidence obtained from a suspect who, after being cautioned, voluntarily answered questions. The court reasoned that the right to silence protected an accused from being compelled to answer questions, but it did not render inadmissible evidence voluntarily provided, even if the suspect had been informed they did not have to speak. The judges distinguished between compulsion and the voluntary provision of information.