Miller v The Queen; Smith v The Queen; Presley v The Director of Public Prosecutions for the State of South Australia
[2016] HCATrans 107
[2016] HCATrans 107
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Adelaide No A28 of 2015
B e t w e e n -
EVERARD JOHN MILLER
Appellant
and
THE QUEEN
Respondent
Office of the Registry
Adelaide No A22 of 2015
B e t w e e n -
WAYNE DOUGLAS SMITH
Applicant
and
THE QUEEN
Respondent
Office of the Registry
Adelaide No A17 of 2015
B e t w e e n -
JOHNAS JEROME PRESLEY
Applicant
and
THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA
Respondent
FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 11 MAY 2016, AT 10.16 AM
(Continued from 10/5/16)
Copyright in the High Court of Australia
____________________
FRENCH CJ: Yes, Ms Abraham.
MS ABRAHAM: Your Honours have our three‑page outline.
FRENCH CJ: Thank you. Yes.
MS ABRAHAM: Your Honours, dealing with the unsafe ground first, accepting as we do that the judgment below makes no explicit reference to the evidence of intoxication in relation to Smith and Miller, because it did make reference in relation to Presley, and accepting that there was no specific or explicit reference to intoxication in the unsafe aspect of the judgment, nonetheless in our submission my friends have not established any error below in the approach of the court.
In our submission, my friends’ argument that the failure to explicitly refer to these matters leads to the conclusion that necessarily the court did not consider intoxication and its relevance to the unsafe ground, in my submission, is a largely and, in our submission, on the facts and circumstances of this case, a leap this Court ought not take.
Can I just go to the judgment for a moment and explain why that is so and the context in which this appeal was heard? The judgment appears in appeal book 4 for Miller and it begins at page 1763. Before taking your Honours to a passage, your Honours are obviously well familiar with the judgment, and what is clear from the judgment is that at the outset their Honours made reference to some general principles that clearly were applicable throughout the judgment and they did not obviously consider it necessary and neither was it necessary to refer to those principles. In that, I include the reference to the legal principles – for example, that appear under general observations beginning at page 1772 that relate to joint enterprise and extended joint enterprise and the like.
There is further reference to those basic legal principles at page 1775 when considering an argument that was raised as to whether extended joint enterprise ought to have been left to the jury at all. I note that the court concluded that in relation to the two appellants who were arguing that below that it was open on the evidence for the jury to convict of extended joint criminal enterprise and therefore it was appropriate that it was left to the jury. That finding in relation to leaving extended joint criminal enterprise has not been challenged. The only challenge relates to the McAuliffe point.
In that context, the court, in dealing with general principles at paragraph 66 at page 1773 talks of the relevant principles to be applied in relation to an allegation that the verdict is unsupported by the evidence. Those principles, shortly encapsulated, are unexceptional and, in our submission, nothing further needed to be said; a recognition of what the test is, that it is open, the primacy of the position of the jury. So in terms of a legal test, that is correct.
The question of intoxication was specifically addressed by the court in the grounds of appeal in relation to Mr Presley. That begins at page 1781 at paragraph 89, where the court in paragraph 89 sets out in detail the factual arguments in relation to the relevance of intoxication to Presley’s Case, and I might extrapolate, they are the same arguments that are obviously relevant in relation to the other applicants as well. Having done that, over the page at page 92 ‑ ‑ ‑
FRENCH CJ: That was all in the context of the complaint about direction.
MS ABRAHAM: Yes, absolutely. At paragraph 92 over the page, the court in a very nutshell way summarised the evidence of intoxication in relation to Presley. The court thereafter quoted a passage or cited a passage from the summing‑up that related not to Presley but to Miller and to Smith. I pause there to mention they abandoned at the appeal their arguments in relation to the adequacy of the intoxication directions.
At page 94 then the court cites a passage of the direction in relation to Presley and concludes that the direction given was adequate in the circumstances. That finding is not challenged. Your Honours, whilst there has been a reference to those portions in that aspect of the judgment, the summing‑up was, indeed, replete with references to intoxication and I do not propose to take the Court to them but can I list some page references for your Honours for future reference where there is the reference to intoxication and the effect it has in assessing the case.
At 1590 and the following pages there is a summary of the evidence, in particular, the expert evidence. In relation to Betts, the directions are at 1602, 1608, 1612 to 1615. In relation to Presley, the directions are at 1635 through to 1637, 1640, 1649 to 1655. Your Honours, those last couple relate to Miller. Smith is 1695 to 1699.
So the Court of Criminal Appeal considered the intoxication grounds in relation to Presley. They considered arguments about the directions given in relation to the elements of the offence in relation to extended joint enterprise. The summing‑up, which they were obviously considering, was replete with the references to intoxication and to the effect of it on the issues at hand.
In our submission, it is an extraordinary leap to suggest that when then conducting the independent examination of the evidence, the court then took no account of what, in our submission, is a very, very obvious matter. It is not as if it is subtle. There is no issue as to the relevance of it. The court, being acute to the issue, in our submission, the obvious inference is they did take it into account.
Whether or not there is an explicit reference to the evidence, in my submission, is not determinative of the issue. In some cases it might be depending on what the issue is but when one is dealing with an issue as fundamental as this and as obvious as this, in my submission, in light of the conduct of the appeal in relation to the other grounds, in our submission, to suggest that it was not considered is an extraordinary leap.
BELL J: If one looks at the case, for example, of the appellant, Miller, there was cogent evidence of a very high level of intoxication. Admittedly, the evidence was that an experienced drinker can perform in a way that a person without that experience would be unable to with a reading of that level. Nonetheless, there was an absence of evidence of what it was that Miller had done. So that the sort of material that would readily lend support to a conclusion that, notwithstanding that high level of intoxication, he was able to form an intention to participate in the venture and that he had sufficient cognitive ability to foresee the infliction of death or grievous bodily harm, it really was necessary, was it not, for the court to analyse by writing out how it was one could exclude the reasonable doubt in his case?
MS ABRAHAM: Your Honour, that comes back to the question of the extent of the reasons and I accept it would have been preferable if that had occurred. But the issue then becomes, that not having occurred, what does one draw from that and, in our submission, because of the particular circumstances of this case, one cannot go that extra step or that extra leap and draw the conclusion that therefore they did not consider it. I accept that Miller is different in the sense of there is no identifiable act attributed to him as opposed to the other witnesses – sorry, the other applicants. But, nonetheless, there was conduct that he undertook that gives rise – it was open on the evidence. Can I just go to the facts briefly, your Honours?
Your Honours will have seen from the judgment that at paragraphs 30, 32 and 33 there were a number of undisputed facts or unchallenged facts. We know there was initially an altercation between Mr Betts and Mr Presley, and Mr Hall and Mr King. We know they went back to Presley’s house, the applicant Presley’s house. We know following that altercation there was some evidence that Presley said on his return, the other two applicants being there, and Mr Wills as well, and the girlfriend was there as well – said that they should go and see what it is about. He, that is, Presley, picked up a weapon. Sorry, the girlfriend’s name, Amii Turner. Mr Presley on his part picked up a weapon.
Whilst Willis did not see any other weapons, there is evidence that four weapons were used. There is evidence, we suggest, that links the four weapons as coming from those premises. Willis says he sees the four run out of the house together. That is the four applicants – the three applicants and Mr Betts. He drives down in the car. Once there they in effect charge at Mr King and Mr Hall and your Honours know what happened thereafter.
They then leave after the incident and arrive back at Mr Presley’s house together. Three of them then leave the house with Willis, it appears by car, and get dropped at Willis’ house, the three being Mr Betts, Mr Smith and Mr Miller. Mr Presley stays behind. The three seem to have got a lift, at least being as far as Willis’ house, because they arrive on foot at Ms Wanganeen’s, and they are there, on her evidence, for an hour – sorry, half an hour to an hour.
Your Honours, the evidence is that the weapons used were the baseball bat, the shovel, a knife, and there is evidence a bottle was used. A bottle was found at the scene, as your Honours are aware from the judgment. The knife was found in a drain at an address at 30 Butterfield Road, as was the shovel was found nearby.
When they left Mr Presley’s house originally, obviously there was no thought that anything needed to be concealed. A baseball bat could not be concealed. Indeed, the nature of the weapons, in our submission, is such that at least some could not be concealed and we would suggest the knife also could not be concealed. It is a rather large knife. Indeed, if they are obviously carrying other weapons, one might ask why one would bother then concealing this particular weapon.
Against that background, which is unchallenged, can I give your Honours some references to some of the evidence about alcohol, additional evidence to what was referred to yesterday. I do not propose to take the Court to the evidence; I simply propose to refer to it.
Your Honours were taken to the expert evidence yesterday of Dr Majumder and, as will have been obvious from the passages that your Honours were taken to, a lot depends on issues like whether or not - the rate the alcohol is expelled from the body and whether or not there had been any drinking thereafter, that is, after the incident and before the blood was taken. We say, for the reasons we have in our written submissions, there is good evidence to infer that there was in fact drinking by at least some of the accused at Ms Wanganeen’s. Dr Majumder also gave evidence, your Honours, that of course the effects are individual. That is pretty obvious really. That is at 1032. It says:
It will be obvious for an observer that this person is intoxicated, because they will have slurring of the speech . . . staggering or stumbling gait and . . . glazed eyes.
Because an individual person deals with alcohol differently, how it affects them, she says observations of the individual will be important – that is at 1051 and the couple of pages leading up to that. She also gave evidence that of course having alcohol can increase the aggressive behaviour, so one might do what one might not ordinarily do - might become more reckless and aggressive – that is at 1034, 1050 and 1064. She gave evidence that a stimulant like adrenalin might affect the effects of alcohol – that is at 1062.
Against that background one looks at what they did and I have gone through only in a very general way what they did. That included going there, running there, arming themselves, going back, weapons were hidden, then walking on and doing other things. So they are not so intoxicated that they are asleep on the ground or anything like that; they are continuing to go on. Ms Wanganeen describes Smith and Betts as:
didn’t really look drunk to me –
that is at 774. She said in cross‑examination:
They weren’t that drunk, most probably had a few drinks ‑
again, at 774. Although Miller was there she did not know him ‑ ‑ ‑
FRENCH CJ: That is what they call a compendious impression rather than expert evidence.
MS ABRAHAM: Yes, although, in fairness, she did not put Miller in that because whilst he was with them he was sitting back a little bit and so she did not have an opinion as to him. So, at least, whilst I agree it is a compendious approach, there is some discrimination. In relation then to the applicants, there were observations by various police officers in the hours leading up. In relation to Mr Smith, he was not arrested until sometime later and a police officer had seen him at about 1.30 in the morning and did not make any particular observations about his alcohol – sorry, 2.30 in the morning and did not make any particular observations about his alcohol and that is at 817.
In relation to Mr Miller, Constable Roberts first saw him at 1.35 am walking without causing any embarrassment to others, without “shouting or screaming” was his description at 818 and 819, that is walking after leaving Ms Wanganeen’s house. Senior Constable Maskall gave evidence that Miller was not completely drunk and although he did not make a contemporary note, he disagreed with the suggestion put to him that he was significantly intoxicated. That is at 800. Constable Modra, who saw him at about the same time, said he did not make any observations about whether Miller was intoxicated. He did not observe anything obvious. His arrest was videoed. That was at 2.19 am, at appeal book 787, and that was shown to the jury.
BELL J: That was a video depicting the arrest?
MS ABRAHAM: Yes.
NETTLE J: Was that played in the Court of Criminal Appeal, the video of the arrest?
MS ABRAHAM: It was not played but the court would have had it – the court had the exhibits but it was not played. The jury obviously had it but it was not played, no. In relation to Mr Presley, of course, he was the applicant who did not go on to Ms Wanganeen’s. Senior Constable Webber describes him as “moderately intoxicated”, that is when he first observed him at 11.52 pm, and he stayed with him until 2.40 am. That is at Presley appeal book 30 and 31. Detective McCaffrey also described Mr Presley as moderately affected by alcohol, that is at Presley appeal book 25.
Of course in relation to Mr Presley, unlike the others, because of his plea of guilty to the offence, he has admitted that he intended to cause harm. So he was, on his own admission, capable of forming the intention to arm himself, obviously, and causing harm in the assault on Mr King. Presley’s video of his arrest was also shown to the jury - that was at Presley appeal book 25.
So, in our submission, when one looks at the observations by experienced police officers and others who were with them, they were not the observations of the type necessarily, although they were obviously affected by alcohol, that was spoken about in the expert evidence. One is entitled to look at all the evidence, obviously because the most an expert can do is give an estimate as to blood alcohol level and the like, look at what they did, what the evidence was as to what they were drinking or what they were not drinking.
I note in relation to Smith there was no blood alcohol level at any time that was taken and in relation to Smith there was really no cross‑examination below by the applicants to establish his particular level of intoxication, if that makes sense. So, evidence in relation to him was very vague, he not being arrested until much later on that day, the 13th. So, in our submission, the level of intoxication in light of what the applicants were observed doing does leave it open to the jury to convict, that they were able to form the relevant intents.
FRENCH CJ: Well, it is not just intent, is it? There are other states of mind, one being of course, foresight of murder.
MS ABRAHAM: Absolutely, yes. Absolutely, sorry that is my loose language, your Honour.
FRENCH CJ: Well, there is a point in that - that can one just sweep all these things up together and say well, they could never have been in doubt about intent. Does the same sort of conclusion arise in relation to foresight? Is that something which perhaps, where there is some higher threshold ‑ ‑ ‑
MS ABRAHAM: In my submission ‑ ‑ ‑
FRENCH CJ: ‑ ‑ ‑ and was it considered?
MS ABRAHAM: Two steps. Sorry, was it considered by the court?
FRENCH CJ: Yes, in terms of the reasonableness of the verdict.
MS ABRAHAM: Your Honour, in relation to the way the case was pitched as to what the intent needed to be - I meant to take your Honours to this earlier, if your Honours have the judgments, it is paragraphs 6 and 7 of the judgment at 1763. In our submission, the level of intoxication was not such that meant it was not open to the jury to find they entered the relevant agreement that they, if not intending to cause grievous bodily harm, foresaw that one of their number would kill with the intent to cause grievous bodily harm. So, in our submission, yes, I accept there are, in one sense, a number of intents, but the evidence is capable of giving rise to that inference.
I accept the court did not explicitly say that. What they said was that the evidence was sufficient – it was open to the jury to find with the necessary, or relevant, intent. In answer to your Honour the Chief Justice’s question, did the Court consider it, the answer, with respect, is the same as in relation to my earlier submission. We accept it is not explicitly there. But, in my submission, given that one is talking about, in this judgment, intoxication – the court being acutely aware of it – talking about the elements of extended joint criminal enterprise, because that was part of the arguments on other appeal grounds – the suggestion that the court did not then consider this factor when considering each of the elements of the relevant offences, in our submission is a huge step.
FRENCH CJ: But a conclusion that a jury could have reached a finding beyond reasonable doubt that there was an agreement to commit the crime of assault, bearing in mind we are going to out and see what their problem is – or euphemistic language – a finding to that effect, notwithstanding the evidence in relation to alcohol and other substances, does that necessarily lead to conclusion that they could be satisfied beyond reasonable doubt that the accused foresaw the possibility that, et cetera – in other words, the other limb. I am distinguishing the two states of mind.
MS ABRAHAM: I understand exactly where your Honour is coming from. In my submission, it comes back to the inferences that can be drawn from the facts. If one is leaving the house to assault, armed with weapons – and, as I said, the case was put – count one – on an alternative basis, that is, with an intent to cause grievous bodily harm but, if not, at least the foresight of that, in my submission, given the nature of the weapons, that they were running at them, the nature of the assaults, the inference is open that you can not only party to the agreement, but that next step that it was either to intend or that it was contemplated.
NETTLE J: What do you say about Mr Game’s Cornwell point that the Court of Appeal might well be right in that one little paragraph at 109 but you would not know because there is no analysis?
MS ABRAHAM: In my submission, that then comes back to the question of the extent of the reasons I have accepted. But it would have been preferable that there had been a greater reference to the evidence. But, with respect, on this topic it is hard to see, apart from recitation of the actual evidence of intoxication, what analysis there needed to be – could be in writing. Here is the evidence of intoxication. We say, given the facts, including all these uncontested, unchallenged facts, the inference is open.
There is not an analysis like one might sometimes have in relation to a victim in a sexual assault where there are conflicting statements on a topic that needs, critically, to be resolved, that sort of analysis. It is not that sort of analysis, in my submission. It is here is the evidence of intoxication. Here is all the evidence of what they did. These are the elements of the offence. This is how intoxication is relevant, as the court was acutely aware of. Can we draw that inference?
GORDON J: The problem though, is it not, is this, that there is – the only evidence or analysis by the Court of Criminal Appeal of intoxication is of Presley in the context of a complaint about directions. The only other reference to intoxication of Miller and Smith is to say they have abandoned their complaint about directions, and there is no other reference in the context of Miller or Smith even to the consumption of alcohol. So that is that not the problem? The problem is that there is no analysis and the three of them had to be considered separately, given their different states both as to conduct and as to level of intoxication by reference to the evidence you have painstakingly taken us through this morning.
MS ABRAHAM: Your Honour, I cannot – it is not there and I can only repeat my submission that it is a big leap to suggest that the jury – sorry, that the court did not consider it, given the prominence.
GORDON J: It seems as though they thought the intoxication issue was a complaint about directions and seemed to have ignored it or forgot it when they got to the unreasonable verdict.
MS ABRAHAM: In my submission, no, and the reason I say that is this. The unreasonable verdict is so scant ‑ in fact, it is really just a conclusion – that they have not addressed explicitly particular elements, for example, and the like. So what it is ‑ we have done our task and, in our submission, there is no reason to suppose they did not conduct an independent examination and, if they did, then it jumps off the page.
GORDON J: But you had agreed with me that there is no reference to the intoxication or even the alcohol consumption of Miller or Smith anywhere in the reasons.
MS ABRAHAM: Your Honour, I agree entirely and I suppose it comes down to this issue. Does one need to put something in the judgment to show that you have considered it, or can you have considered it and not put it in the judgment? And, whilst I have accepted that, given the nature of this case, it would have been preferable if there had been something in the judgment, my submission is simply that the absence of it in this case – and there might be other cases where the absence is critical – but the absence in this case where we are not talking about a subtle issue and we are talking about the court ultimately dealing with the ground in writing, in any event, very succinctly, that it is a big leap to say they did not consider it.
KIEFEL J: Another way of putting what you are saying is that there is no real question to remit.
MS ABRAHAM: Yes.
KIEFEL J: That is what it comes down to.
MS ABRAHAM: Before moving off this ground, can I just give your Honours some page references in relation to each of the accused in relation to topics that my friends raised yesterday? I will not go over what we have got in our written submissions, but some additional matters.
In relation to Mr Presley, my friend made a submission yesterday in relation to what can be made of his interview with the police that occurred some days later, and the submission made was that it might be – he found out things after the event in the cells and therefore when he says that Betts had a knife, whatever, that came afterwards. In our submission, a proper reading of that does not support that. I will not take your Honours to it; your Honours can read it. The Court of Appeal below at paragraph 25 at 1767 described the interview in that manner at paragraph 25, and no challenge has been made to the accuracy of that.
Indeed, whilst on that, whilst there is complaint about what is not in the judgment – for example, the reference to intoxication evidence ‑ there is not a complaint that what is actually written is somehow inaccurate. Secondly, in relation to Presley, in my submission one starts from the proposition that he at least had an intent to cause harm – the point I made earlier – because of the plea of guilty. I do not need to labour that.
That combined with what he says in his interview about the weapons when one is considering the evidence of Mr King, Mr Hall and the eyewitnesses, that the group of Aboriginal men in fact were running or walking very fast, they actually were chasing Mr King and Mr Hall, who were running away, and the evidence that they were all involved in the incident – that is, all who turned up were involved in the incident – no one was standing back and not being a party. In our submission, Presley admits to knowledge of the other weapons as well.
My friend yesterday, the third point in relation to Mr Presley, said that he admitted hitting Mr King and then left. In our submission, there is evidence from which the jury could find that he was involved in relation to assaulting Mr Hall as well and that appears, for example, in Ms Turner’s evidence at the Miller appeal book 383, 436 – saw the person with the metal pole, obviously the baseball bat, hit Mr Hall, “stomped” on his chest.
The fourth point in relation to Mr Presley which was raised yesterday is the blood on the shorts. It was Mr Hall’s blood and my friend said yesterday that it could be as far as five metres away. If one reads the transcript of the references she cites, one is talking about “with gusts of wind”. The evidence was two to three metres. The crime scene examination had the evidence of blood around Mr Hall’s body only out 1.5 metres.
What one is dealing with is approximately 70 spatter stains consistent with arising from more than one incident, that spray, the position being, assuming the shorts were being worn by Presley at the time, the position of the impact and orientation of some of the stains is consistent with at least his left hip and thigh close to and facing the source of Hall’s blood.
The 1.5 metres, the blood spatter around, is Mr McKenzie, it is at appeal book 1, 17. So, with respect, there is evidence of Mr Presley, knowledge of the other weapons as well as of his own, and involvement greater than he says and, in our submission, despite the fact of intoxication, in addition of the other evidence being what is in our written submissions, despite the level of intoxication that was open to him to form the relevant intents that are necessary.
In relation to Mr Miller then, and he is the one your Honour – the page reference to the 70 spatters is 934 of the Miller appeal books. In relation then to Miller, as I acknowledged earlier, he is the one that there is no direct evidence as to what he was doing, unlike some of the others. But what we do know is that he had blood spatter on his shoes which, given the 1.5 metres meant he was very – blood spatter of Mr Hall – very close in proximity to Mr Hall. That is at 937 to 939. Ms Turner’s evidence was that there were a number of people – four people around Mr Hall kicking and hitting him; that is at 383.
As I said, as we have got in our written submissions, the evidence is that nobody was standing back. Of those that turned up, nobody was standing back and not participating. What the blood evidence does do is put him, with respect, right there. Now, in relation to Mr Miller, Mr Bennett made some submissions yesterday, if I could just touch on briefly. First of all, the suggestion that he did not walk to the scene, as your Honours will have seen from the judgment, it was unchallenged in the Court of Criminal Appeal that all four went together and that it is unchallenged by Miller is actually in the judgment at 1790, paragraph 126. Obviously, at the beginning of the judgment, the court talks about it as unchallenged and uncontested evidence.
The evidence of Willis was that they ran out the back door when asked by – I think it was his Honour in questioning, who he named the four accused. That is at 616. The highest it gets in relation to my friend’s submission is the cross‑examination when it was put to him did he go in the car with him, that is the passage that your Honours were taken to yesterday. Sorry, running out the back door and, according to Mr Willis, running down the road, that is at 656.
There were a number of submissions made by Mr Bennett yesterday in relation to the weapons. I have already made some submissions – the bat you could not hide. We say there would be no reason to hide the knife and it is rather a large knife. There is evidence – my friend said yesterday Mr Betts could have been wearing jeans or three‑quarter shorts. In fact he is wearing what appear to be normal shorts. They were shorts that were found with the blood of Mr Hall on them. That was tendered – the jury had then before them.
In relation to the submission about the shovel was just fortuitous, we have dealt with that extensively in our written submissions and I do not propose to canvass that further. Suffice to say, there is no evidence to suggest that any weapon was obtained at the scene. Rather, the eyewitness evidence was that when they came, the big man had the shovel. That is what was observed. They arrived with very obvious weapons.
So, in our submission, whilst, as I said, we accept there is no evidence of Miller being identified during a particular incident, a particular act, in our submission, that is not necessary if it is established that he is party to the joint enterprise, either with intention to cause grievous bodily harm or foresaw the possibility in the appropriate way. If he was there in furtherance of that, that, in our submission, is sufficient. But the inference is that he did participate because of the blood and the general observations of involvement.
Just a correction to a question your Honour Justice Nettle asked earlier, apparently Presley’s interview – arrest video – was played to the jury but Miller’s was not. I am not quite sure why.
BELL J: What time was Mr Miller’s arrest?
MS ABRAHAM: Your Honour, 2.21 am. He had been with the police for about an hour before the formal arrest. The police came upon he and Betts – they sat on the footpath on the kerb for a while before the formal arrest.
BELL J: But the video that was taken of the arrest was not, in fact, tendered. Is that right?
MS ABRAHAM: Of Miller, no.
NETTLE J: Was it said that the police just left them sitting there on the gutter for an hour or so before they made the arrest?
MS ABRAHAM: Yes. From the evidence it is apparent that a number of inquiries had been made. Mr Presley is back at – there were police with Mr Presley. It was probably less than an hour. But they were sitting there for a little time and under observation whilst, as I said, the other investigation – by reading the evidence – appears to be happening. The police were with Presley at the time as well – at his address.
NETTLE J: Thank you.
MS ABRAHAM: Your Honours, no additional submission has been put in relation to Smith. We rely obviously on our written submissions in relation to him. I have given your Honours the additional evidence in relation to intoxication in relation to Mr Smith. He is the man, in our submission, who was the - in effect describes the one in the front with the shovel - was involved in the shovel hitting Mr Hall. The shovel, whilst it did not have any of the DNA of the accused on it, had hair and blood of Mr Hall on it when it was left in the backyard in the same house as the knife, it not being a house that was the accused’s house.
BELL J: May we take it that the prosecution would in conformity with their obligations have either served a copy of the video of Mr Miller’s arrest or made it available to his legal representatives to view?
MS ABRAHAM: Yes. So, ultimately our submission is (a) there is no error in the judgment; and, (b) in any event, on proper consideration of the evidence, it is open to the jury to have found the applicants or appellant guilty of the two offences.
Just on the question of orders that my friends seek, I notice yesterday my friend, Mr Game, simply wants it remitted for hearing. Mrs Shaw wants the murder conviction quashed. Of course, even on Mrs Shaw’s argument, there is manslaughter. If we were not to be accepted, we say we ought to be, but manslaughter is always an alternative open to a court, deciding a case of murder, it being left to the jury. It was an option open to the court and one ought not to go from murder to nothing, in our submission.
Can I turn then to the second ground, the McAuliffe - in our submission, my friends have put no compelling reason why this Court ought to reconsider or reopen McAuliffe. The principles that refer to the relevant considerations on a reopening were considered indeed very recently, as recently as last week in Attwells [2016] HCA 16.
In our submission, McAuliffe is a judgment of this Court, a unanimous judgment delivered after full argument. Nothing that has been said in Jogee, in our submission, affects the correctness of McAuliffe. It has been applied – that is, McAuliffe – regularly by this Court, not just in Gillard and Clayton, the two cases that were referred to most frequently yesterday. But in those cases, in particular in Clayton, there was a good deal of consideration about the issue that is now being ventilated.
Indeed, in our submission, none of the matters that are now put to this Court as a basis to re‑agitate and overturn McAuliffe are new. In our submission, they are matters which were put to the Court in Clayton, for example, and a reading of the transcript of the hearing in Clayton reflects that there is – it was the basis of their argument ‑ disconformity with Giorgianni, Markby, Crabbe – there needs to be an intention to assist and the like. It was the very foundation of the argument in Clayton. So to suggest that somehow this case is different, as Mr Game suggested yesterday, in my submission, is incorrect.
KIEFEL J: You say in your submissions and your outline at 11 and then expanded in paragraphs 13 and 14 that the policy underpinning the principle in McAuliffe is strong. Does it find expression in McAuliffe itself? There was some mention yesterday in following cases, but in McAuliffe itself, do you say?
MS ABRAHAM: In McAuliffe itself it is not referred to expressly in our submission but ‑ ‑ ‑
KIEFEL J: Is it to be inferred?
MS ABRAHAM: It is to be inferred from the passage at page 117 where the Court from the middle of the page on, that paragraph, in our submission, gives rise to the inference that as a matter of logic the Court sees no different – no difference at all in what was said in Johns and what was the conclusion in the Court.
NETTLE J: I suppose the policy is stated in Sir Robin Cooke’s judgment, is it not, which is referred to at the start of 118?
MS ABRAHAM: Yes.
KIEFEL J: But speaking for itself, the Court in McAuliffe, after saying what Johns does not go into, says at the end of 117 about six lines from the bottom:
However, the secondary offender ‑
That seems to be where the Court makes the determination for itself.
MS ABRAHAM: Yes, that is right.
KIEFEL J: And at the top of 118:
there is no other relevant distinction.
MS ABRAHAM: Yes.
KIEFEL J: Is the fact that a common purpose where there is foresight and participation continues is seen to be regarded as separate, that appears in McAuliffe itself too, does it not?
MS ABRAHAM: Yes.
KIEFEL J: That there is no bar to it being considered separately.
MS ABRAHAM: By that, does your Honour mean separate from an agreement?
KIEFEL J: Yes.
MS ABRAHAM: Yes, I agree, and the later cases of course that have considered McAuliffe – Gillard, in particular, but more so Clayton – deal a little more with the policy reasons. Before going to that, in McAuliffe the transcript of the argument again reflects that the arguments being put yesterday were the arguments put in McAuliffe – that is, there needs to be an intention to assist, it needs to be in line with Giorgianni and the like and that clearly was rejected.
So there is nothing new, with respect. Indeed, the decision that is subject to attack was well aware of the arguments that were put but concluded, in our submission, for good reason, that the culpability was present ‑ as is made clear in the passage your Honour Justice Kiefel mentioned at the top of page 118.
GAGELER J: Just looking at the passage at the top of page 118, perhaps you will not be able to lend any assistance here but there is a reference in the first full sentence to Sir Robin Cooke’s observation and then there is a sentence which says:
That is in accordance with the general principle of the criminal law -
et cetera. I have difficulty appreciating the connection between those two sentences. It is difficult to see the justification for Sir Robin Cooke’s observation in the terms stated in that second sentence.
MS ABRAHAM: Yes, I agree with your Honour, unless what one is doing is saying that the fact of participating in those circumstances is assistance, but it is not an element – it is a bit like the comment that my friend totally relies on from the judgment in Gillard. It is regarded as assistance but I cannot ‑ ‑ ‑
GAGELER J: It has been said and it was said again in Gillard but I frankly find it difficult to see a justification in the sentence.
MS ABRAHAM: I do not think I can ‑ ‑ ‑
GAGELER J: You cannot enlighten ‑ ‑ ‑
MS ABRAHAM: ‑ ‑ ‑ assist your Honour on that because in Australia, in any event, what has become quite apparent and more clear as time has gone on, in Gillard and Clayton, for example, is the divide between the basis of culpability for a joint enterprise and the basis of liability for an aiding and abetting.
GAGELER J: So if that is not a satisfactory policy justification, what is the satisfactory policy justification in your submission?
MS ABRAHAM: It is because you have agreed with another or others to commit criminal activity and, having the relevant foresight that is necessary, despite that you participate in furtherance of that agreement. So it is the continued participation, in my submission, that is the basis of the culpability, participation with the foresight.
GAGELER J: So the actus reus is the participation.
MS ABRAHAM: Yes.
GAGELER J: The mens rea is the foresight.
MS ABRAHAM: The foresight ‑ once there is an agreement, sorry. There has to be the original agreement; we cannot step back.
BELL J: One sees here the tension sometimes described as the doctrinal confusion as to the basis of the doctrine. Is it, as Sir John Smith seems to think, an extension of the principles respecting accessorial liability or is it as Professor Simester sees it, a separate basis of criminal culpability? It might be in Clayton one discerns that this Court has moved towards the latter as the doctrinal foundation.
MS ABRAHAM: Yes, I agree with that. The passage in the article of Simester and, indeed, his book very helpfully analyses the basis. It is not, with respect, confined or based in this is what Chan Wing‑Siu says. It is, this is the basis of why you are liable when you have entered into an agreement.
FRENCH CJ: You have linked it to what you call, I think, the unique characteristics of group crime as a compelling, important and serious justification at paragraph 14?
MS ABRAHAM: Absolutely, and the unpredictable nature of group crime, the emboldening that occurs, as we see in the cases by the group activity.
FRENCH CJ: The foresight which is necessary is actual foresight, not constructive foresight, and it is of a possibility which is not used in the sense of anything is possible, it has to be an event which is attended with a real probability, not greater than 50 per cent but something, at least, sufficient to engage foresight.
MS ABRAHAM: Yes. The factual foresight means you actually had to have engaged because it is foresight involving the intention as well, not just a killing will occur, but the killing, if it is a murder, intent.
FRENCH CJ: So, you have the old rule and it is reflected in the Code and so forth that something which is a probable outcome, in a sense, more probable than not, will attract liability. There is then a question, whether it is a difference only in degree to attach liability to something where you foresee an event which has a finite non‑trivial probability but not necessarily more probable than not.
MS ABRAHAM: Of course, this Court in Darkan talked about the interpretation of probability in the Code in Queensland and concluded it is more probable than not ‑ ‑ ‑
FRENCH CJ: I am just talking about how this fits with the old rule in terms of whether it is a shift in kind or just a shift in degree?
MS ABRAHAM: In some sense – it is a shift in that it is subjective which narrows it, in our submission, and degree. Can I take your Honours to Clayton just for a moment because, with respect, my friends, in their submissions actually have not addressed why Clayton somehow should be brushed aside as opposed – apart from saying ‑ this is in my friend’s written outline ‑ that it is acted on assumption and it has now been, in effect, swept away, was the words used yesterday. Clayton is 81 ALJR 439.
Your Honours will be well familiar with paragraphs [15] onwards but what is clear from these paragraphs, in our submission, is that this Court was not just following along. This Court was considering what is the basis and, as your Honour Justice Bell points out, there is reference to Simester and the like because it is an acceptance that there is a proper purpose and place for this excepting that there may be factually some overlap in some cases, there is indeed work for this to do.
Of course, a lot of the argument yesterday presupposed that you have a person who is the person – identified person – who inflicts, as a murder, the death, or causes the death, and the others. Whereas, the principles must be able to apply in both scenarios – that is, when you do not know who the person is that is party to the enterprise which one of them actually inflicted the fatal wound. I mean, Huynh that was considered by this Court only a couple of years ago on the issue of participation was one of those cases and Clayton, indeed, is one of those cases. So, in my submission, that fact ought not be lost – having paused there.
Your Honours, paragraphs [15], [16] and [17], in our submission, deal directly with my friend’s submissions as to disconformity and it rejects them. This has nothing to do with Chan Wing‑Siu, or the like. This is the position in Australia and the basis upon which you are held liable. It continues over to paragraph [20].
NETTLE J: I suppose to be fair, paragraph [18] has been rubbed out by Jogee, has it not?
MS ABRAHAM: Yes, it has.
KEANE J: On the other hand, it might also be said, looking at paragraph [19], that the Supreme Court stepped in and did something where the Law Commission feared to tread.
MS ABRAHAM: That could be said. But, in our submission, the submissions here have not addressed why – submissions in this Court ‑ the comments in [19] that it ought to be the place of the legislature, particularly given the complexity of the law. When my friend was asked a question yesterday, I think by your Honour Justice Kiefel about that, why should it be – why should it be the courts do it and did Jogee deal with it overall? In our submission, if one reads Jogee – and we say it is unpersuasive for a variety of reasons that are in our written submissions – that that, in fact, shows what the problems are. The purported restatement of the law in Jogee, with respect, is far from clear, to say the least.
GORDON J: But, it comes back to trying to work out what the subject is. Is it the whole of the law in respect of principle and accessorial liability or is it just dealing with doing away with extended joint criminal enterprise?
MS ABRAHAM: In my submission, it is appropriate, and what paragraph [19] in Clayton envisages is that it is a broader issue and, in my submission, that is a proper approach because if one looks at the Law Reform Commissions in the UK – report 300 and 305 – and, indeed, the New South Wales Law Reform Commission – it has been done in a broader way because it is – one ought not just pluck out, we will just rub this one out, and keep going.
My friend says, you actually go back to pre‑McAuliffe is what Jogee says. We say that is actually not correct when you read Jogee. But, leaving that to one side, there is a lacuna. In my submission, a lacuna that is recognised by the Law Reform Commissions if such a principle, whatever the standard of – whether it is probability or possibility or the like, but if one excludes a concept of extended joint liability, there is a lacuna in the law and, in my submission, there is, which is why it is inappropriate, or rather it is more appropriate for the legislature to consider it.
GAGELER J: Can you just explain the scope of the lacuna? What is missing?
MS ABRAHAM: In my submission, if you are dealing with a group activity where you do not know who has done the act, for example, there will be issues of who you are aiding and abetting. If you have to go the aiding and abetting, which my friend says one does have to go to, although just pausing there, my friend actually, I think, adds aiding and abetting on top of joint enterprise and I think that is what Jogee, with respect, does as well.
The agreement seems to have been pushed by the wayside and it has to be an intention. An example is the example given by Justice Hayne in Gillard (2003) 219 CLR 1 at paragraph 119 where if there is a form of homicide, not to involve violence, so you could have foreseen violence but if it does not include - if the principle did not exist and death resulted, you would be not guilty of any homicide.
KIEFEL J: Many cases where agreements will be very difficult to identify.
MS ABRAHAM: Yes.
KIEFEL J: Is that really, just to return to the doctrine in McAuliffe, if I can find it, at the top of page118, if one reads on after the paragraph at the top we were referring to, the Court goes on to say that:
the trial judge was not in error ‑
because:
an individual contemplation of the intention infliction of grievous bodily harm as a possible incident of the venture would be a sufficient intention –
Read with the paragraph at the end of the paragraph at the top of the page, is not the Court really saying that you will not need to have actual intention in relation to an agreement. The policy will be that this will suffice and this will be regarded as a distinct area.
MS ABRAHAM: Yes, we have used the word “agreement”. It was used yesterday. If you are acting in the joint enterprise, there does not need to be an agreement, so yes, an understanding, and it can be tacit and all the rest of it, yes but it is separate, or it is capable of being considered as separate. I agree.
KIEFEL J: Yes, so when the Court says this accords with - what Sir Robin Cooke said about criminal responsibility accords with the general principle of the law in relation to intentional assisting, it appears from the passage which follows that the Court is saying there is a sufficient intention by reference to foresight and continued participation. The law will regard it as such. That is the principle.
MS ABRAHAM: Yes. In effect, yes, and what is the suggestion in Jogee and indeed by my friends is that that is not enough. You need in addition to that the proof of ‑ ‑ ‑
KIEFEL J: Proof of intention. That is where Jogee departs.
MS ABRAHAM: Yes.
KIEFEL J: It says that McAuliffe can never be enough and it is – does Jogee actually challenge the reasoning in McAuliffe as such, as distinct from saying that this Court prefers – I think it uses the word “preference”.
MS ABRAHAM: Yes.
KIEFEL J: This Court prefers a position where intention is positively proved.
MS ABRAHAM: At paragraph I think at 76 of the judgment, the Court recognises that the Australian courts have gone down a different path, as have a number of respected academics.
KIEFEL J: Well, I think the Supreme Court in Jogee says that the High Court was orthodox up to a point.
FRENCH CJ: By some frame of reference.
NETTLE J: We were doing all right until Johns and it went awry after that.
MS ABRAHAM: I do note that they talk about the theory in relation to the approach adopted by Simester in this Court and the like. Ultimately, whatever the rights or wrongs of Jogee – and we say it is incorrect – but whatever, whether it is right or wrong, this Court, in our submission, does not need to decide – but, ultimately, it came down to, once it is a policy issue on their part, they decided that one needs intention to assist. That is what they wanted, and so much is apparent from 83 and 84 of the judgment.
KIEFEL J: Well, as you say, at 76 they say we prefer the ordinary principles of secondary liability, they should be of general application.
MS ABRAHAM: And what they have at 83 and 84, for example, which are those principles, are what was rejected in Clayton, although there are a number of issues with the way they have phrased 83 and 84 because the judgment generally does not talk about the bases of liability, the separation between a common purpose and the aiding and abetting. That is really not addressed at all, whereas Australian courts clearly have done that.
Indeed, interestingly enough, even though the argument now is that one should turn back the clock, in effect there was very little analysis by my friends, or little reference indeed, to the content of Jogee or indeed the restatement of the principles because, in our submission, it does not actually go back. The judgment is not persuasive in a number of respects, and we have that in our written submissions.
FRENCH CJ: Although there is talk of wrong turnings and things in the Privy Council and elsewhere, in the end the discourse is not able to be conducted solely on the basis of who is right and who is wrong or whether McAuliffe was correct or incorrect. It is really a question of what is the appropriate – what is an appropriate principle.
MS ABRAHAM: Absolutely, and that principle has been developed ‑ ‑ ‑
FRENCH CJ: I think we made that – well, certainly I think I did in Wurridjal where we were talking about overruling previous decisions, that the old formula of manifestly wrong was not always appropriate.
MS ABRAHAM: No. As the cases have gone on, Gillard and Clayton and the like have – one is not dealing with a situation in those cases of just saying McAuliffe is right, therefore we are not going to re‑open. There is analysis in the cases as to the fundamental principles underlying and why they are correct principles, both legally and in policy.
KIEFEL J: Of course, from the Supreme Court’s perspective, the decision in Chan was that of the Privy Council, was it not?
MS ABRAHAM: It was.
KIEFEL J: Thereafter, there were Court of Appeal decisions that the Supreme Court had not itself pronounced on the topic.
MS ABRAHAM: Interestingly, in Jogee there is little reference to any policy. There is no reference to ‑ apart from saying that it is questionable, there is no reference to the Law Reform Commissions or anything of the like in the UK which have found that Chan Wing‑Siu is correct and that there needs to be extended joint liability and it needs to be possibility, so it needs to be in the same terms. That is not grappled with at all.
A comment a moment ago just in terms of taking the wrong turn, in all this, supposedly on my friend’s argument, the wrong turn has happened and Australia somehow has got hooked up into this wrong turn. It seems to have started apparently after Johns but one cannot lose sight of Mills. I appreciate it is a special leave judgment but it was a judgment trying to re‑open Johns and two members of the Court in Mills cite Chan Wing‑Siu and do not ‑ we have it in our submissions ‑ suggest Chan Wing‑Siu has somehow misinterpreted them in what they said in Johns.
The approach that is now sought, and whilst I have not expressly addressed Mr Tokley’s submission, ultimately it is the same only in the sense that the end result is that you need an intention to assist. We submit ‑ ‑ ‑
KIEFEL J: You mean he could not find a middle ground as much as he tried?
MS ABRAHAM: Exactly. It is, ultimately, once it was teased out, that is what was required. That is clearly not borne out by the judgment but, more importantly, if one looks at what was argued in each of those cases, that is, there needs to be an intent to assist. One would have thought if the Court, as my friend seems to think that has somehow been misinterpreted or misunderstood and it really meant something else, that the Court would have said so, quite to the contrary. It is not the fact they have not. It is because they have rejected those arguments that were being put. So, there is no foundation for his argument.
Ultimately, what is being sought is going back – I am not quite sure what that is supposed to be, as I said, one of the applicants has said, apply Jogee, but there is no analysis of what those three pages in Jogee actually mean. Some of it is inconsistent with Australian law and that apart from extended joint criminal enterprise – so, there is no analysis of that. It clearly does not, as my friend suggests, Mr Game suggests, it is not the equivalent of pre‑McAuliffe. But, importantly, it would take this Court out of – the common law out of line in terms of policy as well as a basic principle with what has been recognised by the legislatures around the country that have, in fact, enacted legislation, Victoria being the most recent.
It is out of line with all the Law Reform Commission reports which, indeed, in New South Wales it says, it is established evidence of the policy behind which is why there is a recommendation that it occur. What is interesting in all of the reports that are conducted, it is not simply picking out we will get rid of this or we will get rid of that, they have all involved recommendations in the broader sense because it would need, with respect, to be considered in the broader sense.
I note that in relation to the consequence, so to speak, it was suggested by Mr Miller that the result they are contending for would bring it into line with the Code States. I am not quite sure if one is thinking of the Queensland Code or one is talking about the Code States generally. There is no consistency in the States except that there is extended liability.
What is consistent is that there is extended liability where there is legislation. Some States have the Queensland Code where it is objective and probability. Some have subjective probability. I think the Commonwealth has recklessness – we have that in our submissions. But what my friends are contending for is something completely – much, much – it would not bring it into line if it would clearly take it out of step with the development of the law.
Just out of interest, whilst my friends suggest we should be following the English position because of the close alignment between the two, England – after Chan Wing‑Sui – has actually followed a different path on extended joint liability and has taken an approach in relation to the type of crime. There is a requirement of a particular type – like a gun is used or a knife is used. That has not been adopted in Australia – quite to the contrary. Wing is clearly inconsistent with that.
There is an adoption of a fundamental departure directions and policy that have been applied as well. So, Australian law in this area has developed in one way and the English in another. So the suggestion that somehow we are so aligned that one needs to unwind everything, in my submission, is misconceived.
So, in our submission, there is no reason to reopen – McAuliffe is good law, it has been applied repeatedly. It is founded on good policy and this Court ought to refuse to reopen and refuse special leave. Those are my submissions.
FRENCH CJ: Thank you, Ms Abraham. Yes, Mr Bennett.
MR BENNETT: If the Court pleases. I propose to deal with four matters in reply: first, the Court of Criminal Appeal and its absence of consideration; secondly, intoxication; thirdly, some other facts my learned friend referred to; and, fourthly, the legal issues.
In relation to the Court of Criminal Appeal, in my respectful submission it is not satisfactory for an intermediate appellate court to ignore, in its judgment, a major argument put by an appellant when it is dismissing an appeal, but the effect of that is simply that the matter comes to this Court and is dealt with in this Court.
My learned friend is not entitled to the benefit of saying, but really in their minds the Court of Criminal Appeal must have taken the view we take. That she is not entitled to say. We do not know if the Court of Criminal Appeal considered it and, in a sense, it does not matter whether they did or they did not because they did not include it in their reasons and one cannot, therefore, say it is in some implied way part of their reasons. It is simply neutral.
The second matter concerning intoxication, there is a number of submissions my learned friend made. She referred to the evidence of Constable Maskall who said that Miller was not significantly intoxicated. First of all, that is contrary to the evidence of Detective Penn whose evidence is that he was extremely intoxicated at the time. Secondly, of course, that is sometime after the relevant events when he was arrested and in a very real sense it does not matter what he appeared to be at that stage, we know exactly when he was arrested, what his blood alcohol content was. It was .167 and your Honours have seen the evidence of calculating back to what it would have been at the time. So, Maskall’s evidence, in our respectful submission, just does not take it any further. It is also interesting that at page 800 Maskall says that he could be wrong on that subject. So, it is simply unhelpful.
One other minor piece of evidence that is of significance in that area, my learned friend said there is no evidence that Miller was unable to walk or fell over, or anything like that. In fact, there is. There is evidence that when he was arrested, he had a bruised knee. Your Honours will recall he was wearing shorts and that the bruise to his knee was recent. That rather suggests that at some stage he did fall over. That is in appeal book 3, page 855.
BELL J: Bruising generally takes a little time to come out, does it not, Mr Bennett, as a matter of common experience?
MR BENNETT: I am sorry, what did you say?
BELL J: Bruising ordinarily takes a little time to come out as a matter of common experience, does it not?
MR BENNETT: Yes, your Honour. I think the evidence was given by a nurse, I think, who said it was recent and she has some expertise in that area. And, of course, what one describes as “bruising” has an element of ambiguity in it. It can mean something that has still got blood on it. It can mean various things. It can mean something where the blood is subcutaneous which would, of course, be something later. But, it is likely that at some stage he fell over and that fits in with the general evidence of intoxication.
The other factual matters my learned friend introduced – or referred to in reply, I can deal with reasonably briefly. She makes a big point of the fact that Presley, Betts, Smith and Miller left the house together. That is not quite what the evidence is. If one goes to the evidence of Willis, starting at appeal book 2, page 646 and following – I am sorry, it is a little earlier. Yes, I took your Honours in‑chief and I will not repeat it. There is a passage at 646 and 647 where the conclusion of the cross‑examination is that it could have happened that he drove Miller to the scene.
BELL J: I think the Crown’s point is that at paragraph 32 of the reasons for judgment at appeal book 1768 it is said that there was no dispute at trial respecting a number of matters which include that Betts and the appellants left 33 Hayles Road together. I think that was the point that was being made rather than an examination of the possibilities to which you directed attention.
MR BENNETT: Yes. Well, certainly our written submissions to the Court of Criminal Appeal which are annexed to the supplementary application book on our application for special leave, they in paragraph 34.2 make the submission that we have made here, that they did not leave together on the evidence. They went out the back door together but it does not follow that they left the house together. There is not a great deal that turns on that.
At the time they left, the evidence is that the only weapon that Willis saw was the bat: 616 and 651 is where that is discussed. The knife, my learned friend says it could not have been concealed. I have taken your Honours to the evidence suggesting that Betts was wearing either jeans or three‑quarter length shorts, but even if he was not, even if he was wearing shorter shorts, if the knife was pushed down the side of them, it may be that part of the blade would have been visible to someone studying his thigh closely but it certainly would not necessarily be apparent to someone in the same group that the knife was there.
My friend says why would he conceal the knife when the other weapons are there? Well, there is a fairly obvious reason for that. The other weapons were in a different category. They are things which might or might not be weapons. The knife is something which is a weapon, and it is not a question of concealing it from the others; it is a question of concealing it from people in the street, bystanders who might see it. And as a matter of commonsense again, one would have thought walking down the street in this group brandishing a knife would be something that might well attract someone to call the police. One would expect it to be at least partially concealed and one cannot draw the inference beyond reasonable doubt that Miller in his drunken state observed that Betts had the knife.
My friend submitted that there is no evidence that anyone was doing nothing. There is, of course, the evidence of Sculthorpe, who was completely independent of the victims and the other people around who at appeal book 2, 663, said that he saw the car. The engine was on. The lights were on. There was someone in the driver’s seat and someone standing by the passenger door at the relevant time. That is rather inconsistent with the whole group bent on mayhem sticking together and turning up together at the scene.
Finlay‑Smith at 589, appeal book 2 says that one of the aboriginals she saw had no weapon. Now, there is one matter which has been referred to a few times, and your Honour Justice Bell referred to it earlier, and that is the significance of the evidence of Bateman that there was one person in front holding a shovel and others behind and at least at that point, Miller should have realised what was going to happen and what the intentions were. There are a number of answers to that. The first is, of course, his intoxicated state, whether he would have been able to reason through to the danger which the shovel suggested and what was going to be done with it.
Secondly, and more importantly, your Honours recall my submission that the effect of what had been said before they left was – there were a number of possibilities, one was that they were going to warn off the assailants from attacking them again. One was that they were going to warn them off the neighbourhood and those are both consistent with wishing to appear threatening and someone holding a shovel. It is a large and conspicuous, threatening instrument. In our respectful submission, it is totally consistent with the other possibilities – the other possible purposes.
And, of course, if Sculthorpe’s evidence is accepted, it is unlikely that Miller was in that group, in any event, although at some stage of course he went to where the melee was on. We know that from the blood on his shoes. But there is no suggestion that he had a weapon or that he took any part in anything that occurred. He was, in my submission, at best a drunken man staggering around at the scene. Those are the factual matters.
Yes, I forgot to mention that Bateman, of course, had been drinking, and also that she was the partner, the former partner of the deceased, so she is not a completely independent witness, unlike Sculthorpe, who is. I also did not refer to agreed fact number 10, which referred to three men and the bat, which again is rather inconsistent with the idea that my client had any weapon and it rather suggests that he was not at the scene at that stage.
Finally, dealing with the issues of law, I do not want to repeat what has been said by my learned friends, Mr Game and Mr Tokley. It is fairly clear that the parties are at issue on this. I simply point out in relation to the recent matters my learned friend has referred to that this is the first time since Jogee in a full appeal before a Full Court the whole issue has been argued out. Of course, it is a convenient situation where there is a Court of seven Justices and, in my respectful submission, it is an appropriate case for a reconsideration.
Your Honours appreciate that my learned friend, Mr Tokley, makes two alternative submissions. The first is that the doctrine of extended criminal liability with the foresight element substituting for intention should simply go and was, to use the clichéd phrase, “a wrong turn”. The second submission is that one takes the intermediate position of saying, well, if there is the relevant foresight that is evidence on which a jury might or might not draw the conclusion that there was the relevant intention.
In other words, it is an evidentiary factor and it requires a specific direction to the jury saying, if you find that there was foresight of the relevant possibility then the question is do you find that the continued participation demonstrates the relevant intention. That, of course, was never put to the jury in this case. But they are, as I have said, alternative submissions.
In relation to the first one, I only want to say two things. The first is in relation to the wrong turn argument. There has been talk about whether this is a matter for the legislature or the courts. If it is a matter for the legislature, it was a matter for the legislature at the time of the wrong turn and all the Court is being asked to do is go back on something where the courts should not have foreshadowed or usurped the legislature.
The second aspect is this, and this again has been said but it needs to be repeated, and that is that there is a real irony in saying that there is a lower standard of mental state required for accessorial liability than there is for principal liability.
The effect of the pure doctrine in Chan is that if a person has the common intention of committing a minor offence but has foresight that one of the others in the group may commit the more serious offence, then that
foresight is sufficient to create liability for the second offence of murder; whereas, in the case of a principal offender, if one does something merely with foresight that it may result in death or in a serious injury, one is talking of manslaughter.
So what the doctrine does is say we have a much stricter rule for accessorial liability than for principal liability and that, in my respectful submission, even ignoring the fact that it is a matter for the legislature, is very much a wrong turn. Those are the submissions on the legal aspect. As I say, we adopt what has been said by our learned friend, Mr Game, and of course what was said in‑chief by Mr Tokley.
Now, finally then the conclusion is this: one has here a case where it is necessary for the Crown to prove on the pure Chan doctrine that Miller formed the common purpose of committing the crime of assault and foresaw the possibility, as a serious possibility, that someone else in the group would commit a deliberate murder or kill someone, or injure someone with the intent of inflicting really serious injury.
One has the degree of intoxication which I described in loving detail in‑chief and will not go over again but, on any view of it, despite the minor picking at it by my learned friend, it was a very serious, very heavy state of intoxication. How could one ‑ how could a reasonable jury in that situation be reasonably satisfied of the relevant intent, and the injustice that has flowed from that is that a man who, on any view of it, took a very limited role in relation to the subject events, if that, suddenly finds himself convicted of murder, of the same crime as a person who took out a knife and stabbed the victim and because of the laws about minimum penalties, receives substantially the same penalty.
That, your Honour, is the injustice which we ask this Court to cure and, in my respectful submission, the appropriate order is that the conviction of Miller be – the appeal be allowed, the order of the Court of Criminal Appeal set aside and the conviction be quashed. May it please the Court.
FRENCH CJ: Thank you, Mr Bennett. Yes, Mr Game.
MR GAME: Your Honours, just in relation to the ground concerning how the court dealt with the unsafe submission, our position is that the court did not address themselves at all to the quality of the evidence and there is not actually a word about that subject, and it would be quite a – it is not the case at all that there would be nothing to remit. You would have to work out what the jury advantage related to. You would have to work out which evidence was safe to rely on.
For example, it was said by Ms Abraham that they all arrived with weapons and that my client arrived with a shovel. Well, if Mr Finlay‑Smith’s evidence is possibly correct, then that is wrong, and if Mr Willis’ evidence is possibly correct, then that is wrong too. So, these statements are kind of made as if there is an assumption about the facts. One would actually have to work through the process and work out the basis of liability and how one – that has not been at all.
Now, my position is different than maybe Mr Bennett’s. I say the exercise has not been engaged upon at all. It is not for you to kind of now engage upon that exercise, and putting yourself in the position of that exercise in the absence of any reasons about the subject is really an additional burden. If you look at cases like AK v Western Australia which is about the quality of reasons, this is a far cry from adequate quality of reasons. So that is why we say that it is a case like Cornwell where the appropriate order is to, in respect of that ground, quash the conviction and remit the matter to the Court of Criminal Appeal for consideration.
Now, in respect of the question concerning Jogee and McAuliffe, I am going to say a few things, but not everything I am going to say arose from the exchange with Ms Abraham but to summarise from things that were said yesterday with Mr Tokley. First of all, this idea that joint enterprise and particularly joint enterprise is something apart from derivative liability – and that was discussed this morning with Ms Abraham.
In respect of extended joint criminal enterprise, our position is that it is impossible to rationalise that as anything other than derivative. The reason is it is a different crime and the other reason is you have to prove that the other crime was committed by the individual.
BELL J: Can I just take up with you this? Yesterday I think you indicated that your submission departed in some respects from Justice McHugh’s analysis in Osland.
MR GAME: Yes.
BELL J: I do not believe you came back to that.
MR GAME: What I was going to say is this. We agree with Justice McHugh’s judgment insofar as cases such as the Victorian case, the name of which I have forgotten, the Justice Smith decision that he referred ‑ ‑ ‑
BELL J: Lowery.
MR GAME: Lowery, yes, so careful examination of that case is that that is a case of joint participation. So, you agree to do something and then you both go and do it. It does not matter who did what, you are both liable as principals. Same with the circumstances of Osland, I forget whether it was the son – the son is kind of like doing it with her, he is her agent, so it does not matter about his – that is how we rationalise that but there are many situations such as Johns in what we might call common purpose or a joint enterprise that are clearly cases of derivative liability, now, because that is a case of being a true accessory before the fact.
BELL J: Johns was not present at the scene and that is the distinction that Justice McHugh is making.
MR GAME: Quite. Yes, but if you – Article 41 came up yesterday. That is actually about counselling and so it cannot have a life separate from section 8 of the Accessories and Abettors Act, whereas the common purpose which was 38 is a different thing. But what I was going to say about that is also that if one examines this Court’s decision in Brennan what became section 8 of the Code was Article 41, that is really treated as a kind of form of extended causation because they went to rob the shop and then a killing was taking place. Because it was a probable consequence you are responsible for it because you were a party to the robbery.
If one reads Justice Dixon and Justice Evatt’s judgment it really is that and that, I do not think could actually stand with modern ideas unless it came from some freestanding principle - that could not stand with modern ideas of causation in the criminal law necessarily. I mean, it might or it might not in the circumstances because it is not just a sine non qua test, it is a substantial contribution test.
I am sorry to pull up the J.C. Smith article like a stage prop, but at page 462, J C Smith makes it quite clear that, in his view, if section 8 of the Aiding and Abetting Act went, there would be no place for joint enterprise. It would have no life separate from it.
BELL J: That is in the context of why it would have been a mistake to adopt those proposals to do away with accessorial liability.
MR GAME: Yes.
BELL J: It is in that context.
MR GAME: No, no, quite.
BELL J: Yes.
MR GAME: But I am using it for a different point.
BELL J: Yes, I understand.
MR GAME: Yes, quite, your Honour. But then when one comes then to Jogee itself – and Jogee is, in our submission, an amazingly lucid piece of legal writing; it is very carefully thought through. But when one – there was a discussion yesterday about paragraph 66 and your Honour Justice Keane made an observation something like whatever it takes commit crime B, but that is comprehended by the principle because if you go to paragraph 92 – 91 and 92 may be conditional, and that is what cases like Johns properly understood are. So you can have conditional intent.
You might hope against all hopes that there is no night watchman there and that if there is a night watchman, they will not be armed, and you may have planned your robbery on the basis that the night watchman will not have come on duty. But if that contingency occurs, however remote a possibility, that is part of your conditional intent, and that is well and truly a part of our common law. We apply those principles. In a case such as May in the New South Wales Court of Criminal Appeal, it is an application of conditional intention. So the other thing ‑ ‑ ‑
BELL J: I think there is some tension between paragraph 66 and the conclusion that their Lordships arrived at and it has been noted by the commentators.
MR GAME: Maybe. The other thing is, just those words in paragraph 90, the critical words in the middle of the paragraph:
However, as a matter of law, it is enough that D2 intended to assist D1 to act with the requisite intent.
That has not been understood properly in some of the articles by Buxton. That is the critical line. The point about distinction between intention and desire, in this context, is that you might not want it to happen but it does all the same.
Now, also in the discussions yesterday about how aligning foresight with intent and it is only a recent case but Zaburoni is a Code case but that is a case where that distinction was drawn out in the context of a provision requiring intention. So, what I was going to say then was this, that your Honour the Chief Justice said, it is not just any possibility, but the directions given in this case are for any possibility, and the directions given in other cases, and if our overall submission is, shall I say, rejected, and McAuliffe in general terms is confirmed, we submit it should be restated on the basis that it is not just any possibility, it is a real chance or a probability, not necessarily greater than 50 per cent.
And the reason for that is this: that if you are going to sever authorisation from contemplation, which is what has happened, that is the sole thing that has happened in these cases, it has been lost sight of the fact that contemplation was always tied to authorisation, assent and scope of the agreement and that trilogy of cases, Betty, Smith and Anderson were all cases about things within the scope of the agreement.
If you are going to sever them, then it is a big mistake then to make it any possibility because you are now acting on the nature of the contemplation and if one is going to use that kind of thought process, one has to introduce a level of what we have, we have reckless indifference in our criminal law with respect to murder, a level of, shall I say, foresight of a real chance or a probability.
That is our fall‑back position, that the law should be restated as your Honour the Chief Justice has put in argument today, that it is not any possibility. I have put this argument, that you end up with a totally freestanding principle about crime A foreseeing crime B as a possibility, no authorisation. You have now got this independent beast in the criminal law.
BELL J: The authorisation, let us face it, had more than a quality of fiction in many cases. These cases tend to arise in the context of group activity when to think that there exists a shared agreement, has an element of fiction about it, which explains why the emphasis was always on the agreement being able to be tacit and amount to an understanding.
MR GAME: That is fine, your Honour, but once you separate them, then you have a different beast and that is the problem. And it is a free‑ranging beast, but I have made those arguments yesterday and I am not going to repeat them.
I should also say it is a fiction to say – I did make this point before. Each of those authorisation contemplation cases was where the agreed crime was, shall I say, so close to the contemplated crime that it is easy to see how contemplation is the thing from which you can infer authorisation but as you take them away and you put it lower and lower and lower until you have a common assault, then you have a different beast.
BELL J: Mr Game, in the real world, if you have no more than two or three people setting out, having agreed to commit a common assault and nothing more, there would be no basis for the inference to be drawn respecting the foresight of the requisite possibility.
MR GAME: Yes, but that is why this case is like that, for example, there is no actual evidence of any agreement. There are people doing things and so ‑ ‑ ‑
BELL J: People doing things with baseball bats and shovels.
MR GAME: Yes, I understand that, your Honour, but from which you can draw inferences.
BELL J: But my point is ‑ ‑ ‑
MR GAME: But then to tie liability – it is actually – there is something quite artificial to tie liability to, say, my client on the basis of a foresight of a possibility when that is kind of a very remote thing from actually what is going on in the circumstances. That is a fiction almost. That is why I say, if the principle is to stand and if you are going to take away the authorisation aspect you have got to tie it back somewhere else. Yes, there was – that is all I wanted to say in reply.
FRENCH CJ: Thank you, Mr Game. Yes, Ms Shaw.
MS SHAW: If the Court pleases, just two questions of law if I can respond to and some discrete questions of fact. Firstly, in relation to the submission that the question for the Court of Appeal was whether the evidence of intoxication left the position that it was open to infer the necessary intent and that the evidence was capable of giving rise to those inferences, we submit that that is the first question but it is established by this Court in Knight v The Queen which was applied in Cutter that there is a second question. That second question is set out very clearly by Justice Kirby in Cutter, citing Knight, although he was in dissent in the result, that the Court of Appeal must make the second inquiry, namely:
whether a reasonable trier of fact could have found that an inference or hypothesis consistent with innocence of the offence charged was open on the evidence.
Justice Kirby went on to say:
If it could, the accused is entitled to the benefit of the doubt –
and his Honour then cited from Knight’s Case where the Court had said it was necessary for the Court of Appeal to ask in a case where state of mind depended on inferences or awareness depended on inferences, to ask:
whether the jury, acting reasonably, could have rejected as a rational inference the possibility that the applicant fired –
which was in Knight’s Case:
without an intent to kill, the shot which hit ‑
In other words, there was a first question, as my learned friend raised, but the second question that applied where state of mind or awareness was dependent upon inference required a consideration of whether or not the Court of Appeal on an independent assessment could exclude the rational hypothesis consistent with innocence.
The second submission we make relates to the question of whether or not the verdict could be regarded as unsafe by merely determining whether or not there was one route to guilt, a matter raised with the Court yesterday. I simply in that context refer the Court to Justice Kirby’s remarks again in dissent in Clayton’s Case (2006) 81 ALJR 439 at paragraph [128] where his Honour pointed out that although “the mode of reasoning . . . to the verdict” is unknown because extended joint enterprise may relieve the jury “to evaluate the specific intentions” of the parties, it is not difficult to infer that this is how they reasoned.
But in addition to that, we submit that if indeed there was the potential for the jury to have reasoned in the way adverted to by Justice Kirby, and it turned out on an independent assessment that that route was indeed unsafe or not open, then the consequence would be that that would constitute a miscarriage of justice in the sense that the accused had not had the trial to which he was entitled. For that proposition we refer by way of analogy to the approach of this Court in Handlen’s Case (2011) 245 CLR 282, and indeed in Burns v The Queen (2012) 246 CLR 334.
In relation to the question of – and in that respect, we call in aid, in terms of the meaning of what is unsafe, the expression that is adopted in M v The Queen from Morris, whether it is dangerous to allow the verdict to stand. That expression was discussed by her Honour Justice Gaudron in Gipp v The Queen (1998) 194 CLR 106 at paragraph 17, where her Honour said:
The expression “unsafe and unsatisfactory” has no very precise meaning.
If I can then turn to some discrete questions of submissions that were made on the facts and the summing‑up. First of all, it was submitted that one could infer that the Court of Appeal took into account the evidence of intoxication because in relation to Mr Presley it considered the directions that were complained about.
However, in our respectful submission, in fact as we said in our submissions yesterday, when the Court came to consider unreasonable verdict, in that single paragraph it referred back to the way in which the prosecution had laid out its case at its highest and did not refer back to any of the evidence or reference to intoxication.
So, in our respectful submission, insofar as it is submitted that this Court or there should be a presumption against the accused that the Court has applied correct principles to critical facts and evidence, we submit that, by analogy, the judgments of this Court in cases such as Fleming and AK v Western Australia support our argument that, where reasons are ambiguous, there should be no presumption, particularly against an accused, and that it should be plain that correct principles have been applied. Of course, in that context, the failure to give proper reasons is itself an error of law.
The third point we raise in relation to the respondent’s oral outline and the factual matters set out is that not only as against Presley was there the expert evidence of Dr Majumder and his actual blood alcohol level but in respect of Mr Presley, because he was involved in the earlier altercation and he was observed by other lay witnesses before the event, but we have identified in our summary and in our submissions, their observations that in effect he showed that he was intoxicated.
Secondly, in relation to the question of whether or not the record of interview, as was submitted today, involved an admission of knowledge of the knife, in our respectful submission, that is not the way the respondent has conducted this case up until the respondent’s argument in this Court. We have set in our written submissions at footnote 8, the submission made by the respondent at special leave as against Mr Presley, where it was said by the respondent that “Betts was armed with a knife”, albeit there was no direct evidence that this was known to the applicant, namely, to the applicant, Presley.
Secondly, and perhaps more tellingly, we submit, that when the Court of Appeal summarised the prosecution case against Mr Presley, as we pointed out yesterday, it confined the case against him insofar as it inculpated him in relation to an offence concerning Mr Hall to four discrete items: the two witnesses and the two items of circumstantial evidence. It did not include an admission of knowledge of the knife and, in our respectful submission, that is consistent with the way the case was presented because it was plain in that interview that Mr Presley had said he learnt about what Mr Betts had done after he was arrested.
Next in the oral submissions, in our respectful submission, the respondent is in error in asserting in paragraph 4 that there was blood on Mr Presley’s shoes that had been placed there within 1.5 metres. That was not the evidence. The evidence was that white sneakers were seized from Mr Miller after he left Hayles Road ‑ that is at the Miller appeal book 885 – and shoes were seized from Mr Betts which were found to have blood on them at Miller appeal book page 896. No shoes were seized from Mr Presley. So that is simply a mistake by the respondent.
In relation to the evidence that ‑ the submission, I am sorry, that the respondent put, that one could call upon the conduct afterwards, we add to our earlier submission that in fact the evidence of Ms Turner was that after they came back there was an argument between Mr Presley and Mr Betts, and that appears at Miller appeal book page 761, line 28.
Finally, in this respect, the respondent submits in the oral submission that no witness saw any person just standing around. That submission does not confront the central issue in relation to Mr Presley, namely, he was admitting his involvement in assaulting Mr King and he would no doubt obviously be punished for that, but he denied any involvement in relation to Mr Hall.
In relation to the submission that you could use or call upon Mr Presley’s plea to that charge, we point out that that was not part of the Crown case at trial. The way in which the trial judge left count 2 was that on the evidence they had to be satisfied that Mr Presley was the principal. It was never put to the jury that his plea in some way informed the evidence in the trial.
In our respectful submission, the circumstances in which one can rely on a plea are clearly limited by the evidence that is led on that topic, but as we have accepted that plea was consistent with his record of interview. But the plea of causing harm is an offence of basic intent, and although former Chief Justice Barwick in O’Connor’s Case did not approve that distinction, it is plain that an agreement to assault is an agreement in relation to an offence which does not require any specific intent as does murder.
Just two discrete factual matters that were raised; your Honour Justice Nettle in relation to the timeframe that my client was at the scene, it was the police arrived at about 11.35. Mr Webber, who was referred to as describing my client as moderately affected, also described my client at page 31 of the Presley appeal book as “slurring his words”, “pacing around mumbling to himself”. That continued until his arrest at 2.40 am and it is that arrest that is included in the Presley appeal book that I referred the Court to yesterday where Mr Presley is crying and asking for his mother.
GORDON J: Is that consistent with paragraph 20 of the Court of Criminal Appeal’s findings or what it sets out? I thought there it said that Presley was seen shortly at the property at 11.30 and then was arrested at 12.25 am.
MS SHAW: As I understand, the arrest is in the Presley appeal book. Your Honour, he was certainly at the scene and one can see from the interview at the Presley appeal book that he is being put over a car bonnet, all of those matters are happening at the scene. I do not think there is any dispute he was at the scene until 2.40 am.
Your Honours, just one further matter in relation to the additional matter that related to Mr Presley and maybe ‑ and does not relate to the other applicants is that the evidence of Ms Turner set out consistently with Mr Presley’s interview that indeed he and Ms Turner were going back and forth to get alcohol that day at pages 743 to 744 leading up to these events. So, there was evidence not just of actual observations of intoxication but that, indeed, there was continuous drinking.
In relation to, perhaps, another reference – and I am not sure this is helpful – that in the Presley appeal book, Mr Bos at page 21 refers to the police arrival at 11.33, and the arrest interview, we understood, was at Presley appeal book page 33. In relation to the submission about the blood spots on the shorts, we simply refer to the way in which that is summarised in defence submissions at 1247 to 1256 of the appeal book. If the Court pleases.
FRENCH CJ: Thank you, Ms Shaw.
MR BENNETT: Your Honours, might I have leave to add one sentence about your Honours’ orders?
FRENCH CJ: Yes, Mr Bennett.
MR BENNETT: If your Honours please. If your Honours are with me on the question of unreasonableness and intoxication, but need more time to deal with the legal arguments, your Honours might consider making the order in Miller’s appeal and then giving reasons later, including the legal issues. My client is, as your Honours see from the sentencing remarks, a man with a partner and four young children, he was described as a “blow‑in” and, in my respectful submission, if your Honours are with me, that would be an appropriate course.
FRENCH CJ: Thank you, Mr Bennett. The Court will reserve its decision. The Court adjourns until 2.15 this afternoon.
AT 12.29 PM THE MATTER WAS ADJOURNED
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