KIEFEL CJ, GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ
Matter No A14/2022
BENJAMIN JOHN MITCHELL APPELLANT
AND
THE KING RESPONDENT
Matter No A15/2022
ALFRED CLAUDE RIGNEY APPELLANT
AND
THE KING RESPONDENT
Matter No A16/2022
AARON DONALD CARVER APPELLANT
AND
THE KING RESPONDENT
Matter No A17/2022
MATTHEW BERNARD TENHOOPEN APPLICANT
AND
THE KING RESPONDENT
Mitchell v The King Rigney v The King Carver v The King Tenhoopen v The King
[2023] HCA 5
Date of Hearing: 6 December 2022 Date of Judgment: 8 March 2023
A14/2022, A15/2022, A16/2022 & A17/2022
ORDER
In Matter Nos A14, A15, and A16 of 2022:
1. Appeal allowed.
2.Order 2 of the orders of the Court of Appeal of the Supreme Court of South Australia, made on 10 August 2021, be set aside and in its place there be orders that:
(i) the appeal be allowed;
(ii) the conviction be quashed; and
(iii) there be a new trial.
In Matter No A17 of 2022:
1. Application for special leave to appeal granted.
2.Appeal allowed.
3. Order 2 of the orders of the Court of Appeal of the Supreme Court of South Australia, made on 10 August 2021, be set aside and in its place there be orders that:
(i) the appeal be allowed;
(ii) the conviction be quashed; and
(iii) there be a new trial.
On appeal from the Supreme Court of South Australia
Representation
T A Game SC with K G Handshin KC and K J Edwards (did not appear) for the appellant in A16/2022 (instructed by Access to Justice Law Firm)
A L Tokley KC with G N E Aitken for the appellant in A14/2022 (instructed by Noblet & Co)
S G Henchliffe KC with A J Culshaw for the appellant in A15/2022 (instructed by Barbaro Thilthorpe Lawyers)
S A McDonald SC with G Katsaras for the applicant in A17/2022 (instructed by Legal Services Commission of South Australia)
J P Pearce KC with R I Walker for the respondent in each matter (instructed by Office of the Director of Public Prosecutions (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Mitchell v The King Rigney v The King Carver v The King Tenhoopen v The King
Criminal law – Murder – Appeal against conviction – Extended joint criminal enterprise – Murder and constructive murder provided for by ss 11 and 12A of Criminal Law Consolidation Act 1935 (SA), respectively – Where appellants agreed to commit indictable offence of criminal trespass – Where during commission of offence one or more parties to agreement committed intentional act of violence causing death – Where appellants' agreement did not extend to intentional act of violence causing death – Where s 12A deemed perpetrator of intentional act of violence causing death in course of commission of major indictable offence punishable by ten years' imprisonment or more guilty of murder under s 11 – Whether common law doctrine…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Mitchell v The King [2023] HCA 5
Case
[2023] HCA 5
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard appeals from convictions for murder under the *Criminal Law Consolidation Act 1935* (SA). The appellants had agreed to commit criminal trespass, and during the commission of this offence, one or more co-venturers committed an intentional act of violence that caused death. The central dispute concerned whether the appellants could be guilty of murder under section 12A of the Act, which deems a perpetrator of an intentional act of violence during the commission of a major indictable offence guilty of murder, when their initial agreement did not extend to such an act of violence.
The legal issues before the High Court were whether the common law doctrine of extended joint criminal enterprise could operate in conjunction with section 12A to render the appellants guilty of murder. Specifically, the court had to determine if the appellants' foresight of the possibility of a co-venturer committing an intentional act of violence causing death was a necessary element for their conviction under this combined operation of law. This involved considering whether the foundational offence of criminal trespass, which did not involve violence, could serve as the basis for a murder conviction under section 12A when combined with the principles of extended joint criminal enterprise.
The High Court allowed the appeals, quashed the convictions, and ordered new trials. The court reasoned that the trial judge had erred in directing the jury that the appellants could be guilty of murder by reference to section 12A when the foundational crime did not involve an intentional act of violence. The court found that the principles of extended joint criminal enterprise could not be combined with the provisions of section 12A to create a pathway to murder liability in the absence of foresight by the secondary party of the possibility of an intentional act of violence causing death. The court concluded that the jury should have been directed that the appellants must have foreseen that a co-venturer might commit an intentional act of violence that was capable of causing death or really serious bodily harm in the course of the foundational offence.
Orders
Orders of the court
In Matter Nos A14, A15, and A16 of 2022:
1. Appeal allowed.
2. Order 2 of the orders of the Court of Appeal of the Supreme Court of South Australia, made on 10 August 2021, be set aside and in its place there be orders that:
(i) the appeal be allowed;
(ii) the conviction be quashed; and
(iii) there be a new trial.
In Matter No A17 of 2022:
1. Application for special leave to appeal granted.
2. Appeal allowed.
3. Order 2 of the orders of the Court of Appeal of the Supreme Court of South Australia, made on 10 August 2021, be set aside and in its place there be orders that:
(i) the appeal be allowed;
(ii) the conviction be quashed; and
(iii) there be a new trial.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ
GAGELER, GLEESON AND JAGOT JJ
GORDON, EDELMAN AND STEWARD JJ
The jury returned verdicts of guilty for each of the appellants of the offence of murder under s 11 of the CLC Act. The jury were not asked to, and did not, take the unusual course of answering a special question as to the pathway upon which the conviction for murder had been reached. This has the effect that an error in relation to the direction concerning either pathway to guilt for murder requires that the convictions be set aside entirely.The decision of the Court of Appeal Each of the appellants before this Court appealed to the Court of Appeal on a number of grounds, all of which were dismissed. Two grounds are relevant to these appeals. In broad effect, they were as follows. The first was that the trial judge erred by directing the jury that an accused person could be guilty of murder by reference to s 12A of the CLC Act when the foundational crime did not involve the commission of an intentional act of violence. The second was that the trial judge erred by directing the jury in relation to constructive murder under s 12A by failing to direct the jury that an accused person must have contemplated the death of the victim arising from an intentional act of violence. Peek A-JA, with whom Kelly P and Doyle JA agreed, rejected the first ground on the basis that the constructive murder rule at common law did not require that the foundational offence contain an element of violence, and s 12A had not introduced such a requirement[97]. Doyle JA, in additional reasons, observed that while the common law constructive murder rule required that the commission of the felony involved an act that was violent or dangerous, the felony itself did not need to include a violent or dangerous act[98]. Peek A-JA rejected the second ground on the basis that the contemplation of the death of another was not necessary for constructive murder[99].[97]Rigney v The Queen (2021) 139 SASR 305 at 337 [95]‑[97], 339 [103].[98](2021) 139 SASR 305 at 311 [6].[99](2021) 139 SASR 305 at 358 [172].The grounds of appeal in this Court One difficulty with the manner in which the appeals were presented in the Court of Appeal was that the grounds of appeal followed the approach of the trial judge, which combined two different doctrines in the second pathway to murder in s 11: extended joint criminal enterprise and constructive murder. In this Court, with a grant of special leave to appeal, the appellants relied upon a ground of appeal to the effect that the principles of extended joint criminal enterprise could not be combined with those of constructive murder to create a new pathway to proof of murder. This ground is necessarily anterior to the issue considered by the Court of Appeal concerning the elements of proof of murder based on s 12A and extended joint criminal enterprise. As an alternative to the first ground, the appellants (with some variation in formulation) asserted that if the doctrines of extended joint criminal enterprise and constructive murder could be combined, then the trial judge should have directed that the accused must foresee that a co‑venturer might, in the course or furtherance of the foundational offence, commit an intentional act of violence that might cause, or was capable of causing, death or really serious bodily harm.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ,
GAGELER, GLEESON AND JAGOT JJ,
GORDON, EDELMAN AND STEWARD JJ