Likiardopoulos v The Queen

[2012] HCATrans 67

[2012] HCATrans 067

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M71 of 2011

B e t w e e n -

DIMITRIOS LIKIARDOPOULOS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 MARCH 2012, AT 11.06 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 applicant.  (instructed by Lewenberg & Lewenberg)

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

HAYNE J:   Yes, Mr Croucher.

MR CROUCHER:   Your Honours, can we start with ground 2(c), which starts at page 288 of the application book.  This is the abuse of process point.  It is submitted that it is one thing to say that in general each case depends on the evidence admissible and the opinion of the jury in that case so that an accused might be not guilty of murder in his or her own trial but will be regarded as having committed the same crime in the trial of another, but we say it is entirely another and, indeed, wrong in an abuse of process for the Crown to present a case based, at least in part, on the allegation that an accused has counselled or procured another or others to commit the offence murder when counselling and procuring is a derivative form of liability, when none of the alleged principals had been convicted of murder, and indeed in this case neither murder nor manslaughter in some of the cases, it was accessory after the fact, and in circumstances where the Crown had accepted pleas of guilty to those lesser offences, either manslaughter or accessory after the fact, and, what is more, in circumstances where two of those alleged principals were called on the trial by the Crown and led through their evidence and then treated as if they were potentially principals who had committed the murder. 

HAYNE J:   Well, are there not two principles in play, one, the question of accepting the conclusiveness of convictions or acquittals and, second, the stark fact that the evidence available against one accused is not necessarily the same as the evidence against another?

MR CROUCHER:   As to the latter, your Honour, we accept that that can be so, but it is a curious thing that in order to prove the case against the applicant based on counselling and procuring, the Crown relied on the very people from whom they have accepted pleas of guilty to manslaughter or accessory after the fact.

HAYNE J:   You point to the facts, you classify them as curious, I understand that, but what is the legal principle?  You say abuse of process, but if we come down beneath that statement, what is the real complaint?

MR CROUCHER:   It is a derivative form of liability.  This is different from concert, which is the other basis on which the case was left or what was called “joint enterprise”.  As Justice McHugh made clear in Osland, joint enterprise or concert – and we know the nomenclature varies between States – is a direct or primary form of liability.  So an argument like this, arguably, might not succeed on that limb.  But when it comes to derivative liability, which counselling and procuring is, and at paragraph 93 of Justice McHugh’s reasons and paragraphs 70 to 71 of Justice McHugh’s reasons in Osland, that is spelt out – counselling and procuring, aiding and abetting are derivative – there must be a principal offender guilty of the crime in order that such a basis can be made out in complicity against the counsellor or procurer.

In those circumstances, that is a bar in the first place, we say.  Secondly, even if it is not, the Crown to rely on persons from whom they had accepted these pleas to something less than murder – less than homicide in one case – is to undermine the integrity of the administration of justice.  It is a Janus‑headed approach, so we describe it in the submissions.  It is looking this way to a jury and saying they are murderers and he has assisted them or counselled or procured them but, by the way, looking the other way, no they are not; one is an accessory after the fact, the other one is merely guilty of manslaughter.  That, in our respectful submission, is fundamentally wrong.  It is put against us, the Privy Council’s advice ‑ ‑ ‑

KIEFEL J:   But to be an abuse of process, the inconsistency in the Crown’s approach would have to be to the fundamental charge and their position has consistently been that the victim was murdered.  Is that not the point about which you test abuses of process?

MR CROUCHER:   The categories are not closed, and we say it is enough to say that for the Crown to have the jury accept these people as murderers in the case against the applicant when, on the other hand, they have not done that with them themselves, they have accepted pleas of guilty to something completely different, accessory after the fact or manslaughter, is fundamentally wrong.

The advice of the Privy Council in Hui-Chi Ming is put against us, but there are several things that distinguish Hui-Chi Ming, apart from its not being binding on this Court.  The first is that in Hui-Chi Ming the Crown pressed for murder conviction against the person who was said to be a principal, but, as Lord Lowry said, the jury acquitted him perversely.  Second, as I have already pointed out, counselling or procuring, which was relied on here, is a derivative form of liability, whereas in Hui-Chi Ming the form of liability relied on was what we would call concert in this country and perhaps there might have been extended common purpose – or what we would call extended common purpose in this country, as well, both of which are primary or direct forms of liability and the inconsistency is open, as this Court says in Osland. 

Third, since in this case the cause of death was not known and it was not known who actually killed, it was all a bit of speculation in the end, whereas in the case of Hui-Chi Ming there was an identified person who was responsible for killing.  Fourth, and very importantly we say, is the Crown actually calling these witnesses and letting them go through their evidence and relying on them as principals in the first degree as the killers and saying as well that they must be murderers when they have accepted, on the other hand, that they are not guilty of murder, or even homicide in one case.

Of course, Hui-Chi Ming has been trenchantly criticised over the years and, indeed, the Court of Appeal in recent times has suggested that it might be considered again, but we say that it is just fundamentally wrong to allow the Crown to prosecute a case based on the counselling and procuring head.  The other thing is that, of course, if this case were to go up, we would make the submission that Hui-Chi Ming is wrong at a higher level as well, that even on a concert basis it is fundamentally wrong to be relying on people from whom pleas have been accepted to something less as the persons who killed and were guilty of murder in conjunction with the applicant.

HAYNE J:   Would that require reconsideration of Osland?  I think it might.

MR CROUCHER:   No.  Well, not, in our submission, because what we are here relying on is that extra twist.  With respect, your Honour, it is right to say – and I think I put this a moment ago – that insofar as concert or joint enterprise is a direct form of liability, this is seen to be a difference in the way inconsistency, if you like, can operate, or not operate, as the case may be, and of course Osland was about that very question, or at least that was one of the issues that was agitated, and as Justice McHugh made clear and, as I understand it, Justices Kirby and Callinan agreed in his Honour’s reasons in this regard, that concert concerns an agreement to commit the act which causes death, as opposed to agreement in the crime. 

Therefore, you can have a distinction between offenders or alleged offenders based on mens rea or in the absence or presence of a defence.  So that if you have agreed to commit the acts, there is nothing wrong with someone who seems to be the, if you like, prime mover being acquitted because, as in Matusevich, he was insane or perhaps the person who actually rendered the blow did not have the requisite intention or had an defence or some kind and so therefore the person would still be found guilty even though another person in the same trial, or even a separate trial, was found not guilty based on concert.

HAYNE J:   But is not the root point that has to be made about these, you would say, inconsistent outcomes the fact that the evidence admissible against one accused may not be same as the evidence that is admissible against another accused?

MR CROUCHER:   Your Honour, I accept that that is indeed what was said in Osland as one of the factors relevant to Mrs Osland’s case, but that in the context of a concert case.  Justice McHugh was careful in his reasons at paragraph 70 and following to describe both aiding and abetting and counselling and procuring – this is from paragraph 71 and onwards – as being purely derivative liability, whereas you will see in paragraph 72 his Honour speaks of those who were present at the scene acting in concert, that is primary liability.  Also at paragraph 95 of his Honour’s judgment, he 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 –

counsellor and procurer –

is derivative.

A fundamental difference.

HAYNE J:   Well, it is the next sentence which you say, is it, which would found your proposition?

MR CROUCHER:   Yes.  In fact, we say it is worse that that.  It is worse when the Crown have accepted a plea from someone to a non‑homicide offence or a lesser homicide offence and then called him or her on the trial to prove that he is guilty of murder in the case of the applicant.  Can I move then back to ground 1, and that is the question of presence and concert.

HAYNE J:   How does the question of presence operate in a case where there is an extended period of infliction of really serious harm on the victim, occupying how many hours or days?

MR CROUCHER:   Over two days, I believe.

HAYNE J:   Exactly.  Now, how does the concept of presence engage with that?

MR CROUCHER:   Yes, I understand your Honour’s point straightaway, but ‑ ‑ ‑

HAYNE J:   Especially when the presence is in the next room as to time.

MR CROUCHER:   But there is evidence that he was away as well, that he was called by one of the witnesses being in another suburb at some point.  In the next room, yes, but the Crown never put that as presence.  They accepted that being away from the house or being in the next room or wherever it was for these various periods was not presence, but that was not the point.  The Crown went on to say it does not matter that he is not present.  The only relevance of presence or otherwise is as to whether or not there is an agreement. 

To come back to your Honour’s question, we say that this principle that seems to have grown up in the State of Victoria that does not require proof of presence in joint enterprise is one that has grown up peculiarly in drug cases – the first case was Clarke & Johnstone and then more recently in McCulloch – where they are business enterprises over a period of months.  They are Giretti counts, ongoing offences over a period of months.  It is in the nature of things that people will be to and fro and they are also based on statutory offences.  On the other hand, murder, even if there is a series of acts over a period of days that are led in proof of the case, murder in the end comes down to a piece of behaviour that has caused someone’s death.

HAYNE J:   But the killing of this man took two days.

MR CROUCHER:   Well, part of the problem is we do not know what caused his death in the end.  That is the difficulty, your Honour.  The evidence was clear that everyone was surprised when he was dead.  Now, that might be a foolhardy thought, but there it is.  That was the evidence from all that gave evidence about the matter, that panic set in because it was not thought that anything like this would happen despite the fact that he had been obviously treated very badly, to say the least, over that period of time.  But we say that it is clear in Justice McHugh’s reasons that presence is required for concert.  The only case that we are aware of where this ‑ ‑ ‑

HAYNE J:   Sorry, where do you say that appears?

MR CROUCHER:   Yes.  That appears at paragraph 72 and following.  His Honour says:

However, there is a third category where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre‑concert or agreement with that person to commit the crime.

Then he speaks about Lowery and King and you will see the extract of Lowery and King talks about being present at the scene.  Then at paragraph 73 his Honour extracts a passage from Brett, Waller and Williams where they speak of presence at the scene.  Then at 73 as well he extracts a passage from the well‑known judgment in Tangye from New South Wales where they call it joint criminal enterprise, and in subparagraph (3) of those directions presence is cleared required there.

HAYNE J:   But is the proposition that you would advance apposite to this case that the accused must be present at the time that the fatal blow or blows were inflicted?

MR CROUCHER:   Yes.

HAYNE J:   But it is not enough for the accused to be party to an agreement to inflict really serious injury on the victim over a period of several hours extending to two days to be present while some of this harm is done but happen to be absent when the fatal blow is struck simply in continued execution of the plan?

MR CROUCHER:   That would require this Court ‑ ‑ ‑

HAYNE J:   It is putting it slightly tendentiously, Mr Croucher.

MR CROUCHER:   I understand that, your Honour.  But that statement of principle, if it be such, is one that we say has not been authorised by this Court.  This Court would have to say so to ‑ ‑ ‑

KIEFEL J:   But is there truly a question of principle that presence is required or is it simply a question of evidence in particular cases as to – I mean, in some cases presence will confirm an agreement.  In fact, I think that was an observation made at paragraph 93 of Osland.  In other cases presence is required to prove the agreement, but where you have sufficient other evidence to prove the enterprise, which here would include his own – I think there was evidence of his own assault upon the victim ‑ ‑ ‑

MR CROUCHER:   There was evidence of that.  That is true.

KIEFEL J:   I just do not understand why it is said that presence is a critical element.

MR CROUCHER:   Because the authorities say so, your Honour.  Your Honour mentioned paragraph 93, which our learned friends rely on.  They rely on the first passage where his Honour says:

Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other’s acts and the case for doing so is even stronger when they are at the scene together.

KIEFEL J:   It is even stronger when they are at the scene.  It is saying it is a question of evidence.

MR CROUCHER:   No, in our submission, your Honour, it is explaining the principle, because when you read on his Honour says, in the sentence after that:

Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non‑existence of mens rea or upon their having ‑ ‑ ‑

KIEFEL J:   Yes, his Honour is talking about the evidentiary basis for criminal liability.  I just do not see how you extract a principle out of this.

MR CROUCHER:   Well, I rely again on what his Honour said at 71 and following at paragraph – on the other hand, there is the paragraph to which our learned friends have referred in the judgment of Justices Gaudron and Gummow, where their Honours say this ‑ ‑ ‑

KIEFEL J:   Which paragraph?

MR CROUCHER:   Sorry, paragraph 27, which goes the other way, or at least tends to go the other way, but inconclusively.  Their Honours say this:

More to the point, principle dictates the conclusion that those who form a common purpose to commit a crime together are liable as principles if they are present when the crime, or any other crime within the scope of the common purpose, is committed by one or more of them.  The crime having been committed in accordance with the continuing understanding or arrangement, all are equally guilty as principals regardless of the part played by each.  That result follows from the reasoning in McAuliffe v The Queen.  Indeed, that reasoning would appear not to require presence at the scene of all parties to the continuing common purpose if the criteria specified in that reasoning otherwise are satisfied.  The appellant’s submissions on this aspect of the case proceeded upon a false basis.

So their Honours are recognising that there is a tension there, whereas you have Justice McHugh with whom Justice Kirby expressly agrees at paragraph 174 where his Honour says:

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.

HAYNE J:   Then this principle for which you urge must accommodate the fact that presence is given an elastic understanding.

MR CROUCHER:   That is true, but there are times when you can be ‑ ‑ ‑

HAYNE J:   When the motor man is outside and the armed robbery is occurring inside, presence.

MR CROUCHER:   Indeed, that is right, and there are authorities in Victoria, Jensen v Ward is one from many years ago which deal with a person can be, if you like, constructively present, as your Honour says, around the corner in an armed robbery.

KIEFEL J:   What is necessary is something to show the continued connection with the enterprise.

MR CROUCHER:   Indeed, but that is not the way it was put in this case.  Where presence is not required is in a third stream of criminal complicity which was not relied on by the Crown in this case, extended common purpose.

HAYNE J:   All this proceeds from a taxonomy of responsibility which itself may bring with it, or appear to bring with it rigidities that are not there.

MR CROUCHER:   Well, maybe so, your Honours, but the law has become very complex over the years.  Your Honours will remember in particular in Clayton and Hartwick where extended common purpose was considered and some things were said about the majority about how trials ought to be simplified and reduced to simple ‑ ‑ ‑

HAYNE J:   It was a simple way home in Clayton and Hartwick, yes.

MR CROUCHER:   Indeed.  But that is where we are left now and, as I say, in any event, if we are wrong about the presence and concert point, nevertheless there is a real special leave question to be answered in respect

of the abuse of process point.  As to grounds 2(a) and (b), we otherwise rely on what we have written about those.  If the Court pleases.

HAYNE J:   Yes.  Thank you, Mr Croucher.  Yes, Mr Silbert.

MR SILBERT:   Your Honour, in relation to the first matter raised by my friend, this case at page 222 of the application book, paragraph 26 of the reasons of the court:

The Crown advanced its case against the applicant in two alternative ways:  First, that he acted together with others in a joint criminal enterprise – that is, to beat O’Brien with the intention of inflicting really serious injury.  Second, that he counselled and procured others to beat O’Brien with that intention.

Now, my friend has concentrated on the second alternative, not the first alternative and for the purposes of meeting his argument, the joint criminal enterprise is one of primary liability and alleges an accessory.  There is no derivative liability alleged in relation to the first basis on which it was put to the jury.

HAYNE J:   Do you say that is settled by Osland?

MR SILBERT:   Yes, your Honour.  For the purposes of my friend’s special leave application, I say it is settled by Osland and concentrating on the counselling procuring, which it is conceded is a derivative form of liability traditionally classed as principals in the third degree, does not help my friend when it is put on the basis of joint criminal enterprise as primary liability.  So, in our submission, there is no point to be resolved by special leave in relation to that.  In relation to his second point relating to presence, the difficulties, as has often been observed, arise from terminology and the basis of complicity varying between States and different forms and terms being used.  Your Honour Justice Hayne attempted to rationalise it, I think, in Gillard’s Case.

HAYNE J:   I like the notion of attempt.  Thank you.  It is all too accurate, Mr Silbert.  It is all too accurate what you say.

MR SILBERT:   Well, your Honour, we are content to accept that as an exegesis of complicity and joint liability and to take it no further.  Justice McHugh attempted it in Osland and at paragraph 93, to which the Court has been referred, the evidential basis there related to presence.  So his Honour concentrated on the evidence which related to presence there.  But there can be no doubt that there are forms of complicity where presence is not necessary and in a joint criminal enterprise, if we restrict ourselves to the first basis on which it was put to the jury here, presence is absolutely not

necessary.  Now, I do not know if we can take it any further as far as your Honour is concerned.  I am happy to take any questions, but other than that, we rely on what we have written.

HAYNE J:   Thank you. 

MR SILBERT:   If the Court pleases.

HAYNE J:   Yes, Mr Croucher.

MR CROUCHER:   Your Honours, our learned friend says that it was put on two bases correctly; joint criminal enterprise, which is direct liability, and counselling and procuring, which is derivative liability, but then says, well, because it was put on the basis of direct liability as one possibility, that somehow answers the question with respect to counselling and procuring, the derivative form.  It does not.  We do not know on which basis the jury convicted him.  They might well have struggled with the idea of agreement in the circumstances necessary for joint criminal enterprise.  The might have convicted on the basis of counselling and procuring.  There might have been a mixture of views.  Some might have relied on both.  Some might have relied on one or the other.  We just do not know.  So that if it was wrong, or arguably wrong, to rely on counselling and procuring when we say it was an abuse of process to do so, then the conviction must fall. 

The only point that follows from our learned friend’s point is what orders would follow in those circumstances.  The difference would be that if both bases, both the direct responsibility joint criminal enterprise basis were never open because there was insufficient evidence of presence and, secondly, that counselling and procuring was a false basis because of the abuse of process, then he would have to be acquitted.  Whereas, if only the second basis is flawed, the counselling and procuring, but the first basis is not, then the order is for a retrial.  It is as simple as that. 

It does not defeat the appeal or the notional appeal nor does it make it a reason why or is it a proper reason why special leave should be refused.  Special leave should be granted if, for no other reason, than to sort out the question of abuse of process as it applies to counselling and procuring and to have a look at what their Lordships said in Hui‑Chi Ming which was quite a different set of circumstances and, as we say, is in the event wrong and does not apply to this particular set of circumstances.  If the Court pleases.

HAYNE J:   Thank you, Mr Croucher.  The Court will adjourn for a time to consider the course it will take in this matter.

AT 11.33 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.37 AM:

HAYNE J:   There will be a grant of special leave in this matter confined to ground 2(c) as it appears at page 280 of the application book.  The other grounds we consider do not enjoy prospects of success sufficient that would warrant a grant of special leave to appeal to this Court and are dismissed.  How long would counsel estimate argument of ground 2(c) would occupy?

MR CROUCHER:   We think a one‑day case, your Honour. 

HAYNE J:   That is comfortably within a day, do you think, Mr Croucher, or a full day?

MR CROUCHER:   Comfortably within a day, your Honour.  I am always short, you know that.

HAYNE J:   I will not go there, Mr Croucher.  Very well then, counsel should also take note of the timetable that they will be given because compliance with that timetable is required.

MR CROUCHER:   If the Court pleases.

AT 11.39 AM THE MATTER WAS CONCLUDED