Mills v The Queen

[1986] HCA 71

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Wilson, Deane and Dawson JJ.

ADRIAN JOHN MILLS (S11 of 1986); PETER JOHN SINFIELD (S14 of 1986) and DEREK JAMES SINFIELD (S68 of 1986) v. THE QUEEN

2 December 1986

Decisions

GIBBS C.J., MASON, WILSON AND DAWSON JJ.: What I am about to say represents the judgment of my brother Mason, my brother Wilson, my brother Dawson and myself. Counsel for the applicants asked us to reconsider Johns (T.S.) v. The Queen (1980) 143 CLR 108 but the statement in that case of the law governing criminal liability for acts done in the course of carrying out a common criminal purpose has been accepted as correct in other jurisdictions and we see no reason to review it.

2. The law as there stated is not complex and should not give rise to the difficulties and complexities suggested in argument. In many cases it will be sufficient to direct the jury by adapting to the circumstances the simple formula mentioned by Sir Robin Cooke in Chan Wing-Siu v. The Queen (1985) AC 168, at p 178:

"For instance, did the particular accused contemplate that in carrying out a common unlawful purpose one of his partners in the enterprise might use a knife or a loaded gun with the intention of causing really serious bodily harm?"

It should never be necessary to give the jury a direction as to the distinction between foundational crime and incidental crime and such a direction is more likely to be confusing than useful.

3. In the present case there were some imperfections in the summing up but we do not consider that any miscarriage of justice has been shown to have resulted. We agree with the conclusion reached by the majority of the Court of Criminal Appeal and would refuse the applications for special leave to appeal.

DEANE J.: I agree that the applications for special leave to appeal of Derek Sinfield and Peter Sinfield should be refused. Regardless of what merit there may be in the criticism levelled against the summing up of the learned trial judge, it appears to me to be plain that at least in the case of those two applicants there was no miscarriage of justice. Indeed, it seems to me that, in the context of the overall evidence led at the trial, the summing up was not, on balance, unduly unfavourable to those two applicants.

2. The case of the applicant, Adrian Mills, seems to me to be different. It is reasonable to assume that the jury would have concluded that he was not one of the two persons who entered the premises at the time when the shootings occurred. The learned trial judge's directions about common purpose and joint intention appear to me to have been particularly significant in his case and I am not, at this stage, prepared to join in the decision of the other members of the Court that his application for special leave should be refused.

Orders

Special leave to appeal refused.