McAuliffe v The Queen- McAuliffe v The Queen

[1994] HCATrans 126

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S199 of 1993

B e t w e e n -

SEAN PATRICK McAULIFFE

Applicant

and

THE QUEEN

Respondent

Office of the Registry
              Sydney        No S13 of 1994

B e t w e e n -

DAVID JOHN McAULIFFE

Applicant

and

THE QUEEN

Respondent

Second Respondent
  Applications for special leave
  to appeal

BRENNAN J
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 7 DECEMBER 1994, AT 10.11 AM

Copyright in the High Court of Australia

_________________

MR S.R. NORRISH, QC:   May it please the Court, I appear for the applicant, Sean McAuliffe, with my learned friend, MS J. KEYS.  (instructed by William O’Brien)

MR S.J. ODGERS:   If it please the Court, I appear for the applicant, David McAuliffe.  (instructed by the Legal Aid Commission of New South Wales)

MR N.R. COWDERY, QC:   If it please the Court, I appear for the respondent in both matters with my learned friend, MR P.G. BERMAN.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN J:   Yes, Mr Norrish.

MR NORRISH:   If Your Honours please, there is an application in this matter for an enlargement of time and the basis of that application is set out at page 220 of the application book.

BRENNAN J:   What do you have to say about that, Mr Cowdery.

MR COWDERY:   There is no objection, Your Honour.

BRENNAN J:   Time will be extended, Mr Norrish.

MR NORRISH:   As Your Honours please.  Your Honours, the special leave application on behalf of Sean McAuliffe proceeds on two bases.  The first issue of general public importance relates to the appropriateness of directions being given in relation to the issue of causation concerning reasonable foreseeability as to the circumstances in which the deceased in the case of murder died.

This was a matter in which application was made for directions in respect of the issue of causation that a test of reasonable foresight or foreseeability should be the subject of direction to the jury, but that application was refused.  I should indicate to the Court that the application was made before the summing up commenced and the transcript of that application of the trial judge is available to the Court if it should seek the terms of the application as it was made.

When His Honour directed the jury in relation to this matter he left with the jury five reasonable or rational possibilities to explain the circumstances in which the deceased fell over the cliff.  The first possibility was that the deceased was pushed; the second possibility was that the deceased was retreating from attack; the third possibility was that of escaping from attack; the fourth possibility was that the deceased had fallen over the edge of the cliff in a state of hysteria or panic; and the fifth possibility was that the deceased, after the attack, had simply gotten up and headed in the wrong direction and fallen over the edge of the cliff to the ledge below.

Your Honours, the issue of reasonable foreseeability in the area of causation was considered by this Court in the decision of Royall v The Queen and it is our respectful submission that this application brings into sharper focus the issue.  It is our submission that the judgment of the High Court in Royall v The Queen did not resolve the issue particularly as to appropriate circumstances in which reasonable foreseeability ought be the subject of direction in respect of the issue of causation.  The majority on this particular point said, generally, that a direction in relation to reasonable foreseeability was usually undesirable but did not say it was necessarily undesirable.

BRENNAN J:   Can you take us to the passages in Royall.

MR NORRISH:   Yes, if I may, Your Honours.  I am dealing with the majority on this issue, firstly, in the judgment of Justices Deane and Dawson and particularly - Royall v The Queen, (1991) 172 CLR 378. In the judgment of Justices Deane and Dawson, I would submit that the relevant passage is at page 412, and I am extracting comments made in respect of the issue of foreseeability or reasonable foreseeability. At point 5 of the page, Their Honours said:

If, in a case of fright or self-preservation, the victim over-reacts to the threatening acts or words of the accused, that may be sufficient to break the chain of causation.  That proposition is sometimes put in terms of reasonable foreseeability:  when the act done in self‑preservation is “unreasonable” it negatives causal connection.  On occasions foreseeability may play some part in a jury’s inquiry into the cause of death but, in directing a jury, it is, for practical purposes, desirable to keep causation and intent separate as far as possible and to avoid the introduction of questions of foreseeability in relation to causation. 

In the judgment of Justices Gaudron and Toohey at pages 424 to 425, at the bottom of page 424 Their Honours said in the last paragraph:

The question whether an act of the applicant caused the death was one to be answered as a question of objective fact.  It did not depend upon the applicant’s appreciation of the consequences of any act of his.

And there is cited a passage from Reg v Hallett, a decision of the Full Court of South Australia, and a passage from Howard’s Criminal Law is cited.  Their Honours went on to say:

Conceding the force of these comments -

referring to Howard’s Criminal Law -

we are nevertheless of the opinion that the members of a jury are less likely to be confused if foreseeability is not introduced into the direction on causation and if the jury are told that whether an act of the accused caused the death is “a question to be determined by them applying their common sense to the facts as they find them”.  Consistent with this approach, the jury may be told that, if the victim’s reaction to the act of the accused said to have caused the death was quite disproportionate to the act or was unreasonable, the chain of causation was broken.

I should stop there to point out to Your Honours that in respect of the five possibilities, the issue of reasonableness as was left by His Honour in respect of the conduct of the deceased was only left in respect of the third and fourth possibilities and the issue of reasonableness of the deceased’s conduct was not imported into a consideration of the fifth possibility; the fifth possibility being the deceased had gotten up and walked in the wrong direction.

DAWSON J:   Reasonableness only arises if this was a flight case, an escape case, does it not?

MR NORRISH:   In our respectful submission, reasonableness, generally, must have some application to the last three possibilities.

DAWSON J:   What were the last three?  I have forgotten them.

MR NORRISH:   The last three were hysteria or panic, escape, or simply got up and walked over the edge of the cliff.  The problem with reasonableness, in our submission, in any event, is that it does not, with sufficient clarity, assist the jury in considering all the objective circumstances that are relevant to a consideration of whether the chain of causation is broken.  It does import a consideration of the state of mind of the deceased which, in our submission, is not necessarily the key factor of reasonable foresight.

DAWSON J:   But reasonableness only arises if the jury is considering the question as to whether the fall from the cliff was the natural consequence of the accused’s acts.  That is the only situation in which it arises, is it not?

MR NORRISH:   With respect, Your Honour, I would have thought that reasonableness has a wider relationship.

DAWSON J:   How?

MR NORRISH:   It could be a matter to be taken into account if one applies the significant or substantial cause test as opposed to the natural consequence.

DAWSON J:   That is what you are considering when you are considering whether the act of falling over the cliff or going over the cliff was the natural consequence of the accused’s acts.  That is the question the jury has to determine, does it not?  If it was an unreasonable reaction to what the accused did, then that may break the chain of causation.

MR NORRISH:   Yes, that is correct, Your Honour.

DAWSON J:   But why does one have to talk in terms of foreseeability there?

MR NORRISH:   With respect, Your Honour, if I might just take Your Honours to the minority view on this matter because this is where the difference of opinion arises and we say that this matter brings the whole issue into sharper focus.  If I might start firstly with the Chief Justice’s judgment.  The relevant passages are at pages 389 to 390.  The Chief Justice said, firstly, if I extract one part of his judgment at point 4 of the page:

So if an act is so unexpected that no reasonable person could be expected to foresee it, then it is a voluntary act on the part of the victim which breaks the chain of causation between the accused’s conduct and the ultimate injury.

And then later, at page 390, His Honour said:

In the English cases the natural consequence test has been linked to the concept of foreseeability.  Because the natural consequence test inevitably invites conjecture about the likelihood of an occurrence, it is impossible to divorce completely the application of the test from the concept of foreseeability.  However, in my view, to invite the jury to consider foreseebility would be more likely, at least in the majority of cases, to confuse than to clarify the issue of causation.

DAWSON J:   Now, that is hardly a minority view.  That is the same as the other view, is it not?

MR NORRISH:   Well, it is, Your Honour, except His Honour was more prepared to concede the relevance of reasonable foreseeability.

DAWSON J:   No one is suggesting that it is irrelevant in terms of a philosophic explanation of the concept.  All that is being said is that if the jury can adequately deal with causation without being invited to consider the question of foreseeability in most cases.

MR NORRISH:   That is the problem.  With respect, it is true that the - - -

DAWSON J:   And what you have to show is that in this case the judge erred in not dealing with foreseeability.

MR NORRISH:   In our submission, particularly in relation to the fifth possibility, the issue of reasonable foreseeability loomed very large indeed, bearing in mind the complete lack of evidence as to the precise circumstances in which the deceased had fallen over the cliff.

DAWSON J:   But the judge told them they had to be satisfied that the accused caused the death of the deceased, did he not?

MR NORRISH:   Yes, but he limited the reasonableness of the deceased’s conduct, bearing in mind four of the five possibilities were dependent upon conduct by the deceased, the last four possibilities.  He limited the issue of reasonableness only to two of the five possibilities that had been left with the jury for it to consider as explaining the circumstances in which the deceased had fallen over the cliff.

DAWSON J:   Perhaps if you would take us to the passage.

MR NORRISH:   Yes, if Your Honours please.  First of all, the possibilities are set out at page 41 of the application book.   His Honour went on at page 42, line 25, to deal with each of the possibilities and to give directions to the jury in greater detail as to the test to be applied in respect of those possibilities as explaining the circumstances in which the deceased’s death was caused. 

In respect of the third possibility, at application book page 43, line 15, His Honour said:

As a matter of law where the conduct of a person for which the accused is responsible induces in the victim a well-founded apprehension of physical harm, such as to make it a reasonable consequence that the victim would seek to escape, then the fact that the death occurs in the course of that escape does not break the chain of causation so long as the response of the victim is reasonable or proportionate having regard to the nature of the conduct of the accused -

He went on to repeat that direction in relation to the fourth alternative or the fourth possibility at application book page 45, commencing at line 25.  His Honour said at line 32:

That does not bear too much difference to the last proposition, it is an extension of it, but where the response of a person to a threat of danger or attack is an automatic or reflex action then, as a matter of law, causation is not broken.  So that even though the act which brings about death or the final event which brings about death is that of the deceased, it is an automatic or reflex response, then the chain of causation is not broken.

And then His Honour referred to the fifth possibility and simply said:

The final aspect which I mentioned, and whether you think much of this, there has not been much reference to it, perhaps it has not been referred to at all, that of the deceased being out on that rock area on the sea side of the park having been left there and then having got up at some stage and I suppose turned one direction, turned towards the sea, and walked off rather than walking the other way back to safety.  That again is very much a matter of commonsense for you - - -

DAWSON J:   Now, what do you say he should have said?

MR NORRISH:   In our submission, in respect of each of the possibilities, we submit that the trial judge ought to have directed the jury that they have to consider whether the reaction of the deceased, whether it was a reaction caused as a matter of escaping or by way of hysterical reaction to what had happened or simply to leave the scene after the attack had ceased, resulting in the deceased, of course, falling over the cliff, was a circumstance that was reasonably foreseeable having regard to all the circumstances of the matter, including the belief of the applicant that the deceased would not fall over the edge of the cliff, having regard to where he last saw him.

TOOHEY J:   And, what, having regard to the injuries which he had sustained?  I mean, you speak of the deceased leaving the scene as if it would be a matter of getting up and walking away.

MR NORRISH:   The injuries are, obviously, something that would need to be taken into account in the total circumstances of the matter.  There was the position in which the deceased was left; the relationship of that to the edge of the cliff; the injuries of the deceased at that particular time; the belief of the accused as to the danger that was presented at the time that he left the deceased.  In our submission, they are all matters relevant to the issue of reasonable foreseeability.

I should point out that the matter was repeated again at page 97.

BRENNAN J:   They were convicted of murder, were they not?

MR NORRISH:   I beg your pardon?

BRENNAN J:   They were convicted of what?

MR NORRISH:   They were convicted of murder.

BRENNAN J:   Murder.  So that it is not simply a question of causation in relation to walking over the edge of the cliff.  It is an intention to kill him.

MR NORRISH:   No, the Crown case was one of intention to inflict grievous bodily harm.

BRENNAN J:   An intention to inflict grievous bodily harm.  Well now, that was complete when he was in the puddle.

MR NORRISH:   Yes, but fundamental - - -

BRENNAN J:   So, the question really is, in relation to the fifth possibility, whether or not that is really part of the picture to which the mental element of intent went.

MR NORRISH:   Yes.

BRENNAN J:   Now, in those circumstances, if it is murder, for my part at the moment, I do not see that it is a simple question of causation as to the fifth possibility.

MR NORRISH:   With respect, Your Honour, the fifth possibility was left to the jury as a basis for finding the accused guilty of murder.

BRENNAN J:   That is right.  I am not against you on this.  I am saying it seems to me that there is a distinct problem apart from - well, perhaps connected with causation but in relation to the mental element that goes with the events that produced death.

MR NORRISH:   Part of the problem in Royall was that the majority on this point sought to distinguish the two issues:  the mental element and the result of the voluntary acts associated with the relevant intent.

DAWSON J:   They are separate, are they not?

MR NORRISH:   They are separate, of course they are.  I am picking up the point that Justice Brennan earlier made in relation to that matter.  I should say, if it bears repeating, that Your Honour in minority on this point, admittedly, in Royall, in our submission, quite cogently at pages 398 to 399 focused upon the true significance in relation to reasonable foreseeability as it arose in respect of the issue of causation and, hence, liability for crime.

BRENNAN J:   You do not need to convince me of that, Mr Norrish.

MR NORRISH:   No, Your Honour.

DAWSON J:   No one is saying that foreseeability is not relevant.  Of course, it is.  It is just a question whether the jury should be charged in philosophic terms or practically by saying, “Well, you have to be satisfied that in this case the infliction of grievous bodily harm was intended and that it caused the death of the deceased.”  Now, a jury can cope with that.

MR NORRISH:   Yes.  With respect, Your Honour, given the unusual facts of the case and the varying possibilities that were available to explain the way in which the deceased met his death after the applicant had left him - - -

DAWSON J:   There are factual questions.

MR NORRISH:   They are factual questions but the jury needs appropriate direction to assist them in determining whether, in fact, the legal test for causation has been established, given the particular facts of the case.

DAWSON J:   The suggestion is that talking in terms of foreseeability will not assist them but confuse them.

MR NORRISH:   In the majority of cases.  This was a matter, in our respectful submission, where the particular facts of the matter invited a direction of that type to greater clarify for the jury’s benefit the issues that they had to consider, given the varying factual combinations or explanations available to describe or explain how the deceased met his death.

BRENNAN J:   The question is this, is it not.  Let us assume that the evidence ran this way:  that the body was found the next day; the police interviewed McAuliffe; Sean McAuliffe said, “I left him in the puddle.  He was some distance from the edge of the cliff.  I thought no way in the world he’d go over”, and a bystander saw this man getting up from this puddle, looking around and walking in the wrong direction over the edge of the cliff.  Would McAuliffe have been convicted of murder on that evidence?

MR NORRISH:   He may have been but it comes back to a factual assessment of what was seen, having a proper causal connection with the conduct of the applicant and whether it - - -

BRENNAN J:   It might involve more than that.

MR NORRISH:   And we say whether it was in these circumstances reasonably foreseeable.

TOOHEY J:   Mr Norrish, there was some request for redirection.  Was there any relevant request for redirection?

MR NORRISH:   Your Honour, firstly, the issue of foreseeability was raised before the summing up and His Honour ruled that foreseeability was out.

TOOHEY J:   I was thinking particularly in relation to the fifth possibility.

MR NORRISH:   Yes, Your Honour.  At page 51, after those possibilities were left with His Honour, it is noted that:

(Mr Norrish handed to his Honour written submissions in relation to further directions to the jury in relation to causation.)

And it was specifically raised with His Honour.  I think it is a matter that I referred to in the written submissions in the Court of Criminal Appeal.  The further written directions related to an accused person not being causally responsible for a death due to coincidental intervention or an unreasonable reaction by the deceased person may constitute an intervening cause.  His Honour having found against me in relation to the issue of foreseeability, I brought the matter back to the issue of an unreasonable reaction and His Honour gave - I have run out of time, Your Honours, on this point.

BRENNAN J:   Have you finished answering the question?

MR NORRISH:   Not quite, Your Honour, if I may.  Page 97 of the application book:  His Honour did give some further directions on the issue of causation at line 13, and His Honour said this:

if it was the act of the deceased which took him over the cliff then you have to be satisfied that that was not an unreasonable reaction by him, that is that it was not an irrational response to the danger or difficulty which he faced.

Well, of course, that limited the issue of reasonableness to the third and fourth possibilities or, possibly, the second possibility but not the fifth possibility.

TOOHEY J:   Yes, thank you.

BRENNAN J:   Yes, thank you, Mr Norrish.

MR NORRISH:   I should indicate, Your Honours, there were submissions I wished to make to Your Honours in relation to the issue of common purpose but I assume my learned friend Mr Odgers would make those submissions.  I apologise for taking so long.

BRENNAN J:   Mr Odgers.

MR ODGERS:   Yes, Your Honours, I will not say anything more about the causation issue.

The complaint in respect of the common purpose direction is essentially that it extends criminal liability too far, that what it says is even if this applicant did not agree to the intentional infliction of grievous bodily harm, he is liable if he foresaw the possibility that one of the other parties to the transaction might intentionally inflict grievous bodily harm.  The submission that is made is - - -

DAWSON J:   Could you take us to the passage in - - -

MR ODGERS:   Yes, certainly, Your Honours.  The key passage in respect of this applicant - the same directions were given in both but in respect of this applicant, page 132 of the application book.  His Honour, at the top of the page, indicated that these are the elements that need to be satisfied for murder and then at line 18:

Then you must be satisfied that this accused, that is, David, either shared that common intention of inflicting grievous bodily harm on the deceased or contemplated that the intentional infliction of grievous bodily harm was a possible incident of the common criminal enterprise to belt whoever it was in this area.

So that the Crown case was that there was an agreement to belt somebody.  They were words of the applicant.  And then they sought to argue that either that meant there was an agreement to intentionally inflict grievous bodily harm or, even if there was not, that the applicant must have contemplated that possibility and that therefore he would be liable.

DAWSON J:   Now, does that depart from what was said in Johns?

MR ODGERS:   In my submission, yes.  In my submission, the principle of Johns is that it is possible to infer agreement in circumstances where it is contemplated that a contingent event might arise and that, if that arises, that it is agreed, effectively, that, let us say, murder will take place.  In Johns the principal offender goes off to commit a robbery.  It was contemplated that the victim might resist violently and it was effectively agreed, although implicitly, that the principal offender would respond with lethal force.  He had a loaded weapon which was known to Johns.  So, my submission is that Johns, properly understood, is saying there has to be implicit agreement and there has to be assent but it is to be inferred from a contemplation of a possible contingency occurring and an implicit agreement that if that contingency arises that, effectively, intentional grievous bodily harm will be inflicted.

If I can take Your Honours to Johns, 143 CLR, perhaps  that is appropriate.  The key passages of the majority judgment are at pages 130 and 131 of the judgment.  At the bottom of page 130, the majority said:

In our opinion these decisions support the conclusion reached by Street CJ, namely, “that an accessory before the fact bears, as does a principal in the second degree, a criminal liability for an act which was within the contemplation of both himself and the principal in the first degree as an act which might be done -

and if I might interpose there, that word “might” is actually ambiguous.  In my submission, what they are really saying is “could be done” -

in the course of carrying out the primary criminal intention - an act contemplated as a possible incident of the originally planned particular venture”.

DAWSON J:   But is not that last sentence exactly what the trial judge said in his judgment?

MR ODGERS:   Yes.  In some circumstances, Your Honours, it may be permissible for a trial judge to direct a jury that the contemplation of possibility is enough.

DAWSON J:   What do you say, that it has to be a probable incident?

MR ODGERS:   No, certainly not.  That would be inconsistent with Johns.  The submission I make is that in some cases where, for example, lethal weapons are taken to a scene - in Johns it was a loaded gun; in Mills’ case it was a loaded rifle; in Hui Chi-Ming it was knives ‑ that in those circumstances if an accessory contemplates the possibility that a lethal weapon might be used, it is an inevitable inference that he has assented to its use, he has authorised its use, and, therefore, in those circumstances it may not be necessary to make it clear to the jury that it really is a question of ultimately intention or agreement.

BRENNAN J:   What is the problem with this direction?

MR ODGERS:   The problem with this direction is it is saying, “Look, even if there wasn’t any agreement, even if there wasn’t any intention that intentional grievous bodily harm would be inflicted, if the defendant simply foresaw the possibility” - now “possibility” is a very broad term.  It could range to, “All right, there is one in a million chance that my co-offender might go beyond the terms of the agreement and intentionally inflict grievous bodily harm.”  Now, that is just extending criminal liability too far.  There is no intention - - -

TOOHEY J:   It is a bit unreal, is it not?  You cannot leave out of account the locale where this took place.  I mean, what you say might have greater force if it was in a street somewhere and the co-accused might be heard to say, “Well, I didn’t contemplate that this would go any further than just a beating.”

MR ODGERS:   Certainly, that is what he said in his unsworn statement.

TOOHEY J:   But this took place in a situation, what, close to - how far was it from the edge of the cliff?

MR ODGERS:   It was some metres away, the actual incident itself.  I am not precisely sure but he ended up three metres from the edge but that was right at the very end after he had been kicked into the puddle three metres from the edge.

TOOHEY J:   All I am suggesting to you, Mr Odgers, is that you cannot divorce the application of the principle from the circumstances and, in particular, the location.

MR ODGERS:   Yes, Your Honour, but this case was run on the basis not of recklessness or intention to kill; it was run on the basis of an intention to inflict grievous bodily harm and that was the beating itself and that was the Crown case.

DAWSON J:   The Crown case was that they went out there to “bash someone, to belt someone”.

MR ODGERS:   Yes.

DAWSON J:   And the question was for the jury whether a possible incident of that was inflicting grievous bodily harm.

MR ODGERS:   The question for the jury, with respect, Your Honour, was whether or not this applicant intended or agreed that the grievous bodily harm would be intentionally inflicted.  His case was, “I went there to assault.  I never contemplated the possibility that really serious bodily harm would be inflicted.  I didn’t agree to it; I didn’t intend it.  I shouldn’t be convicted of murder just because the jury thinks that I must have contemplated the one in a million chance   The possibility could mean anything but just because I contemplated that possibility.  I haven’t agreed to it; I haven’t intended it”.

DAWSON J:   The jury says he did.

MR ODGERS:   No.  With respect, no, Your Honour.  The point is the case is put in the alternative:  either he shared the common intention of inflicting grievous bodily harm or, alternatively, even if he did not share that intention, he contemplated the possibility of intentional grievous bodily harm being inflicted; he is guilty.

BRENNAN J:   But your concentration on Johns, if I might say so, seems to me to be misconceived in this case.  It is not a question of what acts or events your client is criminally responsible for but what intent he had.  So that means it is a question of a contemplation of a particular result and a desire to achieve it or, alternatively, a reckless indifference to whether that result will occur.

MR ODGERS:   Your Honours, in my submission, this Court has held in Giorgianni that the fundamental basis of accessorial liability is intention and, in my submission, recklessness would not be enough.  But my submission is that Johns - - -

BRENNAN J:   If that is your submission then the question is whether or not at 132, line 20, contemplation:

that the intentional infliction of grievous bodily harm was a possible incident -

is a sufficient or adequate direction of the intent to cause grievous bodily harm.

MR ODGERS:   In my submission it is not.

BRENNAN J:   I can understand that but all I am saying is that it seems to me that your reference to Johns, which has to do with criminal responsibility for acts or events, is a distinct point.  It is not the point of the intent which is necessary to the establishment of the crime of murder.

MR ODGERS:   With respect, Your Honour, as I understand the approach that the courts in this jurisdiction and other jurisdictions have taken to Johns is that they regard it as a basis for conviction of murder that there is an adequate mental state if an accessory either agreed to the intentional infliction of grievous bodily harm or contemplated earlier that that was a possibility.  The courts rely on the words of Johns and, I submit, they misinterpret Johns and that Johns, when you read down the bottom of 131 - if I might take Your Honours to that:

In the present case there was ample evidence from which the jury could infer that the applicant gave his assent to a criminal enterprise which involved the use, that is the discharge, of a loaded gun, in the event that Morriss resisted ‑

Now, it could not be clearer that the Court is saying you can infer that he agreed to it.  But the problem with the direction in this case is that the judge is saying there are two alternatives.  He agreed to it or he contemplated the possibility.  That may be consistent with what the Privy Council said in Hui Chi‑Ming but, in my respectful submission, it extends criminal liability far too far and it is inconsistent with the approach that this Court has taken in Giorgianni to accessorial liability generally.  That was also an accessory before the fact situation.  In that case, the Court said intention is required.  Now, you can infer intention from knowledge.  If you know that your co-offender is going to do a criminal act and you intend to assist him, then you intend this other act.  Johns, in my respectful submission, says if you agree that the other person might do something in certain circumstances then you intend it.

DAWSON J:   It seems to me that this case is not very different from Johns.  There was a common criminal enterprise, was there not?

MR ODGERS:   Yes, and the defence case was the common enterprise was to belt which meant to assault and certainly did not go so far as to inflict grievous bodily harm.

DAWSON J:   And if it was within the accused’s contemplation that that might involve the infliction of grievous bodily harm, then common purpose applies.

MR ODGERS:   In my submission, no.  If you go to an incident with other people to assault and you contemplate that there is a remote possibility that one of your other offenders might go further - let us assume you contemplate that possibility but you regard it as negligible, it is not a basis for pulling out or, indeed, in this case, you actually make some efforts to prevent him going further.  The interpretation of Johns that is prevalent at the moment seems to be that it does not matter.

DAWSON J:   That would be a situation in which the jury could find that it was not within the contemplation of the accused that serious injury would be inflicted.  It is a question for the jury.

MR ODGERS:   In my respectful submission, using the term “possibility” here makes it inevitable that a jury will convict because, of course, the answer - when you ask them, “Are you satisfied he thought there was a possibility that the person might go further?”, they would of course say, “Well, of course, there’s always a possibility.  Anything is possible”, therefore he is liable.

DAWSON J:   No, but he has to have contemplated the possibility.

MR ODGERS:   Yes, certainly it is subjective.  If anybody would have realised it was possible, since anything is possible, he must have therefore realised it was possible.  Ultimately, accessorial liability must be carefully confined to intention and that in a common purpose situation it is ultimately a question of agreement.  To impose liability simply because you contemplate that there is a possible situation, that your co-offender might go beyond the terms of the agreement, you contemplate that possibility, you are liable, in my respectful submission, extends secondary accessorial liability too far.  I do not think I can say any more than I have said.

BRENNAN J:   Thank you, Mr Odgers.  Yes, Mr Cowdery.

MR COWDERY:   If Your Honours please.  If I may deal with the question of foreseeability and causation first.  It is our submission that the decision of this Court in Royall is quite clear and that in a case where a jury is being directed as to the issue of causation it is desirable to approach the matter on what is described as a common sense level, and to exclude from any such directions the question of foreseeability or a specific state of mind of the accused.

The issue of causation was dealt with by the trial judge in his summing up, particularly at page 46 of the application book and page 97.  I will take Your Honours to two of the passages in which this matter was dealt with.  Having put the five possible scenarios leading to the death of the deceased, that exercise having begun at page 41, His Honour said at page 46, dealing with the fifth scenario at line 19:

There is no question or direction of law I can give you in relation to this.  It is simply a matter of fact as to whether you think what had happened was that that was the scenario and was one causally connected in the way I have said, back to the conduct or any conduct for which an accused was responsible in whose case you are considering.

His Honour reinforced that direction at page 97 of the application book at line 9 where, dealing with the question of causation generally and the various scenarios to which he had referred earlier, he said this:

So as I said to you previously however you look at it it is a matter for the Crown to establish beyond reasonable doubt that there was no break in causation and also no act by any person acting outside the scope of any common criminal enterprise, and of course additionally if it was the act of the deceased which took him over the cliff then you have to be satisfied that that was not an unreasonable reaction by him, that is that it was not an irrational response to the danger or difficulty which he faced.

BRENNAN J:   Just pausing there for a moment:  if he rose up from the puddle, faced towards the cliff and walked over it, objectively speaking, that is utterly unreasonable.

MR COWDERY:   Not, in our submission, if the reason why he did that was as a result of the injuries, the grievous bodily harm that had been inflicted upon him.

BRENNAN J:   Quite.  In other words, if one says that he was so grievously afflicted that he was disoriented, then the disorientation accounts for the movement over the edge of the cliff, and causation would be established without difficulty.

MR COWDERY:   Yes.

BRENNAN J:   But does that not rather mean that when it comes to a direction on page 46 it is necessary for the judge to direct the jury to the kind of considerations which they must bring to bear on the matter, having regard to the fact that Sean says in his interview with the police, “I left him in the puddle; no way in the world he would go over the edge”.

MR COWDERY:   Your Honour, in our submission, one has to separate the two issues:  the question of causation and the state of mind of the accused.

TOOHEY J:   Those are matters to which the trial judge refers on page 46 at about line 15, Mr Cowdery, when he says:

You would no doubt take into account the extent to which there was any light in the area.  You would take into account what effect any physical injury or attack, confusion and the like had upon him.

MR COWDERY:   Yes.  The other factor that bears upon this argument is this:  the trial judge directed the jury that there must not be any break in the chain of causation in order for the accused to be liable for the death.

DAWSON J:   And he makes it clear that any what he calls “irrational response”, non‑reasonable response on the part of the deceased could break the chain of causation.  He does not use the words “the natural consequence of the accused’s acts”, but that is what that means.

MR COWDERY:   Yes.  The jury on the directions that were given must have been satisfied that the cause of the death of the deceased was the beating and the injuries that he suffered at the hands of the accused in order for there to have been a conviction of murder.  In order to be so satisfied, they must have been satisfied that there was no break in that chain of causation, no intervening independent act, if I could describe it that way.  In order to be satisfied of that, they must have been satisfied that it was not unreasonable in the circumstances for the deceased to have reacted in the way that he did whichever scenario they accepted.

In the way in which the case was left to the jury it is, in our submission, irrelevant to introduce notions of the accused’s foresight or the foreseeability by a person in his position of the consequences that would occur to the deceased.  Support for that proposition is gained, in our submission, from the decision of this Court in Royall, reference to which has been made by my learned friend, Mr Norrish. 

The evidence in this case established, in our submission, clearly and was accepted by the jury beyond reasonable doubt that the three men set out to belt or bash and to rob whoever they found in that particular area.  This becomes relevant to the second argument advanced on behalf of David McAuliffe.  When they set out, Sean McAuliffe was armed with a hammer.  The man Davis was armed with a large stick, and both of the McAuliffe brothers were skilled in the martial art of Tae Kwon Do.  In addition to that, the evidence discloses a savage beating resulting in grievous bodily harm to the deceased.  It must therefore have been in the contemplation of both the applicants that a possible result of their actions was the infliction of grievous bodily harm on the deceased.

Any further state of mind in either Sean or David McAuliffe as to the consequences to the deceased is, in our submission, irrelevant.  There was an intention to bash, a finding that there was a contemplation of the possibility of the infliction of grievous bodily harm, the actual infliction of grievous bodily harm and the death of the deceased in precise circumstances which are unknown, but in circumstances described in one or other of the five scenarios put forward by the trial judge. 

In those circumstances, in our submission, it is irrelevant to consider the issue of whether or not either or both applicant foresaw the possible death of the deceased.  The question of whether or not the death of the deceased by falling over the cliff was reasonably foreseeable is irrelevant because it was open on the evidence for the jury to find that the death of the deceased was caused by the actions of his assailants which in turn caused him grievous bodily harm.

Your Honours, we have set out in some greater detail in the written submissions the statement of the argument on both aspects that have been advanced by the applicants.  In our submission, the decision of this Court in Royall supports the submissions that we have made on the issue of whether or not foreseeability was an issue and should have been the subject of a direction by the trial judge.  In our submission, the decision in Johns provides the proper test by which the involvement of the applicants in the common purpose should be judged, and nothing that was said by the trial judge extended the principles in those cases beyond their proper limits.

BRENNAN J:   Mr Cowdery, in relation to the common purpose, the definition of “murder”, is it the act of the accused causing the death charged was done with intent to inflict grievous bodily harm?  How does that apply to an accessory?  What are the logical steps by which that intent is predicated of an accessory?

MR COWDERY:   In Johns the Court extended the principles ‑ perhaps “extend” is the wrong word ‑ applied the principles of viability that applied in the case of a principal in the second degree to an accessory.  In this case there were no accessories.  If the participation of the applicants is to be characterised in one way or the other it would, in our submission, be characterised as that of principals in the second degree, present, taking part in the commission of the offence.  The application of the principles to accessories in Johns is therefore not particularly apposite to the argument in this case.

BRENNAN J:   Then do you accept that the onus was on the Crown in this case to prove in relation to each of the accused that he had, in fact, formed an intention that grievous bodily harm should be done to the deceased?

MR COWDERY:   No, we would submit that it is sufficient if it was in the contemplation of the accused that that was a possible result.

DAWSON J:   You see, common purpose has not got a great deal to do with accessorial liability, has it?  It is really a question of agency, that each one is responsible for the acts of the other because of the common purpose.

MR COWDERY:   Yes, and in this case they were all present acting together.

DAWSON J:   Yes.

BRENNAN J:   That gets you home so far as the external elements of the crime are concerned.  Each is responsible for the acts of the other.  Now, what about the intent?

MR COWDERY:   The deceased was beaten by both of the co‑accused and as I indicated, the evidence is that in the course of that beating Sean McAuliffe was armed with a hammer, Davis was armed with a large stick, the beating is described in clear terms in the summing up.  It was a savage intentional beating resulting in the infliction of grievous bodily harm, and the intent may be inferred from the actions.

DAWSON J:   But is not the point that the person who inflicted the grievous bodily harm on the deceased obviously had an intent to do so?  That is the relevant intent because that act of his done with that intent was part of the common purpose, and each is responsible for the acts of the others in the common enterprise.

MR COWDERY:  Yes, that is the submission.

BRENNAN J:   So a person can be criminally responsible for murder without having, in fact, formed an intent to do grievous bodily harm.  It is sufficient that he should have contemplated that another might do it.

MR COWDERY:   Another whom he is assisting and with whom he is present at the time of the action which are the circumstances of this case.

BRENNAN J:   What is the strongest case that you have to support that proposition, Johns?

MR COWDERY:   We would rely on Johns, Your Honour. 

BRENNAN J:   Yes, Mr Norrish.

MR NORRISH:   If it is not inappropriate for me to say so, Your Honours, I adopt what my friend said in relation to the issue of common purpose.  May I in reply in relation to the applicant Sean McAuliffe, however, in relation to that issue, just point out these matters.

Firstly, it was from the outset of the trial submitted to the trial judge that this was not a Johns case, that this was an “aider and abetter” case given the facts alleged by the Crown.  The Crown case against Sean McAuliffe was not that he participated in the savage beating of the deceased at all.  He was, in fact, assaulting the other man.

DAWSON J:   The Crown case was that he did participate in that by virtue of the agency of the person, whoever it was, that inflicted the beating.

MR NORRISH:   Yes, and the complaint made about the direction was, that is in relation to common purpose if it was to be given, that His Honour did not clarify that there was a requirement on the part of Sean McAuliffe of assent or agreement to the infliction of grievous bodily harm as a possible incident of the common enterprise that they entered upon.

DAWSON J:   That is a question for the jury.

MR NORRISH:   It is also a matter for proper direction, in our submission.  In any event, Sean McAuliffe’s role was to “pushkick” as he described it, the deceased to stop the fight, and he was not one of the two people involved in the beating of the deceased.

If Your Honours please, in respect of the matter of causation, as I have indicated in our earlier submissions, we would respectfully submit that Royall is not clear in determining the appropriate circumstances in which reasonable foreseeability ought be introduced into directions on causation, and we suggest this is the appropriate case to resolve that issue.

BRENNAN J:   At page 97 there is a very clear direction given to the jury that they had to be satisfied that the deceased’s conduct “was not an unreasonable reaction by him”.  Given that hypothesis which the jury must be taken to have accepted, how could it be said that the conduct which was immediately causative of death was not foreseeable?

MR NORRISH:   Your Honours, we would submit that that passage is qualified after the words “unreasonable reaction by him” by the words ‑

that is that it was not an irrational response to the danger or difficulty which he faced.

Of course, the fifth possibility involved a consideration of a set of circumstances arising after the danger had passed because it was the applicant’s case that he had withdrawn at a time when he saw the deceased lying in the puddle.  The qualification in that direction, in our submission, took away the issue of reasonableness if it be expressed as such in relation to the fifth possibility.

I remind Your Honours what I should have drawn to the Court’s attention but which my learned friend, the Director, drew to Your Honours’ attention that when His Honour dealt with the fifth possibility specifically, His Honour said:

There is no question or direction of law I can give you in relation to this -

at page 46 of the application book.  In our respectful submission, what appears at page 97 is not sufficient to cure the inadequacy of the direction that His Honour

gave.  They are our submissions, if it please the Court.

BRENNAN J:   Mr Odgers.

MR ODGERS:   Your Honours, firstly on the issue of causation, in respect of this applicant, David, at page 132 line 11 of the application book, it was put in terms of ‑

not due to some irrational response of the accused in the face of any danger that presented him.

In my submission, that again reinforces the submission that my learned friend has just put that His Honour was referring to the circumstances of the assault, not what happened afterwards.

In respect of the common purpose issue, I should make a number of submissions.  Firstly, there was no evidence in the case of the applicant David that he had any knowledge of the existence of the hammer.  Certainly it was never used and he denied in his record of interview any knowledge of its existence.  In respect of a stick from Davis he simply in his record of interview said that there was a stick.  That was it.  He said he had no idea where it came from; he had no earlier knowledge in relation to it.

Next, it was not the case that the jury concluded that grievous bodily harm was inflicted on the cliff top.  It was not an element of the offence.  All that was necessary was an element that the principal offender intended to inflict grievous bodily harm and they made that finding.  But the evidence before the jury as to what happened on the cliff top, the injuries that were suffered, in my submission, it was quite unclear what those injuries were, and that on the applicant David’s case, he went there to assault and basically that meant kicking and punching; he saw Davis use a stick; he saw no hammer; his intention, his agreement was to an assault short of the intentional infliction of grievous bodily harm.

If the Crown sought to put its case on the basis of accessorial liability, that is, Georgianni, they disclaimed that approach and sought to extent liability using common purpose.

DAWSON J:   Common purpose is something different from accessorial liability.  It must be based on some agency concept.

MR NORRISH:   My submission is they are two different ways of getting to the same thing, that is, intention.  In Giorgianni the mode of reasoning is: you know what is happening; you are assisting; you intend that it happen.  In this situation you are saying:  yes, you are an agent because you agreed that it happen.  Intention is derived from agreement, but they are both ways of establishing intention.  The vice in the direction in this case and in other similar cases is to say, “Even if there was not agreement you are liable and you are guilty of murder if you contemplate the possibility that your co‑offender might intentionally inflict grievous bodily harm”.  It is not agency because there is no agreement.  It is just a contemplation of a possibility.  Even in civil law that would not be enough but, in my respectful submission, in criminal law it cannot be enough. 

There is authority in support of it: the Privy Council in Hui Chi‑Ming has said as much.  But, in my respectful submission, there is a fundamental misconception of what the High Court said in Johns where really what they were saying was, “You infer agreement from the contemplation that a contingency might arise and I agree that if that arises you can do something”.

DAWSON J:   The old notion of concert is more the.....

MR NORRISH:   Yes, concert, agreement, authorisation, agency, in my submission, they are all the same thing, but this went further.  Those are my submissions.

BRENNAN J:   The Court will adjourn briefly to consider what course it should take in this case.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

BRENNAN J:   The Court is of the opinion that it would be appropriate to grant special leave in this case to raise the question of common purpose.

We would not, if the matter stood by itself, grant special leave to raise the question arising out of the judgments of Royall and the issue of causation, but we are unwilling artificially to limit the grounds on which it may be necessary to canvass this case having regard to the issue of common purpose.

Accordingly, there will be a general grant of special leave, but counsel are informed of the view of the Court on those two points so that in the course of argument they may frame their argument on the more limited basis which has attracted the grant in this case.

AT 11.31 AM THE MATTER WAS ADJOURNED SINE DIE