Miller v The Queen; Smith v The Queen; Presley v The Director of Public Prosecutions for the State of South Australia

[2016] HCATrans 106

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 TUESDAY, 10 MAY 2016, AT 10.14 AM

____________________

MR D.M.J. BENNETT, QC: May it please the Court, I appear for the appellant, Miller, with my learned friends, MR A.L. TOKLEY, SC and MR G.N.E. AITKEN. (instructed by Noblet & Co)

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant, Smith, with MR K.G. HANDSHIN. (instructed by Legal Services Commission)

MS M.E. SHAW, QC: If the Court pleases, I appear for the applicant, Presley, with my learned friend, MR B.J. DOYLE. (instructed by Old Port Chambers)

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friends, MS J.B. WILLIAMS and MS E.O. BROWN for the respondents in each matter. (instructed by Director of Public Prosecutions (SA))

FRENCH CJ: Thank you. In the matter of Smith I think there is an application to amend the – is that opposed?

MS ABRAHAM: It is not, your Honour.

FRENCH CJ: You have leave to amend the application for special leave and the draft notice of appeal accordingly. Yes, Mr Bennett.

MR BENNETT: May it please the Court. Your Honours, my learned friend, Mr Tokley, and I have divided the argument. I propose to deal with the question of the unreasonableness of the verdict, having regard to the appellant’s intoxication. He will deal with the application for leave to amend and the consequential argument about the test for extending joint criminal enterprise if that leave is granted. It has been agreed ‑ ‑ ‑

FRENCH CJ: Just on the leave to amend, is there any opposition to that?

MS ABRAHAM: No, there is not.

FRENCH CJ: Yes, you have the leave to amend.

MR BENNETT: So far as the order of addresses is concerned, it has been agreed that I will go first, then the applicants, then Mr Tokley on his aspect of the case, then of course Ms Abraham and replies. My argument is fairly short and simple. It is that the verdict was unreasonable within the meaning of section 353 of the Criminal Law Consolidation Act. I do not need to take your Honours to that. The Court of Criminal Appeal did not deal with the point which we raise about intoxication and the unreasonableness flowing from that. I think your Honours are familiar with that. Your Honours, I hand up two things – an outline of argument, I think your Honours have that.

FRENCH CJ: Yes, we have that, thank you.

MR BENNETT: There are also two pages of transcript which were omitted from the appeal book – pages 1231 and 1236 – and I hand up those.

FRENCH CJ: Thank you.

MR BENNETT: Those two pages become relevant when I get to my submissions about the Passion Pop bottle.

FRENCH CJ: Yes, we will need those.

MR BENNETT: Your Honours, Australian slang is very rich in expressions describing a state of intoxication. Many of the expressions are not expressions that one would want to repeat. Many are euphemisms. The point we make is that none of those expressions, however strong, come close to describing the state in which my client was at the relevant time on the, what is basically, uncontested evidence. My submissions will basically be divided into three parts: firstly, degree of intoxication; secondly, and very briefly, what the jury had to be satisfied of as to his state of mind; and, thirdly, the background facts relevant to what that state of mind was, bearing in mind his intoxication.

On the first issue one starts with the evidence of Dr Majumder and her evidence appears in appeal book volume 3. She was a toxicologist and there was no challenge to her qualifications and the cross‑examination was basically concerned with detail, not basic challenge. She was given the measurements of my client’s blood alcohol content after his arrest and she did some calculations backwards to work out how intoxicated he was at the relevant time.

Her primary answer appears at page 1027 of volume 3 of the appeal books at line 15, and your Honours will see that she says there, when asked about whether she is able to provide an expert opinion as to the level of his blood alcohol at about 11.00 p.m.:

Yes, so from what I’ve been given in the forensic report, the level at 9.20 a.m. and assuming that the rate of elimination is between .01 to .02 and the average is .015, I would estimate that the blood level at the time at around 11.10 p.m. would be around .292 which is, if taking into account the range of the rate of elimination, it would be between .241% and .342%.

Your Honours will recall that the blood alcohol content for drunken driving is 0.05. This is many times that. She then summarises that the range is .241 up to 0.342 and 0.292 is the midpoint for the rate of elimination. So that is the starting point. Then at page 1031 she is asked about a lower level. This is a lower level of 0.237 to 0.269 and she says if you equate that to standard drinks it is anywhere between 14 and a half to 17 standard drinks. That is a lower level than he had and that is ignoring the cannabis and ‑ a word I have trouble pronouncing ‑ ‑ ‑

FRENCH CJ: Diazepam.

MR BENNETT: Diazepam and nordiazepam, which was in his system. I will come to those in a few moments. Dr Majumder deals with those things at pages 1036 to 1038. She is asked at 1036 about the effects of diazepam and she says at about line 20:

The principal effects are those that are used for treatment, such as sedation, so at low levels it will cause sleepiness. That is how it’s used to treat insomnia. At high doses, or if it is used for long‑term it can produce the drunken‑like state, so it would be similar to the effects of alcohol with slurring of speech and staggering of gait. But these are usually very high doses. That is one of the effects.

She goes on to refer to:

side effects, like confusion and impaired thinking…

A. Impaired or irrational thinking.

She develops that over the next few pages, and at 1038, line 20 on the left‑hand side, for some reason that corresponds to line 16 on the right‑hand side:

Q.If we assume for the moment that the blood alcohol reading of Miller was 0.139% –

that is way below, of course, what it was:

does the interaction between diazepam at the level you have been told about and nordiazepam – could it have any enhancing effect . . . in combination with alcohol.

A. It is possible, yes.
Q. And what would that be.
A.It could just enhance the actual effects of alcohol such as impaired concentration, so all the effects of high concentration of alcohol would have been more pronounced even if diazepam had some small effect on that.

Q.So that would, according to your previous evidence, include matters such as foresight.

A. Yes, that’s possible.

FRENCH CJ: The trial judge fairly encapsulated that, is that right?

MR BENNETT: Yes, he did.

FRENCH CJ: And referred to effects on foresight and planning.

MR BENNETT: Yes, yes. There is also some other evidence I suppose I should remind your Honours of. At the bottom of page 1031 she is asked just below line 40 on the left:

Q.What kind of effects will that have upon the mental state and the behaviour of the subject.

This is the 0.272 to 0.322. She says:

A. These blood alcohol levels are very low –

Now, it is fairly clear, your Honours, that “low” is either a typographical error or a slip of the tongue. It is quite clear from the next couple of pages, as I will show in a moment, that she is saying they are very high. For example, at 1035, point 38 she says “these are very high levels”. So that clearly, we would submit, is either an error in the transcript or a slip of her tongue and your Honours can ignore it. In layman’s terms “what do you mean”. At the top of 1032:

So essentially the person would be very drunk. The person will be very intoxicated. It will be obvious for an observer that this person is intoxicated, because they will have slurring of the speech, they can have staggering or stumbling gait and they have, they can have glazed eyes.

Then, after a couple of questions, she says:

Yes, the levels of 0.272 to .322, this is close to the level that is generally considered very high level, that can sometimes be associated with loss of consciousness, so if a person is not unconscious and has this estimated level of alcohol in the blood, then one would assume a certain degree of tolerance to the alcohol effects. That is all.

In other words, if it was not for that “some degree of tolerance” a person would actually be unconscious at those levels. At 1033, she is asked similar questions and at line 20, on the left:

The estimated levels, as I said levels, are quite high. They are very high. At these levels, the thinking process, decisionmaking process will –

and we stress the word “will” – this is not a “possibly”:

be significantly impaired, the person with these blood alcohol levels would not be able to engage in complex conversations and would not be able to – would be able to only understand some simple phrases and would be able to perform some very simple tasks. Also these levels would affect attention and concentration of the person intoxicated. At this level the person intoxicated would have problems concentrating on things, and would have short attention span.

It goes through that. At 1034, line 15, on the left:

I think this high level of blood alcohol level would significantly impair decisionmaking and also planning if it’s a step‑wise process, so the person may not be able to foresee or predict the consequences of certain decisions.

That is the basic evidence, subject to some matters I will come to, about the degree of intoxication. There was some suggestion in the Crown case that Miller may have had some drinks after the incident. That is something which is rather dubious. The evidence in its favour is in volume 2 at page 627, from the top of the page. This is after the incident:

Q.When you left in your car and went back to Northampton Road did you have any of the carton of beer left.

A.       Yeah, had about probably half a carton down to under half.
Q.       Did you take that with you to Northampton.
A.       Yes.
Q.       Once you got back to Northampton what did you do.
A.       I went to sleep.
Q.       Your partner, where was she sleeping that night . . .
A.       I can’t remember.
Q.       Where were your children that night.
A.       In the room.

At that address:

Q.Where did you leave your beer when you went to sleep.
A.On top of the car.
Q.Before you went to sleep were any of Wayne Smith, Everard Miller or Josh Betts drinking from that beer.

A.       I don’t know.
Q.       When you next saw the car was the beer there.
A.       No.

So, that is the evidence that he was drinking afterwards. Now, Dr Majumder was asked questions about that to see if that would qualify her evidence and ‑ ‑ ‑

NETTLE J: What did Wanganeen say about it, the subsequent consumption?

MR BENNETT: I am sorry, your Honour?

NETTLE J: There is reference in the judge’s summing up to Tamika Wanganeen giving evidence in relation to subsequent consumption of alcohol.

MR BENNETT: The reference to the prosecution, your Honour, is in volume 3 at page 1148 where the prosecution dealt with this quite fairly and said at line 10 on the left at 1148:

Those figures, of course, are very high, but those figures were on the assumption that between the incident and Mr Miller’s blood sample being taken, he didn’t consume any more alcohol. There is no evidence either way. We know that he had access to alcohol. You know from Gary Willis that there was between half a carton and six cans of full‑strength beers left from his carton and they were gone the next day.
You know from Tamika Wanganeen that Betts, Smith and a third man – in my submission, it must be Mr Miller – turned up and the group drank pre‑mixed shots that she called ‘cowboys’. So, that very high level that the doctor reached assumes that Mr Miller had not consumed any alcohol in between, and you might think that that was not a particularly safe assumption.

Your Honours, the prosecution has to prove its case beyond reasonable doubt and this is fairly general and weak evidence of further consumption. At 1148 at line 43, the prosecutor says this:

So what that might demonstrate is that the scientific calculations are really only as good as the information that the doctor is provided with. We just don’t know what Mr Miller had to drink after 11 p.m. Accepting the evidence of Gary Willis and Tamika Wanganeen, there is a very strong possibility that he did have more to drink.

Well, that is all it is. But even if that is so, when one goes ‑ ‑ ‑

GORDON J: Is not the position though, Mr Bennett – Mr Bennett, Wanganeen’s evidence is at I think 772 to 774. That is the evidence that the trial judge relied upon in the summing‑up, and you made no complaint about that direction, did you?

MR BENNETT: No, your Honour.

GORDON J: Or that summing‑up, I meant to say.

MR BENNETT: I am sorry?

GORDON J: You made no complaint about the way the trial judge summed up.

MR BENNETT: No. No, but when one is looking at proof beyond reasonable doubt, a possibility that the figures are a bit less because someone had a few beers afterwards is not a matter that detracts from the reasonable doubt, we would submit. In any event, even if he did have some further drinks, Dr Majumder was asked about that and at page 1068 in – I am sorry, I have got the wrong page.

GORDON J: I think it is 1060.

MR BENNETT: Yes, your Honour is correct, I am grateful. At line 20 on the left on 1060:

A.Yes. So if you assume that each standard drink increased the blood alcohol level by .02 and these five standard drinks were consumed after 11 p.m. –

So it is very much a worst case scenario being put, that he had five standard drinks after the incident:

then it would be similar to the adjustment. So that you would assume that this alcohol was not absorbed at the time of the incident, and that is why you would have to subtract .1 from the affected range ‑

. . .
Q.So if we assume five standard drinks, two cans of full‑strength beer and two little shots of spirits, if we assume that in between 11 and 9.20, then the range at 11 comes down to between .192 and .242.

So it is very much a worst case scenario being put that he had five standard drinks after the incident.

then it would be similar to the adjustment. So that you would assume that this alcohol was not absorbed at the time of the incident, and that is why you would have to subtract .1 from the affected range . . .
Q.So if we assume five standard drinks, two cans of full‑strength beer and two little shots of spirits, if we assume that in between 11 and 9.20, then the range at 11 and 9.20, then the range at 11 comes down to between .192 and .242.

So it is a bit lower but still very high and she goes on to discuss the rate of elimination and then at line 35 on the next page, his Honour asks her:

Q.So if you are suing a rate of elimination between .01% and .02% per hour, that would produce a range, allowing for the five standard drinks after 11 o’clock, of between .141% and .242%.
A.Correct.
Q.And at that range . . . are the effects the same as what you have described for the higher range but to a lesser degree.
A.Yes, it falls within the similar intoxication category.
Q.So things like the effect on physical coordination will still be evident but not as marked.
A.It may be marked still because the gait is affected from anywhere between the .1% level.
Q.In general terms, though, will the degree to which you might expect it to be affected be less at the lower end.
A.It might be but it depends on the individual -

and it comes back to that. So she maintains something fairly similar even if there were five standard drinks afterwards. Now, there is also a little bit of evidence. The arresting officer, Constable Penn, in appeal book 2 at page 828, describes the arrest and he says in the middle of page 828:

Q.‘I observed Miller was extremely intoxicated by something.’
A.Yes.
Q.‘He was unsteady on his feet, slurred his speech and struggled to keep his eyes open and smelt of alcohol’.

So the police officer supported that. Now, it is significant that he probably did not walk from the house where he had been drinking to the scene of the affray. The probability, we would submit, certainly if one is looking at reasonably doubts, is that he went with Willis in what was described as Willis’ little green car and I will just take your Honours to a couple of pieces of evidence about that. There is agreed fact 10 in volume 3 of the appeal book at page 1067 – agreed fact 10, line 30 on the left:

observations by witnesses not called, a man by the name of Richard Butler was visiting a friend . . . His friend lived on the corner of Hayles and Innes Street. At some time after dark . . . Richard Butler saw three males who were possibly Aboriginal walk past wearing shorts and T shirts. One of the males was carrying a pole. That male was clanging the pole along fences. The witness thought the men were heading in the direction of Grant Street. It is not known –

what he observed about them, et cetera. The importance of that is that there were three men walking to the scene, which rather supports the suggestion that Miller went in the car with Willis. There is a witness called Sculthorpe at appeal book 2, page 663, the middle of the page:

There was a man standing on the corner and there was a car with headlights on with the front passenger side open. There was a man sitting in the driver’s seat.

So at the time he saw the car there, the driver in the car, the door open and the man standing by the door of the car, which again suggests that someone went with Willis to the scene. Willis was asked about that in appeal book volume 2 at 651 to 652. His evidence was not enormously helpful but at 651, line 10:

I have only got two real questions to ask you to finish. What I’m going to suggest to you is that Everard Miller, the man next‑door to you in the front row, went with you in the car to the alleyway. Do you understand that?
A.Yes.
Q.And what’s your answer to that.
A.I don’t remember that.
Q.You just don’t remember.
A.Yep.
Q.Could have happened.
A.Could have happened, yep.
Q.And the reason you and Everard drove towards that area -

Sorry, that was objected to. So he does not remember but it could have happened. Those are my submissions in relation to degree of intoxication.

The second part of my submissions, and it is a very short part, is how that relates to what the jury had to find about mental state. Now, assuming that the applicants and Mr Tokley do not succeed in their arguments about Jogee as treating the law as the judge directed it at the time, there are two mental elements in the extended joint enterprise with which Mr Miller is charged. He has to join the group with the intention of inflicting some harm, so he has to form that common purpose of inflicting some harm, and secondly he has to foresee the possibility that there will be a deliberate killing or infliction of really serious harm with intent to kill or inflict really serious harm.

So he has to have a degree of formation of a common purpose and a degree of foresight as to the possibility of someone deliberately doing it. If he foresees the possibility that someone will be accidentally injured, that is manslaughter on the old tests.

Now, I come to the third part – the major part of our submissions – and that is what he could have known, subject to his intoxication, to enable him to form that common purpose or that foresight. In order to test whether the jury must have had a reasonable doubt about his ability to satisfy those mental elements, one must look at the objective situation that he was presented with.

Now, there are two aspects of the objective situation. The first is what was said at the house as to what had happened and what was going to happen, and the second is the prosecution’s suggestion which I will be seeking to rebut that these are four men who armed themselves with four weapons and set out with a common objective. That, we say, simply does not stand up to analysis. But let me start with the statement. The statement by Presley, according to Willis – it is at page 616 of volume 2. He saw Betts and Presley come back from the first confrontation and he describes - at the bottom of 615, he says:

Josh said that he got struck from three white fellas that jumped him in the alleyway.

Q.       Where was Josh when he said that.
A.       He came in the kitchen and was sitting in the kitchen.
Q.       Who was in the kitchen . . .
A.       Me, Wayne and Everard.
Q.       Did Josh have any injuries on him.
A.       Yeah, he had a big lip, bleeding on his shirt.
Q.       How did Josh seem to you . . .
A.       I reckon he was just angry.
Q.       What about Johnas, did he say anything.

And this is the phrase:

Yeah, just ‘Let’s go back and see what these people – go and see what the problem is’.

Q. Let’s go back and see what the problem is.
A. Yes.

He says he “can’t remember” the exact words. Now, that, of course, in the light of hindsight the prosecution gives a sinister meaning to, but we would submit that to a perfectly sober person, let alone someone in Miller’s state, but to a perfectly sober person there are a number of possible meanings of that statement of intention, of the common purpose, if you like “let’s go back and see what the problem is”.

The first is that it is purely exploratory. That is the literal meaning, you see who they are, and so on – see if they are locals or not, for example. The second is to warn them not to do it again. The third is to warn them not to come back to the area again. The fourth is to inflict minor injury by way of revenge and the fifth is to inflict death or really serious injury. The prosecution has to give it the fifth meaning. We would submit that a perfectly sober person would not give it that meaning but let alone someone in the state that Miller was in at the time. So, that is the first of the objective matters giving a clue as to what is happening.

The second is the weapons – and this is going to take most of the rest of my submissions. As I say, the prosecution puts it in terms of four men arming themselves for action having four weapons between them – a shovel, a knife, a baseball bat and a bottle of Passion Pop. Apart from anything else, there were probably five, two going by car. Your Honours would note the evidence of Willis – I will not take your Honours to that – at appeal book 2, pages 616 and 632, that he saw no weapons when they left Hayles Road except the bat. Finlay‑Smith at appeal book 2, page 589 – again, your Honours need not go to it – says:

that not all the Aboriginal men or boys were carrying weapons –

So, the convenient four men arming themselves with four weapons just does not really work. But when one looks at the four weapons, that becomes much stronger, when one is looking at reasonable doubt in relation to them. The first is the shovel. In appeal book 1 at pages 140 to 141, King, who is the person who was injured by the baseball bat – page 140, line 30 on the right‑hand side, 38 on the left‑hand side:

Q. You’ve got a shovel, haven’t you.
A. I’ve got several.
Q.And in your backyard on the night there was a shovel laying just against your back wall.

A.       Probably, I didn’t notice.
Q.       Nice wide industrial shovel.
A.       Yeah, I’ve got two of them.

Then, it goes on:

Q.. . . it wouldn’t surprise you, would it, if police the following morning found a spade basically leaning against your back wall.

A.No, it wouldn’t surprise me, be a rake there and everything else as well.

So, he had shovels. If one goes to 190 in his evidence, he is asked about the deceased, Mr Hall, and line 30, on the left‑hand side:

Q.       Mr Hall had concrete shovels, didn’t he.
A.       I gather he would have.
Q.       You saw them, didn’t you.
A.       Every now and then, on the truck.
Q.       Did Mr Hall have a shed at the back of his premises.
A.       Yeah, he had two sheds . . . and a little one; three.

Q.Did you ever see any concreting style equipment in those sheds.

A.       Only formwork.
Q.       Formwork. And shovels.
A.       I can’t remember if I seen a shovel in the shed.
Q.       But you had seen a shovel on his truck.
A.       Yeah, I seen him load up staff in the mornings.

And there is a bad mixed metaphor:

I won’t hoe the ground . . . about all the beers –

But it is clear that both Hall and King had shovels. Now, the prosecution left a huge gap in its case. It did not investigate how many shovels were left at either Hall or King’s premises. Willis was never asked if there had been a shovel at Hayles Road. We know that someone used a shovel in that melee and that it was abandoned with the knife later on. We know that.

But what we do not know is whose shovel it was, where it came from, and bearing in mind the evidence that no one seems to have seen them leave Hayles Road with a shovel, and Willis’ evidence in particular, the evidence rather suggests that the shovel was picked up opportunistically once they were there. It was not a weapon that was taken from Hayles Road as part of the common purpose. That is the shovel.

Now, let me turn to the knife. It is, I think, described – it is a 12‑inch knife. Now, the evidence which I will take your Honours to in a moment is that Betts, who used the knife, was wearing either jeans or three‑quarter length shorts. In either event, a knife could be concealed under them at the side, and one would have thought, applying one’s commonsense to the situation, that is probably what one would do. If one is walking with a group of three or four men through the street, it is unlikely one would carry a knife in one’s hand. It is rather inviting some bystander to call the police. So there is no reason to assume that Miller would have seen the knife at any time before the final melee; even then, of course, might not have seen it in the – if it is taken out and used and left.

Now, the evidence about clothing, I will just give your Honours the references. King in appeal book 1, pages 146 to 147, has talked about a taller man and a shorter man who are engaged in the attack. The taller one was probably Presley and the shorter one was probably Betts, bearing in mind the police evidence about descriptions. But King says the taller one had three‑quarter length shorts and the shorter one was wearing jeans, and he says there were just the two of them at that time in the attack. So, one of them must have been the man who used the knife – was Betts – and he is probably wearing jeans, on that evidence, or at worst, three‑quarter length shorts.

Bateman – again, your Honours need not go to it ‑ appeal book 1, page 252, says that there were three or four men hitting Hall and one of them had three‑quarter length shorts. So one would not conclude on the evidence, certainly not beyond reasonable doubt, that Miller would have seen the knife when they left Hayles Road.

BELL J: Coming back to the shovel, there was I think some evidence from some of the witnesses present at the scene of the second altercation, such as Ms Bateman, who observed a group moving at a fast pace with a larger man at the front carrying a shovel.

MR BENNETT: Yes.

BELL J: So that in a sense, even if one does not know whether the shovel is picked up opportunistically on the way as distinct from being taken from Hayles Road, might it not have been open to the jury to draw an inference if the jury was satisfied that Mr Miller was part of that group from the presence of them moving quickly down the laneway led by a man brandishing a shovel?

MR BENNETT: A shovel is a fairly – it is not a weapon of choice to go into a fight with, of course.

BELL J: Minds might differ.

MR BENNETT: It is a large heavy weapon which might be more use against a stationary target than a moving target, and it is consistent with the purpose being threatening or warning them off or even possibly defensive, a large shovel could be a defensive device to ward off an attack. At that stage, of course, we do not know if my client was part of the group or was standing near the car at the corner, so one cannot get very far with that.

Now, finally, your Honours, there is the bottle, the bottle of Passion Pop, which I am told is what is commonly known as an alcopop, it is a mixed alcoholic drink. Now, the first and obvious point about a bottle of that sort is that if one – it is a December night in Adelaide, they had been drinking anyway. One would have thought there is a fairly obvious purpose – a fairly obvious innocent purpose of taking that bottle.

We know from the two extra pages that have been provided that – yes, if your Honours go to the evidence of Neilson at page 1231, these are the two pages omitted from the appeal book. In the first of those pages he discusses fingerprints on the bottle and he says that there is not:

sufficient clear ridge characteristics for a positive identification to be made, however, I can’t exclude it as being made by the left little finger appearing on the Smith card.

It goes on to describe that. It goes on to say “you can’t exclude Mr Wayne Smith”.

It was the left little finger.

But this is what is important:

Q.Is there anything about the appearance of that particular print that enables you to say anything as to which direction the left little finger would have been.
A.It appears to be consistent with somebody holding the bottle, as it were, like so (INDICATES) just in the act of just holding the bottle and drinking from it or pouring from it.
Q.To demonstrate you’ve held up one of the cups –

Now, so again it seems to be at the bottom of the bottle rather than the top. If the bottle was intended to be used as an offensive weapon, one would have thought it would be held at the neck. Secondly, and perhaps more importantly, the bottle is not broken. If one was going to use a bottle to kill or inflict really serious harm, one would break it first and hold it by the neck, no doubt. That is certainly not what occurred here and at page 1236, the second of the pages I have handed up, your Honours will see a cross‑examination by Mr Boucaut:

Q.Would you agree that any number of persons could have handled that bottle and not left fingerprints on it.
A.It’s possible, yes.
Q.Indeed, if DNA samples were found on the opening, the neck of the bottle where one pours the drink from that would indicate at least one other person has came in contact with the bottle; you’d agree with that.
A.Yes.
Q.Insofar as the identifiable prints go –

there is the evidence repeated there. So we would submit the evidence that the bottle is taken as a weapon is very weak.

Now, finally there is the baseball bat. I concede the baseball bat in the sense that it is something that was taken from Hayles Road and would have been obvious but of course it is consistent with a number of the possibilities I have referred to. It is consistent with it being used for defensive purposes. After all, they are going to see some men who just hit one of their number and had given him a cut lip so taking a defensive weapon is not surprising.

It could also have been intended for threatening purposes. It was in fact used for another purpose, as we know, and that is running it along a back fence to make a noise announcing their approach. Again, of course, if what was intended was death or really serious harm, one would have thought there might have been some stealth, not an announcement of it.

Now, your Honours, all this was summarised by the trial judge in his remarks on sentence in appeal book 4, page 1744 where the trial judge says, about line 15 on the left.

You did not inflict the fatal would. By virtue of the jury’s verdict you were found to have been involved in this affray . . . However, you were simply a blow‑in. You did not know the other members of the group well. You were not present during the first encounter with the victims. Your conduct in going down to Grant Street was impulsive. You were under the influence of both drugs and alcohol at the time. Indeed, you had been on a bender for a number of days -

et cetera. But the phrase “simply a blow‑in” is a fairly accurate description.

FRENCH CJ: Well, that is just the trial judge characterising the evidence.

MR BENNETT: It is, your Honour.

FRENCH CJ: Yes, it is argumentative in a sense.

MR BENNETT: Yes, it is argumentative and I adopt it, but it is.

FRENCH CJ: Yes.

MR BENNETT: But the basic point is that when one looks at what had to be found at the intention and the purpose, if you like, and the foresight that was required, you look at the objective factors I have referred to and you then say could a man in the state that Dr Majumder describes have formed that intention and foresight, but that is not the question.

The question is must the jury have had a reasonable doubt as to his ability to form that intention and foresight and we submit there is only one possible answer to that question. A reasonable jury must have had a reasonable doubt, based on the evidence of intoxication and looking at the objective facts, as to his ability to form the relevant intention and purpose and for that reason we submit that the appeal should be allowed, the conviction quashed, and a verdict of acquittal entered. I should add that that

is what the section requires the Court of Criminal Appeal to do in the event of an unreasonable verdict.

The Court of Criminal Appeal, as your Honours know, although the matters I have put to the Court were argued before it, just does not refer to it at all in relation to Mr Miller, so the arguments are really being made to this Court for the first time – sorry, I take that back ‑ the arguments were put before but the first time they are being considered by a court is this time. For those reasons, we ask the Court to make the orders I have referred to. May it please the Court.

FRENCH CJ: Thank you, Mr Bennett. Mr Game.

MR GAME: If the Court pleases, you have an outline from us. Could I ask your Honours to have a look at that while we do a little bit of reshuffling here.

FRENCH CJ: Yes, Mr Game.

MR GAME: If I could explain this, your Honours, unless I am taken off my course, which is quite possible; I do not intend to take your Honours to the specificity of the cases until I get to paragraph 6. It is in paragraph 6 I am going to take you to several of the cases but I am going to speak at a more general level prior to that. That is my aim.

We have achieved paragraph 1, which is the obtaining of leave. Your Honours, yesterday we provided to the Registry an aide‑mémoire which was provided to the jury. Do your Honours have that? Can I just take you to the aide‑mémoire. If you follow the aide‑mémoire through, you will see that the case left against my client and the others, apart from Betts, is left on the basis of “joint criminal enterprise”. In the top right‑hand corner you see page 619, which is from the appeal book in the court below. Then at 621, that is “extended joint criminal enterprise” directions.

One can see from that – and it is reflected in the summing‑up and the Crown address and, your Honours, we have given references in the submissions and in this document - the joint criminal enterprise is a common assault which is an offence under section 20 of the Criminal Law Consolidation Act (SA).

Now, when you get to paragraph – so liability rests on an agreement and participation in an assault - paragraph 2 is the foresight of the possibility and it is severed from ideas of authorisation, assent or it being part of the common purpose. It is a freestanding idea and that is what McAuliffe stands for as a proposition that it can be left as a freestanding idea. But, it is to be noted that in respect of crime B, extended joint criminal enterprise must be derivative because it is a different crime than the crime agreed.

I should say this – joint enterprise, which we saw before, can be derivative or it can be primary. When it is primary it can be – it is actually a shortcut to causation and it is more a case of joint participation. But joint enterprise otherwise is a way of making aiders and abetters principals in the second degree historically and that is common purpose as understood. So we are still on page 622, then we see‑ ‑ ‑

BELL J: I am sorry, can I just take you back to that submission?

MR GAME: Yes, your Honour.

BELL J: Are you departing from the analysis of criminal responsibility that Justice McHugh undertook in Osland? As I understood it, you are saying on occasions joint enterprise can be primary liability on a Mohan‑type basis.

MR GAME: Yes.

BELL J: Each party is, in fact, participating in the commission of the actus reus.

MR GAME: It is not strictly correct to say that joint enterprise is primary. It may be or it may not be.

BELL J: Yes.

MR GAME: All that is happening is that in the agreement and the participation you are satisfying the criteria, if necessary, of aiding and abetting. So take Johns – Johns is a derivative liability case. It is an aider and abetter, not a principal in the second degree. There are some problems, we would say, with Justice McHugh’s analysis.

BELL J: That is all I am seeking to establish, that you are, in fact, a party.

MR GAME: Yes, your Honour.

BELL J: Yes, all right.

MR GAME: But can I say this? One does not need to attack the idea of joint enterprise as an idea because if you have agreement and participation then you have satisfied the criteria for liability. So when you look at the directions here given on joint enterprise you could say my client, for example, is – unless there is some legal doctrine he is not liable by way of primary liability because he is not the person who does the act or has the mental state for it.

I do not mean to kind of divert immediately, but if one re‑reads Justice Deane and Justice Gaudron’s judgments in Osland in the light of Jogee then they have a very different kind of resonance. Your Honour would appreciate that in Jogee the UK Supreme Court said that joint enterprise can be primary or derivative depending on the circumstances. So I am basically advancing that argument but I am not seeking to hide from it. I do put that quite strongly, your Honour, yes.

The other point I was going to make is this, but I do make this – if you could just bear with me about the directions for a moment. The fourth item – sorry, the third item there is:

That while the agreement or understanding was still on foot Mr Betts killed Mr Hall with murderous intent or an intention to inflict really serious bodily harm –

That and item 2 are telling you that this is derivative because you do not need that if it is primary liability. So in primary liability you could have, for example, joint actors. That is why I say in some ways it is a shortcut to causation. “You do this and I will do that” is how it works as primary liability. But properly analysed, extended joint criminal enterprise can only be derivative liability, in our submission. That is a misstep we would say that this Court took in Clayton because in Clayton it was regarded as primary liability, and we say that is not sustainable as a matter of legal theory.

BELL J: Will you be taking us to the paragraphs in Clayton where you say that law is exposed?

MR GAME: Yes, I will. It is just one line that says – refers to it as primary but it is - yes, your Honour, can I just come – sorry, there is one other thing about these directions I wanted to say at the outset which is this. If you can turn to the directions on manslaughter, we see that joint criminal enterprise was left on manslaughter. But now we have an agreed crime which requires more than the agreed crime for extended joint criminal enterprise murder, because we require participation not just in an assault, but an assault which is unlawful and dangerous. So this assault has to have a particular – this agreed assault has to have a particular character.

So you take one thing away but you add one thing on and it is difficult to see how that could – that line of division between extended joint criminal enterprise for murder and joint criminal enterprise for manslaughter is so fine that it is difficult how to see that could mean anything to a jury when they are being asked to find as a condition of liability participation in an agreement that requires more, and substantially so, than is required for murder, and that is one of the anomalies of extended joint criminal enterprise.

So if I return then to our document, we say that McAuliffe should be revisited, mindful of the principles relating to reconsideration of cases. But we say this. There is an “if” to this, I suppose, but if Jogee is correct then the common law in both countries has been wrongly stated in cases since Chan.

I have not referred to the – we have not given you in our list of authorities, but Imbree v McNeilly, there is a kind of overriding idea of a need to maintain a better connection with fundamental doctrines and principles, and we say that that is the territory that we are in in this case, that if the principle is wrongly stated then there needs to be a correction, and the correction can be shortly – the correction can be made and you will see in paragraph 2.3 the correction would take one back to a – sorry, 2.4 – take one back to a fairly solid body of authority in Australia with respect to principles of derivative liability, namely, Markby, Johns and Giorgianni; Markby concerned with conventional common purpose and the scope of the agreement, Johns concerned with contingent agreements and authorisation in respect of them, and Giorgianni dealing with aiding and abetting. Those common law authorities stated well‑established principles and what we now have is a completely different beast.

If I could just go back to the earlier items in paragraph 2. At 2.2 we make this point, your Honours, and it is against a broader background of the way in which the Australian and English authorities have worked together and not always in step in the criminal law, but I have in mind Smith v DPP and Parker, for example, or Palmer, Howe and Viro, for example, with respect to self‑defence. There is only one common law and it is not as though both of them can be correct and if ‑ ‑ ‑

FRENCH CJ: Well, there is a common law of Australia.

MR GAME: There is a common law of Australia but even ‑ ‑ ‑

FRENCH CJ: It does not have to be universal.

MR GAME: Well, if you are looking for principles that emerge from the very same body of ideas ‑ ‑ ‑

FRENCH CJ: Well, coherence and consistency and all the rest of it are important considerations but I do not think it is right to say there is just one common law across the world.

MR GAME: Well, I would say that there is only one common law when one is working out what the common law of criminal liability is taken from – the very same body of principles. But I do accept that Lipohar and so forth are different – which is what I had in mind, but Lipohar is about the common law of Australia, I accept. So, coming back to 2.2, when one looks at the way – and extended joint criminal enterprise is obviously the paradigm example of the authorities attempting to kind of dovetail with each other, but in respect of accessorial liability generally, Giorgianni itself is an application of Johnson v Youden and Churchill v Walton.

It is an enunciation of a principle involving intending things and knowing things with respect to the acts or facts that go to make up the offence, but so too do cases like Churchill v Walton, Johnson v Youden and, ultimately, Giorgianni have residence in other areas of criminal liability such as conspiracy, ultimately applied by this Court in RK and LK. So it is not just one aspect, it actually imbues the whole of, in our submission, both derivative and inchoate forms of crime.

BELL J: The accessory needs to know all of the facts that go to the offence, that is the state of knowledge, but the accessory does not need to intend the offence be committed.

MR GAME: No, that is exactly right. The accessory needs to intend to encourage the things that go – so in this case, so in murder needs to encourage – I say “encourage” but it could be aid, abet, counsel or procure, but we will say encourage for the time being ‑ it needs to encourage – it needs to intend to encourage the doing of the things. Here the doing of the thing is an act done with intention to kill or cause grievous bodily harm, that is the doing of the thing. You do not need to intend that a person dies or anything like that. That is one misconstruction that has already been drawn of Jogee in some of the literature.

BELL J: Yes.

MR GAME: Jogee makes it quite clear in the last few paragraphs that that is what is meant by aiding and abetting, and that is the same idea as in Giorgianni but, yes, I agree with your Honour.

BELL J: Yes.

MR GAME: I should just say this. There is very easily room for slippage in terms of what it is that one needs to intend for accessorial liability and you do not jump from intending to meaning the crime to be committed in all its aspects. Take culpable driving, you need to intend that the person drive around in a terribly defective truck but there are some acts which are ‑ some offences have as part of the conduct or part of the acts is an act which does not have a mental element attaching to it.

Churchill v Walton itself is an example of a strict liability offence relating to government regulations. In that case, you need to know that you are defeating some purpose, but take the offence of armed robbery with wounding. The wounding does not attract the mental element but you are not guilty of armed robbery with wounding by encouraging armed robbery. That is axiomatic, even though it does not have a mental element attached to the wounding.

If we come to 2.3 ‑ and I will take your Honours through some of the critical parts of the critical cases a little later, but what we say essentially has happened is that Chan has been built on a misunderstanding of Johns and Miller that in due course Chan, following a case note by J.C. Smith about a case called Wakely, drew attention to an elision between authorisation and contemplation. The English then changed the course of their authorities and then settled on foresight at a later point. Then Hui came along and settled that outcome and then along came McAuliffe applying what was thought to be an orthodoxy.

BELL J: And anywhere in there are you going to inject that Professor Sir John Smith considered Chan was no departure from the law, he saw no novel step being taken except the law as stated by Sir Michael Foster having been narrowed to accommodate modern ideas of a subjective state of mind?

MR GAME: Yes, your Honour. By 1997 he had changed his mind and thought that the whole thing was a terrible mistake.

BELL J: By 1997 he considered, as many do, that the law operated harshly but that is distinct from the consideration that the law took a wrong turn in Chan.

MR GAME: True, your Honour, but that history – if Jogee is correct, that version of the history is taken apart in Jogee and it is taken apart because shall I say it all gets arcane quite quickly but part of Stephen’s Restatement is found to be wrong, in effect, in Jogee and not having reflected developments after the mid‑18th century – Foster is 17th century so that is what they are arguing about. I will come to it shortly, but all of these cases talk about common purpose in the context of things within the scope of the common purpose A and B.

J.C. Smith himself said that it was said that what he termed “parasitic accessorial liability” was not accessorial liability and that was news to him. So, I am not sure that what J.C. - he has been a big player in how the cases have actually developed but I am not sure that that part of the history is borne out by what was ultimately decided in Jogee. I mean, that is what the argument is about.

Now, incidentally there is a submission substantially written by a person called Dyson which became part of the submissions in Jogee which we have and it is a very thoroughgoing history and we can provide it if the Court - actually it formed part of counsel’s submissions but we have obtained it and it does involve a very detailed examination of just these principles and it seems that it was relied on so, if the parties consent, we can provide that to the Court, if the Court wishes to see it.

That is all I wanted to say about those opening propositions in paragraph 2. In paragraph 3, I want to develop some of the ramifications of what, in effect, amounts to a freestanding principle in the criminal law because if this is a principle it cannot be restricted to the doctrine relating to affrays and murders or the like. It is a principle of general application.

What that means is because you are severing foresight from authorisation, you are no longer tied to the foundational crime in the same way because authorisation is going to have a close connection with the agreed crime and that is the thing that - authorisation or assent.

So, if it exists, it is a doctrine of general application so as I say, it could get you from aiding and abetting an armed robbery to liability for armed robbery with wounding. I mean, you would not satisfy the criteria for aiding and abetting armed robbery with wounding but it could get you from, and this is one of the examples given in Jogee, it could get you from supply of unlicensed firearms to murder because if you were supplying unlicensed firearms on a continuing basis to a dodgy person, and you foresee the possibility that they will go and do something, then if you apply McAuliffe principles, you can be guilty of murder.

KIEFEL J: But that is foresight alone, is it not? Where is the participation?

MR GAME: Yes, yes, and you have participation, namely continuing to provide the weapon, unlicensed firearms, knowing you are providing them to a dodgy person and you have that foresight, you are guilty of murder. So it can jump from one crime to any other crime, if you have that foresight. But it can also be used in another way which has not been drawn out but it actually arises in a case called Sio which has leave and is due to be heard in this Court on 10 June because in Sio, extended joint criminal enterprise was used to get from armed robbery to foresight of armed robbery with wounding which is a relevant felony to felony murder. So it becomes a freestanding principle that gets you into other forms of constructive liability.

So, Sio is said to be liable of murder on the basis of participating in an armed robbery – foreseeing the possibility of a wounding because if he foresees the possibility of the wounding now he is liable for being participant in an armed robbery with wounding – the other person kills the deceased so now he is guilty of murder. It was also ‑ ‑ ‑

BELL J: There is an extra step in there. It might be best ‑ ‑ ‑

MR GAME: No, there is no extra step except for the fact that the other person does the act with intention to cause – to kill or cause grievous bodily harm.

BELL J: But, to come back to the earlier illustration that you were giving, the person who supplies another with a firearm with requisite foresight, it is a stretch to bring that within the concept of extended joint criminal enterprise liability.

MR GAME: Well, it may be a stretch but conceptually it is exactly right, your Honour.

BELL J: Well, the criminal law is concerned not just with high statements of principle in very abstract terms. It is this form of liability – has it been applied frequently in particular, factual context and has been justified by this Court – by the House of Lords in that context.

MR GAME: Yes, your Honour. But I should have said this before – and it really follows from what I said before which is that we would say it makes it compelling to revisit the issue when the authorities that we are relying on in this country have been disapproved, in effect, by the court that decided them because Hui and Chan have been disapproved and they are at the centre of McAuliffe.

FRENCH CJ: What kind of controlling function does the concept of possibility have?

MR GAME: There is no control because it can be any possibility of any kind.

FRENCH CJ: Any non‑zero probability?

MR GAME: Yes.

FRENCH CJ: Even if trivial?

MR GAME: Yes. Any possibility – and it is just something that you – it is just a thought that you have. It is not assent. But to come back to Justice Bell’s question, we are not talking abstract ideas when we are talking about authorising or assent in common purpose ‑ ‑ ‑

BELL J: I understand that. I am taking you to ‑ ‑ ‑

MR GAME: ‑ ‑ ‑ because if you pull out a gun and then you pull out the other half of the gun and you put it together then both of you know that you are now in possession of a loaded firearm which is Markby. One of the problems with all of these cases is that quite often the foundational crime is so extreme that it is such a small step to authorisation that foresight of a possibility kind of gets you there on a practical basis. But once you break the ideas up, then you have this freestanding principle and that is where the problem arises.

But I should also say this. I do not accept that the firearms example is too remote because it would be possible to charge such a person in such circumstances - if they said yes, I thought he was a dodgy fellow and I thought one day he is going to kill someone. But take the – Sio, itself, the alternative count armed robbery with wounding, although the directions were ultimately not given, the basis for it was that armed robbery with foresight of a wounding. So you are getting away from establishing the encouragement of the doing of an act, namely, an act of wounding, by going back to a hypothesised proposition.

But there is also one other thing about this which is most of these cases, when one talks about agreement or a court – and I am not saying it cannot be inferred from circumstances, one does not normally have people sitting around talking about what they are going to do. Sometimes one does, but the – I mean, take Phuong Ngo. Nobody sits around saying was Phuong Ngo liable as an aider and abettor or a principal in the second degree or – it is only in these kind of extremist situations where the issue becomes acute. So that is what we say in 3.1.

Now, we also say in 3.2 that – and Jogee itself was the culmination of a lot of unease amongst both academia and the judges, and if one reads Powell again with the benefit of hindsight, one sees, for example, in Lord Mustill’s judgment, Lord Steyn’s judgment, great reservations about how this principle had emerged, and the emergence of limiting principles such as fundamentally different act, and so forth. But in my submission we can – in fact, I think in the UK there has even been a movement to bring about the demise of extended joint criminal enterprise, but Jogee was clearly a test case in the light of a great deal of unease about how it was operating.

Our context is obviously smaller, but Taufahema we would give as just such an example, and I am going to say something here briefly about it. One, in the judgment of Justice Gleeson and Justice Callinan, it was said that the joint enterprise did not have to be identified with specificity. But the point I want to make is a slightly different one, which is this. When one looked for the foundational offence – I will just find that passage. It is said at – it is in 228 CLR 246 in paragraph 31:

That is not to say that the prosecution must be able to identify the joint criminal enterprise with complete specificity.

If we go back to the previous page, we see that the joint enterprise, whatever it was, started out as possession of firearms. It changed to running away from the police. It changed again to a joint enterprise to avoid arrest. It changed again to an armed robbery in Melbourne, which is what was accepted in this Court, and it changed again to there not being necessity for any foundational offence, and within days of this Court’s decision – sorry, the foundational offence became an armed robbery in Melbourne.

Ironically the defence had called a witness, Cackau, to give evidence about the armed robbery in Melbourne which would never have happened. But within days of this Court’s decision, the Crown accepted a plea of manslaughter. In the case of John Taufahema, the trial judge was Justice Wood and those directions were faulty as well whereas – and he had been the trial judge in McAuliffe. Within a short period the New South Wales Law Reform Commission, referring specifically to Taufahema, set up a reference for complicity and the recommendations were made that were never acted on.

BELL J: Yes, indeed, and recommendations that saw value in the concept but saw a desirability to limit the application by introduction of the test of probability as distinct from possibility in terms of the foresight element.

MR GAME: For murder.

BELL J: Yes.

MR GAME: And a form of recklessness for other things. In Victoria, Justice Weinberg made recommendations which led to an adoption of foresight of probability.

BELL J: Yes. The point I am raising with you is that the legislative change that has been mooted in New South Wales and effected elsewhere departs from the approach to the law and now that applies in England.

MR GAME: Yes, your Honour, but that was all on the assumption that the law was in truth as has always been stated – that is to say that it had the historical underpinnings that it was said to have, which have been taken away in my submission. If one comes to court saying the law needs to be changed, one can say well, this is a matter for the legislature, but we are saying the law took a wrong turning at an earlier point and we submit that that is different in kind as a submission.

BELL J: Yes, and the law taking a wrong turning, if that is right, law that has been stated in this jurisdiction for at least 20 years, the Supreme Court takes the view that that has no ramifications or may have no ramifications in relation to the position of those who have been dealt with under the law as it has been understood for 20 years. That seems perhaps a controversial view.

MR GAME: They have a test in respect of convictions requiring the establishment of substantial injustice, which in respect of sentence appeals was not approved by this Court in Kentwell. So how that plays out, I would have to say that I am not pretending that one would turn around and say everything is fine about all of those convictions.

BELL J: Indeed, so that does raise some consideration of the appropriateness of revisiting a decision that has stood for a lengthy period and which has been acted upon, the circumstance that the Court engaged in a review of its correctness in Clayton and determined then that the appropriate course, if the law was unduly harsh or inappropriate in its operation was a legislative one and of course a legislative change would affect things prospectively.

MR GAME: Maybe, your Honour, but if there has been as deep a misunderstanding as was found in Jogee and, as we submit, can be readily established, then that really, in our submission, paints a different picture because – let me put it to your Honour this way. It would be, I say, a remarkable thing – I might eat my words – to say Jogee is right but we are not going to change the law. Yes, all those misunderstandings happened, acted to and fro between the jurisdictions, yes they are ripe with the history, but we are going to leave things as they stand.

The other thing is if Jogee is right and we are going to leave things as they stand, then that means that in five years, 10 years or 15 years somebody else can come along to this Court again and say now there has been 40 years of misunderstanding. We say one really has to wrestle with the proposition is Jogee right or not?

FRENCH CJ: Jogee is the common law for the United Kingdom.

MR GAME: That is correct.

FRENCH CJ: This Court determines the common law for Australia.

MR GAME: That is correct.

FRENCH CJ: We are not being asked here, it seems to me, to say that, unless this is your submission, that McAuliffe as it turns out now was wrong all along and that what the Court purported to declare as the common law at that time was not in fact the common law. That depends upon some other institutional referent external to this Court.

MR GAME: Yes, I understand that, your Honour, but what we say is that McAuliffe was wrong because the ideas that underpinned it ‑ ‑ ‑

FRENCH CJ: But you say this Court should – in substance, it is sufficient for you to say, I would have thought, that this Court should depart from McAuliffe for a variety of reasons for which this Court ordinarily reconsiders previous decisions.

MR GAME: Yes.

FRENCH CJ: It does not require a labelling of the previous decision as wrong.

MR GAME: No, quite, quite, absolutely.

FRENCH CJ: I mean, you can say, of course, that the previous decision was not supported by ‑ ‑ ‑

MR GAME: Quite.

FRENCH CJ: ‑ ‑ ‑ but there it is.

MR GAME: That is quite – yes, absolutely. But what I do say is this. That once one has embarked on that process it is not as though one would hold back and say but we are just going to have a bit of a look at it. One has to actually engage with the whole of the subject and one has to grapple deeply with what these cases did or did not decide and there is no choice. I mean, I say there is no choice but I am saying that in a way there is no choice but to do that and – anyway, so ‑ ‑ ‑

KIEFEL J: But as you say consistently with what you have said earlier, in this area to obtain a coherency the whole subject must be dealt with.

MR GAME: Yes, your Honour.

KIEFEL J: That really was not the approach undertaken in Jogee, was it?

MR GAME: Well, it was in this sense. It was said that joint – basically Jogee ‑ ‑ ‑

KIEFEL J: Accessorial liability more widely.

MR GAME: Yes, it says you have got accessorial liability and you have got contingent liability and contingent liability takes up a lot of these circumstances.

GORDON J: Contingent liability or contingent intent?

MR GAME: Sorry, contingent intent. So contingent intent applies to – and that is why the reference to possibilities or probabilities is inapt in a case such as Johns because if something happens then we will do this. Well, it really does not matter whether or not you think that it is very unlikely that it will happen, if something happens we will pull out the gun and shoot the person we are stealing dead, then – so because that is contingent intent, that absorbs many of the situations. What it does not absorb is the situations where there is just a bare escalation.

This case that the Court is hearing is not a case about contingent intent because this is a case about an escalation of circumstances. It is not a circumstance about a case where we go to do a robbery and then we have to kill a person, or we may have to kill a person or something like that. That is contingent intent but that, in our submission, is actually what Johns was a case of.

That also, in our submission, is what Chan was a case of because Chan is a case where people are running with three knives to rob some person and then they immediately start stabbing them. You would think they were all possibles in the first degree, but even if they are not you can see how it can be described as – seen as a contingency which is, if necessary, we will stab the person we are robbing.

BELL J: One of the difficulties is, not infrequently, one wonders why there has been reliance on extended joint criminal enterprise. This might be such a case. Certainly Jogee was such a case. Certainly Ruddock was such a case.

MR GAME: And McAuliffe is such a case.

BELL J: Yes.

MR GAME: But, in this case, because of a concern about who know what about weapons, they pushed it right down to a common assault. They did not even require possession of a weapon by my client or knowledge of the existence of the knife. If you applied the English authorities to that, you may have a fundamental departure point which we have not grappled with fundamental departure in our jurisprudence. But, because of the reasoning about extended joint criminal – what is called “parasitic accessorial liability”, they have had to develop that principle to kind of make it work.

So, in paragraph 4, we say that in Clayton – there are a couple of things to say about Clayton. In Clayton, an application was made to reopen McAuliffe but it did rest on a premise that for offending to be murder, it had to be intentional and that was said to be an unstated premise. That is at paragraph 16.

BELL J: The argument in Clayton was not limited in some fashion.

MR GAME: No, no, your Honour, but what was put was – I just cannot find the passage I was looking for about primary liability but I will find it in a minute. It was not limited in some fashion but the argument was, essentially, that the law needed to change; the common law needed to change. This is a different argument than that, in a sense, because this is an argument that says there have been deep mistakes in what has happened in the past and so this, in our submission, is a different kind of an argument. When your Honour Justice Kiefel said to me one has to look at the whole thing, the whole thing is actually primary liability and derivative liability. We say there is nothing else but those two. We say that joint enterprise itself, properly understood, is a way of establishing accessorial liability, in the case of any people other than principals.

So if you look, for example, at the joint criminal enterprise directions in this case, you have got agreement and you have got participation and this Court insisted on participation in Huynh, and the reason we say one has to have participation is because one has to have the necessary requirements of aiding and abetting. That is what is actually being required in those circumstances.

So, I cannot find the passage where it is said to be primary in Clayton but I will come back to it a little later, your Honour. So, I come then to paragraph 5 and we set out to state there what the principle is and I said before, if that is the principle, then it is the principle that imbues the whole of the criminal law, and what one had before ‑ one did have common purpose cases and the courts imposed some rigour about when common purpose could be left and I will give your Honours – they are not on our list but three New South Wales cases that your Honour Justice Bell may recall, Zorad, Stokes v Difford ‑ ‑ ‑

BELL J: Stokes v Difford.

MR GAME: ‑ ‑ ‑ and there is a third case, all of Justice Hunt. Stokes and then there is a third one, I will just think of it. Justice Hunt railed against the leading of common purpose where the evidence was not there for it and what he said in those cases was that Mohan provided all that was needed and more. That is to say, you do not have an agreement but you have people present, aiding and abetting. You do not need to have an agreement if you have people in that circumstance.

Sorry, the third case was a case called Clough; Zorad, Clough and Stokes v Difford. That was how the common purpose was applied in New South Wales until McAuliffe came along. So, where we set out in paragraph 5, we say that is what the principle is and one could be quite confident in saying that is not where we started at Johns. That is not what was in mind. So, we make some points about extended joint criminal enterprise here, some of which I have already made.

Paragraph 5.1, it takes one away from ideas of authorisation and assent and, as I said before, authorisation and assent have this powerful importance which is they tie you to the foundational offence which is why, for example, if you had it, in terms of authorisation and assent, you would not be saying that the foundational offence in this case was a common assault. You would be saying that it was at least an assault with the use of weapons to inflict harm.

Now, we further say this, that extended joint criminal enterprise takes one a long way from the actus reus and mens rea required for offences, required in particular for murder. In the case of murder itself, foresight of a possibility would not be a sufficient mental state and yet it would be a sufficient mental state for the person liable by way of extended joint criminal enterprise.

So, if you have a melee and you have a group of people doing things, the Crown is in a better position if they cannot identify the assailant with respect to the establishing liability of the assailant because the assailant can be convicted on the basis of extended joint criminal enterprise where they might not have been convicted as the principal. And the same applies ‑ ‑ ‑

NETTLE J: How can that be? Does not the participant have to foresee the possibility that the principal strike with intent to kill or inflict GBH?

MR GAME: Yes, that is correct, but that is in some other person at that stage. So if you are the assailant and you do not foresee the possibility that you will inflict grievous bodily harm, you are not guilty of murder.

BELL J: But if you have foreseen that someone might ‑ ‑ ‑

MR GAME: That somebody else would, you are guilty of murder in the very same melee.

BELL J: But if you go out with a group of heroes and you are armed, and you, like the others, contemplate that in carrying out your intention to inflict some harm one of your number might act with the intent to kill or to do GBH, then the fact that you happened spontaneously to do it without the formation of that intent does not nonetheless deny your liability, does it?

MR GAME: I accept that it does not deny your liability but I would say that there is an anomaly.

NETTLE J: But why? You foresee the possibility that your co‑participant will strike with intent to kill or inflict really serious injury.

MR GAME: Your Honour, it is anomalous because you are guilty because you foresaw somebody else might form that intention even though you – you are guilty in those circumstances even though if you did not form that intention but killed someone you would not be liable.

NETTLE J: It is not just because you foresaw the possibility but having foreseen the possibility you persisted in the common enterprise knowing of that possibility.

MR GAME: Yes, but what becomes of critical importance is what is that enterprise because if you push the enterprise right down, say to common assault, then all you are doing is saying, “If you’re a party to something that involves putting in fear of other people and you foresee that possibility, now you are guilty of ‑ ‑ ‑

NETTLE J: And you foresee the possibility that a participant will kill, with intent to kill or inflict very serious injury.

MR GAME: Yes. We say that is an anomaly if you then put yourself in the position of the principal and, in those circumstances, doing that act, with that state of mind, would not be guilty of murder.

NETTLE J: But he is guilty of murder because he does do it with that intent.

MR GAME: Yes, but I am saying he is not guilty if he does not – I am saying this. So, if you say ‑ okay you are the person that does it, you are not guilty of murder because you did not intend it but you foresaw it as a possibility, you are not guilty of murder. Switch you now into the position, in the same melee but you are not being capable of being identified as the person who did it, you are guilty of murder because you foresaw somebody might do it.

NETTLE J: But unless the Crown proves that someone, whoever it was, struck with intent to kill or inflict really serious injury, no one is going to go down for murder.

MR GAME: No, that is true, but that is just a – that is true but that also demonstrates why it is derivative. That is the limit of the identification of the anomaly, but the point is still made, your Honour, in my submission – and the point is a good one, in my submission ‑ ‑ ‑

NETTLE J: That is why I am troubling you with it; I do not yet understand it.

MR GAME: If one takes the position of an aider and abetter, aider and abetter encouraging – aiding and abet murder – so you have to, put loosely, encourage the doing of an act with intent to cause grievous bodily harm. Now put the person in the same position – extended joint criminal enterprise, and I will come back to the principle in a minute, but the extended joint criminal enterprise is not latching on to the offence that the person is aiding and abetting. The extended joint criminal enterprise is latching on to some other lesser offence, in this case an assault, and that is significant because that is the thing you are participating in.

Now, if you do that and you merely foresee that somebody else might form the intent to cause such an intent, you are guilty of murder. If we take the position in that group of people and you are a participant in a melee, then you do have that foresight of the possibility but it so happens that you at the moment that you wound somebody you do not have the intent to kill or cause grievous bodily harm. You are not guilty of murder even though you did it.

So it is just a question of swapping over the personalities to make the example because you can make the example by saying well, let us say somebody else did it. You can see the changing positions produces the position that you have now got what should be the accessory liable for murder, or participating in a crime much less than the murder, and only foreseeing it as a possibility and we say that cannot stand with these ordinary principles of accessorial liability and it puts the accessory in a quite disproportionately low position with respect to the position of the principal.

Then if one takes the position of the accessory, one can see this. I encouraged the assault so I am guilty of – I encouraged an assault done with the intent to – I encouraged it with intent to – an act with intent to kill or cause grievous bodily harm. Put me in exactly the same position in extended joint criminal enterprise and you do not need any of the rest of it.

So in your ordinary situation accessorial liability is going to go out of the window completely. It is not going to be of any – there is no point in directing a jury on aiding and abetting. In this case there was one reference in the summing‑up to aiding and abetting, but the directions were joint criminal enterprise or extended joint criminal enterprise, joint enterprise justifiable on accessorial principles, but if directions had been given on accessorial liability, they would have been completely meaningless because you can get there by a state of mind that is so much less. So there are nominally two levels, in our submission.

Now, in South Australia and in New South Wales, both pick up the Accessories and Abettors Act 1861 with the word “misdemeanour” changed by “indictable offence”. In Victoria it has now been amended following the Weinberg Report, but those are the three common law States. So those are the points we are making at 5.1 and 5.2.

Point 5.3 is a point about temporality and I know your Honour Justice Bell does not like my firearms example, but it does make the point about temporality because it could happen at any time, that if there is a course of conduct which is an ongoing offence, that participation can launch some other offence, but it is this point about taking away the authorisation is why that happens, and Taufahema itself is a kind of reverse example of that because the armed robbery they were talking about was an armed robbery that was going to take place in Melbourne some days hence. So, because you now have just foresight, you have broken – you have in fact broken the close temporal connection that assent and authorisation bring with them.

I gave the example of armed robbery and armed robbery with wounding but, subject to statutory modifications, it would mean that, for example, if you were a party to – and this is in 5.4 – if you were a party to a receiving or unlawful possession of goods in custody, that was the crime that you were a participant in, if you foresaw the possibility that the person would keep them or that the person would permanently retain something that was meant to be in temporary possession, you would be guilty of larceny. So you would be guilty of a different offence just based on your foresight. The statutory modifications probably do away with that example, but my point is that crime A, all you need to get to crime B is foresight, and that does not sit with our basic notions of accessorial liability.

So then I come to paragraph 6, and this is the point in our submissions where I do want to take your Honours to some of the cases. The ones I am going to take – planning to take your Honours to are Smith, Anderson and Johns. So if I could take your Honours first to Chan.

BELL J: Just before you do that, can I just raise this with you? At the very beginning of Jogee you get the reference to the statement in Sir Michael Foster’s Crown Law of a statement expressed to be respecting accessorial liability, but that attaches criminal liability to the secondary party for the offence which objectively is a probable consequence of the foundational offence to which that person is an accessory.

MR GAME: Yes, but ‑ ‑ ‑

BELL J: Now, the Supreme Court deals with that by saying that is mid‑18th century law and it then moves to Smith and Anderson and Morris to say things have moved on.

MR GAME: Yes.

BELL J: Saying things have moved on is not to say that the law was not once capable of attaching criminal liability for the offence that was objectively probable.

MR GAME: That is correct.

BELL J: Can I just ‑ ‑ ‑

MR GAME: That is quite right, your Honour. But, they do say that Foster – by the mid‑18th century Foster was wrong.

BELL J: They say that but when one turns, for example, to Glanville Williams or to Russell on Crime in the editions edited by Dr Turner in the mid‑20th century, one does not get a suggestion that Sir Michael Foster’s analysis of accessorial liability is wrong.

MR GAME: No, but one does get – I think one comes to the point that Stephen’s Restatement in the mid‑19th century was not a reflection of the law as it stood at that time.

BELL J: This is in the digest?

MR GAME: Yes, Stephen’s Restatement in Article 8, I think ‑ ‑ ‑

BELL J: I think it was Article 41.

MR GAME: Sorry, that is the Code – sorry, it becomes section 8 of the Code, or something similar becomes section 8 of the Code. But it is a very thin reed to build extended joint criminal enterprise from a Foster’s statement about probable consequences of a common purpose from the early 17th century.

BELL J: And from Stephen’s statement of it in his Digest of the Criminal Law.

MR GAME: Yes, particularly when one could not take probable consequences without importing modern ideas of intention. But the court – it depends what one is talking about.

BELL J: But the matter I suppose I am taking up with you is that when you look at Sir John Smith’s analysis, in his 1997 article which recognises what one infers he takes to be the harshness of the law, nonetheless, he is certainly not suggesting that the analysis was flawed. He is just suggesting that it might be open to take a different tack.

MR GAME: Quite, your Honour. But, I am sorry to throw articles at you but there is an article by Professor Krebs that says Smith was wrong.

BELL J: Yes.

MR GAME: Ormerod also says that Smith was wrong. So I know ‑ ‑ ‑

BELL J: It is a large statement that Sir John Smith is wrong on the criminal law point.

MR GAME: Quite, your Honour. But, all I saying is that the UK Supreme Court grappled with these problems in Jogee and came to the answer of what you‑ ‑ ‑

BELL J: I appreciate that. But I suppose what I am taking up with you is to simply baldly state that Chan represented a wrong turning in the law as though there is no other view – one can understand that the Supreme Court considered that the law would have been better not to – the law would have been better to develop in another way and, clearly, that is the way the English are going. But it might be thought at least controversial in light of what the Supreme Court acknowledged to be the weight of academic authority relied on by this Court in McAuliffe.

MR GAME: Yes, but what is being said in Jogee, ultimately, is that there is primary liability and there is derivative liability and there is nothing else and that common purpose is a special case of accessorial liability, in effect. I should say ‑ ‑ ‑

BELL J: That is an argument about first principles and also, I think, policy comes out in Jogee and it may be better to concentrate on that than the suggestion that necessarily Sir Robin Cooke’s judgment was a wrong turning.

MR GAME: Well, I am going to take your Honours to the judgment now and one can see in the judgment where the problems have come from. It may be that one does not have to resolve these issues about what was once the law. If one looks at Chan at [1985] 1 AC 168, one looks at page 173. One of the remarkable things about this case is how extreme the facts are sometimes but, E:

They all drew knives. She was ordered to kneel down . . . She heard one of the other two say “Stab him down” and then . . . “Stab her down too.”

So, three people with knives doing a robbery, it seems. So we come then to page 175. Now, at 175F to G – whether or not one is dealing with what is described as the same type of offence or what is described as the wider principle, all of that appears to be being justified in the context or accounted for in the context of aiding and abetting. It is not suggested to be something different. The next paragraph then says:

That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorisation, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise.

Now, at that point, one might think that contemplation is being thought of in the context of authorisation but that is the kind of – and that makes sense. Then the next paragraph reads:

A line of relevant English authorities from 1830 onwards was considered . . . in Reg. v. Anderson –

but that line of authorities, if we look at Anderson, is about the exclusionary rule. The line of authorities is about things falling outside the common purpose - you are not liable for. If one goes to Anderson one sees that. So there is an inclusionary rule which is things within the common purpose. The exclusionary rule is if they were outside of the common purpose then you are not liable for them. Then there is the further article which is the one that your Honour Justice Bell referred me to but that is not what is being talked about here, I do not think.

But then we see the reference to Anderson and Morris and that passage includes the words:

if one of the adventurers goes beyond what has been tacitly agreed as part of the common –

purpose. Now, all that means is you do not need to say something. It is not some masonic kind of nodding of heads; it is what you can infer from, or what is - as I said, to take the example in Markby, two people putting together a gun which is loaded, both of them knowing that they now have a loaded gun between them. So “tacitly agreed”, in our submission, really is contemplating something within the terms of the agreement, common purpose.

Johns is relied upon. I am going to take your Honours to Johns shortly. Johns is relied upon, shall I say, as supporting the argument about foresight of possibilities, but Johns itself uses the language of authorisation and contemplation but the authorisation and contemplation has to be taken back one step further in consideration of Johns because Johns is about establishing liability of an accessory before the fact in the context of a contingent intent, which is if something happens – “if he causes me any trouble, you know what I’ll do to him” is in fact the kind of evidence.

There is further discussion of Johns and then one comes to the other paragraph which is picked up in later judgments. It is the paragraph at page 178B:

In some cases in this field it is enough to direct the jury . . . For instance, did the particular accused contemplate that in carrying out a common unlawful purpose one of his partners . . . might use a knife or a loaded gun -

Now, one cannot justify that on the basis of Article 41 of Stephen’s Restatement about probable consequences but in the context of this case one might have thought that this is a proposition about how you infer authorisation in this case and that is how it was interpreted in subsequent English cases until J.C. Smith wrote a case note about a case called Wakely saying there is a distinction between the two. Then Lord Lane, who had in fact argued Anderson, fell into line and explained why they fell into line behind J.C. Smith, and that is what became the law, in effect, in Huynh - by the time of Huynh. So that is where Chan stands.

If one then goes to Anderson and Morris, now the direction in question ‑ this is in [1966] 2 QB 110 at 118. Now, if you think there was a common design to attack, the point is, in our submission, reading that, that what is said ultimately is that the thing has to be within the scope of the agreement and we see that at page 119, so this is a reference to counsel submission, so at the bottom of 118:

Mr. Lane submits that that was a clear misdirection . . . where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise . . . that, if one of the adventurers goes beyond what has been tacitly agreed . . . is not liable for the consequences –

So it is a question of assent and agreement, and then on the following page:

In support of that, he refers to a number of authorities to which this court finds it unnecessary to refer in detail, which in the opinion of this court shows that at any rate for the last 130 or 140 years that has been the true position.

So, the point is it is the true position that there is an inclusionary rule and an exclusionary rule and then it says that matter was considered in Smith. There is Smith and Betty and we have outlined what we say about those in our reply and they, in our submission, are to the same effect. And then it is said at the bottom of page 119:

Mr. Caulfield, on the other hand –

and it is said ‑ Mr Caulfield cites a decision of Salisbury which is a 16th century decision. And then 120:

It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today.

Now, true enough, it is not considering the extended joint criminal enterprise point, but it is defining the whole thing in terms of what is the common purpose.

BELL J: But it is considering here liability for manslaughter ‑ ‑ ‑

MR GAME: Yes, not for murder.

BELL J: ‑ ‑ ‑ and it is making the point that if someone produces a knife and acts in a completely unexpected way that one has not adverted to, one might not be liable in that circumstance.

MR GAME: Yes, quite. Well, what your Honour needs is tacit agreement. You cannot be liable at all unless you have tacit agreement and that is the proposition which is accepted. What is not talked about is foresight of deliberate death but this is based in standard ideas about common purpose and tacit agreement is the driving idea, and tacit agreement comes from what they do with each other.

It could also be construed as a contingency case. So we say that case and Betty and Smith are all cases about what is the scope of the agreement and what is tacitly agreed. We say the same thing can actually be seen in Smith which I was not going to take the Court particularly to but the same thing is said there. Now, I want now to take the Court to the decision in Johns, and I can say it because it has been said in Jogee. What I am saying is not a heresy. What I am saying is what is said in Jogee about what these cases really mean.

There is a problem with taxonomy sometimes because when people are talking about what is within or outside the agreement, the taxonomy gets confusing sometimes but the foundational idea of agreement, assent, encouragement, those ideas sit at the heart of it. When they, for example, talk in Markby about something unexpected happening, that might still be within the scope, it might be within the scope because it is a contingency. If we run into trouble – which is what happened in Markby – we will put the gun together and then the gun will go off. So sometimes one sees talk about unexpected things, those things can often be – the taxonomy – one needs to be careful, as I say, because those things are often talking about contingencies.

So I come then to Johns. Now, in Johns, if one looks first at the Chief Justice’s – so that the argument that was put in this case was that because of the common law restatement about probable consequences, that should be the common law, with respect to not a principal in the second degree – that is a person present aiding and abetting – but a true accessory which, in this case, is the person who drives the car.

Now, this is a contingent intention case because it is a robbery and something might happen and if something happens then something will have to be done – so common purpose, but common purpose with respect to clearly the position of a true accessory. Now, at page 111 we see what directions were given, and I have said this before but when one is talking about contingencies the idea of probabilities may be inapt because you might be hoping that the thing does not happen. You might be wishing it does not happen.

FRENCH CJ: A contingency is something accommodated by the agreement or the common purpose.

MR GAME: That is right and it could be a remote possibility but you have still got an agreement about it. So the argument that was ‑ ‑ ‑

FRENCH CJ: But the possibility the subject of foresight in extended joint criminal enterprise cannot be remote.

MR GAME: Yes.

FRENCH CJ: Yes, I think that was – yes.

MR GAME: So then if I could take your Honours to Justice Stephen’s judgment at page 116; at page 116 we see again the reference to the possibility or contingency at the top of the page, but further down the page is an examination of Chief Justice Street’s judgment in the Court of Criminal Appeal. Now, this is significant because Chief Justice Street did consider conduct done outside the common purpose and he said you were not liable for it. That is at pages 286 to 287 of the report, but that is what has been considered by Justice Stephen here. It was said in McAuliffe that Johns was not an occasion for consideration of acts done outside the agreement. It was in fact considered here by Justice Stephen considering Justice Street. So then we see a reference to Russell on Crime, but says:

But, those cases apart, so long as what is in question is within the scope of the common purpose neither reason nor fairness suggests that –

et cetera. That is just talking about this argument about probabilities. Then we come to page 118 and one has to read the whole of it because at the top of the page it is quite clear that what is being discussed is – it says:

As to that crime, one who, while not actually physically present and participating in its commission, nevertheless knows what is contemplated, and both approves of it and in some way encourages it thereby becomes an accessory –

So killing is in this case within the – is within the contemplation of the parties. We see further down:

The concept of common purpose provides the measure of complicity, the scope of that common purpose determining –

et cetera. So when one gets to the bottom of the page one is talking – one cannot extract that passage aware of the possibility from the context which is one is establishing accessorial liability via a contingent intent involving authorisation of possible outcomes, and that is what is actually decided by this case. That was not fully appreciated in Chan but nor, in our submission, was it fully appreciated in McAuliffe, because McAuliffe bases the thing on authorisation and contemplation, but it does not take it back to the idea of contingent intent.

So, now you see then a reference to Howard and so forth, so that is what I wanted to say about Justice Stephen. If we then come to the joint judgment. Now, the argument is put at the middle of 125 which is an argument about – that is put in this particular case and I suppose it is fair to say the argument was not a very strong one, but we see at page 126:

The problem here is one of expressing the degree of connexion between the common purpose and the act constituting the offence charged which is required to involve the accessory and the principal in the second degree in complicity.

So, nobody is saying hang on, this is a separate freestanding principle and nobody seems to say it in any of the cases. Then we see at 127 that which is taken up in the aiding and abetting, but we see that which I have been calling section 8, but two‑thirds of the way down the page, that is the passage from Stephen that is being discussed in Jogee and is referred to here, namely, liable for probable consequences.

BELL J: Yes, and it is the same – that passage is set out in Justice Stephen’s judgment, too.

MR GAME: Yes, and then we see it again at 128. One might also have to take into account the ideas of causation as to how far they were developed in terms of what is actually being talked about in Article 41. Article 38 has got the inclusionary principle and the exclusionary principle and that is what was being referred to in Anderson as the 130 years of jurisprudence that Lord Lane was relying on in respect of tacit agreement in Anderson. So then we go on in the judgment. We see at the bottom of page 130:

In our opinion these decisions –

and the decisions are discussed and they include the decisions that we have been through, including Smith:

In our opinion these decisions support the conclusion reached by Street C.J., namely, “that an accessory before the fact bears, as does a principal in the second degree, a criminal liability for an act which was within the contemplation of both himself and the principal . . . which might be done . . . an act contemplated as a possible incident . . . which falls within the parties’ own purpose –

So then the contingency and example is given down the bottom of the page:

As it happens, a security officer is in attendance –

Then, further down:

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

So, that is – the measure of the liability is based on the scope of the common purpose. It is not based on this Article 41. It is based on the inclusionary and the exclusionary proposition and it is ‑ ‑ ‑

BELL J: And the notion of mutuality involved in ‑ ‑ ‑

MR GAME: Yes, that is crucial.

BELL J: Yes, yes.

MR GAME: We say – to put the whole thing simply, what has been lost is the notion of mutuality and it is that point – maybe I exaggerate – but it is that point all the severance of things starts to happen.

BELL J: In point of the policy of the law, when two or more persons embark on the commission of a crime and one of them contemplates that in the course of committing that crime one of them might do an act killing another with the intent to make that act murder, what, in point of policy, supports the need for the mutuality?

MR GAME: Well, because you have only made yourself a party to the lesser conduct, and take this case. In South Australia there is a mandatory non‑parole period of 20 years. It cannot be sorted out on sentence, and take this case. What would a jury make between the difference of extended joint criminal enterprise on murder and joint criminal enterprise on manslaughter? It is worth recalling that when it comes to the judge’s remarks on sentence, in respect of my client he says he cannot make any findings about what he actually did except that he was somehow party to an enterprise of some kind and therefore he would give him the minimum amount. So what it has done is it is excessively proportionate to the very serious culpability that is involved in murder.

But the policy thing is this, is that once you take the thing away from authorisation and assent, you have got a freestanding idea in criminal law that truly imbues the whole of – it is like you have got another set of ideas separate from accessorial liability.

KIEFEL J: Well, you certainly have a policy of the law which says that an agreement is not required.

MR GAME: That is true, your Honour, but I am sorry, I did not – the language is said to be agreement or understanding, so it is not that there be an agreement, but it is an – but that even puts it lower, an agreement, an understanding – and the language in this case ends up being an understanding that the common purpose will include an assault, is how it is put at one stage in the summing‑up.

KIEFEL J: But as a matter of policy ‑ I know that you talk about freestanding principles and – as a matter of policy, why does the law have to hold that there has to be an agreement or understanding on the part of a person before there will be criminal liability?

MR GAME: Sorry?

KIEFEL J: Why is not foresight sufficient?

MR GAME: Because, your Honour, what one is ‑ ‑ ‑

KIEFEL J: Foresight and the continuance of the ‑ ‑ ‑

MR GAME: Yes, so for non‑primary offenders one is trying to get to what constitutes the encouragement, what constitutes the assistance, what constitutes the aiding or abetting, and that is ‑ ‑ ‑

KIEFEL J: Well, you say encouragement but participation is enough, is it not, participation with foresight? Taking part in it with foresight?

MR GAME: Yes, well, it depends what you mean by “taking part” because if your presence establishes your agreement or understanding and your presence establishes your participation then what you have done is you have now got a principle that completely sidesteps the requirements of Mohan and Clarkson that there be actual encouragement so that the ‑ ‑ ‑

KIEFEL J: But that was clearly – putting aside what was said by the Supreme Court of the United Kingdom about a wrong turn, that is clearly the way the law developed.

MR GAME: That is clearly ‑ that is the way the law developed but ‑ ‑ ‑

KIEFEL J: And it must have done so from a policy perspective.

MR GAME: Well, policy is not mentioned in McAuliffe, I think it is mentioned by Justice Hayne in ‑ ‑ ‑

KIEFEL J: Gillard.

MR GAME: ‑ ‑ ‑ in Gillard.

BELL J: In Gillard, and it is mentioned in Clayton, and what is identified as the basis for the principle is that to associate yourself with a criminal enterprise, lending your support to that enterprise, having the foresight necessary in the event of murder, for example, supplies the necessary basis in terms of theory for why culpability should be imposed. Now, that is what was said in Clayton and at some stage I think you need to deal with that.

MR GAME: Your Honour, we do submit that putting the thing the wrong way around to ask questions about policy, one needs to identify what are the underlying principles that make a person liable for murder, do those principles stand up and do they hold good throughout the criminal law.

BELL J: Your argument assumes that ‑ you adopt the view that joint criminal enterprise is accessorial.

MR GAME: Joint criminal enterprise can be primary or derivative but extended joint criminal enterprise is only derivative.

BELL J: I am sorry?

MR GAME: Joint criminal enterprise can be primary or derivative but extended joint criminal enterprise can only be derivative.

BELL J: Yes, but going back to joint criminal enterprise because, as your argument would have it, extended joint criminal enterprise should form no part of the criminal law.

MR GAME: That is right.

BELL J: So let us go back to joint criminal enterprise, putting to one side a Mohan type circumstance, your contention is that it is a form of accessorial liability.

MR GAME: Yes. It is a way of establishing accessorial liability.

BELL J: Yes.

MR GAME: Johns is a very good example of that. We say it is a mistake to see it as some separate thing. In fact, the directions given on joint criminal enterprise have buried in them the very proposition that they are derivative because it requires the commission of the other offence by the other person with the appropriate state of mind, but that would not be a requirement if it was primary.

But coming back to your Honour Justice Kiefel’s question, we would submit it is a very slippery way to deal with underlying principles to say it is a good thing to control people by this means or that means, for a court to say that. But even if one says that, on the other side of it, we have a situation where my client who is a 20‑year‑old Aboriginal with very few convictions who gets involved in this melee is in exactly the same position as Mr Betts who was the person who stabbed and they both get non‑parole periods of 20 years. The point being that there is no way of differentiating between the individuals on the question of sentence. There is no room for saying – it is a stark kind of demonstration of the need to be rigorous about what it is that one is actually identifying as the basis of liability.

BELL J: That is in a case where, as it happens, there is no issue as to the identity of one of a group whose act caused death ‑ ‑ ‑

MR GAME: That is right.

BELL J: ‑ ‑ ‑ whereas when one looks at the principles one is concerned with their application in a variety of cases not infrequently where it cannot be established who did the act causing death.

MR GAME: Yes, but can I say this? We say that armed with, shall I say, Johns, Markby and Giorgianni, the law relating to primary liability and derivative liability there is no gap left, there is no problem to be resolved. And it might have been that the Crown had to make a little bit more effort to establish liability and some were acquitted and others were convicted, but that is not to say that there is some positive policy of roping in everybody, where the focus switches inevitably when you engage in this exercise to not what did they agree to or assent to but ideas about who knew what about what other people had becomes the question. That is where it switches to.

FRENCH CJ: That might be a convenient moment, Mr Game. The Court will adjourn until 2.15 pm.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

FRENCH CJ: Yes, Mr Game.

MR GAME: Thank you, your Honour. I just wanted to pick up a couple of points. Your Honour Justice Kiefel asked me some questions about policy and I should have said that the point of distinction is not between guilty of murder and an outright acquittal, but if you have an unlawful and dangerous act to which the person is a party then you clearly have a case of manslaughter. Something I said in a roundabout way but, perhaps, I should emphasise is that we say that one has to start from principle, not the other way - and one has to work out what the measure of responsibility is in terms of basal concepts in criminal law.

In respect of your Honour Justice Bell and J.C. Smith – which I had another look at over lunch – what I was going to say was this, your Honour, that the principle that J.C. Smith says is not in doubt is the Article 41 proposition about probable consequences which is not what is being talked about in Chan.

BELL J: If we are reading the same article, I rather thought Professor Smith went on to say, taking his history from Sir Michael Foster, moving through Stephen’s Digest to Russell on Crime under the editorship of Dr Turner – I understood him to say what one sees in Chan is a narrowing of an understood basis of liability for a crime that is not the agreed crime and the narrowing is introducing the notion of subjectivity. I thought he explains that it is not quite clear what Sir Michael Foster meant by “objectively probable crime” and that Chan settles on subject in foresight or possible crime.

MR GAME: Yes, but where the “possible” comes from is from the language of contingent intention cases and where the language of Anderson, Smith and Betty comes from is from the exclusion to Article 38, which is things not within the common purpose. That is where Chan, in my submission, is really coming from. I will not labour it but the passage I had in mind is the same article and it is at page 456 of that article.

On the question about Clayton and questions of primary and derivative liability, could I just take the Court to Clayton in the ALJR report at pages 443 to 444, paragraphs [18] to [20]? Now, in paragraph [20], there is the passage I had in mind, reference to a Professor Simester:

As that author demonstrates, liability as an aider and abettor is grounded in the secondary party’s contribution to another’s crime. By contrast, in joint enterprise cases –

That is what I had in mind. It does not go quite so far as saying primary, but that is the passage that I had in mind. While I am on Clayton, one sees the considerations there for not reconsidering but we would say that when one looks at paragraphs [17], [18] and [19] and particularly footnote 6, the landscape is so changed by Jogee that those considerations are really swept aside. That is my real point about it.

A point about Miller which is – Miller is one of the cases that relied on Chan and what I just wanted to say about Miller is that we put Miller as a contingent intention case which is based on this. So, Miller goes along with Worrell. Worrell sometimes murders people who he has had sexual intercourse - or rapes them. But after the first time what is happening, we submit, is that Miller is agreeing that he will help him as and when it happens that on particular occasions he murders people.

So that is a case that is described as a common purpose. It is hard to find a foundational common purpose except an ad hoc common purpose to commit murder. But it is easily rationalised as a contingent intention case. If you decide to kill the person, I am going to help you – and, in fact, I got you here and I am going to get you here again next time. So that is how we say Miller is rationalised.

Then, I wanted to say something briefly about and to take your Honours to McAuliffe and to put McAuliffe in its historical context. We say that the UK Supreme Court got McAuliffe right, that is to say, they correctly understood what had been decided in McAuliffe. One could see that by examining the joint judgement, and I will just take your Honours to a few passages. If one looks at page 113, about point 2, that is the direction that was given:

he contemplated the intentional infliction of grievous bodily harm . . . as a possible incident –

of the common criminal enterprise to belt whoever it was in this area. Now again, I have made this point before, but it is such a short step from agreeing to bash somebody to intentional infliction of grievous bodily harm that one wonders why one even needs to talk about it, and authorisation and foresight might involve very similar ideas in a case such as this – in a case such as McAuliffe. So that is the direction that is given. Then we see at page 114, second paragraph – the paragraph that begins “Not only that”. That is about contingencies and about common purpose:

the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose.

Then at the bottom of the page there is a reference to Johns. Now, it is not quite correct to say that the question was whether the common purpose extended to possible consequences unless you come to it by appreciating that what was being discussed in Johns was a shared contingency.

That is important to understand because if one does not appreciate that then one can slip from authorisation to foresight and then one takes out authorisation and then one is just left with foresight which is where it ends up in this case. So, then we have discussion of – a reference to Chan – sorry, on page 115, there is a reference to the joint judgment and we say there is nothing controversial in that passage that is referred to. In the passage that begins:

In Johns the Court confined its attention to the scope of the common purpose –

and for reasons I have given before, that is not quite correct because it was alive and relevant as considered in the Court of Criminal Appeal and I have been through that, but then at the bottom of the page:

The question . . . which lay outside the scope of the common purpose or agreement, but within the contemplation of the secondary party.

Then importantly, it says:

No explicit answer to that question was provided by the Privy Council in Chan Wing‑Siu v The Queen –

and we say that is correct, no explicit answer was and then one sees in reference to Chan, those two quoted passages but I took you to those two quoted passages and they are in different parts of the judgment and the first is in the context of the consideration of Anderson and accessorial liability and the exclusion, namely things outside the common purpose and the second is what is said to be maybe an appropriate direction.

But if you just put those two things together one would be left with an impression that one followed seamlessly from the other. Then we see 117. We see consideration of Hui – sorry, I should have said this. At page 116 – I gave your Honours a pretty potted history about this before lunch, but what happened with Professor Smith and his comments and what happened after that and then Hui.

So what has happened is this. By the time of Hui the thinking has changed in the intermediate and ultimate appeal courts in the United Kingdom. The distinction between authorisation and contemplation has taken place and it has been severed. So that by the time one gets to that passage from the speech in Hui Chi authorisation has gone. Then, 117 through to 118, we now have matters beyond the scope of the agreement – not tacitly agreed to but contemplated by a party. It is said at 118:

That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime . . . may be convicted as a party to it.

It is reading too much into that to say that their Honours are saying that equals aiding and abetting. It is not. It is not clear but we have already sought to show how that is not correct in fact. But I do not think their Honours are necessarily saying that they are the same thing. Then the next passage is the one where it has approved the direction we saw back at page 113:

a common purpose – to inflict . . . or an individual contemplation of the intentional infliction of grievous bodily harm as a possible incident of the venture –

Those are the words that we saw. So subject to causation which comes then, that is the principle and that is the principle which has emerged through the line of cases interpreted in Chan being Johns, Anderson, Miller which we say stand for different propositions in that they were - were taken to express in Chan - Chan still leaving authorisation linked to contemplation or contemplation linked to authorisation, then a pointing out of the distinction by Professor Smith, then a further change in the English cases and then it is picked up here. That is how it has happened.

There is no doubt, in our submission, that we have come a long way from what were said to be ordinary common purpose principles prior to Chan and then prior to McAuliffe. We say that the UK Supreme Court was quite right to say there have been a number of missteps and those missteps have given rise to a freestanding principle which has no place in the common law. That is our basic argument.

So that is actually all I want to say about our basic submissions. Then if we come back to our document at paragraphs 7 and 8, I will not take your Honours through them but those we say are the critical passages both in the prosecutor’s address and how the matter was left, but they are not inconsistent with what we saw in those two passages – sorry in the written directions that I took your Honours to. That is all I wanted to say about the directions.

So that leaves the last question from our perspective. We put our argument in a slightly different way than is put on behalf of the appellant, Miller. The way we put our submission is ‑ ‑ ‑

BELL J: I am sorry, are you about to move to intoxicating?

MR GAME: Yes, I am about to.

BELL J: Just before you do ‑ ‑ ‑

MR GAME: I thought I had got away from you, but no.

BELL J: Can I just raise this with you?

MR GAME: Yes, certainly, your Honour. I did not try to get away from you.

BELL J: It is slightly tangential but I understood you to say that among the errors that have infected the development of the common law was the statement in Stephen’s Digest of the Criminal Law in Article 41 as a basis for attributing criminal responsibility.

MR GAME: Yes. Your Honour, what I do is I adopt what is said about it in Jogee and there is a specific passage which, if I can ‑ ‑ ‑

BELL J: Can I just take this up with you?

MR GAME: Yes, your Honour.

BELL J: It would seem that the Code States adopted as - in the Queensland Code, for example, in section 48, the provision for a common purpose ‑ ‑ ‑

MR GAME: Yes, your Honour, they did.

BELL J: That seems to be in fact adopting the law that one can trace right back to Sir Michael Foster’s statement of it in Crown Law, so that one has in the Australian context, when one looks at concepts of criminal responsibility and what is a principled basis for the attribution of liability, recognition that at least in the States that have adopted the Code the error, as you would characterise it, in the Stephen Digest - and though it leads to a result somewhat different to the development of the common law expounded in McAuliffe, there is broadly a comparable liability in the sense that liability attaches for the resulting offence based on the fact that two or more persons have formed an intention to prosecute one unlawful purpose and there has been objectively in the Code States, as a probable consequence of the commission of the offence, on the common law in McAuliffe there has been the foresight of the possibility of the offence.

It is just when you seek to make an argument that the common law of Australia has gone wrong, perhaps somewhere in all of this there is an idea about coherence in the statement of the common law of Australia in a context that includes recognition of the criminal law as it applies in the Code States.

MR GAME: Yes, except that in Brennan, I may be overstating it, but I think it was said that the common law does not form part of what is consideration in respect of the Code provision, and then in Johns, appeals to probabilities from Article 41 are rejected, so that is a ‑ ‑ ‑

BELL J: I understand that. It is more ‑ ‑ ‑

MR GAME: I understand what – I understand the problem.

BELL J: On your argument, this basis of liability goes out the door.

MR GAME: Yes.

BELL J: You are not making an argument for a more confined basis for extended joint criminal enterprise. You argue the entire foundation for the doctrine lacks principle, and it is in that context that I am raising ‑ ‑ ‑

MR GAME: Yes, I should just say this - and I have probably said it more than once – in the realm of contingencies, my argument is it does not make any difference whether it is possible or probable because it is – well, we really do not want this to happen but it might and then it would be terrible but then we will have to kill the person.

So that is not – but what I say about this is that true enough, what was in Stephen’s Restatement found its way into the Code, but you do not get from the idea of probable consequences to a – probable consequences of – and the language of Articles 38 and 41 seem to be different. One is about common purpose and the other is about an instigator or an aider and – so they seem to be directed to slightly different circumstances, because it talks about – of what B did under the influence and at the instigation of A. It has a kind of different sense to it. But one does not get from an objective probability to a subjectively perceived possibility. They are different ideas.

BELL J: No, and in that sense the common law has been narrowed but ‑ ‑ ‑

MR GAME: Not really. It has been – not really because who cares about the – once you go from an actual probability to a possibility, as soon as you know the person has something, then it is very easy to infer that they sought – subjectively inferred a possibility. That is saying – it is too much to say that the law has got more strict. It has got far more limited.

But also that is not what Sir Robin Cooke was talking about in Chan. He was talking about ideas that came from the common purpose proposition and the exclusion and a sort of a mix‑up about contingent intention. That is where we say it came from, not from Article 41. So it not to say for a second that ideas of common purpose did not subsist in the common law, and they did, and juries were directed about common purpose. In my life I had never heard of joint criminal enterprise until the mid – until early 1990s.

BELL J: But if you had been practising in Queensland then you might have had to deal with the concept that when two or more people prosecute an unlawful purpose they bear criminal liability for a crime that was not the subject of the agreement but that was a probable consequence of prosecuting that purpose.

MR GAME: Yes, your Honour, but it is not a trivial observation to say that in an intermediate court, such as the New South Wales Court of Criminal Appeal, it was said if you want to allege a common purpose you have to have explicit evidence about it and that is what that group of cases I referred to. They enunciated it, and what happened after that was Tangye was an attempt to kind of try and bring reason to the thing after these cases. But yes, I am not shying away from that, and I am not sliding down the precipice, but paragraphs 21 and following in Jogee are the addressing of this particular question and that is what I had in mind, so yes, I am now leaving Jogee and McAuliffe.

So then, with respect to the submission about the safety of the verdict, I am putting my case in a slightly different way than is put on behalf of Miller and what I say is this. If you go to page 1799 of the volume 4 – apart from earlier in respect of Miller at 1774 citing M v The Queen and then this, there is absolutely no addressing of the court of the question.

Now, our position is that this Court is in no position to assess the question either but this demonstrates a defective treatment of the subject and I will take you back to some of the passages. Then that makes this case a case like Cornwell – I have not put it on our list – where Mr Cornwell himself put on grounds in this Court that the verdict was unsafe and I argued it for him, we cannot persuade you it is unsafe but we can persuade you that the court did not deal with the issue properly and it was remitted to the Court of Criminal Appeal to deal with that, and we say that is the situation.

If I can just seek to make this proposition good, first of all, it is worth noting – just if your Honours go to 1746 in the remarks on sentence, one sees at lines 30 to 50 that Justice Stanley who has been there throughout the trial is unable to make findings about what he actually did and I just refer to that to make the point that there is a serious question to be determined, and if you go back to 1799, one would not know whether or not the court was deciding the verdict was safe on the basis of joint criminal enterprise or extended joint criminal enterprise or one or the other or on the basis of acceptance of what evidence.

If one then goes in the Court of Criminal Appeal’s judgment just back a little to – the case dealing with my client’s appeal is at page 1790 and following. What you see on page 1791 through to 1794 is all just a summary – sorry, it is at 1793 – is a summary of the evidence. Then there is a discussion about lies and then, at 1795, paragraph 142, more summary of the evidence and then there is an argument about some directions and then that is it.

Now, if you go back to the summing‑up, and I will just take your Honours back to the summing‑up - if you go back to the summing‑up, the passage that we just saw concluded at 1780 and then it picks up again - there is a long discussion and then what appears at 1789, that is set out in the judgment of the Court of Criminal Appeal in 1689, and then the whole of the discussion about the different cases at 1692, 1693 and then critically from our perspective, 1694 and 1695, about intoxication and 1696, no mention of any of them.

So my point is this, that if one is going to deal with the question of unsafe, one had to grapple with those questions and one had to say on what basis the verdict could be supported. We have pointed out in the submissions that the prosecutor’s almost entire submissions related to extended joint criminal enterprise and we have set out the passages there at paragraph 7 of our document.

So my point is that what one in fact sees here is a failure of the court to address themselves properly to the ground and that they had to address those issues that are, shall I say, the critical issues between the parties, but particularly the defence submission about intoxication. None of those issues are expounded and that is a failure of the same kind as occurred in Cornwell.

BELL J: The complaint, though it focuses on intoxication, is not limited to that?

MR GAME: That is right. It is not limited to that, no. So what I am saying is that you would uphold this ground. The ground says that the verdict cannot be supported but within that ground you could conclude that we had persuaded you that they did not properly address that question which is the same as occurred in Cornwell and that would mean that the ground was upheld and the ground was remitted to the Court of Criminal Appeal to be addressed by it and we say that is a conventional way of putting it. Those are our submissions, if the Court pleases.

FRENCH CJ: Yes, thank you, Mr Game. Yes, Ms Shaw.

MS SHAW: If the Court pleases. The Court has received the applicant press release outlined by argument, if I could invite the Court to read that whilst we set up papers.

FRENCH CJ: Yes, thank you, Ms Shaw.

MS SHAW: If the Court pleases. Like the applicant, Smith, we also have an application to amend the application for special leave in relation to the finding that liability for murder under the common law doctrine of extended joint criminal enterprise requires foresight. That is the Jogee point. That is in the applicant, Presley’s appeal book at page 82 and we indicate to the Court that we do not propose to make further oral submissions but will be adopting, relying upon these submissions on behalf of the applicant, Smith, and written submissions that we have provided.

FRENCH CJ: Yes.

MS SHAW: Your Honours‑ ‑ ‑

FRENCH CJ: Just wait a minute, Ms Shaw. Leave is not opposed?

MS ABRAHAM: No, it is not.

FRENCH CJ: Yes, you have that leave.

MS SHAW: Thank you, your Honours. Your Honours, the prime aspect upon which this application for special leave is grounded and, if special leave is granted, the appeal, concerns the unreasonable verdict ground and broadly we submit that the Court of Criminal Appeal erred in a number of critical respects in its treatment of that ground of appeal.

We submit that, given what the evidence showed in relation to the applicant Presley’s intoxication, the critical question was whether, in the drawing of inferences as to Presley’s intention or state of awareness, innocent hypotheses such as that Presley intended to cause harm to Mr King, but relevantly had no other intent, plan or particular thought process could be negatived, as they had to be.

As part of this contention, it is necessary to address the conduct or evidence of conduct relied upon by the prosecution which is said to provide circumstantial evidence from which the relevant inferences can be drawn. We submit that the evidence is manifestly deficient to exclude those other inferences, but particularly so when one is dealing with an 18‑year‑old intoxicated indigenous young man.

I propose to set out some background before I move to the points in the outline, but clearly there are two counts on the information and Mr Presley in relation to the second count, which was aggravated causing harm with intent to cause harm in respect of Mr King, pleaded guilty on his arraignment. The particulars of that second count alleged by way of aggravation as against all accused were that they used a baseball bat and a pole against Mr King. As it transpired, the jury did not find that circumstance of aggravation proved, and that is at the Miller appeal book at 1720 through to 1724.

Mr Presley not only entered that plea on his arraignment, but he had admitted that relevant conduct in a record of interview with the police on 22 December 2012, and that record of interview is contained in Presley’s appeal book at page 40. Key points in relation to the account he gave, bearing in mind that he was arrested on 13 December, he was in custody and it appears from the transcript that he requested to speak to the police, he did not have the assistance of either a field officer or a solicitor. But during that interview he admitted hitting who we now know to be Mr King with a baseball bat and essentially leaving, but denied any involvement in the attack on Mr Hall.

Indeed, his account was that there was this initial altercation and when they had returned to Mr Presley’s parent’s home he there was shown by Betts – this is at the appeal book page 48 – that he had been struck, and then Mr Presley said at Presley appeal book page 52, he flipped out, got his baseball bat and returned to the alleyway. On his account, insofar as his conduct towards Mr King was concerned, he only saw Mr Hall on the ground as people were spreading away from him and did not have any involvement with him or assault him in any way. That is at page 56 to 57 of the Presley appeal book.

He said he chased and struck Mr King with the baseball bat on the elbow and left the scene, and that is at page 57 of that appeal book, and he said importantly that during the time he was involved in that second visit to that area he did not see Mr Betts at all, and that is at page 58 of the appeal book. The prosecution case was that he had either participated in the assault on Mr Hall as part of a joint enterprise with Mr Betts; alternatively the prosecution case was that he must have appreciated that Mr Betts or one of the others might act with intent to cause grievous bodily harm to Mr Hall on the basis, including that Mr Betts had a large knife.

Your Honours, when reading the applicant’s record of interview, we submit it is important to know that it is apparent from his account that when answering questions he was partially relying on things he had been told later. For example, at the Presley appeal book at page 59, he said that he thought Josh Betts had a knife but it is apparent from later answers that, on his account, he did not see Mr Betts stab Mr Hall, at the appeal book page 59, and indeed, he heard that this had occurred for the first time when he was in the cells, and that is at Presley appeal book page 60.

On his account, he did not go to the scene with Mr Betts but was probably with or near Mr Smith as he returned to that alleyway, and that is at page 55. Insofar as it might be – inferences are sought to be drawn that they acted in concert, we rely on the appellant Miller’s submissions, but also insofar as Presley is concerned, in terms of inferences of not only concert but appreciation of the likely behaviour of others, it appears that Mr Presley did not know Mr Miller by name, that is at Presley appeal book page 44, and indeed, while he agreed there was a person who drove an Hyundai at Presley appeal book page 52, he did not appear to know the witness, Gary Willis.

If I can turn to our first point in our outline, in relation to the charge of murder against Mr Presley, as I have said, two routes to deal with it were left by the trial judge were firstly that he was a party to a joint enterprise that had at its object or within its contemplation an attack on Mr Hall with weapons accompanied by an intention to cause grievous bodily harm, and secondly, that he was a party to a joint criminal enterprise to commit some lesser crime but that contemplated the possibility that one of those who accompanied him would inflict really serious harm with the intention of doing so and he participated nevertheless.

It should be noted that the prosecution did not allege an agreement or an understanding to kill. That is made plain by the summing‑up at the Miller appeal book page 1453, and further, it is to be noted that there was no evidence of any verbal agreement that the prosecution had led the evidence from Mr Willis that the appellant Miller has referred to that Mr Presley had said “Let’s go back and see what these people – go and see what the problem is”, his evidence at appeal book 616.

Therefore, the case on joint enterprise was necessarily one that the parties reached an implied agreement. There is, of course, we submit, no way of knowing on which basis the jury found Presley liable for the murder of Mr Hall, that is, whether it was pursuant to a joint enterprise or on the basis of extended joint enterprise, but it will be submitted that a conviction on either basis was relevantly dangerous and it was important for the Court of Criminal Appeal to consider both routes to guilt in determining the ground that the verdict was unreasonable and against the weight of the evidence.

If I can then move to point 2, on appeal to the Court of Criminal Appeal Mr Presley complained about the inadequate directions as to the effect of intoxication in relation to liability for murder, which is ground 6, and he also specifically relied on intoxication in arguing that the verdict was unreasonable and not supported by the evidence which was particular 12.6 under ground 12.

Before the Court of Criminal Appeal there were challenges to the directions on intoxication, challenges to the correctness of the learned trial judge leaving extended joint enterprise and, importantly, challenge as to whether the verdict was unreasonable. The latter challenge centred upon intoxication but inevitably it required a consideration of all the relevant evidence from which inferences might be drawn and, more importantly, innocent inferences negatived. Regarding whether Presley had entered into an agreement with a particular scope and acted intentionally pursuant to that agreement, that is joint enterprise, and/or that he had contemplated the possibility that others would act with murderous intent but decided to participate nevertheless, that is extended joint enterprise.

If I can ask to take up book 4 in relation to the judgment of the Court of Appeal and just referring briefly to the way in which the Court proceeded to address the unsafe ground, at page 1769, the Court, at paragraph 35 set out briefly what appeared in Mr Presley’s record of interview, and then at paragraphs 36 to 41 set out what in essence was the Crown case at its highest. It dealt with extended joint enterprise at page 1786 and dealt with – I apologise to the Court, going back to 1781 – the directions on intoxication, which were set out in some detail at paragraph 89, that is the complaints, and holding at paragraph 95 that the directions on intoxication are adequate.

However, when the Court came to deal with its reasons for rejecting the complaint that the verdict was unreasonable and against the weight of the evidence, the Court did so in a single paragraph and posed for itself the question in the final sentence, or in the second sentence, that they had set out – the page reference is 1786, your Honours, at paragraph 109. The Court noted it had set out earlier the prosecution case against Mr Presley, which I have taken the Court to, and identified the evidence to support that case, and their reasoning in relation to rejection of the ground was:

In our view, the evidence allowed the jury to conclude that Presley was present and did participate in the attack on Mr

It is plain from that single sentence and paragraph that the court did not consider intoxication in any respect in their evaluation of the evidence and nor whether what ought to be its importance of impact, depending on whether the jury had reasoned on the basis of joint enterprise or extended joint enterprise.

In other words, it is our submission that the Court of Appeal appears to have concluded that it was open in the relevant sense to conclude that Presley was present and participated in the attack on Mr Hall and did so with the necessary criminal intent without explaining what was meant by that intent. One of the difficulties, we submit, with this conclusion, apart from whether it was actually the product of a proper review of the evidence, is that it does not account for the possibility and, we would submit, the likelihood that the jury did not find that Presley participated in the attack on Hall and did not find a joint enterprise to inflict grievous bodily harm but convicted on the basis of extended joint enterprise, and on that hypothesis, namely, if the applicant was convicted on that basis, the Court of Appeal was required to consider whether a verdict based on extended joint enterprise was safe in the relevant sense.

BELL J: Well, the court was not concerned with the path of reasoning of the jury, was it? Surely it was concerned with whether, in light of its review of the transcript of the trial and the whole of the record, it was open to be satisfied that guilt was established beyond reasonable doubt. That did not involve speculating about which way the jury happened to have reasoned.

MS SHAW: Your Honour, in our submission, if there is more than one route to guilt that is left to a jury, and the jury may have adopted one of those routes and the court is not to know, then it is incumbent on the court to determine whether or not either or any of the routes left to the jury was indeed a safe route for the jury to act upon. I accept if one was moving to the proviso question, namely, whether or not there was a substantial miscarriage of justice, or there was not, then ‑ ‑ ‑

BELL J: But this was a contention that the evidence did not support the verdict, was it not? Was not that your ground?

MS SHAW: Yes, but that ‑ ‑ ‑

BELL J: Yes. Well, now in determining that ground, the court was not speculating about what path the jury might have taken, surely?

MS SHAW: Well, our submission is we are not ‑ I am not submitting the court was required to speculate. What we submit is that the court was required to acknowledge that the jury were directed that they were entitled to return a verdict on either ground and it is not to give the accused his right to an independent review on an unsafe ground, that only one of those routes to liability was considered by the court if, indeed, the jury may have acted or returned their verdict on the other.

In other words, it was necessary for the court to consider whether or not the verdict was unsafe on whatever might have been the grounds that the judge directed the jury they were entitled to act under in the same way that if a summing‑up is attacked because there is a misdirection about one route to guilt then that necessarily would create a risk of a miscarriage because the jury may have proceeded to find guilt through that – based on that error even if there was other evidence that might support the verdict and perhaps, if I can add this conclusory point that we submit on either basis, that is, on joint criminal enterprise or on extended liability, the verdict was unsafe.

BELL J: That is principally because of the question of intoxication. Is that so?

MS SHAW: Encompassed and surrounded by the other factors such as the age, the circumstances in which these events occurred – it all happened quickly ‑ ‑ ‑

BELL J: Well, what does that mean – the circumstances in ‑ ‑ ‑

MS SHAW: It means that there is no opportunity for premeditation, that is, that one is drawing inferences as to his intent and his awareness and appreciation of what is going on around him in order to arrive at proof of his intent and knowledge. Therefore, the whole circumstances in which the event occurs necessarily arises.

In other words, if this was intoxication raised where these gentlemen had been back at Mr Presley’s house for some three hours and they had been planning that they were going to go back to that street and, even though they were very drunk, the inference that you might draw as to whether or not they turn their mind to the possibility that someone else – one of their group – might have engaged or contemplated or inflicted grievous bodily harm would be different as compared to a group that essentially comes running back and then, as the appellant, Miller, has pointed out, went in sequence or not together to the event, that is fundamentally where intoxication is relevant is that in order to prove either joint enterprise liability or extended liability the prosecution must prove a particular thought process or a particular intention or a particular awareness of facts.

Whether or not that inference can be drawn, that is, whether you can draw the inference that Mr Presley turned his mind to an agreement and deliberately entered into that agreement with others which had, as a possibility, that one of their members might fatally inflict grievous bodily harm and intending to do so, has to be adjudged in the context of his state of intoxication.

The way in which that is expressed, or has been expressed, in the cases that we refer to in our outline commencing with obviously the High Court in O’Connor and then with decisions such as Faure from Victoria and also Shinner and Winfield in South Australia is that the inferences you might draw from conduct or the inferences you might draw as to someone’s appreciation of surrounding circumstances might have one result if you are dealing with a sober person, but if you are dealing with an intoxicated person who is involved in an unpremeditated and chaotic series of events - are quite different.

In our respectful submission, it is in that respect that the question of intoxication in conjunction with the circumstances in which these events evolved becomes important, and in conjunction with whether or not one is dealing with a sophisticated individual who is inferentially – you could infer would turn his mind to this, or would not, or whether you are dealing with someone who is quite unsophisticated and simply is reacting in anger to something that occurred, having seen or heard or known of the injury when he returned to Mr Betts, he returns and strikes the person who injured Mr Betts.

So, in our respectful submission, if I can then turn to the prosecution case, that is, where the court at 109 in their reasoning as to the disposal of this ground said in the second sentence:

Earlier in these reasons we have set out the prosecution case against Presley of his presence and participation. We have identified the evidence led in the trial to support this case.

If one goes back to page 1769 where that is set out, your Honours will see that what the court did was to identify the evidence led by the prosecution at its highest without any analysis and without any recognition of the inconsistencies and conflicts and counter‑evidence that pertained to each of those items of evidence.

So, for example, in relation to the first point – and these are the points that the Crown have relied on here - in relation to the evidence of Ms Bateman, it is plain that – it is true that Ms Bateman did identify Mr Presley from a photographic array and that – as one of the men seen earlier wearing a basketball top. However, Ms Bateman’s evidence was in conflict, firstly with the evidence of Ms Turner, who said that this person was topless, that he had no top, and was carrying a pole.

There was a range of evidence from other witnesses that I can come to that set out that Mr Presley, both before and after these events, was not wearing a top. So the court has not addressed the objective fact that on - really the undisputed evidence was – or certainly the majority of the evidence was that Mr Presley had not been wearing a top during that day, on that night, and even when the police attended. Ms Bateman’s evidence was that the only reason or the only basis she identified him as the person she had seen earlier was his clothing, namely, his basketball top.

But she said there were two people with basketball tops and she also said that at the same time as she made this observation there were two persons attacking Mr King and the two persons she described as attacking Mr King, including one person who could have been topless and who was wearing a baseball cap, which is the description that Mr King gave to our client, and the two persons attacking Mr King, Ms Bateman said both had something in their hands and one had a pole.

Mr King said that the two people attacking him did both have something in their hands and one of them included Mr Presley – that is, in the sense that he identified him as one of the people whom he had seen earlier, at the first altercation.

Thirdly, in relation to Ms Bateman’s evidence, she said that the persons who were assaulting Mr King commenced to assault him before Mr Hall was attacked and continued to assault him until the dog was let out and those attacking Mr Hall ran away and then Mr King’s attackers followed.

So in effect, Ms Bateman’s evidence was that, although she described a person who she identified by reason of a basketball top attacking Mr Hall, at the same time she was describing two persons attacking Mr King, one of whom she could not say was topless and both of whom had implements. None of that is addressed by the Court.

In Ms Turner’s case, although she described a person wearing silk shorts but no top kicking Mr Hall during the assault, Ms Turner’s evidence was subject to her observation that indeed there were nine people involved in this ‑ ‑ ‑

FRENCH CJ: How does this relate to your ground 2.4, which, as I understood it, was focusing upon intoxication and its effect upon state of mind and the safeness of any inference about state of mind because of that evidence?

MS SHAW: Your Honour, because the state of mind and intoxication necessarily – its effect and his state of mind necessarily is a product of the surrounding circumstances but insofar as the draft notice of appeal was concerned did include 2.5 as an unsafe ground and 2.4 was, in essence, a particular of 2.5. But our submission is that, in essence, the court has not considered intoxication in the context of its summary of the Crown case and what it drew back to.

In concluding that it was unsafe without considering intoxication, it did not conduct any analysis of that evidence at all and simply in relation to Ms Turner, for example, her evidence was that the person she saw who was topless and wearing silver shorts was definitely not the person who had been earlier at the altercation, that is, it was definitely not Mr Presley.

So, your Honours, in our respectful submission, the way in which it was necessary for the court to consider intoxication was that it needed to be had regard to. In terms of drawing inferences as to the critical issue on joint enterprise as to whether or not the accused intentionally entered into an agreement of a relevant kind and, secondly, in relation to extended joint enterprise, whether he appreciated the possibility of how others might intentionally act, both of those thought processes which were dependent upon his awareness and knowledge would, in our respectful submission, necessarily be affected by intoxication.

So, in our respectful submission, where a court is considering the question of unsafe and unsatisfactory, even where conduct typically bespeaks an intention such as, for example, the violent thrusting of a knife into the upper portion of a person’s body, surrounding facts and circumstances must be considered to see whether other rational hypotheses, other than that there was a specific intent to kill, for example, must be examined.

We refer to the decision of this Court in Cutter v The Queen (1997) 71 ALJR 638 as an example of the Court holding that where a question of specific intent arises not only the question of intoxication but the surrounding circumstances must be considered. In essence, the Court held in that case that although the prisoner who was being arrested thrust a knife in the direction of the victim’s throat – bearing in mind the high agitation and some level of intoxication – it was necessary to consider whether a rational hypothesis, other than that he had the specific intent to kill, could be excluded. This Court held in that case that it could not be excluded.

In our respectful submission, not only was intoxication relevant to whether or not one could infer that the specific intent was formed, it was also relevant to whether or not subsidiary facts, or facts connected with the main fact, had to be established from which a conclusion followed as a rational inference, in fact, could be drawn. We refer in that respect to what this Court said in Knight v The Queen (1992) 175 CLR 495, No 4 on our list, and in the judgment of the plurality at page 502.

Again, the Court was there not referring to what were necessarily the elements of the offence but other facts that were relevant to proof of the Crown case, in this case, for example, in particular an awareness and having a thought that another person in the group might perform an act and having the thought that another person in that group might actually form the intention to cause grievous bodily harm.

The second area, of course, where it is very relevant in this case, that is, the inferences to be drawn from conduct, is the establishment that the accused, Presley, knew that one amongst them had a knife or that Mr Betts had a knife. Of course, the Crown argued that that was an inference that was open and, again, whether or not it could be proved that Mr Presley was aware, or knew, that Mr Betts had a knife was a matter in respect of which intoxication – his intoxication – was important. Did he have that thought process? Did he turn his mind to it? Can the rational hypothesis be excluded that he did not?

So, your Honours, in our respectful submission, here where intoxication impacts upon the inference that can be drawn, not just from the accused’s conduct, but also as to his knowledge of the possibility of the intention of those around him, the same basic principle applies, that is, that the test is whether the prosecution can exclude other rational hypotheses, bearing in mind that the accused is intoxicated and therefore can they exclude the rational hypothesis that he simply did not think, that is, he did not turn his mind to the specific intent of somebody else or turn his mind to entering an agreement that included the intentional infliction of grievous bodily harm.

In our respectful submission, the safety of drawing such inferences is affected by the presence of intoxication because it clearly affects one’s powers of reasoning, observation and deduction and also that may be manifest in the lack of predictability of the intention from actions. So, in our submission, in the present case, intoxication did bear upon the extent to which inferences could be drawn, not only as to the critical ultimate issues of the mental state in relation to the two routes left to the jury, but also upon those subsidiary inferences.

If I can then come to point 6 in our outline, we make the submission that it is erroneous to approach the case from the perspective that the central relevance of intoxication was as to whether it deprived the applicant of the capacity to form the intention. Rather, we submit, it bore upon, as we have said, firstly the drawing of the necessary inferences with respect to the applicant’s state of mind, the question being not whether the applicant could have, but whether he did form the required state of mind or intention; and secondly, the drawing of inference as to his knowledge or awareness of subsidiary facts and circumstances which might in turn found these inferences

In our respectful submission, the fact that intoxication bears upon more than capacity is established by this Court in O’Connor (1980) 146 CLR 64. In our respectful submission, critically the relevance of intoxication to offences requiring proof of specific intent in respect of which murder has been regarded as falling in that category, is that it goes not just to voluntariness, nor to the question of whether or not the accused intended the physical act, but to the question of whether the accused intended the outcome which constitutes the offence.

FRENCH CJ: Well, you would say essentially it goes to all states of mind relevant to liability.

MS SHAW: That is right, in the same way that a witness ‑ a jury is warned about a witness’s powers of observation, if they have been affected. In the same way in a rape case, intoxication goes to the appreciation of whether or not a complainant may or may not be consenting which was discussed by the Victoria Court of Appeal in a case of R v MC [2009] VSCA 122 but is well known in cases of rape that intoxication is relevant as to whether or not an accused, or the Crown have excluded the hypothesis that because of intoxication, he did not appreciate or they cannot prove that the complainant was not consenting, even indeed if it is established that she was not.

Now, your Honours, we also have referred to the case of Wingfield, as an example, in (1994) 176 LSJS 16, at page 18 in our outline, where former Chief Justice King made it plain that the real question may not be whether the accused was capable of forming the intention but whether in fact he informed it and, critically, intoxication ‑ ‑ ‑

FRENCH CJ: Well, that is just another way of saying whether a jury could have been satisfied beyond reasonable doubt.

MS SHAW: Not that he had the ability to form the intent but that in fact he did form the intent.

FRENCH CJ: Yes.

MS SHAW: That is the distinction. I apologise, your Honour. So, if I can then turn to point 7 in relation to joint criminal enterprise simpliciter. The prosecution was required to prove beyond reasonable doubt that Mr Presley agreed with the others to a particular enterprise which had as its object, or within its contemplation, the intentional infliction of grievous bodily harm.

That agreement had to extend not just to the risk of causing grievous bodily harm, but to the intentional causing of grievous bodily harm, because of intoxication, can the Crown exclude the hypothesis that Presley simply did not turn his mind to that. That when the agreement is implied, how can the Crown exclude the hypothesis that he simply was not party to an agreement or did not have an understanding that there was an agreement afoot.

And secondly, more importantly, that he turned his mind to the scope of this agreement, namely, that is it a rational hypothesis that he did not turn his mind to the fact that even if a group of them might go back, and even if a group of them might or one of them, he might assault someone, that the scope of the agreement included the intentional infliction of grievous bodily harm by them and, in our respectful submission, the Crown had to be able to negative any rational inference other than that Presley, despite his intoxicated state and the chaotic sequence of events, intended to be a party to an agreement which incorporated the intentional infliction of grievous bodily harm.

In relation to extended joint enterprise, an agreement had to be proved along the same lines but it also had to be proved that Presley actually contemplated the possibility that one of the group might act with murderous intent and that he made a decision to participate in the lesser offending, in any event. In other words, the intoxication goes to whether or not he formed the agreement with them and, secondly, whether or not he had the thought that one of them might act with murderous intent and, thirdly, that he made a decision to participate in that conduct, that is the assault, despite having thought that he might – someone else might act with murderous intent.

In our submission, the effect of intoxication is that the rational hypothesis that each of those various thought processes did not occur cannot be excluded. Importantly, we say, it is not enough to foresee that one of the group might kill a person. What has to be foreseen and contemplated is the possibility of one of the group intentionally inflicting grievous bodily harm, that is someone else thinking about whether or not someone else is going to intentionally inflict grievous bodily harm. The rational hypothesis to be excluded is that he simply, because of intoxication, did not think about it.

So it is respectfully submitted that in relation to either of the two bases, it was critical for the Court of Appeal to relate the evidence of intoxication to the questions that it had to ask itself as to whether or not the circumstantial evidence admitted of no other rational hypothesis other than that Presley intended to participate in that joint enterprise which had the intentional infliction of grievous bodily harm within its scope or participate in a lesser enterprise despite actually being aware that one of the group might go further.

In our respectful submission, the Court of Appeal was required in its undertaking of the independent assessment to consider intoxication on the basis of the Crown case being a circumstantial one in order to determine whether or not the verdict was unsafe, and it is plain both from the paragraph when it deals with the ground and from its outline of the Crown case which it refers back to that it did not do that, in our respectful submission.

Your Honours, the particular matters that we refer to in point 12 in submitting that the prosecution did not refer to intoxication in its consideration of the other matters to which it might relate, we refer first of all to – coming to point 13 – the fact that Mr Presley was, according to the evidence of Dr Majumder, likely to be over 0.2 per cent at the time of the events. That is the evidence of the doctor at page 1046 to 1047 of appeal book 3, and in the summing‑up at page 1595.

It is our submission, on any view, that is a person who is significantly intoxicated, and there was other evidence supporting the fact that he was subjectively affected by the degree of intoxication and has already been referred to but particularly in relation to Mr Presley. Dr Majumder gave evidence at pages 1046 and 1047 that intoxication at that level is likely to impair perception of events, which is the topic I have addressed, and secondly, impair decision‑making, at 1047, as well as resulting in slurred speech and the other more well‑known effects of intoxication.

The witnesses who saw my client or thought they saw my client, one of the two, at the first altercation, first of all Ms Bateman described my client, the applicant, as “staggering and swaying around” and having really bloodshot eyes – 289 to 290 of the appeal books – and that he was pretty significantly intoxicated she said at page 708.

The other witnesses who gave evidence of intoxication were firstly – this is referred to in the summing‑up where there is a discussion of the witnesses who described his intoxication in the Miller appeal book at page 1552, a Mr Chattenton, who described them as drunk. Mr King at page 1493 described both Aboriginal men in the first incident as affected by alcohol, and Mr Willis, who has already been referred to at appeal book 1548, said that all the men were drunk that evening.

The applicant, in his interview, at Presley appeal book page 45, said that he had started off with a little bottle of Jack Daniels, that they then bought Passion Pop and bourbon and that was supported by evidence from Amii Turner. In addition, insofar as Mr Presley is concerned, there was no suggestion of subsequent drinking because Mr Willis said at appeal book 2, page 626 to 627, that they took the rest of the beer with them. And when the police attended, as we have set out in our outline and in our reply, the police described him as being moderately affected.

The other matter in respect of which is relevant in terms of the impact of intoxication upon his cognitive function, that is, his understanding of the events around him, in our respectful submission, is, we submit, the chaotic events that occurred which unfolded quickly. I refer to the Court of Appeal judgment at page 1764, paragraph 12, as to the relatively short timeframe that is described by each of the witnesses between the two events, such as three minutes by Mr Finlay‑Smith, five to 10 by Ms Bateman and about five by Ms Turner.

We rely upon the fact that Mr Presley was only 18 years of age. Clearly, his record of interview demonstrates he appeared to be unsophisticated. He was in an agitated state, as he described, that he flipped out following the abuse that had been levelled at them in the street – that is at page 52 of the Presley appeal book – and, indeed, his lack of sophistication and perhaps immaturity may be reflected in the way he responded when the police on 13 December were arresting him for murder. It is plain from the transcript at page 35 of the Presley appeal book that he begins crying, calling for his mother and saying words to the effect that he was too young to go to gaol.

So we rely on that chaos and the short period of time between the first and second altercation to demonstrate that it was necessary to have regard to the evidence of intoxication in determining whether or not in this sequence of events there was indeed any time for reflection or thinking forward or having a thought along the lines that is required to prove each element of the offence.

In addition, it is plain from the evidence that this group who were involved did not seem to have a history together that – that is, all of them – that suggested that there would be some implicit understanding of how they might act together. Mr Presley, as he says in his – as apparent from Presley appeal book page 44, did not know Mr Miller’s name and he did not seem to know the name of Mr Willis who the police told him was Gary. He was asked “Was Gary there?” and his response was “Who’s Gary?”, and that is at Presley appeal book page 52.

The next important aspect of intoxication in relation to a consideration of his awareness of what was occurring was that to which I referred earlier, namely, the reliance by the Crown on the inference that the applicant, Presley, would have and did know that Betts carried a knife and that would therefore inform an inference as to whether or not he formed an intention to be party to any agreement, and whether or not he therefore contemplated the infliction of grievous bodily harm by Willis, and we say that very – by Betts ‑ we say that very important fact was a matter ‑ or an inference as to knowledge of that fact was a very important matter that was – to which intoxication was relevant.

There was also – I am just simply adding to my learned friend, the appellant Miller’s submissions – that is, that there was evidence of the various persons who when they returned to the scene were not travelling together, and I refer also to Mr Betts’ interview at Presley appeal book page 55 where he said:

all I could see just myself running down the road.

And he referred to being with Wayne, and then at page – which was Mr Smith – and at page 58 he says he did not see Betts in that area at any relevant stage. So that was relevant – that context was relevant to drawing an inference as to whether or not there was an implied agreement and whether or not it included the necessary states of mind for the bases of liability relied on.

There was evidence of others who saw indigenous males on the way to the scene that tended to suggest that they were not necessarily moving together as a group, some of which has been referred to, but which we summarise in our reply at footnote 1, in particular the evidence of Ms Eylander at pages 731 to 733 that she saw a bare chested person sprinting past followed not long after by two other people walking in the same direction on the footpath, and Mr Strobl at pages 592 to 600 who says that he was approached by a car ‑ and it is a bit confusing as to whether or not this may or may not have been afterwards but he described someone who was bare chested holding a pole. That certainly fitted Mr Presley’s description and, in that respect, we rely on the other witnesses that have already been referred to. So, coming then to the particular attack – evidence of the attack on Mr Hall, which is point 14 of the ‑ ‑ ‑

FRENCH CJ: This is the matter you were taking us to earlier, I think.

MS SHAW: Yes.

FRENCH CJ: Whether he had a top or did not have a top and what the witness has said ‑ ‑ ‑

MS SHAW: As I indicated earlier in relation to Mr Hall, at Mr Presley’s interview he gave an account that did not include any involvement with Mr Hall, nor any involvement with Mr Betts. Importantly, Mr King said that – and I have referred to some of that evidence already – the two persons who were attacking him had a baseball bat and a pole – that is at pages 182 to 183 of appeal book 1. He was 100 per cent certain that one of those persons was the taller person who had been there earlier.

Secondly, we submit that even though – in terms of inferring his intention in the light of intoxication – Mr Presley struck Mr King with a baseball bat, his account to the police was, having done that he simply left the area and he pleaded guilty to causing harm. But we submit there is no inference that he intended to inflict grievous bodily harm upon Mr King from which an inference as to contemplating what someone else might do or what he might have done to Mr Hall would follow.

There was no evidence from any witness that there were Aboriginal or indigenous youths who were moving from either Mr Hall to Mr King or back and forth and, as I have already referred to Ms Bateman’s evidence, that she maintained that those attacking Mr King did not go anywhere near Mr Hall but stayed with Mr King throughout.

So in terms of the attack on Mr Hall, the Crown, as I have said, relied on the accounts of Ms Bateman, which we deal with in our reply at paragraph 9, and Ms Turner, and we submit that those two accounts are inconsistent, in particular, as to the person that is described and that the evidence from a number of witnesses does suggest that Mr Presley was topless.

There are still photographs of him in the Presley appeal book, page 32, point 33, exhibit P22, which were taken that afternoon at about 3 o’clock when he attended a service station. A Ms Eylander saw a person topless. Ms McQuade – at Presley appeal book, page 16, saw someone topless as did Mr Bos, the police officer who attended, at about 11.30, at Presley appeal book, page 25. Mr King, who spoke to the two indigenous young people, initially, at appeal book No 1, pages 93 to 94, said one of the persons, the taller one, was topless.

So that all stands against the evidence of Ms Bateman but as Ms Bateman, as I pointed out, Ms Bateman indicated that the only basis that she nominated the person she saw was one of those she had seen before was because she saw a red basketball top. As for Ms Turner, she was present at the first altercation, but in her evidence at appeal book page 437, she was definite that the topless man she saw holding a pole was not present at the earlier altercation, that that is effectively she was saying it was not one of the two people she had seen earlier when Mr Hall and Mr King spoke to them. Ms Bateman’s evidence that she identified him, the only basis for identifying the man with the pole as being someone she had seen earlier was that he was wearing a red basketball top, and that is at pages 322 and 329.

There was also an issue in terms of the numbers that were described. Ms Bateman said there were at least six, and that informs the reliability of the account of how many people were seen assaulting Mr Hall at the same time that two were said to be assaulting Mr King, and Ms Bateman said that one of those assaulting Mr King at appeal book 250 was wearing a baseball cap. The photographs of Mr Presley taken at 3 o’clock show him wearing a baseball cap. Mr King described one of the two persons who he saw earlier as having a baseball cap and those attacking him as both having a pole and a baseball bat – that is at page 250.

Her evidence that she saw Mr King on the ground before she saw Mr Hall on the ground is at appeal book 314 and that they were doing so, that is, the two persons were doing so right up until all of the group ran away, is at 319 and 347. Ms Turner, of course, described what she thought were a group of about nine altogether at page 430 and on the Crown case she could simply not be right about that. She described about six to eight around Mr King. That is at page 377 and four to five around Mr Hall, and she had been present at the earlier altercation.

Insofar as the physical evidence is concerned, as set out by the Court of Appeal, there was a pair of basketball shorts that was seized from Mr Presley. They had on them some spots or spatter that was to the rear of the shorts. That, it was accepted, must have occurred when Mr Presley was facing away from what was occurring and possibly could have been within the distance of four to five metres from Mr Hall. That is the evidence of Mr Donnelly at 1977 and at 979 to 980.

In addition, the baseball bat, the examination was equivocal. It did not reveal Mr Hall’s DNA on the baseball bat. There was an injury that was caused, called a tramline bruise on Mr Hall, which it was said could have been caused by any linear object and that was explored in

cross‑examination of Dr Wills at Presley appeal book, page 32, lines 51 to 52. That is the tramline bruising that was relied on by the Crown did not point to any particular implement but simply was characteristic of an impact with a linear firm object and we know there was reference to others carrying poles and a shovel but, in essence, it was not able to be pointed to a baseball bat.

So that is the totality of the evidence that was led by the Crown and relied on against Mr Presley and in respect of which, therefore, if the question of intoxication was considered in the context of the Crown case at its highest, and Mr Presley’s awareness - evidence of his awareness of what was occurring around him, that, in our respectful submission, a proper consideration by the Court of Appeal of that evidence at its highest in conjunction with the evaluation of the specific intentions of Mr Presley, namely to enter into an agreement, the specific thought process to turn his mind to whether or not another might inflict grievous bodily harm and/or whether or not there was an intention to inflict grievous bodily harm by a group ought to have resulted in the court finding that the verdict was unsafe because other rational hypothesis cannot be excluded.

We submit that this is a matter where if we were to succeed on the unreasonable verdict that there ought to be an acquittal but insofar as Mr Smith’s submission in relation to the doctrine of joint enterprise, your Honours, we cannot usefully add to that. Those are our submissions, if the Court pleases.

FRENCH CJ: Thank you, Ms Shaw. Mr Tokley.

MR TOKLEY: Thank you, your Honours. Your Honour, the oral outlines sets out the points that I will be addressing. I have tried to encapsulate them in some seven points. Your Honours, I will go to the authorities but only very briefly and I certainly do not intend to cover ground that my learned friend, Mr Game, has already covered.

Your Honours will have seen from our written submissions that we try to chart a middle course through the authorities such that we accept the correctness of McAuliffe but say that it needs to be understood in a particular way, that the way it is to be understood is identified by their Honours, former Chief Justice Gleeson and his Honour Justice Callinan in Gillard’s Case, and I will take your Honours to the relevant passages there.

Interpreted in that light, the authorities in McAuliffe and Gillard are consistent with the principle of accessorial liability and in Giorgianni’s Case that when one looks at the authority Jogee there are parts of that authority which indicate that one way in which to marry the various approaches is to consider that the notion of continued participation is evidence of intention; it is not conclusive of intention.

Then in paragraphs 5, 6 and 7, I state what I think is the relevant legal principle to be extracted from the cases and how that principle is not novel nor inconsistent with existing authority and how it could be applied in the present situation.

Could I, first of all, invite your Honours to the case of McAuliffe (1995) 183 CLR 108. I am sure that your Honours will read this case in the course of your deliberations. My intention is not to, if I can put it this way, teach your Honours how to read cases obviously but it is to emphasise particular parts of the judgment. Could I invite your Honours please to go to page 116 first of all. Your Honours will see about point 9 of the page on the right‑hand side beginning:

In R v Hyde Lord Lane LCJ referred to the commentary by Professor Smith and, in correction of some remarks made by in R v Slack, said that the correct principle, being that enunciated by Sir Robin Cooke in Chan Wing‑Siu v The Queen, was as follows -

If your Honours could please take a moment just to read the quotation there. The part of that quote I wish to particularly emphasise is the second sentence where it states, and over the page:

As Professor Smith points out, B has in those circumstances lent himself to the enterprise and by so doing he has given assistance and encouragement to A in carrying out an enterprise which B realises may involve murder.”

Now, your Honours, one way of looking at that quotation is to say that Professor Smith has stated the justification for B’s liability in that situation but significantly I draw a link between the stated justification at the top of page 117 and what their Honours said at the top of page 118, and this was the part that my learned friend, Mr Game, took your Honours to, and it is the last sentence of the top paragraph on that page where their Honours said:

That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it.

In my respectful submission, what their Honours were there recognising was that the principle which they were seeking to apply, or applied in that case, was consistent with the principles regarding aiding and abetting, that is, one who lends assistance and encouragement, and that is why not only do they quote the principle at the bottom of page 116 but they quote the rationale behind it and why at the top of page 118 they say the approach that is taken is in accordance with that general principle.

Now, your Honours, one can then go to – if your Honours will then please go to the case of Gillard (2003) 219 CLR 1. May I first take your Honours to page 13 and paragraph 24 of the judgment of their Honours the Chief Justice and Justice Callinan. Your Honours will see in paragraph 24 their Honours quote from McAuliffe and your Honours will see that they have omitted certain parts from the quote but the essence of it, I think, is the last sentence of the quote which is what I have just read out to your Honours from McAuliffe, and their Honours then go on at paragraph 25 and say:

The general principle there referred to extends to the possibility that a person who intentionally assists in homicide may be guilty of manslaughter even though the principal offender is guilty of murder.

The paragraph continues and it is the sentence beginning “The essence of the reasoning” which I wish to lay particular emphasis upon. Your Honours will see that their Honours then said:

The essence of the reasoning in the above passage is that, when the secondary party continues to participate in the venture without having agreed to, but foreseeing as a possibility, the act causing death, that party is regarded as intentionally assisting in the commission of a crime.

Their Honours then go to illustrate how that would be understood in the context of the particular case before them where they say:

In the present case, if a jury decided that the appellant foresaw as a possibility that Preston would fire the loaded gun at Knowles, and continued to participate with that foresight, then he would be intentionally assisting in the commission of culpable homicide. The level of his own culpability would depend upon whether he foresaw that Preston might act with intent to kill or cause grievous bodily harm.

Your Honours, the point I wish to make is that, in my respectful submission, the way in which the principle from McAuliffe is to be understood is in light of what their Honours say in Gillard and that is that continued participation may be regarded as a synonym for intentional assistance in the commission of what the UK Supreme Court called crime B. So the parties may start off agreeing on the crime A but if one of the party foresees – sorry, defendant No two foresees as a possibility the act causing death and continues to participate, that is synonymous with that party being regarded as intentionally assisting in the commission of crime B.

The emphasis, though, as their Honours go on to illustrate in the following two sentences, is the intention of defendant No 2, that is, what intention did defendant No 2 have in terms of the assistance that he provided in respect of crime B. If the person continued to participate with the intention of assisting crime B, then that person would be guilty of murder. If the person continued to participate but without the intention to assist defendant No 1 to commit crime B, then he would be guilty of manslaughter but not murder.

BELL J: I am sorry, which paragraph are you in?

MR TOKLEY: That was from paragraph 25, your Honour. I hope we are not going too fast, your Honour. Your Honours, the ‑ ‑ ‑

NETTLE J: You are reading “would be intentionally assisting” as meaning if he intended to assist, are you?

MR TOKLEY: Yes, your Honour, yes.

NETTLE J: I see.

MR TOKLEY: Yes, and when one goes back to what was said in McAuliffe and the way in which their Honours, Justices Gleeson and Callinan, quote from those parts of McAuliffe, they are saying that what that passage means and how it is to be understood is in this particular way.

NETTLE J: Thank you.

MR TOKLEY: The importance of intention is also illustrated, if I can invite your Honours to go back a couple of paragraphs to paragraph 19 where their Honours say, and I will not read from the whole of the paragraph, your Honours, but it is the sentence almost at the bottom of the page beginning:

If he foresaw, as a possible incident of carrying out the common design, that Preston might shoot Knowles with intent to kill or cause grievous bodily harm, then he would be guilty of murder. If he foresaw, as a possible incident, that Knowles might shoot Preston but without foreseeing such intent, then he would be guilty of manslaughter.

So critically, intention of, what I call defendant 2, is relevant to his ultimate criminal responsibility.

FRENCH CJ: What is foreseen is not an element of the agreement but something which might happen.

MR TOKLEY: Yes, your Honour. That is correct, yes.

BELL J: So that the intention to participate in the joint venture, the foundational crime as it is sometimes described ‑ ‑ ‑

MR TOKLEY: Yes, your Honour.

BELL J: ‑ ‑ ‑ when accompanied by foresight of the possible infliction of death or grievous bodily harm becomes, on your analysis, by the continuance of the participation in the foundational crime, intention to commit the ‑ ‑ ‑

MR TOKLEY: The way I look at it, your Honour, sorry to cut across your Honour, it is continued participation in the foundational crime but it is evidence from which the intention to assist in the other crime, crime B, can be inferred.

BELL J: Why does one infer an intention to assist in crime B?

MR TOKLEY: Because, your Honour, the person, having foreseen – and one assumes that person had the relevant knowledge to foresee what might occur – that person, having foreseen what might occur, then continues in the enterprise in light of that knowledge and the way in which both I think their Honours in this case and their Lordships in Jogee’s Case interpret it is that the continued participation is evidence of the relevant intention of defendant No 2 to assist defendant No 1 to commit the second crime.

FRENCH CJ: The language though is suggestive of an intention to assist in crime A, an acceptance of the risk that crime A might be – or the foreseen risk that crime A – crime B might be committed by the other party.

MR TOKLEY: That is one possible way to interpret it, your Honour. The reason why I have not interpreted it in that way is because of the example that their Honours gave in paragraph 25 and also where they talk about the - in paragraph 19 where they talk about what defendant 2 foresees and the relevant state of mind that defendant 2 has.

BELL J: “Intention” generally connotes the idea of meaning to produce a result.

MR TOKLEY: Yes, your Honour, that is correct.

BELL J: So that on your analysis the foresight of the possibility that a person will be killed by a co‑venturer who has the relevant state of mind is equated to meaning that result to be produced. That seems unlikely.

MR TOKLEY: Yes, my friend, Mr Bennett, reminds me in the example put by your Honour it is open to the jury to draw inferences to that effect but it is not a necessary – it is not inevitable, if I can use that expression.

BELL J: But the basis of liability, certainly in the way that it is explained in Clayton and by Justice Hayne in Gillard, is the culpability lies in the continued participation with the foresight.

MR TOKLEY: Yes, your Honour.

BELL J: As distinct from drawing the inference that by continued participation a person means to bring about a result.

MR TOKLEY: I understand your Honour’s point. The moral culpability, if I can put it that way, what is referred to as the criminal culpability is, in my view, concerned with why one would impose criminal responsibility in these circumstances. But the elements that one has to establish in order to do so are, in my view, the same as one would have in ordinary accessorial liability, that is, you have to show that the defendant through his continued participation had the intention to assist the first defendant knowing that defendant’s intention in a particular result.

BELL J: So that the direction that the jury would be given would not concentrate on foresight of the possibility of the deliberate intentional infliction of death or grievous bodily harm, but it might suggest to the jury that satisfaction beyond reasonable doubt of that foresight provided the inference of an intention to bring about that result.

MR TOKLEY: From which it could be inferred, yes, that it was intended to bring about that result. In my respectful submission, that is where, for example, one can see the way in which their Lordships in the Jogee matter dealt with it in the way. If I could invite your Honours to turn to paragraph 66 of the Jogee judgment - in the authorised reports it is [2016] 2 WLR 681 and the relevant page is 701 and the relevant paragraph is paragraph 66. It is the second sentence in that paragraph.

BELL J: I am just seeking to understand how this is a middle course. If your argument says that the law is correctly stated for Australia in paragraph 66 of Jogee then there is no concept of extended joint criminal enterprise. What must be established is that the secondary participant intended that the subject offence be committed and with that intention participated with the principal.

MR TOKLEY: I am not sure if I would agree with your Honour for this reason, your Honour. What I have sought to do is to show how their Honours in McAuliffe, as understood by their Honours in Gillard, lead to the result that their Lordships in Jogee postulate in paragraph 66 and that is because, properly understood, the relevant principle is that which I have set out in paragraph 5 of my outline.

BELL J: The difference between your paragraph 5 and their Lordships in paragraph 66 is that their Lordships make clear that whilst foresight is evidence of an intent what must be proved is the intent.

MR TOKLEY: Yes, your Honour. That goes, not to the statement of the relevant principle, but to the proof of or emphasis upon intention as opposed to foresight. What I am saying is that the way in which one can reconcile the position in Jogee and the position in McAuliffe with what, I think, their Honours were, in fact, intending to do which was to enunciate a – whether you call it a freestanding principle or whether you call it a view of a particular factual situation which is a subset or part of the relevant principle, what their Honours were seeking to do was to say, the principle as stated – and which we quoted earlier – the justification for that is that D2 is regarded as having lent their assistance to the commission of the second crime. So, we are in the realm of aiding and abetting an accessorial liability.

FRENCH CJ: In other words, treat it as if – regard it as treat it as if. That may suggest that there is a legal consequence attached to foresight of the outcome regardless of intent. You see the notion that you put in paragraph 5:

foresees that D1 might also commit crime B, it can be inferred . . . that he intended to assist –

Now, that may well be a considerable subset of cases which fall within extended joint criminal enterprise. There will be cases in which participation coupled with a foresight would be evidence of the relevant intention.

MR TOKLEY: Yes, your Honour.

FRENCH CJ: But the problem is it is framed so widely that it is not confined in terms to that subset of cases. So the question is what is outside that subset of actual inference a kind of deemed inference or – is that what you are – I just wonder whether you are sliding from actual to a kind of deemed – can be regarded as, treated as, et cetera?

MR TOKLEY: No, your Honour, I am not seeking to suggest that one can ‑ ‑ ‑

FRENCH CJ: Coloured by words such as “lent assistance to”.

MR TOKLEY: Yes, your Honour, yes, I do, yes. So, in my respectful submissions, their Honours were not seeking to put forward a new principle. What they were seeking to do was to say that in these circumstances what occurs, and the reason for imposing liability is in accordance with the general principle that a person who intentionally assists may be convicted as a party to the crime, so all that they were saying was consistent with that general principle. They had earlier referred to the justification which Professor Smith pointed out as to why people who continue to participate are liable.

KEANE J: Is there not a problem, though, with what is being said in paragraph 66 insofar as it said that one ought not to be holding people guilty of murder or guilty of crime B because they do not intend or want it to happen? It seems to be talking about motivation. If someone foresees that crime B may happen but continues to participate in the scheme on the basis that we will pursue crime A whatever it takes, including crime B, what does it matter that they might have preferred that it did not happen as a matter of their motivation for their continued participation?

MR TOKLEY: I understand your point, your Honour, and motivation on my view of the principle, motivation is not relevant.

KEANE J: No.

MR TOKLEY: Nor is the wish to avoid a particular outcome or a desire to ‑ ‑ ‑

KEANE J: It seems to have been relevant to their Lordships.

MR TOKLEY: Your Honour, my reading of their Lordships’ judgment, obviously I am not going to take your Honours through all of it, is that they put the emphasis, starting from the recognition that the established category of liability for secondary liability is aiding and abetting, accessorial liability, they are seeking to write a judgment which is consistent with that basic principle.

That is why, in some senses, my learned friend, Mr Game, and I, will reach the same point but in slightly different ways. What I am saying is that this Court recognised that there are factual situations like joint criminal enterprise which has to be reconciled with accessorial liability. They did it in the way in which they did it and that can be seen when one goes through the subsequent cases of Gillard and also in Clayton and I will come very briefly to Clayton and seek to make good that point.

BELL J: But the critical point is in Jogee one has a requirement for proof of intention.

MR TOKLEY: Correct, your Honour, yes.

BELL J: And that is plainly distinct from foresight and a state of mind of willingness to continue to participate in the agreed foundational venture possessed of that foresight. Now ‑ ‑ ‑

MR TOKLEY: Yes, your Honour. The only point where you and I differ ‑ ‑ ‑

BELL J: Yes.

MR TOKLEY: ‑ ‑ ‑ is that for me the words “continue to participate” are to be understood, as their Honours Chief Justice Gleeson and Justice Callinan said, as giving intentional assistance to a crime.

BELL J: But that is the slide ‑ ‑ ‑

MR TOKLEY: That is the slide.

BELL J: ‑ ‑ ‑ because that inevitably involves the notion that the jury must be directed, on your analysis, of proof of an intention to produce the result that is the crime charged.

MR TOKLEY: Correct, your Honour.

BELL J: So that extended joint criminal enterprise has gone west. Now, that may be right, Mr Tokley, but I am just not really persuaded you are presenting a middle course.

MR TOKLEY: It may be that I was too optimistic in suggesting it is a middle course, but your Honours understand the point correctly. That is my submission and that is ‑ ‑ ‑

GAGELER J: So the actual direction in McAuliffe would have been deficient in your submission – page 113, 183 CLR.

MR TOKLEY: No, your Honour, I think that your Honours will know that in our written submissions, we say that their Honours upheld the trial judge’s directions. If one starts at page 113 – and I do not wish to go over the ground my learned friend, Mr Game, has covered – but your Honours will see at page 113, the paragraph about point 3:

In the context, those directions conveyed to the jury that –

and then went on. And then the next paragraph:

The appellants contend that the trial judge was wrong in giving those directions.

Then at page 188, having traversed all of this area, including what I have just submitted to your Honours, page 118, the paragraph beginning, about point 2:

For these reasons, the trial judge was not in error in directing the jury –

So, in my respectful submission, what their Honours were saying is that, understood in the way in which we have explained the relevant principle underlying these directions, the trial judge was not in error in directing the jury in the way in which he did because the relevant issue was the intention – the intention of one or the other for the purposes of murder. Your Honours, could I then ‑ ‑ ‑

BELL J: Could you, perhaps, just assist ‑ ‑ ‑

MR TOKLEY: Certainly, your Honour.

BELL J: We had been – an aide‑mémoire was handed up earlier.

MR TOKLEY: Yes, your Honour.

BELL J: If you just go to page 621, on your analysis, is there a defect in the directions that were given under the heading “Extended Joint Criminal Enterprise” and what do you say, if there was a defect, was the correct direction?

MR TOKLEY: Thank you, your Honour. I do submit that there is a defect, your Honour, and it is a defect because the learned trial judge does not give sufficient direction on the question of intention, because if the jury were to understand that in Mr Miller’s case he lacked the relevant intention to assist Mr Betts to carry out or to stab with the relevant intention to murder or cause really serious harm, then he would not be guilty of murder.

The reason why I make that submission is because of those passages I took your Honours to in Gillard where their Honours Chief Justice Gleeson and Justice Callinan point out the centrality of intention, that one particular intention must be present in order for there to be liability for murder and, lacking that intention, the outcome would be different.

FRENCH CJ: The direction, you say, should have encompassed what you set out in paragraph 7 of your outline, I think.

MR TOKLEY: Yes, your Honour. Sorry, I seem to have misplaced my outline.

BELL J: Well, another way of putting that is there should not have been a direction on extended joint criminal enterprise.

MR TOKLEY: Yes.

BELL J: Because what was required was proof of an intention to assist in the killing of the deceased.

MR TOKLEY: Yes.

BELL J: Yes, all right.

MR TOKLEY: And that is why I say my learned friend Mr Game and I get to the same result but by different paths. Could I briefly take your Honours to Clayton’s Case just to emphasise a couple of ‑ ‑ ‑

FRENCH CJ: How long are you likely to be, Mr Tokley?

MR TOKLEY: Three minutes, your Honour. I am sorry, your Honour, I did not realise it had already gone past quarter past. I will wrap up, your Honour, and just give your Honours the references if I may.

FRENCH CJ: No, that is all right, you can finish. You are only going to be a short time.

MR TOKLEY: Thank you, your Honour. Your Honours, I hope that the points I am about to make will be of assistance, having delayed your Honours. Beginning at page 444, (2006) 81 ALJR 439, if I could simply invite your Honours’ attention to these part of the judgment. The last sentence in paragraph [20]:

In some cases, the accused may be guilty both as an aider and abettor, and as participant in a joint criminal enterprise. That factual intersection of the two different sets of principles does not deny their separate utility.

That is why I say – I may not be putting it in the right mathematical terms but that joint criminal enterprise is a subset of the broader principle involving accessorial liability. There is an intersection between the two sets of factual situations. What I thought was very interesting and perhaps instructive is paragraph [25], where their Honours in the majority say that in this particular case, and it would probably be similar to the case at the Bar, the principal issues centred upon the follow three questions:

(a)       what did the applicant agree was to happen …
(b)       what did the applicant foresee was possible? and
(c)       what did that applicant do at the house, if anything –

and this is where I put the emphasis –

to aid and abet whoever it was who had fatally assaulted the deceased?

Then those matters are repeated again at paragraph [28]. So, in my submission, your Honours, it is apparent that from what I have been saying is that, properly understood, this Court has sought to enunciate a principle that is consistent with the basic principles of accessorial liability. It is also consistent with what this Court has said in Giorgianni and other cases and it is also consistent with – and this can be gleaned from Gillard’s Case – what the Court has said in Markby as well. I do not think the Court intended a departure from the basic principle. It is just a question of how one interprets McAuliffe and Gillard, where one puts the emphasis and whether the requirement for foresight is treated as being an evidential point relevant to intention, as is continued participation.

BELL J: It is not easy to square that with paragraph [17], one might think.

MR TOKLEY: Of Clayton, your Honour?

BELL J: Yes.

MR TOKLEY: Your Honour, the way I understood that is that their Honours were addressing the particular submissions put to them there, and paragraph [17] is concerned to refute the proposition that simply because you – this goes back to the point his Honour Justice Keane made about whether you wish or what your motivation is.

You may not intend that somebody dies but if you use really serious harm and they do die you cannot escape liability for murder. So the way I see paragraph [17] as being interpreted is not that it cuts across what I have put to your Honours but that it is a particular response to the oral argument addressed to the court in that particular case, that if the person had to intend the death of the victim and it was only in that situation that the person would be guilty of murder if the victim dies, as opposed to being guilty of murder if the person intended to cause really serious harm.

BELL J: I see.

MR TOKLEY: Thank you, your Honours.

FRENCH CJ: Thank you, Mr Tokley. The Court will adjourn until 10.15 am tomorrow morning.

AT 4.27 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 11 MAY 2016

[2016] HCATrans 106

Key Legal Topics

Areas of Law

Criminal Law

Constitutional Law

Evidence

Legal Concepts

Charge

Sentencing

Appeal

Procedural Fairness

Abuse of Process

Statutory Construction