Likiardopoulos v The Queen

[2012] HCATrans 129

[2012] HCATrans 129

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M24 of 2012

B e t w e e n -

DIMITRIOS LIKIARDOPOULOS

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 31 MAY 2012, AT 10.15 AM

Copyright in the High Court of Australia

MR M.J. CROUCHER, SC:   May it please the Court, I appear with my learned friend, MR L.C. CARTER, on behalf of the appellant.  (instructed by Lewenberg & Lewenberg)

MR G.J.C. SILBERT, SC:   May it please your Honours, I appear with my learned friend, MR B.L. SONNET, for the respondent.  (instructed by Solicitor for Public Prosecutions (Vic))

FRENCH CJ:   Yes, Mr Croucher.

MR CROUCHER:   Your Honours, the case against Mr Likiardopoulos was left on two alternative bases:  one was joint enterprise, the other was counselling or procuring.  In our submission, liability by way of counselling or procuring, or being an accessory before the fact, is derivative in nature.  If there is no murder by a principal there can be no liability for murder as an accessory by way of counselling and procuring, in our submission.  For that proposition we rely on the judgment in particular of Justice McHugh in Osland v The Queen, decided in 1998, reported ‑ ‑ ‑

FRENCH CJ:   Before we go to that, Mr Croucher, would you accept that there was evidence from which the jury could conclude that one or more of the persons who pleaded guilty to manslaughter, or to being an accessory after the fact to manslaughter, had murdered the deceased?

MR CROUCHER:   There was evidence from which it could be inferred that someone murdered the deceased, yes.

FRENCH CJ:   Some one or more of the people whom it was said the appellant had counselled or procured to murder the deceased?

MR CROUCHER:   At the trial, yes. 

FRENCH CJ:   Yes.

MR CROUCHER:   Yes, your Honour.

FRENCH CJ:   So that what we are looking to is what is the principle by which you say there is an answer in law to the allegation that he counselled or procured - given those two premises.

MR CROUCHER:   Yes, that is true, and we say that there could be, for legal purposes, no murder in circumstances where the Crown had accepted pleas of guilty from those persons upon whom they relied as the principal offenders – offender or offenders ‑ ‑ ‑

GUMMOW J:   But not at this trial.

MR CROUCHER:   That is true, not at this trial. 

HAYNE J:   And therefore not on this evidence.

MR CROUCHER:   That is true too, although it is hard to see how – well, at what point one actually assesses the evidence for this purpose because this has never arisen before precisely, the way in which this case falls.

HAYNE J:   But, how else does one assess it except at the trial of Mr Likiardopoulos and either beforehand as a question of abuse, or in running according to what evidence is available?  What other possibility is there?

MR CROUCHER:   Well, it might be assessed at the time that the pleas are accepted by the others, but, with respect, your Honour has to be right, that it must be at some point at his trial, the presenting of him upon the count of murder.  But we say that in circumstances where the Crown have accepted that those upon whom they have, at Mr Likiardopoulos’ trial, relied as potential principals, pleas of guilty to manslaughter, and in two cases accessory after the fact to manslaughter, not even involvement in the alleged murder, then that must stand in the way of a finding that the murder was committed by those people.

FRENCH CJ:   The acceptance of those pleas, putting to one side the question of abuse of process, involves variables other than the state of the evidence against those people, does it not?  It involves questions of prosecutorial discretion which may be informed by a variety of factors.

MR CROUCHER:   Yes, that is true, and it is not uncommon for deals to be struck which might otherwise strain credibility, but the court is involved in this process, the court has to accept the pleas of guilty of those persons and it did on three separate occasions - each of those four persons was dealt with and the court, without saying so out loud, implicitly accepted those pleas.

BELL J:   Is it suggested that the court would correctly have rejected those pleas?  I mean what do you mean by saying, “The court accepted the pleas?”

MR CROUCHER:   Well, the court has the power to refuse to accept a plea, generally speaking, and I do not say the court wrongly accepted those pleas in this case.

BELL J:   It would extraordinary, would it not, for the court to reject the plea?

MR CROUCHER:   Yes, but it is not impossible.

BELL J:   What do you draw from the fact that the court conventionally accepted the pleas?

MR CROUCHER:   That there is now, on the record, an acceptance by the court, at the instance of the Crown, that these people are not murderers.  Yet, at the trial of the appellant the Crown asserts that they were.

BELL J:   Had there been a plea or a conviction at another trial of murder for, say, the man, Hakan, could the Crown have simply tendered the certificate of conviction of murder at the trial of your client?

MR CROUCHER:   I doubt it, your Honour.

BELL J:   So does that not carry with it a recognition of the necessity to prove the fact of the elements of the offence establishing liability as against your client, including the participation by the others said to be complicit?

MR CROUCHER:   Yes, I accept that, your Honour.  However, when I said a moment ago “I doubt it”, there is a case which might assist your Honours which was decided in Victoria called R v Welsh which involved accessory after the fact and the question whether or not the admission by the principal could be used in the trial of the accessory after the fact.  Welsh is spelt in the usual way and it is reported in [1999] 2 VR 62, the judgment of the Court of Appeal comprising the President, Justice Winneke and Justices Brooking and Buchanan. Justice Brooking delivered the principal judgment.

There was much discussion about Dawson’s Case [1961] VR 773 where this issue about relying on what had been said by a principal might be admissible or otherwise in the trial of an accessory after the fact. So that might be of some assistance to your Honours but it does not answer the direct question that your Honour posed a moment ago.

HAYNE J:   Once you accept that at Mr Likiardopoulos’ trial the Crown had to lead evidence to prove the commission of the offence – principal offence – if the evidence that was led proved beyond reasonable doubt the elements of murder, what was the judge then to do, say that despite the evidence proving facts A and B, nonetheless, despite that being the proof, you are to conclude something different?

MR CROUCHER:   No.  In my submission, your Honour, the way it works is this.  Our complaint is not that it was impermissible to try the appellant on a count of murder.  There was a way home for the Crown in this case and I will need to take your Honours through it in Justice McHugh’s judgment in Osland, but it was through the principles of joint enterprise.  But insofar as the principles of counselling and procuring are concerned, derivative liability, our short point is that it was simply not open to prove that or to say to a jury that the principals were guilty of murder in circumstances where the Crown had said no, they are not guilty of murder in another context.  True it is that the evidence may have been different, that is not to the point, in our submission, for this purpose.  So can I take your Honours to the judgment of Justice McHugh to explain ‑ ‑ ‑

KIEFEL J:   Just before you do, could I just clarify one thing?  Is it part of your argument about counselling and procuring being derivative that there be only one person identified as committing the murder?

MR CROUCHER:   Well, we have not addressed that, your Honour, and I must confess I thought about it.  Conventionally that is the way it is done.  A conventional case of counselling and procuring or for that ‑ ‑ ‑

KIEFEL J:   I just wondered if there is a distinction obviously to be drawn about the approach in joint enterprise where the joint enterprise may not involve the intention to kill, of course, so you are concerned with something less.  But if it is truly derivative and there is a principal offender, I wondered what your position was, but that is not something that you are seeking to pursue here.

MR CROUCHER:   No.  Again, consistently with the judgment of Justice McHugh in Osland, it should be reasoned this way, it is submitted, that is to say that those who are put as potential principals in the first degree are capable of being principal offenders for the purposes of counselling and procuring, so that if ‑ ‑ ‑

KIEFEL J:   Each of them.

MR CROUCHER:   Each of them, either individually or collectively.  But, your Honour is right, with respect, there is a bit of a hurdle there or an extra step in the reasoning, as I say ‑ ‑ ‑

FRENCH CJ:   There may be questions of overlapping characterisation.  I suppose, for example, it might be possible for the ringleader of a joint enterprise also to be characterised if the facts allow it, as counselling and procuring the others – the other members of the joint enterprise to engage in that enterprise – as in give them a whack.

MR CROUCHER:   Does your Honour mean as well as being a principal in the first degree himself?

FRENCH CJ:   Well, maybe there are overlapping characterisations, that is all.  The same facts may give rise to different characterisations leading to liability.

MR CROUCHER:   There is no doubt about that, your Honour.  In Claytons Case, Clayton and Hartwick in this Court, which is one of the cases in our list – No 4 on our list - the Court recognised, for example, that in a case where joint enterprise was relied on based on presence at the scene, also aiding and abetting, which of course requires presence at the scene, those two doctrines would overlap – intercept to some extent.  There might be differences.  I mean, one difference would be, of course, there is no agreement required for aiding and abetting, whereas there is for joint enterprise and there would be a separate utility for the Crown in relying on each of those doctrines. 

So, too, to deal with your Honour, the Chief Justice’s point, well, there might be circumstances in which a person said to have counselled and procured others to commit acts which amount to murder may himself have direct liability by way of joint enterprise and, indeed, the Crown’s case in this case, was put on those two bases.  There was joint enterprise based on an agreement that the deceased should be assaulted with the intention to cause really serious injury.

FRENCH CJ:   Your contention is that the counselling and procuring was an impermissible way home and you cannot exclude the possibility that the jury took that way – or that some of them did.

MR CROUCHER:   Exactly.  That is the point in a nutshell, your Honour.  So if we are right that it was impermissible, then the conviction must fall but the order would not be an acquittal.  The order would be a retrial because there is a way home.

BELL J:   Can I just take this up with you?  You commenced by speaking of liability as an accessory before the fact conventionally by reference to a case in counselling and procuring.  As I understand it, the evidence was the same with respect to the case for accessorial liability as the case in joint criminal enterprise, that is, that the appellant was present, saying things and doing things, characterised on one view of the case as a form of accessorial liability – the expression “counselling and procuring” being used but, I think, there is certainly a view that no practical distinction exists between the words “counsel”, “procure”, “aid”, “abet”.  Each describes the notion of encouraging or assisting in the commission of a crime. 

But a person who is present is not an accessory before the fact and there may be some difference between the argument you seek to advance – based on a case of being an accessory before the fact – and a case which was, at all times, one of the appellant being present, participating in the events that unfolded and that caused the death of the deceased. 

MR CROUCHER:   I make two points in response, your Honour.

BELL J:   Yes.

MR CROUCHER:   First, the Crown’s case on both joint enterprise and counselling and procuring recognised that the appellant was said to be absent at times.  That is why they chose counselling and procuring.  That is why the jury were told in respect of joint enterprise that presence was not required in this case.  So whilst your Honour is right that the evidence showed that he was there – on one view of the evidence at least – for substantial periods, nevertheless, there was evidence, for example, that he might not have been there at the start, that he might have been away in another suburb at a certain point, that he might have been in another room at various points, and so on.

BELL J:   I understand that.  The jury were directed in relation to liability on joint criminal enterprise that it did not matter that he was not there throughout.  The point that I am taking up with you is that this is not a case where there was some evidence from which the jury might infer that before the assault commenced the appellant had encouraged a group of people to find the deceased and carry out an assault upon him.  But the evidence of the agreement to found liability based on joint enterprise was the inference from what it was that occurred in the room during the course of this lengthy assault on the deceased, just as the evidence of counselling and procuring, aiding and abetting, depended upon what it was he did and said in the presence of the others during the course of the assault on the occasions when he was present.  Is that not the position?

MR CROUCHER:   That is, with respect, partly right.  I mean, as you say, there was evidence of admissions relied on that he was in some way involved; that probably is in a similar category to the point your Honour is making.  As I say, there was also this evidence that he was away.  Now, there was evidence, of course, of a prior incident involving Shalendra Singh of a similar nature where he was put in a chair, if you like, and treated in a similar fashion.

BELL J:   How does any of this bear on the matter that I raised with you?

MR CROUCHER:   Well, I am trying to answer your Honour’s question about the way the Crown put its case.  The Crown have deliberately chosen not to rely on aiding and abetting because of the belief that presence is required for proof of aiding and abetting, and in this case there obviously were gaps in whether or not – in the evidence – as to whether or not the accused was present all the time.  It varied, the evidence varied, you see.  Some evidence had him there basically at all critical times – or not at all, but most critical times – and others had him away, as I say, at the start and being called back at a certain point and so on.  So, as I understood what the Crown were doing was seeking to overcome that deficiency.  That is the first point.

The second point in answer to your Honour’s original point, is that there does seem to be, at least in some of the cases but not all, a distinction drawn between the nature of derivative liability, if that is the right way of putting it, on the one hand between accessories before the fact or principals in the third degree or counsels and procurers and, on the other hand, accessories at the fact or principals in the second degree. 

There seems to have been more of a tolerance, if you like, for what otherwise might be thought to be inconsistent results, that is to say, acquittal of principal and conviction of a principal in the second degree, more tolerance for that sort of outcome than there has been for accessories before the fact being convicted in circumstances where the principal in the first degree was not.  Again, I keep saying I want to go to Justice McHugh’s judgment ‑ ‑ ‑

FRENCH CJ:   You are going to get there eventually, Mr Croucher.

MR CROUCHER:   ‑ ‑ ‑ because, in my respectful submission, it explains a lot about how this area of the law fits together.  The context, of course, of Osland was that Mrs Osland and her son were jointly charged with the murder of Frank Osland in circumstances where on the evidence there was no dispute that they had formed an agreement to strike him and kill him.  David Albion was the one who physically struck the blows.  There was a small amount of evidence that Mrs Osland may have been involved in mixing a sedative or something like that, but basically it was conducted on the basis that the cause of the death was inflicted by David Albion, not by Mrs Osland, but that she agreed in those acts.

At that trial she was found guilty.  Their principal defences were provocation and self‑defence.  At that trial she was found guilty, but her son, the jury did not arrive at a verdict on, of course, and then subsequently he was retried and he was acquitted.  One of the points taken on the appeal to this Court was whether the verdicts were in some way – or the lack of verdict, if you like, for Mr Albion and the conviction in the same trial of Mrs Osland were inconsistent.  Justice McHugh, in rejecting that submission, from page 341, explained why that was so, and his Honour started at paragraph 69 by making the point that, as he saw it:

Much of the argument for Mrs Osland in this Court was characterised by ‑ ‑ ‑

GUMMOW J:   Sorry, where are you reading from?  Page 341?

MR CROUCHER:   Page 341, paragraph 69.

Much of the argument for Mrs Osland in this Court was characterised by a failure to distinguish between, on the one hand, the criminal liability of a person who is present at the scene of a crime and is acting in concert with another ‑ ‑ ‑

GUMMOW J:   Well, this is talking at a level of abstraction about criminal liability.  It is not attached to the processes by which that is adjudicated.  That seems to be your problem.

MR CROUCHER:   Well, your Honours, the next couple of paragraphs though his Honour surveys the law and talks about the difference between primary and derivative liability, and he makes the point, over the next couple of paragraphs. that counselling and procuring or accessory before the fact and aiding and abetting were both derivative forms of liability, whereas joint enterprise, or acting in concert or whatever the nomenclature you choose, and including extended common purpose, which is an extended form of joint enterprise, are direct forms of liability.  In particular, the important underpinning idea of his Honour’s reasoning is that one who is the non‑perpetrator of the acts ‑ ‑ ‑

GUMMOW J:   In that case Mrs Osland and her son were tried together.

MR CROUCHER:   They were.

GUMMOW J:   The debate was about inconsistent verdicts.

MR CROUCHER:   I understand that, your Honour, but the points of principle are still important that his Honour ‑ ‑ ‑

GUMMOW J:   Well, the question is what do you mean by principle?  That is what I was asking.

MR CROUCHER:   Yes.  Well, his Honour, at paragraphs 71 to 72, explains that, as I say, derivative liability for aiding and abetting and counselling and procuring but direct liability for concert and explains that it is the acts for which a non‑perpetrator acting in concert is liable, not the crime.  So, therefore, if a non‑perpetrator’s mens rea is there, but the principal, the one who perpetrates the crime, the direct principal if you like, does not have the requisite mens rea and is found not guilty, or has some other defence available to him or her, then nevertheless, that person can be acquitted whereas the non‑perpetrator can still be convicted because it is agreement in the acts or the actus reus, but it might be differentiated by mens rea or things of that nature.

His Honour contrasts, however, derivative liability and in particular at paragraphs, all the way through to 95, which is where he deals with the topic of complicity, his Honour spends a good deal of time going through the cases and explaining many of the older cases, including ones such as Cogan and Leak and Howe and Richards, many other cases that seem to have been explained on the basis of innocent agency or the notion that somehow a principal might still be acquitted, yet the aider and abettor or counsellor and procurer is convicted on the basis that in truth those cases should be characterised as ones where there was an agreement to commit the acts, joint enterprise, and there was a difference in mens rea or defence available.  Then his Honour ultimately deals with Surujpaul at page 351, paragraph 95, where his Honour says this:

Counsel for Mrs Osland also relied on Surujpaul as authority for the proposition that when persons are jointly charged with murder they cannot be convicted as accessories unless one or more of them has been convicted as a principal.  But the conviction in that case was as an accessory before the fact.  As I pointed out earlier, the liability of an accessory before the fact is derivative.  There can be no conviction as an accessory before the fact unless there is a principal offender.  In Surujpaul, all the co-accused were acquitted both as principals and as accessories before the fact.  That case has no bearing on the criminal responsibility of a person for the acts of the actual perpetrator when the former is alleged to be acting in concert and present at the scene with the latter.

His Honour is clearly leaving open the idea that derivative liability is still alive, at least at that level.  Of course, what is also put against us on the argument that there somehow was not an abuse of process in the circumstances is what was said by the Privy Council in Hui Chi-ming. 

Hui Chi-ming v The Queen [1992] 1 AC 34 was a case in which the Crown case was that several men involved in a group set out to assault someone and that there was a so‑called principal offender who actually struck the blow and killed the deceased and the others were simply there assisting, if you like. They were there acting in concert, as we would call it here, or at least as part of an extended common purpose where there was a joint enterprise to assault and the foresight or the possibility that something more serious, namely intentionally causing a really serious injury, would occur, and death results, therefore guilty.

At a separate trial the principal offender was acquitted of murder but convicted of manslaughter.  Hui Chi-ming and several of his co‑accused were offered pleas of guilty to manslaughter.  Some of them accepted it but Hui Chui‑ming did not.  He was tried separately later on and the Crown ran its case on the basis - against Mr Hui Chi‑ming – on the basis of concert and exceeding common purpose.  He was found guilty.  It was submitted in the Privy Council that this was an abuse of process because, on the one hand, you have this person who is the principal offender who has been found not guilty of murder, yet guilty of manslaughter and he has been tried – Mr Hui Chi‑ming was tried for murder and was convicted of it.  But the Privy Council in its advice said, no, there is nothing wrong with that.  It was open in law and the conviction stood. 

Justice McHugh in his judgment in Osland at page 345 at paragraph 78 having – in fact, he deals with Hui Chi-ming on the previous page at page 344, paragraph 76 and this is in the course of his going through and explaining cases on the basis that they are concert or joint enterprise cases where the liability is for the acts but principals or non‑perpetrators and perpetrators can still be differentiated in their verdicts by mens rea, different defences and so on. This is just one of the cases to which his Honour has referred. Having set out at paragraphs 76 and 77 what had happened in the case, including the directions, his Honour at paragraph 78 says this:

The Judicial Committee held that the trial judge had not misdirected the jury and that the prosecution was not an abuse of process.  It is true that the above directions were not those that were the subject of criticism by the appellant.  But it is difficult to believe that their Lordships would not have criticised these directions if they had thought that they contained error or said, as they did, that they “reject all criticisms of the judge’s directions to the jury on joint enterprise”.

This is the important part:

Nor could their Lordships have found that the conviction was not an abuse of process unless the true theory of persons acting in concert is as I have suggested, that is, it is the acts of the actual perpetrator which are attributed to a non‑participant who is acting in concert and is present at the scene.

Now, when coupled with his Honour’s remarks at paragraphs 70 to 72 about the contrast between derivative liability and direct liability and at paragraph 95 in respect of Surujpaul, the passage which I have just read to your Honours from paragraph 78 can only mean that in Justice McHugh’s view had the case against Hui Chi-ming been put as one of counselling or procuring derivative liability, rather than one of concert or extended common purpose, direct liability, liability for the acts but differentiated by mens rea, the Judicial Committee would have been compelled to conclude that that was an abuse of process. 

So, in our submission, it follows that it was an abuse of process or abuse of the Supreme Court of Victoria’s process to allow the appellant to be tried on the basis that he counselled or procured others to commit murder when none of those others had been convicted of murder and, indeed, it was the Crown who had accepted from those others pleas of guilty to manslaughter or accessory after the fact of manslaughter. 

FRENCH CJ:   Well, it cannot be the first limb of that situation by itself because others may not have been convicted of murder for a variety of reasons.  The abuse of process, as you put it, resides in the Crown’s acceptance of the pleas to the lesser offence followed by its decision to prosecute the appellant for the more serious offence.

MR CROUCHER:   Yes, but it is the same type of thing, in my submission, because as Justice McHugh explained a little earlier in paragraph 76, this is the middle of paragraph 76 on page 344:

Presumably, the jury thought that he –

meaning the principal –

lacked the requisite murderous intent.

It does not really matter why, but the fact is that a jury has said not guilty of murder, guilty of manslaughter.  Now, of course, Lord Lowry said that that was a perverse verdict by the way but that, with respect, is neither here nor there.  Rather, the fact is there is a verdict, there is a judicial determination effectively of a level of guilt that does not rise to murder and, for the reasons I have sought to put, his Honour – his reasons at paragraph 78 – Justice McHugh’s reasons suggest that it would have been abuse of process had the Crown’s case been presented on derivative liability basis, namely, either counselling and procuring or aiding and abetting, both of which are derivative in nature.

BELL J:   Can I just raise this with you, Mr Croucher?  Some of the analysis of complicity in Osland is, I think, inconsistent with an approach that is taken in England.

MR CROUCHER:   There is no doubt about that, your Honour, with respect.

BELL J:   Yes, indeed.  Looking in particular at this analysis of the liability as between an accessory before the fact and an accessory at the fact, to use the old‑fashioned language, in Professor K. Smith’s work on the modern law of criminal complicity at page 127 and following, a distinction is drawn between accessories before the fact based on the history that did not admit of an accessory before the fact being dealt with before the conviction of the principal and accessories at the fact in respect of whom that procedural bar did not exist, leading, so it is said, to the capacity to convict the aider and abettor of murder whilst the principal is convicted of manslaughter. 

MR CROUCHER:   That is right.  Sorry, your Honour, that was the point I was trying to make before in answer to your Honour’s first question, there were two answers, one of which was that there does seem to be a view that a distinction grew up over the years, but anyway, I am sorry, I have cut your Honour off, you were about to make ‑ ‑ ‑

BELL J:   I am only raising it with you, Mr Croucher, because it may be that the point that really was not in focus in Osland, and on which you place so much reliance, might itself be controversial.  That is the only ‑ ‑ ‑

MR CROUCHER:   Well, a couple of things - first, your Honour, it does not seem to be controversial insofar as accessory before the fact is concerned.  That is consistent with the article to which your Honour has just referred.  Now, I know your Honour said before this was arguably really a case of accessory at the fact or aiding and abetting anyway.

BELL J:   Well, if you can take me to a passage in the summing‑up that puts the case other than on that basis.  We are not concerned with nomenclature, but with the effect of the direction surely.

MR CROUCHER:   Well, your Honour, but we are also concerned with the case the parties were putting in meeting and the Crown had the chance to say it was aiding and abetting and what would have come with that would have been an argument that, “Hold on, insofar as presence is required for the purposes of aiding and abetting, accessory at the fact” and insofar as one cannot identify in this case when the act causing death occurred - this is what the Crown obviously were concerned about - and given the evidence about the appellant’s absence at various points; start, middle, wherever it was, they were troubled.  So, they have run a case based on accessory before the fact, counselling and procuring and the alternative, joint enterprise not requiring presence.  I should say, by the way, your Honours, that ‑ ‑ ‑

BELL J:   Indeed.  The case on accessorial liability depended upon the jury’s satisfaction of things said and done in the presence of the others during the course of the assault on the deceased.

MR CROUCHER:   Well, that is true, but that does not deny the Crown’s case that he is continuing, if you like, to counsel or procure when he is there and when he is away.  That is the point.  That was their point, as I understood it.  It was never ‑ ‑ ‑

BELL J:   Where was that put?

MR CROUCHER:   Well, it was never articulated in that way but, whether, it seems to me that that was obviously what it was about.  But it could not now be said, in my submission, that it should be reasoned in that fashion, because then the appellant has been denied the chance to make the point before the jury, contrary to the judge’s directions, that presence mattered because presence does matter for the purposes of aiding and abetting.

BELL J:   The case put on either view of the matter was that it depended entirely on proof of things that the appellant said and did in the presence of the others during the course of the assault, albeit, it was never said that he was there throughout.  Where, in anything said to the jury, does one get a suggestion that liability might be found based upon something said or done by the appellant by way of procuring the offence by others, not involving his presence?

MR CROUCHER:   Well, again, your Honour, it is by inference, but part of the Crown case was he was this controlling figure, so that this was an ever‑present influence that he would have on individuals in the household, firstly.  Secondly, it is submitted that it is apparent from the way in which the prosecutor was putting his case that he was, if you like, accepting that – and this was what the evidence was. 

The evidence was so conflicting about who was where when, I mean, two of the people that were called as witnesses were the two persons said to have been principals in the first degree - Shalendra Singh and Hakan Aydin, Aydin having pleaded guilty to manslaughter, Sing, accessory after the fact to manslaughter - who gave completely contradictory versions.  Other witnesses gave contradictory versions about who was present when so that if there is not an identity of persons present at the time that the command or encouragement or whatever it is that is being uttered, then somehow this has to transfer to people when they are not present and when they come along, and when he might not be there.  This is what it is about it is submitted.

The Crown were being very careful not to corner themselves into a case of aiding and abetting which they knew they could not prove because of the requirement of presence, and in circumstances where, as I say, it is not a conventional counselling and procuring or aiding and abetting case where a person says, let us say in a counselling and procuring case, “Please, would you go and shoot so-and-so tomorrow night at 12.00,” that sort of thing, where there is an identity - it is a simple clear case, and that is fought on that basis. 

This is where there was a mess of information or evidence coming from different sources, where the Crown were troubled about how it all fitted together so they have chosen this, if you like, catch‑all way, a broader way of saying, “To the extent that things might have been going on when he was absent, that is how we are going to get him”.

FRENCH CJ:   Does your abuse of process case depend on, or at least assume for the sake of argument, that it was open at law for the appellant to be convicted of murder on the basis of counselling and procuring in circumstances where the perpetrators had made pleas, which had been accepted, to lesser offences?  I am just trying to be clear that the first point does not collapse into the second.  When we are talking about abuse of process, are we assuming that he could properly have been convicted as a matter of law?

MR CROUCHER:   No.  In my submission – I am sorry, I am probably not answering your Honour directly.  I will try to answer what I believe to be your Honour’s question.  The first point is that it is simply not open in law, in the circumstances of this case, having accepted pleas of guilty as something less ‑ ‑ ‑

FRENCH CJ:   That is your answer to the questions I put to you at the outset?

MR CROUCHER:   Yes.  However, in respect of the abuse of process, it is twofold.  First, it is saying whether or not that is so – whether or not the first point is right – the Crown cannot be heard to say to a jury that these persons are guilty of murder in circumstances where they have accepted that they are not, and not even ‑ ‑ ‑

FRENCH CJ:   It only matters if we assume that you are wrong on the first point, that in fact it was open for him to be convicted on the basis of counselling and procuring.

MR CROUCHER:   Yes, I suppose, in a sense, it is summarised perhaps not as directly as it might be, but in our paragraphs 35 to 37 of the relief ‑ ‑ ‑

HAYNE J:   What paragraph numbers?

MR CROUCHER:   Paragraphs 35 to 37 of our annotated submissions.  We accept, as I have said more than once, that there was a way home, and that was employing the concert joint enterprise reasoning of Justice McHugh, that the Crown were entitled to say he was part of an agreement with others to assault this person.

CRENNAN J:   How does the second sentence of paragraph 37 work in the context of what you are saying?

MR CROUCHER:   This is what I am coming to, your Honour.  The Crown cannot be heard to say whether its concert or counselling and procuring or aiding and abetting, to pick up Justice Bell’s point, that these people committed murder when they have accepted that they did not; it is just wrong.

HAYNE J:   That is an estoppel argument.  It is not an abuse of process.  The moment you frame it as “the Crown cannot be heard to say” you are asserting an estoppel, are you not?

MR CROUCHER:   Well, yes, I suppose it is a species of estoppel, but it is ‑ ‑ ‑

HAYNE J:   Well, it is a novel one, is it not, Mr Croucher?

MR CROUCHER:   Not in circumstances where the – it is an affront to the administration of justice, in our submission, that the Crown would say in one proceedings these people are not guilty of murder, guilty only of manslaughter, or even not involved in the killing but accessories after the fact only, but turn around to another jury and say, they are in fact murderers.

CRENNAN J:   But if a person who counsels and procures has the necessary mental culpability why, as a logical matter, should the wrongfulness of what that person has done been limited to the actual perpetrator’s culpability?

MR CROUCHER:   Because the theory of the writ of ‑ ‑ ‑

CRENNAN J:   I mean, much of what Justice McHugh says in relation to joint enterprise – some of the logic of it, why cannot it apply also in relation to counselling and procuring?

MR CROUCHER:   Well, that would be an extension of the law to do so, your Honour, because ‑ ‑ ‑

CRENNAN J:   I am talking about the logic for that reason.

MR CROUCHER:   I understand that point, your Honour, and the idea that the law of complicity might be rationalised or reworked from start to finish is not a bad one at one level, your Honour, because as the law has grown up over the years there are asymmetries, distinctions that do not seem to make much sense, but this Court in Clayton made the point that each doctrine has its own separate utility; secondly, that these are matters for law reform commissions to deal with and legislatures to deal with if radical wholesale changes are going to be made of that type.

You see, the way the law has tried to deal with your Honour’s point in the past is through, for example, the doctrine of innocent agency where the person who would otherwise be described as the principal in the first degree, or the principal offender, cannot be convicted or was not convicted or whatever it was, but in some way that person was used as an instrument, if you like, by the counsel and procurer or the aider and abettor. 

The difficulty is that, as Justice McHugh explained in Osland, it is not always a very satisfactory way of explaining what has actually happened in the case, and in fact his Honour was very – well, I took him to be critical of the reasoning in Cogan and Leak, for example, the rape case which your Honours would have had to think about as a result of yesterday’s judgment no doubt, as rationalising that as innocent agency.  Rather, properly understood, it is a case of joint enterprise where the perpetrator lacked the requisite mens rea or whatever it was, whereas innocent agency is more happily described in cases like White v Ridley where an airline imports drugs unknowingly, of course, completely unknowingly – that sort of thing.

So, that is part of the answer.  The other part, though, your Honour, is that the theory of that liability is that one is contributing to, or causing, the crime committed by the principal, whereas, as Justice McHugh explains, concert, joint enterprise, those strands of liability are direct.  It is agreement to commit the acts and then there is differentiation as to mens rea.  But, with respect your Honour, the point your Honour raises – this is one of these things that text writers and authors have talked about for years.

BELL J:   Your argument, Mr Croucher, depends upon a view that the Crown, in accepting a plea to manslaughter in discharge of an indictment for murder, is to be taken to be accepting that the person did not commit the greater offence as distinct from accepting that, in the circumstances – which may depend upon an assessment of the evidence then available – it is appropriate to accept the plea.

MR CROUCHER:   Yes, your Honour.

BELL J:   The matter I raise with you is the obvious one, Mr Croucher, what is it that is suggested to be unattractive about the view that when different evidence is available, the Crown ought be able to present that evidence and seek to prove the fact of the ingredients of the offence of murder, including that persons who have pleaded to a lesser offence on the evidence of the trial of the appellant, were guilty of the offence of murder.

MR CROUCHER:   Because it is just fundamentally inconsistent.

BELL J:   But there is nothing ‑ ‑ ‑

MR CROUCHER:   I understand that the – sorry, your Honour ‑ ‑ ‑

BELL J:   I am sorry, go on.

MR CROUCHER:   I understand the point of distinction your Honour draws.  Obviously, that is one way of justifying it, to say, well the evidence was different here, that is all there is to it.  But that is not all there is to it, in our submission.  Our submission is that it is unfair, it is something that brings into disrepute the administration of justice, that the Crown who brings the charge can say on the one hand, this person is not guilty of murder – only guilty of manslaughter – or even, only an accessory after the fact, not even involved in the killing. 

FRENCH CJ:   That is not a statement, though, implicit in the acceptance of a plea of manslaughter, or a decision that really reduces to us a decision not to prosecute for murder on the basis that the person has entered a plea of guilty for manslaughter.  Now, it does not involve an assertion by the Crown that they are not guilty of murder, does it?

MR CROUCHER:   But, with respect, your Honour, that distinction is a distinction that really is one that goes to, perhaps, what the belief of the Crown is.  The Crown might believe that the person is ‑ ‑ ‑

FRENCH CJ:   Well, you are attributing a position to the Crown by reference to what you call the acceptance of the lesser plea. 

MR CROUCHER:   Well, the Crown may have its own view about what did or did not happen but the fact is they have accepted a plea to a particular charge – in two of these four cases – accessories after the fact to manslaughter and to manslaughter, and then turned around and said, no, that is not right for the purposes of another person’s trial who was said to have been acting jointly with him or by whom they were counselled or procured.  It strikes at the heart of the administration of justice, in our submission, in the same way that the complaint was made in which and then rejected, we say it should be, in the opposite way it should be accepted here.

But we are accepting that there is a difference in that you can allow the Crown to run its case still of murder against the appellant on concert or joint enterprise but not assert that these other people are guilty of murder.  So, you simply say there has been agreement and this fellow, this accused, had the intention to cause really serious injury and death followed and that is their case of murder.  That is how it could be done properly but it was not done that way.  The conviction should fall because of it.  That is our submission.

Now, the Crown filed a notice of contention and say that even if we are right about all of this, well, the law – there should be a review of the law of derivative liability and this Court should “sweep away” all the out-dated distinctions between principals and accessories and favour a single coherent principle underlying the law of complicity.  They turn to the remarks of Justice Callinan in Osland where his Honour spoke of significant, sufficient contribution as a way of explaining the verdict in that case.  They also refer to the plurality’s judgment in Clayton as supporting that proposition.  In particular, in their submissions at paragraph 6.65, the Crown say:

Thus, the Respondent’s position is a simple one – this Court should now finally sweep away all the outdated distinctions between principals and accessories in favour of a single coherent principle underlying the law of complicity.  Stated succinctly, a person is criminally responsible for the acts of another when that person can be shown to have either acted as part of a common enterprise (or in concert) [principals in the first degree], or aided and abetted such person [principals in second degree] or counselled or procured such person [principals in third degree]; as to what actual crime the person has committed that will be determined by his or her own mens rea and not that of any other actor in the commission of the actus reus.

Then they refer to Justice Callinan’s judgment in Osland and they seem to be relying, in particular, on the last sentence in that series of paragraphs there about a sufficient, significant contribution as being a test.  Then, they go on and speak about what the plurality said in Clayton and they say:

The history of the distinction between joint enterprise liability and secondary liability as an aider, abettor, counsellor or procurer of an offence has recently been traced by Professor Simester.  As that author demonstrates, liability as an aider and abettor is grounded in the secondary party’s contribution to another’s crime.

Just a couple of things about that quote.  First, your Honours, when you read the whole quote it bears a different character.  First, if you go to Clayton at paragraph [20], the full quote is – and it should be read with paragraph [19] as well – where the Court says that this is a matter for Law Reform Commissions and the like.  But at paragraph [20] the judgment says:

Further, no change could be undertaken to the law of extended common purpose without examining the whole of the law with respect to secondary liability for crime.

Well, so too here, we say, your Honours.

The history of the distinction between joint enterprise liability and secondary liability as an aider, abettor, counsellor or procurer of an offence has recently been traced by Professor Simester.  As that author demonstrates, liability as an aider and abettor is grounded in the secondary party’s contribution to another’s crime. 

With respect, we agree.

By contrast, in point enterprise cases, the wrong lies in the mutual embarkation on a crime, and the participants are liable for what they foresee as the possible results of that venture.  In some cases, the accused may be guilty both as an aider and abettor, and as participant in a joint criminal enterprise.  That factual intersection of the two different sets of principles does not deny their separate utility.

Well, so too there is a separate utility in counselling and procuring and agreement is the essence of joint criminal enterprise, mutual embarkation on criminal behaviour, or acts giving rise to criminal behaviour, whereas counselling and procuring, for example, is in some way causing another person to commit a crime.  So that if the Crown for whatever reason fails to prove an agreement to commit a crime but otherwise proves that there was encouragement or assistance in some fashion that caused in some sense the commission of the crime, then there will still be liability in the right circumstances.  So there is a separate utility in that as well. 

Now, the Crown’s invitation though would, in our submission, by getting rid of the derivative nature of what would otherwise be derivative liability – counselling and procuring, aiding and abetting – would reduce it to a species of inchoate crime because if nothing has happened or needs to happen as a result of the counselling and procuring or aiding and abetting, then that is its nature then.  It is more like or something short of conspiracy, something short of agreement at the end of which nothing criminal happens.  That would be a backward step.

Another point about the Crown’s submission is this, that it highlights one of the deficiencies in the trial judge’s directions on counselling and procuring in the present case.  Her Honour directed that the words or actions of the appellant need not have caused the principal offender or offenders to commit the crime, and that is to be found at page 763 of the appeal book.  If the true test is one of something like, to quote Justice Callinan, picked up by the Crown, “sufficient significant contribution” then the judge’s directions were an error on that account.  But, of course, we hesitate in saying this because this was a point upon which special leave was sought in this case but was not granted. 

Again, the Crown, in saying that, well, it is enough that – and this is consistent with what your Honour Justice Bell said earlier that there has been a development, it seems, in England that is different.  There seems to be a view that, on one view of things at least, that causation, if you like, of the actus reus of the principal offender’s offence is enough.  So that if the principal offender is acquitted because of lack of mens rea, for example, then provided – getting back to your Honour Justice Crennan’s question – provided the counsel and procure of the secondary party has the sufficient mens rea, then he or she should be convicted.

Now, again though, it still highlights a couple of things.  One is the importance of there being some sort of causal link, which was denied in this case.  So that if the Crown’s version of the proper form of the law were to exist, then there would still be error in this case warranting the setting aside of conviction.  Secondly, there are cases – and the text writers and commentators have spoken about this – that seem to draw a distinction on the degree to which the counsellor or procurer or aider and abettor’s behaviour has caused or contributed to the principal’s offence.  Professor Sir John Smith, in an article in a textbook by Glazebrook, which is referred to in Justice Mason’s judgment in Giorgianni, which at page 494 of Giorgianni that is referred to.

FRENCH CJ: Now, this is (1985) 156 CLR 473.

MR CROUCHER:   Yes, it is.  It is in the Crown’s list of authorities, your Honour.  I am just giving it to you for the reference to Professor Sir John Smith’s article.  Just bear with me a moment.  Yes.  At 492 of Giorgianni, at about the last quarter of the page, the article is referred to there.  It is J.C. Smith, “Aid, Abet, Counsel or Procure” in P.R. Glazebrook, Reshaping the Criminal Law (1978) at pages 120 to 137.  In that article Professor Sir John Smith makes the point that there seems to be a distinction drawn between cases of procuring where a causative link is required, aiding and abetting where encouragement is enough and counselling, not quite clear.  So it is a little bit all over the place. 

There is another article which may – and we will provide of these.  We have provided copies of this one I am about to mention now. 

Professor Lanham wrote an article entitled Primary and Derivative Criminal Liability:  An Australian Perspective, which is in [2000] Crim LR 707.  He goes through in some detail the law of derivative liability, if that is the right way of putting it, as he describes it, and primary liability in this country and talks about this principle of causation, at page 712 and following, as a way of explaining some cases and perhaps as a way of justifying certain results or perhaps that it might be an amendment to the law that it might be made.

As we say, if that were the touchstone, if it did not matter whether or not the principal offender was convicted, there would have to be something else to warrant fixing an aider and abettor or a counsellor and procurer with criminal complicity and one would have thought, consistent with what the Crown’s submission is, that there would need to be some sort of causative link.  If that is not already in the law, then a stronger version of it and, as we say, the directions were deficient in that regard.  Now, unless the Court has any further questions of us, those are our submissions.

FRENCH CJ:   Thank you, Mr Croucher.  Yes, Mr Silbert.

MR SILBERT:   If the Court pleases, it is strange that these cases all seem to come out of Victoria and there may well be a reason for it.  My friend, who is heavily reliant on Justice McHugh in ‑ ‑ ‑

HAYNE J:   You are not going to complete that proposition there, Mr Silbert?

MR SILBERT:   Well, I am happy to complete it.

HAYNE J:   I was waiting with some interest.

MR SILBERT:   I am happy to complete it, your Honour, because this Court has attempted a number of times to look at complicity.  Your Honour had a crack at it in Gillard.

HAYNE J:   Thank you so much for the flattery yet again, Mr Silbert.

MR SILBERT:   No.

HAYNE J:   You described it as an attempt last time, I think.

MR SILBERT:   Perhaps I should apologise and explain that, your Honour.

HAYNE J:   No.

MR SILBERT:   For 40 years in Victoria, Lowery and King seems to have governed the charges of judges to juries in relation to aiding and abetting and acting in concert, and that charge mandates presence as necessary as part of acting in concert and aiding and abetting.  The attempt to rationalise and say acting in concert is the same as joint enterprise, joint criminal enterprise and so on, the question in Victoria seems to stumble on the question of presence, which is why the Crown in this case had the backup of counselling and procuring.  If presence had not been so dogmatically insisted upon in the jury charge that Lowery and King has mandated for something like 40 years, probably there would have been no need for the mention of counselling and procuring because, on the facts of this case, the counselling and procuring are subsumed by the joint enterprise in an event.

BELL J:   Mr Silbert, it may be that you are right.  You and Mr Croucher are at one as to the reason why the Crown put its case on counselling and procuring additionally to acting in concert, but when one turns to what it was the jury were told, the directions on counselling and procuring begin at 760 and refer to the fact of an allegation that the appellant:

directed, encouraged and exhorted others present –

and then go on at 762 at line 22 to explain how the Crown proposes to make that case and it is a case that his liability as an accessory is because:

he was present at the time when that was being done.

But the matter that I have raised with Mr Croucher, and I raise with you, is that in the way this case was presented on the alternative – put to one side the language of “counsel and procure” – it was being advanced surely as a case of accessorial liability as a person present encouraging or assisting.

MR SILBERT:   Absolutely, your Honour, and I agree fully with that, but I still feel constrained to explain why this alternative – this civil, further or in the alternative was put, and it was put because of the holy writ attained by Lowery and King over 40 years and the Crown has not been game to discard that because it has been adhered to without any deviation.  I do not want to flatter Justice Hayne, but the question of the terminology, these problems do not seem to come out of New South Wales because the questions of joint criminal enterprise seem to be broad enough not to falter on the rock of presence or absence, whereas in Victoria, notwithstanding what has been said out of the High Court, one is always met with Lowery and King and the requirement of presence.  I think that explains it, and it explains the difficulty we are probably facing in relation to counselling and procuring and why it was put.

Now, the Crown is not seeking in its notice of contention to abolish derivative liability or the nature of it at all.  It simply seeks to put it on the same footing as aiding and abetting, if you like, that it should be attached to the actus reus of the principal actor, that the mens rea of the appellant in this case should be attached to the actus reus of the principal actor and that there should be no break on that liability to come about as a result of the mens rea of the principal actor, and that was the point Justice Crennan put to my friend.

HEYDON J:   This only arises if you lose on abuse of process, is that so?

MR SILBERT:   Yes, your Honour.

HEYDON J:   Is it essential to your success if you lose on abuse of process, that we should now finally sweep away all the outdated distinctions between principals and accessories?  That is a job for Parliament, surely.

MR SILBERT:   Well, perhaps there is a degree of hyperbole used in the submission in 6.65, your Honour.  I am not submitting that the Court should sweep it away.  I am submitting that some sort of rationalisation between counselling and procuring to bring it into line with some of the other accessorial aspects of liability and complicity would not sweep it away.  It would simply standardise and rationalise the attachment of the mens rea of the appellant in this case to the actus reus of the person who or those who killed the deceased.

Now, it is not as radical as perhaps formulated or perhaps your Honour has just put it to me.  I mean, part of the problem – my friend is heavily reliant on Justice McHugh in Osland’s Case.  Interestingly, Justice McHugh appeared for Mr Johns in the Court of Appeal in New South Wales and it was probably more interesting who appeared for Mr Johns when it reached this Court.  Justice McHugh embarked upon an exegesis in relation to complicity in Osland’s Case that went well beyond the questions of joint enterprise and liability in the first degree and obiter entered into a discussion in relation to some aspects of derivative liability.  He did not concentrate on counselling and procuring.

It was taken up to some extent by Justice Callinan and, indeed, there were some remarks by Justice Callinan as to the effect of section 323 of the Crimes Act (Vic) which is in identical terms to the section of the Crimes Act (NSW) that was in contention in Johns’ Case:

A person who aids, abets, counsels or procures the commission of an indictable offence may be tried or indicted [or presented] and punished as a principal offender.

Now, Justice Callinan in Osland seemed to think that that had never been determined, whether that was simply procedural or whether it was substantive.  Chief Justice Street in Johns in the Court of Appeal in New South Wales was adamant that it was procedural and Justice Mason in Giorgianni was adamant that it was procedural.  Justice Callinan in Osland cast some doubt on that and said it was unnecessary to decide the matter.

The question of an abuse I think is probably set out in the Crown’s written submissions.  I mean, the Crown may well not have had a case against this man had it not had the evidence of the witnesses who it was able to call and, reality being reality, it was not able to get that evidence short of accepting pleas of manslaughter or lesser pleas from some of those who were complicit in the principal offence.  Now, that is a position that arrives every day, it is always going to arise and, in our submission, we reject that it is an abuse for the Crown to accept a lesser plea to a charge in order to make out its case.

FRENCH CJ:   Do you accept that there is a distinction between the abuse question and the question whether it was open at law for the appellant to be convicted of murder, having regard to the pleas that had been accepted by the other actors in the case?

MR SILBERT:   No, your Honour, because the evidence against the appellant was in a different category, as it was in Osland, and each case should be looked at the evidence admissible against the particular appellant.  I think in our brief outline of propositions we quote Darby’s Case in relation to conspiracy, there being a need for two conspirators but it being entirely understandable if one only is convicted depending on the evidence that exists as against that particular one.  The evidence will differ as between each participant in the crime. 

HAYNE J:   But, the species of abuse that is alleged may require some further identification than has presently occurred in the course of argument.  Rogers 181 CLR 251 – I do not think the parties were referred to – speaks of abuse arising from conflicting decisions.

MR SILBERT:   Yes, your Honour.

HAYNE J:   Here to identify the relevant decisions must at the least take account of the fact that the earlier convictions for manslaughter and other offences were pleas of guilty accepted by the Crown in satisfaction of an indictment.

MR SILBERT:   Yes, and for the purposes of argument, I can accept that that may go into the melting pot as factors, but our submission is ‑ ‑ ‑

HAYNE J:   But without judicial determination of an issue of controverted fact.

MR SILBERT:   Yes.  Our submission is that they are not the only factors that come into play when weighing the balance as to whether there is an abuse. 

HAYNE J:   But presumably then the species of abuse relied on is not an abuse arising from conflicting decisions of controverted issues of fact. 

MR SILBERT:   No, your Honour.

HAYNE J:   It must be something else.

MR SILBERT:   Something else and that is our submission.

FRENCH CJ:   It has to reside in the exercise of prosecutorial discretion, does it not?

MR SILBERT:   Yes, your Honour, it does and, as I say, many of these cases would be unprosecutable unless arrangements were made to accept lesser pleas than those on the indictment.  That would be a greater abuse, in our submission, and a greater affront to public perceptions of the way the legal system operates. 

I do not know that there is a need to go into questions of non‑responsible agency that were spoken about in Osland.  That term seems to have been invented, in a way, in relation to this area of the law by Professor Smith in his A Modern Treatise on the Law of Criminal Complicity, although Mr Weinberg, who appeared for the Crown in Osland, was credited by Justice McHugh with having invented that term.  I do not know that it assists the matters before the Court in relation to this particular issue.  Our position is, as I say, not as radical as that put to me by Justice Heydon.  It is simply that that the mens rea of this appellant should be tied to the actus reus of those who committed the actual act of killing.

Now, that would not create any inconsistency or disconnect in the law.  It would simply bring it into line and it would not involve a wholesale review of the law of conspiracy.  It would just rationalise counselling and procuring along the same lines that other aspects of criminal complicity have been treated.  It would put it on exactly the same footing.  There seems to have been an evolution in relation to derivative liability that is spoken of by Professor Smith in that treatise at page 133 where he looks at the historical development of complicity’s derivative nature over many hundreds of years.  He says it has:

progressed from a highly restrictive and debilitating inflexibility to a position capable of accommodating most forms of culpability operating (one way or another) at a secondary level.  The various stages of this evolution represent responses to demonstrated and acknowledged need . . . Early absolute notions of derivativeness –

and this seems to be what my friend is arguing for –

whereby punishment of the principal offender had to precede any question of secondary liability, gradually retreated giving way to recognition of the procedural and evidential autonomy of secondary parties, albeit (irrationally) to a lesser extent for accessories before the fact.  While the common law’s capacity to imprison itself for centuries in doctrinal cul de sacs is not unknown, with limited exceptions this has not happened to any marked degree in complicity or the complementary theory of innocent agency.

Now, if your Honours look at Regina v Howe & Ors, which is listed on our list of authorities, [1987] 1 AC 417 and looking at the judgment of Lord Mackay at pages 457 and 458. It is probably sufficient if I simply go to 458 letter C where his Lordship says:

I consider that the reasoning of Lord Lane C.J. is entirely correct and I would affirm his view that where a person has been killed and that result is the result intended by another participant, the mere fact that the actual killer may be convicted only of the reduced charge of manslaughter for some reason special to himself does not, in my opinion in any way, result in a compulsory reduction for the other participant.

Now, in our submission, that is entirely consistent with the way complicity is developed in relation to aiders and abettors and in relation to other areas of complicity and to so hold in relation to counsellors and procurers creates no special exception.  It is logical and it maintains logical and rational approach to complicity.  One can, I suppose, hypothesise numerous situations where A counsels and procures B to kill C.  B goes ahead and kills C.  B pleads guilty to manslaughter, which happened here.  B is convicted of manslaughter on the basis of diminished responsibility.  B is acquitted on the grounds of insanity, doli incapax, diplomatic immunity, self‑defence or entirely perverse verdicts which are not unknown in the real world either.  So that the elements of the counselling and procuring, if established, being tied to the actus reus of those who perpetrate the killing, as I say, creates no special exception and is rational in accordance with established law. 

Now, I am not sure that I can take the matter further beyond what is set out in our amended submissions filed on 23 May.  I am happy to take any questions from your Honours that your Honours might have.  Those essentially are our submissions.

FRENCH CJ:   Yes, thank you, Mr Silbert.  Yes, Mr Croucher.

MR CROUCHER:   Just a few things, your Honours.  Insofar as my learned friend says, well, in Victoria the charge book says that presence is required for concert, this case was not put as one of concert but joint criminal enterprise.  There is an issue about whether or not presence is required but what happened in this case was that the judge directed that presence was not required.  So, with respect, it is a non‑point that my learned friend makes about that.  In fact, there is support, as it happens, in the judgment of Justice Gummow and Justice Gaudron in Osland for the view that the presence is not required, in any event, and that is a matter that is picked up in the article by Professor Lanham that I mentioned to your Honours before as well. 

Secondly, the question of absence from the scene was important in that it went to the question of agreement, and the Crown’s case was agreement, joint enterprise or, alternatively, counselling and procuring.  So there was a method, there was a reason why the Crown were putting it, not just absence per se and being unable properly to prove that in an aiding and abetting situation, but it went to the question of, as I say, whether or not there was an agreement.  That is the way counsel put it.  Faced with the judge’s directions or knowing that the judge’s directions would be in respect of joint enterprise that presence is not required and, of course, necessarily in respect of counselling and procuring presence is not required, counsel for the appellant made the point that, well, if he is off here, there and everywhere, how can it be said that he is part of this general agreement.  So it was important in that respect.

Thirdly, again to take up your Honour Justice Bell’s point about it being perhaps de facto aiding and abetting anyway, despite the passages or the cases to which Professor K. Smith refers – Kevin I think, I am not sure – to which he refers in his article, nothing has changed with respect to whether aiding and abetting is derivative in the sense for which we plumb in this case.  We are not saying that derivative liability has survived in the way that it was thought of 100 years ago or more when there could, without the conviction of a principal, or even attainder was required in some cases, then there could be no guilt for the aider or abettor or the counsellor or procurer. 

Rather, consistently with section 323 and with recent authority, there still must be an offence committed by the principal offender. That is all we are saying and at that level derivative liability is still required, and insofar as we say that in a case of counselling and procuring it was not open to rely on the Crown’s assertion that the principals were guilty of murder because they had accepted pleas of guilty to lesser offences, well, that equally would have applied to an aiding and abetting situation. The argument is still the same. It would not have been open, we say, at law or, alternatively, an abuse of process.

Next, in respect of section 323 of the Crimes Act, there seems to be an inconsistency in our learned friend’s position. As I understood their written submissions at paragraph 6.28, they were accepting in this sentence that all section 323 did was create procedural change where they say:

Thus, as Mason J in Giorgianni v R points out, provisions such as section 323 do not create substantive offences but are merely procedural in nature.

Well, insofar as they seem to be picking up Justice Callinan’s remark, which was not supported by any other members of the Court in Osland, that without deciding he thinks it might be substantive, well, with respect, that is not supported.  Professor Simester in the same article that was referred to in Clayton at page 592 to 593 of that article also makes the point consistent with all of the authorities in this area, that changes of the type affected by 323 and its analogues in other jurisdictions are purely procedural in nature, not substantive.

Next, your Honours, insofar as our learned friends say that the Crown should not be denied the opportunity to prosecute a murder when, after deals have been done, there is a case for murder against a person such as the appellant, we do not disagree.  We are not saying that at all.  We are simply saying, our submission is, that one of the two bases on which the Crown relied was not open, either as a matter of law or, because it was an abuse of process, to proceed for the reasons we have already been through.  It did not deny the Crown to prosecute this man for murder.  It was just the way it which it had to be done.  That is all.

The next point in reply is our learned friend has referred to Howe and to Lord Mackay’s speech.  You will see that Lord Mackay’s speech is expressed in general terms.  It does not seem to be confined to, or expressed to be dealing with, a derivative liability situation and, indeed, Justice McHugh, back in Osland at paragraph 75, in the course of explaining the various authorities and how they do stand for joint criminal enterprise giving rise to agreement to commit the acts, as opposed to crimes, says, after quoting from his Lordship’s speech, at the middle of page 344, the end of paragraph 75:

This statement is conclusive in England, at all events, in showing that it is the acts, and not the crime, of the actual perpetrator which are attributed to the person acting in concert.

Our learned friend seems to draw from that that somehow derivative liability has gone.  That is simply not so.  Finally, your Honours, whilst some reliance has been placed on what Justice Callinan had to say in Osland’s Case by the Crown, the fact of the matter is that in the end, you will see that both Justice Kirby at paragraph 174, page 383, said:

I agree with the analysis of McHugh J concerning the liability of persons for the acts constituting the crime where those persons are acting in concert and present at the scene with the perpetrator.

Justice Callinan, in his penultimate paragraph 257 on page 413, said:

Furthermore, having now read the judgment of McHugh J, I agree with his Honour’s reasoning and conclusion that those acting in concert and present at the scene are liable for the acts of each other.

There is a consistent thread in the majority view about that principle, and whilst neither Justice Kirby nor Justice Callinan goes on and deals with the points that Justice McHugh made about derivative liability, nevertheless, Justice Callinan at least deals with Surujpaul in rather the same way that Justice McHugh did, and emphasises the difference between derivative liability and joint enterprise, or direct liability.  Unless the Court has any further questions, those are our submissions.

FRENCH CJ:   Thank you, Mr Croucher.  The Court will reserve its decision.  The Court adjourns until 10 am tomorrow.

AT 11.49 AM THE MATTER WAS ADJOURNED