Mitchell v The King; Rigney v The King; Carver v The King; Tenhoopen v The King
[2022] HCATrans 212
[2022] HCATrans 212
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Adelaide No A14 of 2022
B e t w e e n -
BENJAMIN JOHN MITCHELL
Appellant
and
THE KING
Respondent
Office of the Registry
Adelaide No A15 of 2022
B e t w e e n -
ALFRED CLAUDE RIGNEY
Appellant
and
THE KING
Respondent
Office of the Registry
Adelaide No A16 of 2022
B e t w e e n -
AARON DONALD CARVER
Appellant
and
THE KING
Respondent
Office of the Registry
Adelaide No A17 of 2022
B e t w e e n -
MATTHEW BERNARD TENHOOPEN
Applicant
and
THE KING
Respondent
KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 6 DECEMBER 2022, AT 10.00 AM
Copyright in the High Court of Australia
____________________
MR T.A. GAME, SC: If the Court pleases, I appear for the appellant, Carver, with my learned friend, MR K.G. HANDSHIN, KC. (instructed by Access to Justice Law Firm)
MR A.L. TOKLEY, KC: May it please the Court, I appear for the appellant, Mitchell, with my learned junior, MR G.N.E. AITKEN. (instructed by Noblet & Co)
MR S.G. HENCHLIFFE, KC: May it please the Court, I appear for the appellant, Rigney, with my learned junior, MR A.J. CULSHAW. (instructed by Barbaro Thilthorpe Lawyers)
MR S.A. McDONALD, SC: May it please the Court, I appear with MR G. KATSARAS for the applicant, Tenhoopen. (instructed by Legal Services Commission of South Australia)
MR J.P. PEARCE, KC: May it please the Court, I appear for the respondent with my learned junior, MR R.I. WALKER. (instructed by Office of the Director of Public Prosecutions (SA))
KIEFEL CJ: Yes, Mr Game.
MR GAME: Thank you, your Honour. Could I commence – so I am going to use the outline as basically something that I will be speaking to. The first thing I wanted to do is to take your Honours to this Court’s decision in Miller 259 CLR 380, it is in the joint book of authorities at 232, and I am going to take your Honours to several paragraphs. So, in paragraph 4, in the report at 388, we see the last sentence:
Moreover, a party to a joint criminal enterprise who foresees, but does not agree to, the commission of the incidental crime in the course of carrying out the agreement and who, with that awareness, continues to participate in the enterprise is liable for the incidental offence –
So, the critical question in this case, construction of 12A aside, is what is meant by the incidental crime in terms of foresight, what is actually required for that. Now, just going further in the judgment, we see at paragraph 10 the reference to Johns where we see:
the secondary party is equally liable if the parties foresaw murder as a possible incident –
KIEFEL CJ: I am sorry, which paragraph?
MR GAME: Paragraph 10, the sentence which says:
Applying the principles of joint criminal enterprise liability explained in Johns v The Queen, the secondary party is equally liable if the parties foresaw murder as a possible incident of carrying out the agreed plan.
GORDON J: That is joint criminal enterprise not extended.
MR GAME: Yes, your Honour. Well, what Johns is, is a mixture of joint criminal enterprise and common purpose, and not a clarification of either. So, then there is an important passage – I say an important passage doctrinally – at paragraphs 33 and 34.
There was a long‑running dispute between J.C. Smith and Simester about the basis for extended joint criminal enterprise. In Clayton, at paragraph 20, this Court opted for Professor Simester’s view of the matter. J.C. Smith saw extended joint criminal enterprise as abhorrent in one sense by description. He saw it as parasitic accessory liability; that is to say, an extension. So what the Court in the joint judgment is saying – it sounds ridiculous for me to say what your Honours are saying, but anyway – just the last sentence of 33 – so if you will excuse me for saying:
The alternative view, proposed by Professor Simester, is that joint criminal enterprise is a sui generis form of secondary participation in a crime and not merely a sub species –
That is quite critical. In Clayton, the joint reasons – and then it goes on – I will not read it all out, but the last sentence of that paragraph says:
Acknowledgment of the sui generis nature of the secondary liability that arises from participation in a joint criminal enterprise may be thought to resolve at least some of the anomalies –
So, whether or not that was the correct view was not clear as late as Gillard. It is stated in – and one can see different positions expressed in Gillard, which only came a few months before Plato. So then that is a watershed, in a sense, in terms of how it is being rationalised. It is, we submit, a considered address of what I would call a relationship between liability and responsibility.
There is just one last set part of the judgment I wanted to refer your Honours to, which is at 44 and 45. The reference to Chan Wing‑Siu – Chan Wing‑Siu does talk about foresight of an incidental offence. We see at the very last paragraph – 44 is partly about fanciful possibilities, but that is not the focus of my intention. But 45 then says:
Before parting with Jogee, it is necessary to say something about the suggestion that the expression “joint enterprise liability” occasions public misunderstanding.
Then it goes on to say:
Nothing in McAuliffe supports either conclusion. It is to be appreciated that in the paradigm case of murder, the secondary party’s foresight is not that in executing the agreed criminal enterprise a person may die . . . it is that in executing the agreed criminal enterprise a party to it may commit murder.
That is an important passage. It may depend on the particular facts of a case what is sufficient to convey that, and it may, for example, have been sufficient in McAuliffe to convey it in terms of infliction of grievous bodily harm because McAuliffe involved a group bashing.
GORDON J: Sorry, I missed what you just said there, because of ‑ ‑ ‑
MR GAME: So, it may have been sufficient in McAuliffe to so describe it, although that is not the focus of the appeal. The focus of the appeal was about whether extended joint criminal enterprise applied. But what I am saying is, it may have been sufficient in McAuliffe to speak in terms of foresight of grievous bodily harm because the facts were all about three people getting together with a hammer and a stick – not a stick – a weapon, bashing a person and pushing them over a cliff. So, it might naturally flow that you are actually – but consequence is crucial.
KIEFEL CJ: McAuliffe, in one sense, is talking about foresight of grievous bodily harm – it is just talking about the outcome.
MR GAME: That is correct.
KIEFEL CJ: It is not saying to the contrary of what you are putting that the foresight must of the crime of murder.
MR GAME: That is right, yes.
KIEFEL CJ: The two go hand in hand.
MR GAME: That is right. It depends in any particular case what is sufficient to describe that foresight.
GORDON J: Is another way of putting that – in Clayton it really says you have got to ask, what was the agreement up front?
MR GAME: Yes.
GORDON J: In other words, identify what the thing is that is said to be the agreement.
MR GAME: Yes.
GORDON J: Because that then informs this kind of analysis.
MR GAME: Yes, exactly. But it is the agreement – is the world within which attribution applies and attribution does not apply outside the agreement, but it is this foresight in going on with that agreement that grounds criminal responsibility. And that is ‑ ‑ ‑
STEWARD J: Just so that I can be clear, I understand what you are saying. It depends on the facts to determine what is sufficient foresight. But what is the principle which tells you when it is sufficient?
MR GAME: That is a factual question. So, if it is people wandering around with loaded firearms, or with knives, or if it is a group bashing – as in McAuliffe – one, it will flow inevitably from what you are describing ‑ ‑ ‑
STEWARD J: Is that the same thing as saying that if from the facts it is obvious what may happen, you do not need to say it?
MR GAME: That is correct. But the grounding principle is that consequence is an aspect of foresight and the question is what consequence is required.
GLEESON J: Mr Game, when you said attribution does not extend outside the agreement, do you mean both attributions of acts and the attribution of liability?
MR GAME: Yes, your Honour. I am trying to avoid going into the doctrinal differences that this Court had in IL about acts and liability. IL is all about joint criminal enterprise, so it is all about what is attribution of, whether it is acts or liability, within joint criminal enterprise. And that works differently.
We have just seen in the reference to Miller and Professor Simester is that this is not a species of aiding and abetting. Aiding and abetting would apply by section 267 of the South Australian legislation, so that is put to one side. But even in aiding and abetting, which is derivative liability – and in this case it will be principles in the second degree – even then, one is not talking about attribution, one is talking about encouragement and again, encouragement has its own limitations. But if you encourage a person to commit an act of grievous bodily harm with intention, you do not need to foresee that somebody will die. But if you encourage – because your attribution applies to the act done with intent to cause grievous bodily harm, and it works differently in that situation, that is what I am talking about, your Honour.
So then, if one comes to section 12A, and I have got it at paragraph 6, something I should say is this. We say that we should succeed in this appeal even if it was foresight of an act done with intention to kill or cause grievous bodily harm resulting in grievous bodily harm, which is kind of the McAuliffe formulation. That is just because the directions in this case fell short of that, even that, and I will come to that shortly.
GLEESON J: I am sorry, Mr Game, I am running a little bit behind you. So, what you are saying is, the extended joint criminal enterprise is a liability that is fixed by foresight as opposed to attribution.
MR GAME: Exactly. But the attribution sits inside the joint criminal enterprise because that is primary liability and your liability sits and goes along with your co‑offenders’.
GLEESON J: And that is one reason why it is described as a sui generis form of liability.
MR GAME: Yes.
EDELMAN J: Well, it still is attribution, but it is attribution of the liability rather than of the acts.
MR GAME: At a different point. At a different point. Yes, that is – I was avoiding using attribution just because it is confusing, but it is at a second level, based on foresight. But it is not going to work to get you to the consequence if you did not foresee the consequence because that is – you have just got to the foresight of the act done with the intention. You are not going to be able to pick up the consequence. So then ‑ ‑ ‑
KIEFEL CJ: Just before you go on, Mr Game, would you remind repeating the “even if” part of your argument?
MR GAME: The “even if” is a we win anyway sort of even if, which is this: that if the consequence is accepted as being consequence of this act, an act done with intention to cause grievous bodily harm or kill, and the consequence is identified as being sufficient as grievous bodily harm, which is what the Crown accepts and puts to you, we say we should succeed anyway because the directions given in this case simply talked about the use of violence or inflicting violence, and that is less. I will come to that shortly. So, if one ‑ ‑ ‑
GORDON J: Sorry, I do not mean to interrupt, but that argument applies both, does it not, to common law murder and even the extension?
MR GAME: Yes, your honour.
GORDON J: So, it is the one point, you say, regardless of which way you slice and dice this.
MR GAME: Yes, that is right. That is correct. So, if you look at paragraph 6, then, of our submissions, of the hand‑up, then we say that those are the requirements that sit inside section 12A. Now, if I just backtrack for one moment. So, in ordinary extended joint criminal enterprise, the level of abstraction from murder is that you did not intend, and you did not aid and abet an act done with intention but you saw foresaw it. The level of abstraction with felony murder or section 12A by its very nature is one further step, because you are involved in a particular crime, say, and you foresee a section 12A situation if it applies, then what you are foreseeing in an act of violence. But we say it has got to be more than that. We say it has got to be all of those things in (a), (b) and (c) that are foreseen.
If you do – the question of construction is very much tied up with how you view the requirements of section 12A from the point of view, if extended joint criminal enterprise applies to it. So that, if, as it was left in this case, extended joint criminal enterprise – I will come back to this shortly – but kind of hovers at section 12A and then applies to all of it – that would mean that if on the way in which it was left that it could be any act of violence, however small, in the course of particular offence – and no connection to (c) – so one can see how far now we have moved from liability for murder.
KIEFEL CJ: The problem with using 12A and applying it to extended joint enterprise principles is that (c) is not addressed in the future tense. It is just an in fact causes death so far as the principal offender is concerned.
MR GAME: Yes, you would have ‑ ‑ ‑
KIEFEL CJ: But if, from the secondary offender’s point of view, foresight would have to be, you say, of something much more than an act of violence.
MR GAME: Well, it would have to be an act of violence that was capable of, at the least – and this even involves some contortion of the words in the section – but it would have to be an act of violence apt to or capable of causing death.
KIEFEL CJ: Would you say that it would have to equate with the foresight of harm equivalent to killing or grievous bodily harm as in common law murder?
MR GAME: Yes, your Honour.
KIEFEL CJ: So, you would say that the same should apply?
MR GAME: Yes, but it should be remembered that there is still a level of further abstraction in 12A because you are not foreseeing an act done with intention to cause grievous bodily harm or death; you are foreseeing an intentional act of violence, which is less. So, even if you adopt the proposition that your Honour has just put to me or I put to you, even if you do that, you still have a further level of abstraction. So, it is important to understand what level you are at, at each point in this.
KIEFEL CJ: Well, focusing more, then, on the words, as you are saying, otherwise it is abstraction, the act of violence would have at the least to be capable of causing a death?
MR GAME: Yes, your Honour, exactly.
KIEFEL CJ: Is that what Chief Justice Jordan said in Surridge, or came close to saying in Surridge?
MR GAME: Yes, let me just check my note. Well, it was a very serious – I would have to check, but the felony was a very serious felony that involved in itself a significant risk of violence, but I will have to check that, your Honour.
KIEFEL CJ: Well, I just have it here handy. So Surridge is at 42 SR (NSW) 278. I think it is in the joint book of authorities at 754. At 283 of the report his Honour suggests that for constructive murder it would have to be either:
within the common purpose of both that an act obviously dangerous to life –
MR GAME: Yes, your Honour.
KIEFEL CJ: Would that suffice, in your view?
MR GAME: Yes, your Honour. It is a question of what gets you to the idea. It is the question of the – so it is not the question of the fine nature of language, it is the question of conveying the concept of attracting the liability. I did not want to, as it were, get into discussing with your Honours what happened in Sharah because it is a very confusing decision and easily misunderstood. But it might be as well if I actually do say something about ‑ ‑ ‑
GORDON J: Before you do that can I just go back to this idea that 12A is one further step away from ‑ ‑ ‑
MR GAME: Yes. Yes, your Honour, the idea is this. So, if you look at (a) in paragraph 6, whereas for ordinary extended joint criminal enterprise you had to foresee an act done with intention to cause death or grievous bodily harm, now for section 12A you do not need to foresee that, you need to simply foresee an intentional act of violence, so that you do not have to foresee that somebody meant to kill someone, and that is the second level.
GORDON J: So, is that because under extended joint criminal enterprise one foresees all elements of the crime?
MR GAME: Yes.
GORDON J: Whereas here one sees an act of violence which ultimately has a different consequence, or has a particular consequence without the intention of ‑ ‑ ‑
MR GAME: Has a particular – that is exactly it, yes. That is the second ‑ ‑ ‑
GAGELER J: Mr Game, just so I understand where we are in your argument, are you really arguing paragraph 11 of your outline at this stage – we have jumped to that?
MR GAME: Yes, your Honour.
GAGELER J: Okay.
MR GAME: But I will come back to the directions shortly, but – yes.
GAGELER J: Yes, all right. But, I mean, logically – I do not want to take you out of the order you want to address – but you are assuming that extended joint criminal enterprise has some sort of application to 12A in this argument.
MR GAME: Yes, I am assuming that, but we are not accepting that.
GAGELER J: So, it is your ground – what you are calling ground 1 which, I think, in the notice of appeal is ground 2, it is ‑ ‑ ‑
MR GAME: Yes, that is correct, we are assuming that. We assert that it cannot be made to work to section 12A, which is a discrete argument that I will come to after I have gone through directions.
GORDON J: I find that surprising. I am not taking you out of your order but, in a sense, is the argument that you are putting now to reach that conclusion that they cannot work together?
MR GAME: Partly, your Honour. But what I am saying is this, the strengths and weaknesses of the argument about whether they can work together is related to what you would require for extended joint criminal enterprise to apply to section 12A. They are the two things that connect it – that is all I am saying at the moment, your Honour.
So, the genesis of the use of extended joint criminal enterprise into felony murder finds itself in Sharah, and I will take your Honours to Sharah, briefly. It is at 428 of our book – I am using the report, I am sorry. But if I could take your Honours to – there is a serious mix‑up in Sharah which found its way into the New South Wales law reforms discussion of it. So, if you look at page 297, you will see it says:
Section 98 is in the following terms:
We see it is armed robbery with wounding. Then, down the page at the bottom – this is the bit which most of the approval in cases for use of it comes from – he said:
As to felony‑murder ‑ ‑ ‑
GORDON J: Sorry, where are we reading now, please?
MR GAME: About E, in the report at 297. I am sorry, I am using the report.
GORDON J: Thank you.
MR GAME: But it says:
As to felony‑murder (upon the assumption that the foundational crime was the offence under s 98) it was incumbent upon the Crown to prove beyond reasonable doubt –
Then it goes, (i), (ii), (iii). Subsection (i) is actually section 97 and it is not a relevant felony. So, (i), then (ii) and (iii) is the foresight into section – (ii) is section 96 and (iii) is section 98. So, what the mix‑up is, is that in that formulation the foundation offence is actually a 20‑year offence which is the section 97 offence – and it gets worse, because the directions later on were not even given in these terms – one can see at 300. But the point is this, that what one needs – that passage is misconceived because section 98 is not the foundational offence. But how one can see how the principle is made to work in later cases was through crime A – foreseeing oneself into a felony murder felony.
His Honour then referred, with approval, to Johns. I am sorry to get into in the arcanum of this, but yesterday I had sent to the Court the New South Wales Court of Criminal Appeal’s decision in Johns and it is worth – if I could take your Honours to that – your Honours should have that decision, 1978, 282 – do your Honours have it? So, if you look at page 294, at the bottom of the page ‑ ‑ ‑
KIEFEL CJ: I am sorry, this is New South Wales Court of Appeal?
MR GAME: Yes, (1978) 1 NSWLR. So, this is where – so Justice Carruthers is justifying this by reference to the New South Wales Court of Criminal Appeal in Johns. If you go into the report at 294 we see foresight into an armed robbery. Does your Honour not have a copy?
KIEFEL CJ: I do not think so.
MR GAME: My apologies.
KIEFEL CJ: I do have a copy now. But I think there might be some ‑ ‑ ‑
GAGELER J: I would benefit from a copy.
MR GAME: I apologise. So, the passage that is being approved is at the bottom of 294, and it says this. So, this is:
the second part of the definition –
This is the extended joint criminal enterprise into felony murder, so, they give “their assent” to armed robbery with assault, but:
must have been within their contemplation –
would produce:
whether of not intentionally it might be discharged by him.
So, that is foresight into a felony that carries 25 years. And then over the page, it includes:
the possibility that in the course of it all somebody might get killed by the discharge of that pistol –
So, you have got crime A, foresight into a felony of 25 years and foresight of the possibility of death. And that is what was attempted to be approved in Sharah. But that is all you should take from Sharah because it is mixed up as to how the principles work in practice. So, if 12A worked with extended joint criminal enterprise, that is the idea that would operate.
Now on page 2 of the document, I am going to take you to the relevant directions. Now if one starts at page 45, the jury received handouts for the relevant offences. You will see that common law murder is described, there is no need to dwell on that. And then, on page 46 constructive murder is described, and then on 47 at the middle of the page, joint enterprise is described in general terms and that continues through 48 and 49 and then, at the top of page 50, we are talking about common law murder:
did the accused contemplate that in carrying out the joint enterprise –
someone:
might inflict violence on that person –
and that violence inflicted be:
accompanied with that specific intention of –
either killing that person:
or causing him really serious bodily harm.
Now, similar passages come later, but if joint criminal enterprise operates, it is not sui generis solely to murder, could be sui generis – could apply to manslaughter, as it was in this case, or it could apply to some other offence. But, on those directions, you would have hit a different offence, not murder – and there are other offences such as sections 23, 24 and 27 – I think it is – in the Criminal Law Consolidation Act (SA). So, then, we come further down, and we see:
if they came across someone . . . might inflict an intentional act of violence –
inflict violence accompanied with that specific intention, et cetera. In the next passage, he says:
In relation to constructive murder, the question is similar but not quite ‑ ‑ ‑
KIEFEL CJ: I am sorry, where are you?
MR GAME: I am on page 50, sorry, your Honour.
KIEFEL CJ: Page 50?
MR GAME: Yes. It is this paragraph that begins:
In relation to constructive murder ‑ ‑ ‑
KIEFEL CJ: Thank you.
MR GAME:
the question is similar but not quite the same: did the accused contemplate that in carrying out –
so, this is 12A:
the joint enterprise to break . . . and steal . . . if they came across someone . . . might inflict an intentional act of violence –
Now, that passage becomes any act of violence, and it becomes explicitly extracted away from the act of violence used in this case – and I will come to that. His Honour goes on to say:
The difference is that for constructive murder the prosecution do not have to prove that the accused or all of them contemplated that someone . . . might inflict such violence, violence with the intent to cause really serious bodily harm –
What they have to do is contemplate one of them might inflict an intentional act of violence. Then, on the bottom of 51, it talks about common law murder again. We see a phrase that comes up from time to time in these directions:
contemplated that any one of the participants might use, against someone . . . violence against him –
So, that does not even necessarily involve the infliction of an injury. It could be acting in a violent way.
STEWARD J: Sorry, which paragraph is that?
MR GAME: Page 51, the paragraph that begins two‑thirds of the way down the page, about line 18:
So the prosecution must prove beyond –
STEWARD J: Thank you.
MR GAME: And the critical words are:
might use . . . violence –
So that, again – if I just pause to say this, there are cases where extended joint criminal enterprise is used to get one from crime A to crime B where crime B is not murder – Siu is an example. The directions that we just saw in Sharah had over the page an example of section 97 into section 98. The New South Wales Law Reform Commission cited other cases in which it could be done.
So, if it operates, it can operate so that – what has happening is one could be landing on a different offence that is the one that is foreseen and the one that actually would be established. So, it might be in New South Wales’ language, the intentional infliction of grievous bodily harm, for example – although this would fall short of that, even. I then go on in this document, in the summing‑up to page 60. The passage begins:
For this murder –
That is a very confusing passage and it is almost impossible to understand, but the only point about it is one sees the reference in the common law context to the words “contemplated violence” and those are the only – the rest of it is really difficult to follow because of the repeated use of “contemplated” four times. So then at the bottom of page – now, on page 61 we are into section 12A. His Honour said at the bottom:
The intentional act of violence can actually be, in certain circumstances, a threat or a menace but here there could be little doubt that provided the blow was an intentional one –
So, this is about what was actually done. And then over – but it does say that the “act of violence” could be:
a threat or a menace –
But then at 12A we see this is all about constructive murder into section 12A, then we see, we might ‑ ‑ ‑
KIEFEL CJ: Where are you reading from now?
MR GAME: Top of page 62. Sorry, your Honour. It says – this is the third sentence of the first paragraph:
Prosecution must prove that when they joined the joint enterprise to steal the cannabis they contemplated –
et cetera. One of them:
might perform against someone . . . an intentional act of violence.
Now, that goes down to the bottom of the page and an important use of the word begins:
Not only that, ladies and gentlemen, in relation to extended joint enterprise, the intentional act . . . can be any act of intentional violence.
GORDON J: So, I do not quite understand that direction. Is that direction a direction which is dealing with extended joint criminal enterprise or the interaction between EJCE and section 12A?
MR GAME: That is what it is.
GORDON J: The last.
MR GAME: That is what it is.
GORDON J: And so, if one takes that on its face, as I understand your complaint about it, it, from the extended joint criminal enterprise point, takes away the foresight of possibility of the crime?
MR GAME: Yes.
GORDON J: And in relation to the section 12A aspect it takes away an intentional act causing death.
MR GAME: Yes.
GORDON J: So, for both of them it – the merger, in effect, removes an essential part of each of them.
MR GAME: Yes. Exactly. To give an – it is very hard to think up sensible examples, but if ‑ ‑ ‑
GORDON J: I am sorry, I did not hear what you just said, Mr Game.
MR GAME: It is very hard to think up sensible examples, but if two people agreed to engage in larceny by trick, and they foresaw that they might slap someone in the course of that and then they pulled out a gun and shot them, on those directions you would be guilty of murder because there was a crime, which was the larceny, there was a foresight of some trivial act of violence, and that is intended to be caught by this direction. So, when it says, “any act of intentional violence”, it says:
they do not have to contemplate . . . would strike that intentional blow –
and then it goes on to say might strike:
for example on the back of the leg –
So that does not necessarily involve any injury or an instrument or a weapon of any kind. And then it is put in contrast to:
They do not have to have within their contemplation that someone would necessarily strike Mr Gjabri –
So, it has been taken away as far as it can from what actually happened in the case, and liability is being affixed under section 12A. So, that contemplated act of violence is a fictional one. It is explicitly extracted from what happened in the case. And then, we see again on appeal book page 63, third line:
For constructive murder –
So that is section 12A:
prosecution do not have to prove that an accused contemplated that anyone intended to cause really serious bodily injury –
et cetera.
JAGOT J: Sorry, where were you reading from then?
MR GAME: Page 63, about line 8, your Honour.
JAGOT J: Line 8. Okay.
MR GAME: Sorry. I am attempting to be clear, but I am not doing very well. So:
do not have to prove that an accused contemplated that anyone intended –
et cetera.
STEWARD J: So, can I just test your proposition. If, in the last example you gave, there was foresight that because a gun was being carried someone might get shot and killed, but instead of that happening a knife was used and someone was stabbed and killed, they would be caught?
MR GAME: Yes, they would be caught.
STEWARD J: Yes. But it is the quality of ‑ ‑ ‑
MR GAME: No question about it, yes.
STEWARD J: It is the quality of an act of violence which is capable of leading to death – or causing death, sorry.
MR GAME: Exactly. Yes. And if you do not have that link you are not going to get into the third aspect of section 12A.
STEWARD J: Contextually, is that the work that is done by the use of the word “thus” in 12A?
MR GAME: Yes, “thus causes”.
STEWARD J: Yes, all right.
GAGELER J: Mr Game, if we look at page 50 that you took us to initially, we see the formulation of the extended joint criminal enterprise doctrine as applied to murder and felony murder.
MR GAME: Yes.
GAGELER J: Is your case either made out by just looking at what is there said and saying it is either right or wrong? Do we need to concern ourselves with the detail of these other aspects of the directions?
MR GAME: No, your Honour, just to show that it gets reinforced, but at the very end of this there is something that is said about manslaughter that I will need to just take you to and I am kind of two‑thirds of the way through this tedious exercise.
GAGELER J: But your case is either good or bad, really ‑ ‑ ‑
MR GAME: That is right, yes.
GAGELER J: ‑ ‑ ‑ by reference to page 50.
MR GAME: Yes.
GORDON J: Just so I can follow it. So, when I asked you what was wrong with those directions on both 12A and EJCE on your argument, it was the removal of the matters that I identified, if one looks at page 50?
MR GAME: Yes, your Honour. We have attempted to ‑ ‑ ‑
GORDON J: Can I ask a difficult question? Is that what is intended by what you say at 12(b) in your outline?
MR GAME: Yes. Now, I am almost at the end of this, but anyway. Page 69, this is quite important because the Crown says that you can ignore the smack to the back of the leg because that is not what this case is about, but at 69 we see again – beginning:
So the difference there is the difference between what they contemplate, which is any act of intentional violence, with actually what happened, that specific –
So, then it goes on:
the difference is they only have to contemplate that one of them might intentionally use that act of violence, smack to the back of the leg, anything like that –
The point of that is that the clearest possible distinction is being drawn between what needs to be contemplated and what was actually done. So, then there is – an answer is then directed on – there is one last part here.
On 78 to 79, his Honour is now directing the jury on manslaughter and the point that I want to draw out here – and it comes up again a little later – is that if you have liability through section 12A to extended joint criminal enterprise there will not be any work to be done by manslaughter because you have to have a finding of an unlawful and dangerous act. But what sits at lines 10 to 18 is actually wrong, but it does not matter, it is not central to our – it says you would have already concluded that the person – they did not have in their contemplation someone might use violence, and you would have to have found that someone did not have specific intent to cause serious injury.
Now, strictly speaking, that is not correct, but it is not part of our appeal. The point is here that now we are hearing about primary liability for manslaughter. Now, when we come to the redirections, we see it is extended to extended joint criminal enterprise to manslaughter. So, now I move forwards to the jury’s question, which was page 262, line 15:
‘Can you please clarify the two pathways to murder and manslaughter?’ With an extra note: ‘It would be good if you could explain one and then the other without overlapping.’
Then the jury get those directions again at 269 to 270, and we see here for common law the 270 reference to “might inflict violence” and then – common law, at the bottom of the page, “might inflict violence”, and then on constructive murder, “an intentional act”. And then we come to manslaughter – sorry, just at the top of 274, common law ‑ ‑ ‑
KIEFEL CJ: I am sorry, did you say ‑ ‑ ‑
MR GAME: Top of 274 is common law again:
if they come across someone . . . might inflict violence –
We then go to the last bit of this – sorry, there is more of it again at 277. On common law it becomes “might inflict a blow”. That is at line 12. So that is not even an injury. And then we see again at 278 on 12A, “any intentional act of violence.” So, a blow to the back of the leg. So, all of that is getting emphasised. And then we see at 280, what is happening there is extended joint criminal enterprise into manslaughter.
My point about the manslaughter is that manslaughter just cannot work with this, because you would have to foresee an unlawful and dangerous act. For primary liability, you will have to engage in one, for actual liability you have to foresee one, and that is going to outstrip what is required for section 12A. So that is all I need to say about those directions. So, we summarised it in paragraph 9 ‑ ‑ ‑
KIEFEL CJ: But manslaughter would work if you had a direction which said to it had to be foresight of an act which was obviously dangerous to life.
MR GAME: Yes, your Honour. The other thing is, the jury is not obliged to approach this from any particular direction, although that is not how the judge directed them, so they might come to the conclusion that the person was guilty of manslaughter, and they might not get any further because of the conflict between the different – 12A and this. So, we have described, if 12A applies, what it is we say are the errors in 10 and 11.
GORDON J: Your primary position is that it does not apply.
MR GAME: My primary position is it does not apply. That is where I am coming to now.
GAGELER J: Paragraph 10 deals with the common law.
MR GAME: Yes.
GAGELER J: Paragraph 11, section 12A.
MR GAME: That is right.
GAGELER J: Yes.
MR GAME: So, if you would just look at our grounds, your Honours, you will see at page 429 ground 1, which is paragraph 2, is about whether 12A applies. Part of ground 1, we also argued ‑ ‑ ‑
KIEFEL CJ: Just give us a moment to find it, Mr Game.
MR GAME: Page 429. So, ground 1 in paragraph 2 concerns whether 12A applies, but it also includes part of our argument about the definition given of violence. Ground 3 is about what is required if 12A does apply, and then ground 4 about what is required in respect of common law. That is how the grounds are put. So, now I come back, your Honours, to section 12A and some textual arguments about it. So, for what it is worth, this provision was introduced before McAuliffe but after Johns and after the Privy Council’s decision in Chan Wing‑Siu. Then, if one looks at section 12A, it says:
A person who commits an intentional act of violence while acting in the course of furtherance of a major indictable offence –
So 12A, however you describe it, has elements. It has three elements, as we have described. If you are sitting, as it were, outside of section 12A and it did apply, you would have to pick up all three. But the first problem is, can extended joint criminal enterprise be implied into the language of 12A, assuming it sits there as a common law principle capable in any particular incident to do so? We say no. Well, we say it is very difficult to do so. “A person who commits”, that person, we would accept, could be a joint criminal enterprise person. So, if you were a party to inflicting an intentional act of violence in the course of, then that would apply to you. But we are not that person.
GORDON J: Let us deal with just that category for the moment.
MR GAME: Yes.
GORDON J: So, if we go back to asking what was the agreement for a joint criminal enterprise and one has in it as part of it an act of violence, then that means that whoever does the act, regardless, say, if there is four people involved in the agreement, all are responsible for the act of violence.
MR GAME: That is right.
GORDON J: We then go to 12A, and we say: how does 12A interact with, if at all, that concept? We have got an agreement, so the person in 12A is, in effect, a reference to all four people ‑ ‑ ‑
MR GAME: Yes.
GORDON J: ‑ ‑ ‑ and therefore 12A operates and its consequences follow.
MR GAME: Yes, but we are not a 12A person.
GORDON J: Well, I do not ‑ ‑ ‑
MR GAME: We are not a 12A person because we are not a party to – this whole thing is based on an assumption that we are not a party to the commission of the intentional act of violence.
GORDON J: So, what you and I just discussed was joint criminal enterprise and its interaction with 12A.
MR GAME: Yes.
GORDON J: We are now going to go to the next step, and that is extended joint criminal enterprise, which is not a form of – it is a form of constructive liability where they do not have the agreement but the potential or foreseeability – possibility – of there being an act of violence giving rise to a crime being committed.
MR GAME: Yes. So, hypothetically, you could have – if this is to work, you could have an agreement, a joint criminal enterprise to commit an offence which actually was not a major indictable offence if you foresaw an intentional act of violence in the furtherance of – so that things would – say you foresaw the possibility that things would escalate. That might – if section 12A operated, it could get you. But in this case, what is being put against us is that we are party to a major indictable offence, which is the second limb of the thing. But it is not put against us that we are a party to an infliction of an intentional act of violence, and we are not a party to the “thus causes the death”.
KIEFEL CJ: Because the prosecution did not choose robbery or some such offence ‑ ‑ ‑
MR GAME: That is right.
KIEFEL CJ: ‑ ‑ ‑ they chose an aggravated form of trespass.
MR GAME: Yes, they chose an offence that does not involve violence.
EDELMAN J: Section 12A is effectively a deeming provision, is it not?
MR GAME: Yes, with three elements, though.
EDELMAN J: Why would section 12A, as a deeming provision with those elements, necessarily pick up principles of joint criminal enterprise? That is not extended joint criminal enterprise, but true attribution of acts, principles of joint criminal enterprise.
MR GAME: Well, I would like to ‑ ‑ ‑
EDELMAN J: I can see how they would be picked up in section 11, but ‑ ‑ ‑
MR GAME: So, the reason I am being coy about it is that in a decision of this Court in – a case I will not be able to pronounce correctly, but it is called Arulthilakan, it was assumed but not decided that joint criminal enterprise or possibly accessorial liability under section 267 could apply to this. But we would argue, if necessary, that actually 12A is a deeming provision specifically about a person that is contemplated by that section because of the language “who commits an intentional act of violence”. But our fall‑back position – so that is a deeming provision for a person who falls within that provision. But what I have been putting to you is notionally the fall‑back position, which is what we have to sustain, which is that ‑ ‑ ‑
EDELMAN J: No, I understand that.
MR GAME: ‑ ‑ ‑ it does not work in respect of extended joint criminal enterprise.
GAGELER J: Mr Game, I just want to ask a conceptual question. With extended joint criminal enterprise as a doctrine of the common law, as I understand it, is it a doctrine that tells you how you read, for example, the definition of murder in section 11, or is it a doctrine that stands aside and imposes liability as a matter of common law?
MR GAME: My answer to that would be that it is sitting there waiting to be applied if the provision is capable of absorbing it, which is not a straight answer to your question, but it is my attempt at answering it.
GAGELER J: So, it effectively applies as a principle of statutory interpretation, you say.
MR GAME: Yes, your Honour.
GAGELER J: Where you have an offence that is defined by statute.
MR GAME: Yes, but it is not sitting there quite like 267 is sitting there as aiding and abetting. But we say that 12A is a deeming provision that gets you into ‑ ‑ ‑
KIEFEL CJ: Do you actually accept that it is a deeming provision?
MR GAME: It is a deeming provision with three elements, is what I accept, your Honour.
GLEESON J: That comes back to the question that I had. What does it mean to say that it is a deeming provision? How is it different from any other offence provision that identifies three elements and then says that that produces a conclusion that you are guilty of a particular offence?
MR GAME: Well, in my argument it is not crucial which it is, but there are statements in IL by some of your Honours that what sits inside section 18 of the Crimes Act is not an offence‑creating provision but something that creates liability, but this is different. If one reads 11 and then 12A, all that is being added in section 11 from section 12A is the penalty provision.
EDELMAN J: It is the other way around, though, is it not? One starts with section 11 and says section 11 creates the offence of murder. The offence of murder is constituted beyond section 11. You have all of the principles that create murder, then one goes to 12A and says, well, even if you have not committed murder under section 11, you are going to be held as though you have committed murder, provided you have satisfied these three elements in 12A.
MR GAME: Yes, your Honour, but we say that if you want to apply extended joint criminal enterprise to this you have to apply it at the point that you are looking at the deeming provision, not at some other later point.
EDELMAN J: Of course, because you are applying extended joint criminal enterprise to 12A, not to 11.
MR GAME: That is correct. That is the critical – that is my answer to your Honour Justice Gleeson’s argument, but the answer is a bit oblique. But the critical thing for my argument is that the extended joint criminal enterprise, if it can apply, is applying to section 12A. It is not applying, as it were, into a – fed back into section 11.
EDELMAN J: If it were applying to section 11 we would just be Miller and that whole line of authorities back to McAuliffe.
MR GAME: That is right.
KIEFEL CJ: But I understood your argument, I thought, in the fuller written submissions, was that section 12A, properly construed, implicitly excludes – is that a constructional argument?
MR GAME: That is – we go that far. Yes, it is a construction argument.
KIEFEL CJ: That is a constructional argument. Is there another argument that, conceptually, in any event, extended joint criminal enterprise does not work – it cannot apply?
MR GAME: I think that is the second aspect of the argument.
KIEFEL CJ: So, you are looking at both ways.
MR GAME: Yes, I am, your Honour, yes. An aspect of this argument ‑ ‑ ‑
GORDON J: So, are we still dealing with the construction argument?
MR GAME: Yes, your Honour. An aspect of this argument is about consequences. An aspect of this argument is, if you do this, then you are building on something that has brought about a liability by satisfying, if we call it this deeming provision. Then you are creating a second level of liability which, as I put earlier, is a further level of abstraction. So, one is getting – and there is no doubt, in my submission, that Miller, Clayton and McAuliffe, to an extent, are based a realistic view about criminal responsibility – that is to say, there is a moral aspect to what is being decided in those cases.
GORDON J: That is not really a construction argument, is it? This is picking up the Chief Justice’s point that has been raised with you – that is really the moral question, is it not? In a sense, you have got 12A and EJCE on your argument both bringing about constructive crimes.
MR GAME: Yes.
GORDON J: Each is a form of extended liability.
MR GAME: Yes.
GORDON J: Is it right to say that each extends liability for murder in the absence of mens rea?
MR GAME: Yes, in the absence of mens rea for the offence by the perpetrator, yes.
GORDON J: Where the rationale for each is different.
MR GAME: Yes.
GORDON J: One is liability for foreseeing but not agreeing to.
MR GAME: So, I come back to this, that, I say, all one did. So, under this statute, you are making someone liable for murder not because you foresaw that they would commit murder but because you foresaw that they would be made liable for felony murder. That is what it amounts to – that they other person would be made liable for felony murder through section 12A.
GAGELER J: The offence of murder – at the end of 12A, it says “guilty of murder”, that equals guilty of the offence created by section 11, is it not?
MR GAME: Yes.
KIEFEL CJ: Yes.
EDELMAN J: So, does that not mean, then, that if one is talking about joint criminal enterprise, joint criminal enterprise would operate at the level of section 11, not at the level of section 12A?
MR GAME: Yes, I would argue that, your Honour. I do argue that. But we have put our argument in a more constrained way just because we wanted to create a lower bar for ourselves and not for any other reason.
STEWARD J: Can I just test your workability argument in one way?
MR GAME: Yes.
STEWARD J: Assume for the moment that your way of construing 12A is correct, namely, the act of violence must be one of a certain quality. If in this case there had been CCTV footage which identified one person as the person who satisfied each of the integers of 12A, so assume that, could 12A then not apply to the others on an extended joint criminal enterprise basis, assuming they had foresight of an act of violence that could cause death?
MR GAME: What, as I understand, your Honour is positing is this, that if you make section 12A do all the work that I have said it should do, which is you are party to a crime, you do foresee somebody doing an act of violence that is apt to cause death, so you satisfy the thing in what I would describe as ‑ ‑ ‑
STEWARD J: And we know that there is someone – a person who is primarily liable.
MR GAME: Yes. So, at one level, at a moral level, if I could put it that way, that weakens my argument. But at constructional level it does not make it any weaker in terms of whether section 12A can apply to this. But it does make, as it were, the large moral question a much more difficult one if you do have that kind of evidence.
STEWARD J: Then, in this case there is no one who we know satisfies each of the three elements.
MR GAME: No, and the thing that is described is a stick or a bat that somebody is seen carrying in the CCTV and the murder weapon is not found and undoubtedly the deceased died as a result of a very serious blow. So, then, in the submissions – I am really still on paragraph 12, so I have spoken about how this idea about the person works, and it is the person who
commits an intentional act of violence, and I have said what I wanted to say about that, I think.
Then we point out, as I have already pointed out in (b) that, take away the element that your Honour Justice Steward just put to me, is the argument – the support or the reason for supporting the interrelation becomes more tenuous the less you require. Then in (c), I have kind of put this already, which is you actually have to, at an intellectual level, extract extended joint criminal enterprise out of section 12A to even make it work in respect of it, is part of our argument, whereas we say it needs to be something that the provision can bear as a matter of necessary implication.
Then, lastly, (e) – paragraph (d), I have already spoken to your Honours about what I would call a consequence-based approach, that is (d). And then (e) is the same argument I put very early about how who this person is does not work if you insert these offenders or these appellants into it. So, that is all I wanted to say about section 12A.
In paragraph 13, that is just about – when I say it is “just”, it is quite a large part of our argument – but it is about how his Honour described what an act of violence could be. And I have put my submission about that and in our submissions, at paragraph 50, we refer to a decision of Kageregere, which I am not going to take you to, but it is about an act of violence. The Chief Justice said, for an act of “violence”, you needed an act of:
uncontrolled force which carries a real, in the sense of not remote, risk of personal harm.
We say, to make the first and third elements of 12A, it needs to be an act of violence apt to cause death. Now I have said all that, but those are my submissions, if the Court pleases.
KIEFEL CJ: Yes, thank you, Mr Game. Mr Tokley.
MR TOKLEY: I trust your Honours have received our outline of oral submissions, and the first part of the outline addresses the facts relevant to Mr Mitchell. He is in a separate category from the other appellants because he gave evidence at trial but also, in a nutshell, his evidence was that whilst the raid was taking place in the grow house, Mr Mitchell was a couple of streets away, sitting in his car and did not participate in the break, enter and steal from the grow house. Now, in our oral outline, that effectively encapsulates back paragraphs 3, 4 5 and 6 and there is some support for Mr Mitchell’s evidence as to the facts, as referred to in paragraph 7 and in paragraph 8 of our outline.
We do not run a case that there is no separate round of appeal in respect of Mr Mitchell and the facts, but the facts tend to underline, I think, the difficulties that one encounters with this section in terms of foresight, where you have a person who is remote from the location where the intentional act of violence takes place. And it is for that purpose that I wanted to emphasise the facts in this matter.
As I understand it, the Crown response is that even in circumstances where a person is not physically present but is located some distance away, on the directions given by the trial judge in this case, all that person had to contemplate was an act of intentional violence, that was sufficient for liability for murder in those circumstances. And, as I say, it really underlines the difficulty with the Crown case in that situation.
Your Honours, in our outline, we anticipated that Mr Game would go first and that Mr Game would cover, really, the legal issues. I think he has done that, and he has also taken your Honours to the relevant passages in Miller and to the relevant passages in the summing‑up of his Honour. There are, of course, other passages that we refer to in our outline, where his Honour used references to an intentional act of violence, and so on and so forth.
Just on the question of the law, I really only wanted to make a couple of points, and that is that we have approached it at a very conceptual level, we say on the one hand you have the doctrine as formulated at common law with its requirements, and on the other hand you have the statute with its requirements, and we think that coherency and consistency with the common law principle does not enable those to – the doctrine to overlap with the statutory provision. So, we put our case on that basis.
GAGELER J: So, is the doctrine a source of common law liability? It is the question I asked Mr Game.
MR TOKLEY: Yes, it is, your Honour. And I was conscious of the question when your Honour asked it. Your Honour, that is, in the sense that the doctrine is a label, it is the constituent parts of that doctrine which, when applied, will give rise to liability in the circumstance of any given case.
STEWARD J: Can I ask a related question?
MR TOKLEY: Yes, your Honour.
STEWARD J: How does the doctrine fit in with the specific provision in section 12 dealing with complicit liability for murder?
MR TOKLEY: Could your Honour pardon me for a moment? I will just turn to section 12.
STEWARD J: Do we read 12A as affected by section 12?
MR TOKLEY: Your Honour, I am sorry, I am just finding section 12 ‑ ‑ ‑
STEWARD J: That is all right, I apologise. You can answer later on if you wish to.
MR TOKLEY: I am sorry, I have got it in front of me. So, section 12, your Honour, not 12A?
STEWARD J: Yes, 12 is a specific provision as I see it, dealing with with complicit liability for murder.
MR TOKLEY: Yes. I suppose my answer would be that, at the constructional level, and this is the question your Honour Justice Edelman raised, at the construction level, you have got subparagraphs of section 12 deal with the situation which might be covered by joint criminal enterprise.
STEWARD J: But do you, for instance, mount an argument that says that section 12 should be read as exhaustive of complicit liability for murder in South Australia?
MR TOKLEY: We do not specifically advance that argument, your Honour, to be perfectly frank. But I do not see why that would not be one view of the matter, which would lead ‑ ‑ ‑
EDELMAN J: On one view, 12 creates a different offence.
MR TOKLEY: Yes, your Honour.
EDELMAN J: So, it is 11 and 12A that operate together, but 12 operates separately.
MR TOKLEY: Yes, your Honour. It may be, to take up his Honour Justice Steward’s point, it may be that there is overlap between the two in the situation. So, as a matter of statutory construction, if I may, respectfully – I like the way your Honour Justice Gageler put it, because it gives an understanding of how 12A and section 11 operate in the circumstances. Because, as your Honour Justice Edelman said, it is “is guilty of murder”. It is a deeming provision of sorts, and it feeds into 11, but 11, as we know, is the common law murder, and so you have to satisfy the common law requirements for that to work.
That goes back to this idea that 12A is really intended to be directed towards the individual who commits the intentional act of violence as a matter of construction and not to others who might have, on the assumption there might be liability through the doctrine of extended joint criminal enterprise.
KIEFEL CJ: Section 11 operates to hold someone guilty of murder and it can be satisfied in two ways, one of which would be by common law murder and the other would be by felony murder now understood to be section 12A.
MR TOKLEY: Yes, your Honour. Yes.
KIEFEL CJ: That is why when, in relation to this question, either path – the jury were given both paths and the ultimate conviction was expressed to be guilty of murder according to section – contrary to section 11.
MR TOKLEY: Yes, your Honour. Your Honours, that really takes care of what we call ground 1 in paragraphs 9 through to 15 of our outline. Paragraphs 16 to 18 have been covered by my learned friend Mr Game, and that contains all the references to where there was simply a direction concerning “an” intentional act of violence.
The only other points – and they are minor points in the scheme of things – the central issue is the construction of section 12A and its application, if at all, in relation to extended joint criminal enterprise. The only minor points are in paragraphs 19 and 20 of our outline, and that is that his Honour Justice Peek at page 392, in paragraph 167 – this is at the joint core appeal book:
It is common knowledge in Australian society that such a grow‑house would likely be guarded and that violence might well be necessary to overcome the guard.
There was simply no evidence to that effect at the trial.
EDELMAN J: Does this point go anywhere?
MR TOKLEY: Not really, your Honour; it is not separate, it is just a separate error on the part of his Honour in his reasoning on this ground, ground 3. So, as I say, it is not an overly important point but it was one that was made when we were getting special leave. Then his Honour followed that up in paragraph 170 at page 393.
Your Honours, in the interests of efficiency, and because our grounds really have been covered by Mr Game, that concludes my oral submissions in the matter. Thank you, your Honours.
KIEFEL CJ: Yes, thank you, Mr Tokley. The Court will take its morning break. The Court will adjourn for 15 minutes.
AT 11.15 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.30 AM:
KIEFEL CJ: Yes, Mr Henchliffe.
MR HENCHLIFFE: May it please the Court. The appellant, Rigney’s, grounds of appeal are common with the other appellants – I will not bother to describe them in detail. In terms of the facts of the case, I think that is sufficiently set out in the written submissions so, again, I will not say much about that, though there is one aspect that I will come to later in my submissions.
As your Honour the Chief Justice said, there were two pathways to guilt left but only one verdict left. There was a single charge of murder – section 11 murder on the information. The Crown opened on there being these separate pathways to guilt of that offence. His Honour was actually invited to leave a separate verdict for section 11 and section 12A and he declined to do so.
KIEFEL CJ: Section 11 states the offence ‑ ‑ ‑
MR HENCHLIFFE: Yes.
KIEFEL CJ: ‑ ‑ ‑ of murder and there are two means by which that conclusion – the offence can be committed.
MR HENCHLIFFE: That is right.
KIEFEL CJ: One is common law murder and the other is section 12A.
MR HENCHLIFFE: Yes, and, indeed, at the end of the summing‑up he explained to the jury – I think in response to a question – that he would only take one verdict, no matter which of the pathways – they would consider both.
KIEFEL CJ: That is why they cannot be separated out now.
MR HENCHLIFFE: That is right.
KIEFEL CJ: You have to deal with all the directions.
MR HENCHLIFFE: Indeed. Your Honours, the ‑ ‑ ‑
GORDON J: Do you say you should have taken separate verdicts?
MR HENCHLIFFE: I do not say that now, your Honour. We do not. In our submission, section 11 does operate as a deeming provision in the way Justice Edelman described.
KIEFEL CJ: Section 12A, I think you mean.
MR HENCHLIFFE: Sorry, 12A, does operate in that way – deeming the ingredients, if satisfied in 12A, to be murder, and then we go to section 11. So, with respect, I would suggest his Honour was correct in that regard. There is some support for that in some decisions of the Victorian Court of Appeal where the same issue was raised with their felony murder statutory equivalent, that they have said that it should be one offence.
The first issue of principle that arises is general, in our submission. I am going to ground 1, which is the foresight required to found extended joint criminal enterprise liability for common law murder. There is a general principle that applies to both that and to, effectively – if it does apply to 12A – extended joint criminal enterprise there, and that is: what does it mean by the cases when they say the accused must foresee the commission of the incidental offence? So, we have the common offence, the joint criminal enterprise offence, for the extended liability, they are foreseeing another offence committed by another person, the incidental offence.
In relation to that, our argument is that logically that must mean foresight of all of the elements of that offence; that is, all the things that were necessary to occur in order for someone else to commit that offence. In our submission, that is consistent with the authorities from McAuliffe to Miller.
However, if I can take the Court to the reasons of the Court of Appeal for a moment, particularly the reasons of Justice Doyle, and particular passage appearing at page 345, which is the judgment of the Court of Appeal. Justice Doyle’s reasons for rejecting our ground relating to what was foresight of the incidental offence appears at paragraphs 12 and 13. His Honour there referred to the decision here in Miller, and then to the application of the principles of extended joint criminal enterprise to, as he put it:
(non‑constructive) murder –
that is, common law murder. He said, applying to those, they did:
not require contemplation of death. They require contemplation of the possibility that one participant in the enterprise would commit an act intending to cause grievous bodily harm or death –
In our submission, that is not consistent with what the Court actually said in Miller or in McAuliffe, where, in both those cases, the Court at least required the party who was foreseeing the other offence to foresee at least the possibility of grievous bodily harm being inflicted.
Now, we have put that argument a little bit higher to say that, on the facts on this case, because of the joint criminal enterprise not involving the element of violence and because there had been no other evidence of an agreement to commit violence at all – unlike in Miller and McAuliffe – that what had to be foreseen was death. That is a fact‑specific argument here. What we say, your Honour, I guess on a narrower point, that, even on the narrower point, his Honour was wrong in saying that all the party had to contemplate the possibility of was an act – not even an act of violence – not an act that inflicts grievous bodily harm. That is the error that Mr Game has highlighted in the directions that were given. Of course, his Honour has, in our submission, made the same mistake there.
EDELMAN J: Is that to draw a distinction between requiring the foresight of an act intending to cause grievous bodily harm or death and an act or foresight of an act that would cause death or grievous bodily harm?
MR HENCHLIFFE: That is right. The difference is between the intention and the ‑ ‑ ‑
EDELMAN J: It is a pretty fine distinction, though, is it not?
MR HENCHLIFFE: It can be a fine distinction, and his Honour does then recognise that in the next paragraph, I think it is. Sorry, no. The bottom of paragraph 12. He recognised there is a short step, and there is in many cases a short step from the relevant murderous intention and then for ‑ ‑ ‑
EDELMAN J: But how does that work in this case? I mean, if the jury – let us suppose – were to accept that there was beyond reasonable doubt a foresight that a person with a long implement – say, a baseball bat – is entering with murderous intent, would you really say that in those circumstances there could not be foresight of grievous bodily harm or death being a result?
MR HENCHLIFFE: Well, I would say in this case, because if you had a more obviously lethal weapon of knife or gun, I do not think the argument could be sustained, but in the facts of this case where the only evidence or the agreement was to do a break in, in my submission, it did make a difference.
The other point I wanted to make in relation to paragraph 13 is that his Honour goes on to say then – he applies the principles as he saw them, that there was no need to foresee a consequence in common law murder, whether it be death or grievous bodily harm. He then says, well, we apply those principles consistently to constructive murder and the result, he says, by applying them is then that the accused only has to contemplate the possibility of the “intentional act of violence”, not the consequence that there is going to be a death that is caused.
So, in my submission, he makes the error in the first step and then applies that error at the second step when he goes to section 12A. His Honour goes on in that paragraph to say it does not require contemplation of death, and then he says something that is a little hard to understand, the next sentence:
There is no basis in the authorities on extended joint criminal enterprise for requiring the contemplation of something that does not form an element of the primary offence.
Now, I have suggested in my written submissions that by saying “primary offence”, he must have meant the incidental offence – that is, not the agreed offence – because otherwise you are not using those extended principles at all. But we agree with him that – we suggest this actually supports our argument that the authorities do say that the elements of the incidental offence need to be foreseen and his Honour has effectively said they do not need to see one of them, which is that the intentional act of violence causes death.
His Honour Justice Peek’s reasons do not really deal with the issue much at all, other than he really looked at the case of Arulthilaken, the High Court decision, and thought that that had the answer for the present case. But, as I have submitted in my written submissions, that case, when one looks at it, involved the application of principles of joint criminal enterprise, not extended joint criminal enterprise. So, he was mistaken in the understanding that that was the answer to the issue.
I confirm our agreement with Mr Game in relation to the directions that you have been taken to, the advice in those directions, in terms of the direction that an act of violence would be sufficient – that foresight of an act of violence with murderous intent – when Miller and McAuliffe require more that. That, if you like, is the short way home for the error in those directions. As I say, in my submission, that was important because of the very slim evidence that the accused were armed or had weapons that could be used offensively. There was this evidence that one of them was carrying a stick or a bat perhaps. The footage was very poor quality.
There is also a suggestion in Justice Peek’s judgment about possibly some bricks found at the grow house being relevant, and I have dealt with that in my written submissions. In my submission, they were of no moment in terms of their potential use as a weapon because the CCTV footage showed the five men walking along the street after they had passed the building site where some bricks were found about four days later after the events. When they walked past the footage, the only thing that could be seen in their hands is one of them has a stick. None of them are carrying bricks, and it is hardly as if they would have put them down their pants or something if they were going to carry them from the building site to the grow house.
Clearly, that was, in my submission, just speculation. And we come back to the stick. That is the only evidence of something that could be used offensively, I accept, being taken to the grow house. So, in my submission, the mere foresight of an act of violence was not enough for the purpose of common law murder and that the directions contain a serious error in that regard.
The general point about the need for foresight of all of the elements of the incidental offence equally applies to ground 3, which deals with the offence of common law murder – constructive murder under section 12A. On the trial judge’s directions, the foresight required was limited to the element of conduct – that is, the commission of the intentional act of violence – and it was not necessary for them to foresee at all another element of the offence, namely, that that act caused the death of another.
If the Court of Appeal were correct in their assessment, in my submission, it would lead to over‑criminalisation by the application of the rules of extended joint criminal enterprise, if not all of the elements had to be foreseen. I can illustrate that with an example, using a different offence, but which I hope is helpful to make the point . . . . . there is an offence of assault under section 20 of the Criminal Law Consolidation Act and assault is committed in a variety of circumstances, a bit like at common law, either by applying force, or it can also be via verbal threat to apply force.
There is another offence that section 24 brackets: assault causing harm. So, the assault has another element added to it of harm, a consequence, that carries a higher penalty. So, if I posit the example that two people – let us call them A and B – agree to steal a bike from Commonwealth Park where people are wandering about, the agreed crime between them is theft. One of them, A, foresees that the other might verbally threaten somebody in the course of that theft if they interfere, that is a member of the public walking around. So, A foresees that B might commit assault via a verbal threat.
Now, while A and B are stealing a bike, someone does intervene – let us call them C – and B verbally threatens C. Therefore, A is now guilty of assault because they have foreseen the verbal threat. But B then punches C and causes her harm in the process of stealing. Now, B will be guilty of assault causing harm because he has done all the elements of the crime. But on the Court of Appeal’s reasoning, where you do not need to consider ‑ foresee a consequence – A will also be guilty of assault causing harm because A had foreseen an assault but not the harm and, in my submission, that would be an example of over‑criminalisation.
On Justice Doyle’s reasoning, A is guilty of assault causing harm despite not intending harm to be caused, or foreseeing harm to be caused, as even a possibility. Now, in my submission, the absurdity of that result illustrates the point and it could be directly applied then to 12A murder, where we have the act of violence and we have the result, in that case death as opposed to harm. In my submission, that explains in a system of proper balance of policy that one has to foresee each of the elements in order for there to be justification for guilt to attach. So, in my submission, one needs to see not just the possibility of the commission of an incidental crime. What one needs to foresee is the possibility of all of the elements of the crime, not just the conduct element.
Now, in this case, we had an unusual situation where the Crown chose to pitch its case – certainly by the end of the case – on a foundational offence for section 12A of aggravated serious criminal trespass with the intention of theft. The unusual element of that is that there was no element of violence that was agreed in the foundational offence and nor was there any other evidence of a separate agreement to commit violence. So then, when extended joint enterprise came to be applied, it was applied – in my submission, it needed to be applied to all of the elements and it needed to be applied because there was no other evidence of an agreement for that violent conduct.
The trial judge’s directions that any element of – we also accept, in our submission, the submissions of Mr Game that the directions that any act of intentional violence was sufficient as foresight are erroneous. It must be an act of intentional violence that is at least capable of causing death – that could cause death or might cause death – because, unless that is so, absurd results occur. And, indeed, according to one aspect of the trial judge’s directions, simply verbally menacing another would be sufficient if that was foreseen to inculpate another person for the death or murder of another person.
Just to finish my submissions, in respect of section 12A, if the principles of extended joint enterprise do apply, the prosecution – respondent completes its submissions, in its skeleton, by asserting that a co‑venturer in a joint criminal enterprise to commit an aggravated serious criminal trespass who foresees the infliction of an intentional act of violence, and who participates notwithstanding, is guilty. So, the respondent’s position must be that it is not necessary, as a matter of general principle, for extended joint criminal enterprise to apply, for all of the elements to be foreseen. It must be their position. And they say that then is applied to section 12A, such that only two of the three elements need to be foreseen and, if they are, the accused is deemed to be guilty of murder, despite not foreseeing that anyone might die.
GORDON J: Your point really is, is it not, on the way you have just put it, that one starts with what is the foundational crime here alleged and contained no act of violence, and the agreement did not extend to it and was not put by the Crown on that basis. One then says, well, I need to look to extended joint criminal enterprise to determine what it is that might be said to be the incidental crimes. As I understand it, you say it had to be foreseen there was an act of intentional violence that would or might cause death.
MR HENCHLIFFE: Yes.
GORDON J: And that is a bigger pot, a higher standard than that which would be imposed by section 12A, because you say under 12A one has to have an act of violence causing death.
MR HENCHLIFFE: That is right.
GORDON J: Though it is an act of violence which causes death, rather than having the foreseeability of it.
MR HENCHLIFFE: That is right, if you were the primary offender. So, given the primary offender does not have to foresee death but does have to actually choose to do the act which causes death – which is almost certainly
going to be an act where they would appreciate there would be a risk of death, because they are doing the act that we know does physically cause death, so one can assume that it is highly likely that they would advert to that possibility of death being caused when they do the act – it would be odd if that proof was lower for the person under extended joint criminal enterprise liability that they did not even have to advert to the possibility that that very act could cause death, which is how the judge left it. So, in my submission, the way we put it actually brings the extended joint criminal enterprise accused back up to the level of culpability of the principal offender, rather than putting them down even lower, but still convicting them.
In relation to ground 2, which is the question of whether extended joint criminal enterprise should apply at all to section 12A, we rely upon the submissions that are made by other counsel, particularly Mr Game. The point I would stress is that when the section commenced on 1 January 1995 and was debated in Parliament in 1994, it commenced some eight months before McAuliffe was delivered in this Court. Certainly, it is fair to say in South Australia the law had been understood to then really extend only as far as Johns. There was a further extension of liability in another particular circumstance that was created by McAuliffe that it is difficult to see that Parliament would necessarily have foreseen itself. So that, in my submission, does support the argument as to why one cannot just automatically assume that the principles of complicity at common law are all picked up and meant to be applied to section 12A.
In terms of the application of principles of joint criminal enterprise as opposed to extended joint criminal enterprise, that argument is much weaker because those principles did exist at the time the law was debated and came into force and those are the principles that were relied upon previously in the old common law felony murder rule which had existed in South Australia before 12A replaced it. So, the prosecution would be on stronger ground in the matter of statutory context in the circumstances in which 12A replaced felony murder to say it was intended for joint criminal enterprise to continue to apply to this section. But, in my submission, the position is quite different for the extended form of that liability.
If your Honours please, those are my submissions.
KIEFEL CJ: Yes, thank you. Mr McDonald.
MR McDONALD: If the Court pleases. In my submissions, I propose to focus mainly on the interaction between the doctrine of extended joint criminal enterprise and section 12A of the Criminal Law Consolidation Act. So that effectively means that my oral submissions are going to start around paragraph 49 of our written submissions. I will touch on the application of extended joint criminal enterprise in relation to common law murder as well, but I propose to come to that in the course of addressing point 9 of our oral outline.
The propositions in paragraphs 2 to 7 of our outline are directed to highlighting what we respectfully submit is a real problem with the approach to the application of EJCE principles in the context of section 12A in the way that is reflected in the directions that was given by the trial judge in this case. That is a problem that we have repeatedly referred to as a disconnect. That is, in particular, a disconnect between the situation of a principal offender who could be liable upon section 12A and a participant in the joint criminal enterprise, who it has sought to capture by the combination of 12A and EJCE.
I know your Honours have already been taken to the text of section 12A. We do want to emphasise this aspect of section 12A. The paradigm case for its application is the case of a primary offender who personally commits the act of violence. In that case, the person committing the act of violence will be liable to be convicted of murder if, in the course of or in pursuance of a serious criminal offence, they commit some particular act of violence, albeit an act of any kind – that is really what “any intentional act of violence” means – and if that particular act that they do commit causes death.
So, the word “any” in the expression, “any intentional act of violence”, when section 12A is being applied to a primary offender, means an act of violence of any kind. But before they can be liable, it has got to be approved that that act that they did, in fact, commit was the cause of death. That means they will always be in a position of committing a particular act, and they will always be in the position to assess the risks that are associated with the commission of that act.
Essentially the policy which, we would submit, underlies section 12A, is that if a person, in the course of committing a serious felony or a serious indictable offence does an act of violence, then they run the risk of whatever consequences may flow from that. And they are in position to assess what they might be, and to run that risk. If it causes a person’s death, then they would be saddled with liability for murder. But that is a very different position from the person – a coventurer – who contemplates the commission of any kind of act of violence, and then could be held guilty of murder on the basis of a completely different act of violence that was never contemplated.
GAGELER J: When you say “contemplated” – I mean, that word really elides joint criminal enterprise and extended joint criminal enterprise. One is agreed to, and the other is just realises that it is a possibility, what you are talking about.
MR McDONALD: Yes. Well, I am using it here to refer to extended joint criminal enterprise only.
GAGELER J: Well, you skipped over the middle bit. You start with the individual. If you are going to flip the layout of the scheme, you have to tell us what you say about joint criminal enterprise.
MR McDONALD: Okay. I will tell your Honours what I say about joint criminal enterprise, which is that, conceptually, a person who is a party to a joint criminal enterprise, where the enterprise itself extends to the commission of the act of violence, the person can be said – normally, as a matter of legal terminology – to commit the act. So, we would accept that that is at least an open construction of the word “commits” in section 12A. The point where we draw the distinction is extended joint criminal enterprise involves not a person committing an act but rather a person being liable for an act committed by another. I think Justice Edelman suggested that the term “attribution” is appropriate there – but then, in that case, what is being attributed is liability as opposed to attributed, the act. That is where we would draw the distinction.
Having said that, I have sort of slightly hedged because the word is, of course, “commits”, which is susceptible of different interpretations. In another case, I might be arguing that it should be read down to mean commit personally. But I hope that is a ‑ ‑ ‑
GORDON J: Just so I understand that, if we take the scheme, we have primary liability of primary offender, they have knowledge and intent, and section 12A may have harsh consequences, but if carrying out that kind of offence they commit an act of violence and it then causes death, they are liable for murder.
MR McDONALD: Yes.
GORDON J: On joint criminal enterprise, we know that – is it your position that section 12A is applicable to that kind of – of that agreement – because it is an agreement where all acts of the people who have agreed are attributable to each other and therefore you read “a person who commits” as extending to those who are the subject of the agreement?
MR McDONALD: Yes.
GORDON J: And now you are going to deal with EJCE.
MR McDONALD: Yes. I think I have already identified, effectively, what I would say about it – and we got into writing about this, as have a couple of the other appellants as well – that EJCE liability should be regarded as derivative rather than primary liability.
GORDON J: Is that to say any more that the concepts of authorisation and assent, which are essential to joint criminal enterprise, are absent for extended joint criminal enterprise, and therefore 12A cannot operate?
MR McDONALD: Yes, and in terms of the text of 12A, that engages at two levels. The first is that a person does not commit the act as opposed to committing an offence. So, “intentional act of violence” is the expression here – it is not a standalone offence. We are not attributing liability for an offence of committing an act of violence, we are attributing the particular act. That is the first textual engagement, if you like.
The second is the word “intentional”. Obviously, in the case of a primary offender, they will intend the intentional act of violence ‑ ‑ ‑
GORDON J: They also – the joint criminal enterprise as well, because they have all agreed.
MR McDONALD: That is so, because it is the subject of an agreement and so, that counts as intention. Exactly. Then, for an extended joint criminal enterprise ‑ ‑ ‑
GORDON J: It is absent.
MR McDONALD: ‑ ‑ ‑ it is absent, because the agreement does not extend to that, and therefore their intention does not extend to that.
GLEESON J: One thing that I wonder about is I can understand the common law doctrine that attributes acts, but a common law doctrine that seems to pick up potentially all liability for all statutory crimes would have to be subject to at least some limitations here, if the statutory provision, for example, was offensive in some way, to the common law.
MR McDONALD: That is the application of extended joint criminal enterprise principles to statutory offences or statutory provisions? I would agree with that. In a sense, this is a specific argument about why the text of this particular section 12A should be held not to engage with – or have EJCE liability engaged with it.
Obviously, if the two doctrines operate together, then I sort of hesitate to use the word “over‑criminalising” but I mean over‑criminalising in the sense of making a person liable for murder when the rationale for section 12A – which is that person who actually commits an act in circumstances where they are running the risk – and the rationale for EJCE – which is that a person contemplates the commission of the offence – neither of those rationales really support the result because a person who merely foresees the commission of some intentional act of violence does not, thereby, foresee the commission of murder.
EDELMAN J: Does not your starting point need to be to ask whether 12A is creating a separate or new offence, or whether 12A is just feeding into section 11? Because, if it is creating an independent offence, then it may be difficult to see why doctrines of joint criminal enterprise and extended joint criminal enterprise would not apply to it in exactly the same way as joint criminal enterprise and extended joint criminal enterprise would apply to section 11. But if it is not – if it is just an extension of section 11, with the joint criminal enterprise and extended joint criminal enterprise that apply to section 11 – then it may be that neither doctrine applies. But you seem to want to have a middle ground which says, you can have one but not the other.
MR McDONALD: Yes. I think I do understand what your Honour is putting to me and I do not particularly want the middle ground, but I have sort of been forced to articulate a position on the middle ground, and there is a rationale for that. I can certainly see the rationale your Honour is putting as well. I would not want to argue against it.
GAGELER J: You may not wish to put a submission on it, but we have to grapple with it, you see.
MR McDONALD: Yes.
GAGELER J: We are looking for assistance.
MR McDONALD: I appreciate that, your Honour, and I am trying to give it, from my point of view, anything that, if the directions that were required were better than the ones that were given, that is enough for us. But I am not trying to avoid assisting the Court.
GLEESON J: Can I just, perhaps, ask another question about that? The common law doctrine, presumably at some point, was identified by reference to common law crimes or, perhaps, it was always identified by reference to statutory crimes. But what I am curious to understand is what was the scope of the offences to which the common law doctrine could apply?
MR McDONALD: So, obviously, a feature of the EJCE cases are that they tend to be about murder, and I think that is probably due to prosecution charging practice as much as anything. But, there are statements to the effect that it is a principle of general application which I would understand to mean that it is a common law principle that is capable of applying to any crime unless there is something in the text or purpose of – or implication from the statute creating a particular offence that would suggest that it is excluded. So, that is, I think, how I would put the starting point.
Of course – and this is sort of feeding into the next point about what exactly you might need to foresee – as Justice Edelman said, in the case of common law murder, there is not a huge difference between foreseeing a person committing an act with an intention to cause grievous bodily harm or death and foreseeing the possibility of death because it almost flows as a matter of course from foreseeing someone doing an act with that intention. But, once you start extending it, or applying it to statutory offences, you have got sort of an unlimited range, really, of ways that Parliament can define an offence and, in some offences, the consequence element of the offence is going to be really the critical element that either distinguishes it from any other offences or even, potentially, just makes the conduct criminal at all.
So, to say that one has to foresee the possibility of the commission of an offence, in relation to common law murder there might not be much of a difference between foreseeing an act done with intent to cause grievous bodily harm and foreseeing an act done with that intent that causes death, but in the case of a statutory offence it really becomes important that foreseeing the offence includes foreseeing the consequences. Sorry, I am really conscious that I have not really answered your Honour Justice Edelman’s question.
The first part of the answer is that we would say that section 11, if not creates the offence of murder, at least creates the statutory provision that confirms that murder is an offence. I mean, in one sense it is just purely picking up the common law and its purpose really seems to be to apply the mandatory life sentence to murder. So, we accept that that is the primary – the offence of murder – and then 12A is really deeming, when the elements of 12A are satisfied that is taken to be murder either against section 11 or in general terms. That is, 12A is in the nature of a deeming provision ‑ ‑ ‑
KIEFEL CJ: But 12A does not state the murder under 12A to be an offence. You have to go to section 11 for that, do you not?
MR McDONALD: I agree, your Honour. That is really what I am trying to say. Yes.
EDELMAN J: If that is right, then all of the submissions you are putting about 12A, would they – assume that all of them are correct – would that add anything to the existence of, or the operation of, joint criminal enterprise and extended joint criminal enterprise under section 11? The direction in any circumstance would be exactly the same, would it not, from the one that you are urging in relation to 12A?
MR McDONALD: I guess the question is whether the fact that it operates as a deeming means that you cannot then apply EJCE, and I realise that is what your Honour is putting to me. If that is the case then, yes.
EDELMAN J: No, no. The question I am putting to you is, if applying extended joint criminal enterprise under section 11, giving us a standard common law direction with extended joint criminal enterprise under section 11 were to be given – and I understand there is no dispute that subject to what was understood to have been meant by Miller, that provided that type of direction were given, then there should be no difficulty with that. What does the direction you are saying should be given under 12A in relation to either joint criminal enterprise or extended joint criminal enterprise add to a section 11‑type direction?
MR McDONALD: Well, in one sense it does not add anything. If anything, it subtracts the foresight of the mental element normally applicable for common law murder. One of the curious things about the directions in this case is that, really, 12A murder wholly subsumed common law murder and so the judge went through two quite complex sets of directions where one was really, arguably, entirely unnecessary and that also created the complication of then having to try to distinguish between the two for the jury. That is really a bit of an aside, but I think the answer to your Honour’s question is 12A does not add anything, but, if it is available and if EJCE can apply to it, then it actually subtracts the mental element. But on our case, it still requires ‑ ‑ ‑
GORDON J: I think I put that to Mr Henchliffe. What it does is it lowers the bar, because the elements that are now required to be proved are less.
MR McDONALD: Yes, and really, what we want to say about it is that even if it does apply the elements are all of the elements of 12A, including the consequence element, which in the case of 12A is clearly death. So that if one only foresees an act of violence, one cannot be said have foreseen the commission of the offence under 12A, whether that is an offence under 11 deemed to be ‑ ‑ ‑
EDELMAN J: But one would not need joint criminal enterprise either, under 12A, because all of the circumstances of joint criminal enterprise would be captured by, say, extended joint criminal enterprise under section 11.
MR McDONALD: Indeed, and in fact, that is probably generally true of joint criminal enterprise and extended joint criminal enterprise directions in any trial. It is very common for judges to direct on both joint criminal enterprise and then separately on extended joint criminal enterprise.
EDELMAN J: So, why would one not then, on your submission, read section 12A as Parliament intending just to do exactly the extension that it provided for without the need for any extension, either joint criminal enterprise or extended joint criminal enterprise given that section 11 can do that work?
MR McDONALD: Well I think that ultimately comes back to the question of how one construes the word committed and whether it includes committing through the attribution of an act to a person, but I accept ‑ ‑ ‑
GORDON J: It is not really attribution on joint criminal enterprise. Because it is an agreement to do all the acts, so you are taken to have committed them because you have agreed to them.
MR McDONALD: Yes, it could be – it is not quite agency, but it is almost like a cross‑agency where everyone agrees to pursue a particular purpose and therefore each act of any of them in pursuit of the purpose is attributed to each of the others – sorry I did use the word “attribute” again. I am not sure your Honours are entirely happy with that analysis.
I think I have made the point, really, that there are two aspects of the text of 12A that we seize on: the word “commits”, which suggests a person committing and the word “intentional act of violence”, which suggests that a person should need to actually intend the act of violence. Obviously, in extended joint criminal enterprise one does not intend the act, one only foresees the possibility of its commission. So, I think that rounds off the submissions that I wanted to make, up to about point 8.
Coming to point 9, I think this is a topic that has been addressed at some length by others. In McAuliffe it was established that the participant in a joint criminal enterprise could be liable to an offence that was outside the agreement but was foreseen by them. So, McAuliffe seems clearly to require some contemplation of a result. The actual direction given in McAuliffe seems to contemplate the intentional infliction of grievous bodily harm, which obviously would not be quite consistent with our suggestion that the result that must be contemplated has to be death.
That is why, at paragraph 32, perhaps unduly cautiously, we have suggested that if there is a need for McAuliffe to be reopened at all it would be on that very narrow question of what exactly the consequence should be. But I accept what has, I think, been said a few times, which is that there is not much of a difference between foreseeing an act done with intent to cause grievous bodily harm or death and an act that actually causes death when we are talking about foresight of possibility.
I do want to say one further thing about the proposition that you should only be taken to foresee the offence of murder if you actually foresee death. The Crown in response to us says that there would be a form of incoherence between different forms of liability of secondary participants if that were the case because it said an aider and abettor need not foresee the consequence of their act, and I think that is said to follow from Giorgianni and therefore it is suggested neither should that be necessary for extended joint criminal enterprise. We would really just answer that by saying that, as the reasons in Miller show, the justification for EJCE is quite different from the justification for aiding and abetting liability and there is no reason why every form of accessory or secondary liability must match up in every respect.
So, there is no incoherence in a doctrine that just has a slightly different mental element. In any case, the mental element for EJCE is mere foresight of possibility. The mental element for aiding and abetting is usually described as knowledge of elements of the offence. So, on any view, there is going to be not less than precise identity between them. Another example of difference not amounting to incoherence is that in Miller the majority did not accept the view taken by Justice Gageler that there was incoherence between the fault element for reckless murder, being knowledge of probable consequences, and the foresight requirement for EJCE, which was foresight of possible consequences, and the reason for that was simply that they do not have to be identical because they are in different fields and that that does not make them incoherent.
I think I have sufficiently addressed the issues up to paragraph 11, so I come to our – your Honours will appreciate that these are four essentially alternative submissions about how to solve the problem of the disconnect identified at the outset. So, coming to the third of these submissions, oral outline paragraph 12, we have addressed this in more detail at paragraphs 73 to 77 of our written submissions. The essential proposition is that the requirement of foresight when applied to section 12A should not be foresight of the possibility of any act of violence; it should be foresight of an act of the kind that actually constituted the section 12A offence ultimately actually committed by the primary offender.
So, just as a primary offender is not guilty of murder under section 12A for committing any act of violence, it is only for committing any act of violence that thus causes the death of another, the foresight of the second offender must be foresight not just that any intentional act of violence whatsoever might be committed by a co‑offender, but rather foresight that the co‑offender might intentionally commit the act of violence that as a matter of fact caused the death of the person.
The best point made against us on this really is the one that Justice Peek makes at paragraph 134 of the court below, which is that there may be cases where it is not clear what counts as foreseeing the act of violence. That is, I think his Honour uses the expression that the concept of the accused’s foresight may be somewhat nebulous. So, the first answer that we give to that is that is that, if that is right, it would not be a compelling reason to extend extended joint criminal enterprise liability to a person who has not actually foreseen an act of the kind that the primary offender actually ends up committing because that does produce a disconnect.
Essentially that is just using EJCE to fill a gap in proof. The principle is you are only liable for the crimes that you foresee the potential commission of. Just because the prosecution cannot prove with clarity what exactly the foresight was, that is really a problem of proof rather than a reason to extend joint criminal enterprise even further. The second answer is that it is not really necessary to attempt to define in the abstract precisely what a co‑venturer does have to foresee as a possibility. Ultimately it is a question of fact for the jury and there are two stages to it. The first is, what do they find a particular co‑venturer in fact contemplated?
The second is whether they are satisfied that the commission of the intentional act of violence that actually happened was within what the co‑venturer contemplated or foresaw as a possibility. So, all I mean by that is, if a person goes into a joint venture contemplating my co‑accused – if my co‑venturer is a very violent person and they might do anything – well then, their contemplation extends to anything violent that the person might do. If, though, for example, they were thinking, well, I can see that we might need to give someone a push over to try and run away if we are caught trying to execute this agreement, that is a very different state of contemplation, and the question is just a factual one as to whether what actually occurred comes within what the jury find to have been the contemplation.
That is all I want to say about the third submission. As to the fourth submissions, your Honours will see – and I think this might accord with what has fallen from the bench from a few places through the course of the argument with Mr Game, which is the foresight of an act of violence of a kind capable of causing death or inherently dangerous. I do not propose to develop that any further except to point out that we do adopt our written submissions and the other parties’ submissions on that issue. Of course, the final point I should just remind the Court of is we do not have a grant of special leave yet, and so that will be necessary, if it is heading that way.
KIEFEL CJ: Yes, we are aware of that. Thank you for reminding us.
MR McDONALD: Thank you, your Honour.
KIEFEL CJ: Yes, Mr Pearce.
MR PEARCE: May it please the Court. I am going to begin with some brief submissions about the facts. I have made a note for myself that this Court is not a jury, and I will try to confine my submissions accordingly. Part of the arguments – really the unwritten, the unsaid part of the arguments advanced today – is that the complaint is this is a problem of policy, that people are going to be held liable for murder for minor inconsequential acts that are drawn into the rubric of section 11 by virtue of the provision of section 12A and the doctrine of joint enterprise and extended joint enterprise.
In the course of submissions there have been phrases used like trivial offences, like an agreement to do a break‑in. There has been discussion about a different situation where you have got a gun or a knife, and here you have only got a stick. In my submission, that does not reflect the facts of this case. The facts of this case are that five men travelled quite some distance to meet up and park their cars – two cars – some little distance away from the house that they then forcibly broke into. They had to walk some distance to get to the house, and they walked as a group, as is borne out by the closed-circuit television footage. One of them, as has been mentioned in submissions, can be seen to be carrying something that is described as a bat, or variously in the submissions as a stick.
The footage, I concede, I do not suggest otherwise, is of poor quality, but this “stick” conjures up in my mind, at least, a notion of something you might break when you are about to light the log fire. What was being carried, we can see, and the Court can see, and then CCA could see, was a long item, linear, that glistened. And that was carried by one of this group some distance, used in a manner like one might a walking stick. I am not suggesting it was a walking stick, but that is the manner in which it was carried. It would have been obvious to all. The point of entry to this house was the front door – the front door had been reinforced. The front door was bashed in, and some significant force was required to do so. All of those were matters known to the participants in this housebreak, as has been called.
What it was, in my submission, was the group of men having resolved to go to a house shortly after midnight – a suburban house in a suburban street that they knew was being used by a criminal to grow cannabis. It was a drug grow house. And it what is often called, in the vernacular, a home invasion. A home invasion carried out by a group of five men on a house that they knew was being used for a criminal enterprise. A house that had a car parked in the driveway that was used by these men to convey, or cart, the cannabis plants that they stole, to cart them away from the house.
That, too, must have been within their contemplation as they walked to the house, having left their cars, so – a few hundred metres away, and that car was used to transport the cannabis away from the house. So, this is not, in my respectful submission, one of those cases where a question of policy arises of people being caught by the dragnet of section 12A, extended joint enterprise, of section 11, for having committed minor offences.
EDELMAN J: But this is not a proviso submission, is it?
MR PEARCE: No, no. Apologies, if it appears ‑ ‑ ‑
EDELMAN J: Given that it is not a proviso submission, then, questions as to whether the directions extended impermissibly the doctrine of joint criminal enterprise are, in a sense, independent of whether these facts are extreme or less extreme.
MR PEARCE: Yes, with respect, I accept that. Yes. I did not follow my note about the ‑ ‑ ‑
GAGELER J: It is not suggested that the agreement between them was an agreement to use violence, is it?
MR PEARCE: No, but in part, my submission is directed at a question early from his Honour Justice Steward about there being no CCTV, and we do not know exactly what happened inside the house. Apologies if I have verballed you on that. The submission is that by the time that front door is kicked in, violence was contemplated.
GORDON J: That is not what your case – sorry.
GAGELER J: Again, you are using this word “contemplated” ‑ ‑ ‑
MR PEARCE: Violence had begun. The violence had begun when the door was kicked in.
GORDON J: But that is not how the Crown ran its case.
MR PEARCE: No, it is not.
GORDON J: And so, I do not understand, I must say, how these submissions help us. The offence you chose was not an offence of violence.
MR PEARCE: That is right.
GORDON J: The offence you chose was not an offence of violence which had within it the possibility that these five men had agreed that, if they met resistance, they would use whatever force they could to meet that resistance. There was none of that.
MR PEARCE: No.
GORDON J: So, I do not understand where this is going.
MR PEARCE: No, I accept that, I apologise for that. Probably – I will bring it back down to what should have been the simple point that I was trying to make, and that is that I was trying to address the policy issue that is flagged, that this is not one of those cases where people are just simply caught in by that dragnet that I have spoken of.
GORDON J: I think the policy issue is a really interesting question, although I would not use the label “policy”. The debates we have been having with counsel for the appellants and the applicant is a question about the extent to which moral culpability and responsibility are matched or otherwise extended.
MR PEARCE: Yes.
GORDON J: So, the scheme is, I think, something, at least for my part, I would be very interested to hear the Crown’s submissions as to how they see that working in the context of section 11, joint criminal enterprise, extended joint criminal enterprise and then in their interaction with section 12A.
MR PEARCE: Well, the scheme we have addressed in our written submissions and it might be helpful if I go to our outline, beginning at paragraph 53 where we have dealt with the construction of section 12A. The enactment of section 12A came as a consequence of the cessation of felony murder distinction in South Australia, and the legislation was enacted as a consequence of that, and we have set out there, at paragraphs 53 onwards, the rationale for that approach. Those submissions conclude at paragraph 73.
Our submission then goes to the notion of constructive murder and complicity simpliciter to joint enterprise. At common law under the old felony murder rule in South Australia, those acting as part of a joint enterprise were caught by the old felony murder rule. The respondent’s submission is that there is nothing in the legislation, nothing in the text, nothing in the context, nothing in any of the textual matters that we have referred to in our written submissions, that suggests that the Parliament intended to do otherwise and to bring common law principles of complicity along with section 12A.
KIEFEL CJ: Do you point to any cases in the past, which is pre‑section 12A, which confirm that extended joint enterprise was applied to felony murder?
MR PEARCE: I can point to joint enterprise cases, but not extended joint enterprise cases, because, in my respectful submission, that was never a necessary – or it was never necessary to go that extra step. The classic case of felony murder that is often cited is your armed hold‑up where the common purpose is to commit a felony involving violence and one party may foresee that violence would be used, lethal violence with a gun or a knife. But it did not matter under the old felony murder rule whether a co‑participant who knew that a gun or a knife was being used in the robbery, whether they wanted or intended that grievous bodily harm would be inflicted.
What mattered was that they knew that a potentially lethal weapon was available and the possibility existed that it would be used, because all that was required to be proven under South Australian provisions was that there be an intentional act of violence carried out during the course of a felony. So, in my submission, the question of extended joint enterprise never became a real issue.
GAGELER J: Could you refer us to the best joint criminal enterprise felony murder examples in the case law?
MR PEARCE: The most recent, and the last, was R v R and R v G, which we refer to in our written submissions. That was a case decided shortly after section 12A came in. And there is reference in that authority to some of the older authorities, to the line of case law. So that, in my submission, probably best encapsulates the old felony murder rule in South Australia.
GORDON J: Is it right to say as a matter of policy or underlying rationale for that connection between joint criminal enterprise and 12A that there is an agreement of the kind that we have talked about giving rise to and containing the relevant act?
MR PEARCE: Yes.
GORDON J: That is what underpins the interaction between the two.
MR PEARCE: Yes. And in my submission, Parliament, when they enacted section 12A, must surely have contemplated that as an option and it is to that I will perhaps turn to.
Section 12A constrains what was once the old felony murder rule in a number of ways. It replaces the crime of felony with a major indictable offence which is defined in the legislation. It talks about an “act of violence”, so, Parliament again sought to constrain the scope of section 12A by not just allowing any major indictable offence to attract the felony murder rule but constrained it to include only an offence, a major indictable offence, that involved an act of violence.
That is, in my submission, important because it shows that Parliament had turned its mind to the scope of the rule. We have set out in some detail in our written submissions the reasons behind that, and why we say that interpretation is open. Those textual indicators that we have referred to in our written submissions militate against any construction that removes common law principles, but the legislation itself demonstrates an intent by Parliament to not have just simply untrammelled availability of this other pathway to section 11 murder.
So, the matters referred to in our written submissions at paragraphs 53 through to 70, in our submission, demonstrate that there is no ambiguity in the wording of section 12A that requires words to be read into that legislation as has been suggested in the course of argument this morning.
KIEFEL CJ: Not so far as concerns the primary offender. But it becomes a bit more complicated when you have got secondary offenders and you are talking about their foresight.
MR PEARCE: Yes, and, in my submission, again, if we look at the textual indicators, there is no suggestion that Parliament saw a need – or demonstrated any inclination – to exclude complicity from the scope of section 12A. If the respondent is correct about that, then, in my submission, joint enterprise applies to section 12A as it does to other offences – as does extended joint enterprise. That, with respect, is a matter of statutory interpretation and construction, as we have set out at paragraphs 53 onwards.
GLEESON J: But, is it a matter of statutory interpretation or is it a question of what kind of foresight is required for the common law doctrine to apply?
MR PEARCE: The foresight that can – yes, is the simple answer – but can I tackle it a different way? The foresight that is now required under section 12A is simply foresight that, having joined into a common plan or joint enterprise to commit a major indictable offence, that you contemplate – through extended joint enterprise – an act of violence as a possible incident of that plan. That is what is required, in the respondent’s submission, and that is all that is required.
I accept that that is broad but, in my submission, that is a fair and reasonable interpretation of what the section says, and to interpret it that way means we are not reading in other words. We are not reading in words like contemplated an act of violence that might result in death, because section 12A separates out contemplation on the one hand of the act of violence and, on the other hand, talks about death as a consequence, but death does not need to be foreseen as a consequence for section 12A.
GAGELER J: Can we just go back one step. If you were just looking at joint criminal enterprise, then I follow an argument that says you can read that into 12A by virtue of the word “commits” and by virtue of the word “intentional”. It all works. But how do you read in the foresight element that is necessary in extended joint criminal enterprise as an exercise of construing the words? What words are you construing to mean what?
MR PEARCE: Construing the words intentionally commits an act of violence – to get to that if you are not the principal offender, to use the old language, if you are not the principal offender and you join with another, the principal, to commit a major indictable offence it is open, in my submission, for the doctrine of extended joint enterprise to apply to that person insofar as the foresight is attributed to the potential for the act of violence that is a necessary part of section 12A.
KIEFEL CJ: Are you not overlooking the words “and thus causes the death of another”?
MR PEARCE: No, with respect, no, because that is the second issue – that the way that this framed ‑ ‑ ‑
KIEFEL CJ: But it is connected to the intentional act of violence. It is not any intentional act of violence. It is an intentional act of violence which, by these means, causes the death of another.
MR PEARCE: Yes. What must be intended – or engaged in – is the act of violence “and thus the causes death of another”. An example of that is that decision of Arulthilakan that has been referred to this morning. But the facts – again, it is in our outline – the facts of that matter are that a group of young men approached two men on the street. The principal had a knife behind his back and demanded the phone be handed over from the man who, ultimately, survived – it was a charge of wounding with intent, or similar.
The co‑accused, Arulthilaken and Mkoka, were behind the principal – standing behind him – and were aware of the knife. The initial act – the act relied upon as the act of violence in section 12A, was, or included, the presentation of the knife to effect the robbery. That was an act of violence and the directions in that matter were to the effect that, if Arulthilaken and his co‑accused foresaw that the presentation of the knife ‑ ‑ ‑
KIEFEL CJ: It was joint criminal enterprise – Arulthilaken.
MR PEARCE: Yes.
KIEFEL CJ: It was not extended joint enterprise.
MR PEARCE: No, but those issues were touched upon in the court below and not dealt with in this Court. So, with respect, I accept that proposition. But it is an example, nonetheless ‑ ‑ ‑
KIEFEL CJ: But it is part of the – as Justice Gordon said – it is where there is a joint enterprise, it is a question of what can be taken to have been the scope of the agreement between the parties.
MR PEARCE: Yes.
KIEFEL CJ: That is not the question that you face under extended joint enterprise.
MR PEARCE: No, but it is the thus causes death that I am sort of getting to in a roundabout way. Because in that matter, the initial presentation of the knife caused a conflagration with the first victim. The deceased was some 50 meters down the road by that stage and was chased by the perpetrator – the principal.
So, in that matter, it was really a question of causation. We had an intentional act of violence, which was the presentation of the knife to the surviving victim. That then caused the blow‑up and then, some time later, there was another act of violence – a separate act of violence – which then became a causation issue – was the initial presentation of the knife to the surviving victim sufficiently linked to the death of the deceased? And ultimately there was much debate, both in the Court of Appeal and some, I think, in the High Court about causation issues.
It is a long explanation – I apologise – but that was our response to the “thus causes the death”. It does not have to be that you intend death – or foresee it as a possible incident – then it would only be an act of violence and, as a consequence – as a causative consequence of that act of violence, foreseen or unforeseen – death results. In my submission, that is a reflection of the old common law – the old felony murder rule.
GLEESON J: The doctrine of the extended joint criminal enterprise was developed in the context of crimes that involved death, is that right?
MR PEARCE: I am sorry, I missed that last bit.
GLEESON J: The common law doctrine was developed to deal with cases that involved death, is that right?
MR PEARCE: Yes, yes, that is right. I think of no other examples.
KIEFEL CJ: You have said that you cannot construe section 12A as combining intentional act of violence and death to describe the quality of the act of violence or its possibilities. But you do refer, in your written submissions, to the case of Surridge in New South Wales, and the decision of Sir Frederick Jordan, the Chief Justice. As you heard me say, I think in question to Mr Game, his Honour took the view that the act would have to be one which is obviously dangerous to life.
MR PEARCE: Under the old felony murder rule.
KIEFEL CJ: Well, I thought you said that was what we are dealing with.
MR PEARCE: No, I was trying to deal with the question of causation – the “thus causes the death” in section 12A.
KIEFEL CJ: So what do you rely on Surridge for?
MR PEARCE: That joint criminal enterprise principles apply to the issue of constructive murder and, similarly, the decision of this Court in IL v The Queen.
KIEFEL CJ: In the joint decision – the inference to be drawn from Justices Nettle and Bell in the judgment.
MR PEARCE: Yes. Unless there is clear reason to the contrary, common law principles will apply to an offence of statutory murder. That is the point we try to make at 80 and 81 of our written submissions.
GORDON J: Mr Pearce, in response to a question from Justice Gageler, you referred the Court to R v R and R v G.
MR PEARCE: Yes.
GORDON J: I would not mind if you had another look at that over lunch. I have just looked at it again and it seems to draw a distinction between what might be called felony murder and the common law rule and what 12A says. At least one of the justices – five sat – seems to suggest that 12A required a different element; required this intentional act of violence.
MR PEARCE: Yes.
GORDON J: I do not know that it actually answers the question. I would be grateful if you would have another look at it and just see whether I have misread it.
MR PEARCE: Yes, I will.
GORDON J: Thank you.
MR PEARCE: Just finally on that point I make about common law rules of complicity being picked up by section 12A. At paragraph 94 of our written submissions, we have referred to the decision of The Queen v Jacobs, where the wording of section 18 of the New South Wales equivalent did not alter the operation of the common law rules of complicity. It is a general rule of statutory interpretation that a basic common law doctrine is not to be disturbed unless the statute expressly requires that resolved.
KIEFEL CJ: That might be a convenient time, Mr Pearce.
MR PEARCE: Thank you, your Honour.
KIEFEL CJ: The Court adjourns until 2.15pm.
AT 12.43 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.14 PM:
KIEFEL CJ: Yes, Mr Pearce.
MR PEARCE: May it please the Court. I will pick up with the decision of R v R that can be found in the Carver joint book of authorities at 754. I will take the Court in a moment to a couple of passages, but then I will go to the judgement of his Honour Justice Peek in the court below where he summarises some of those principles and then segue into Arulthilakan v The Queen.
Beginning with R v R at 756 of the book, about 419 of the judgment, there the trial judge’s directions were set out and then over the page at 420 of the judgement, second paragraph, his Honour the Chief Justice there set out the common law situation as to felony murder in South Australia at the time of the incident giving rise to the offence, being murder to cause death in the commission of, or in furtherance of, a felony involving violence or danger. His Honour then went through some of the earlier authorities and at about point 7 on the page he there refers to the Queensland decision of Solomon. Quoting a passage:
The probability or possibility that homicide would or would not be done is irrelevant. The fact that the homicide occurred independently of the exercise of the will of one of the accomplices would not exonerate him.
Over the page, at 421 of the judgment, his Honour there sets out the submissions of the Solicitor‑General. About halfway through that paragraph, the Solicitor‑General is there attributed as putting to the Court:
even though unintended, there appears to be no reason of policy why other participants in the felony should not also have to accept the same responsibility.
That is, the responsibility of the principal. The point I make there – and, indeed, that was ultimately the position arrived at – is that that is the policy of the law, that it is the unintended consequences of engaging in conduct of that type that the non‑perpetrator must accept.
Finally, dealing with 421 of the judgment, about two‑thirds of the way down the page, there his Honour was dealing with a New South Wales decision of Johns in section 18 of the Crimes Act. But, importantly for my submission, towards the end of that paragraph, about point 7 on the page, his Honour said this:
The restriction of the liability of the accessory to acts which were within his contemplation, has no application in South Australia to a murder committed in the course of the commission of a felony.
I do not think that there would be any justification for this Court to depart from the established principles of the common law with respect to accessorial liability for felony murder.
In my respectful submission, those principles hold good for section 12A.
EDELMAN J: Those principles that the Chief Justice is talking about are the principles of joint criminal enterprise, not extended joint criminal enterprise.
MR PEARCE: Yes, but the development of the notion of extended joint enterprise, in my submission, is a matter that can be taken into account here and, indeed, was a matter that was considered in Arulthilakan v The Queen, which I will come to in a moment. I may just briefly go to ‑ ‑ ‑
GAGELER J: Were you going to deal with Justice Perry?
MR PEARCE: Yes, that is what I am about to head to now. It is in the joint core appeal book. The relevant section starts at page 378, paragraph 120 of the judgment. There, his Honour, Justice Peek has set out the passage that I have just taken the Court to at 120. He then quotes – more extensively than I have done – the argument ‑ ‑ ‑
KIEFEL CJ: I am sorry, are you dealing with R v R, Justice Perry?
MR PEARCE: I beg your pardon, your Honour?
KIEFEL CJ: Are you dealing with Justice Perry?
MR PEARCE: No, Justice Peek.
KIEFEL CJ: I thought Justice Gageler asked you about Justice Perry.
MR PEARCE: I am sorry. I am having trouble hearing, my apology.
GAGELER J: No, no, that is okay.
MR PEARCE: My apologies, sorry.
GAGELER J: If you want to deal with it later, that is fine.
MR PEARCE: No, no, I am happy to go to it now – my apologies, your Honour.
GORDON J: I think this is the point I raised with you before lunch, where Justice Perry, on the last page at 425, seeks to draw a distinction between common law felony murder before the enactment of 12A and 12A.
MR PEARCE: Well, in my submission, his Honour would be alone on that proposition, the other judges joining with the decision of the Chief Justice.
KIEFEL CJ: I think too, is not the point that Justice Perry is making is that a felony murder had regard to violent and dangerous acts before section 12A, and I think Chief Justice King said the same thing.
MR PEARCE: Yes. It was a different test – different criteria to be applied. Nonetheless, in my submission, the principles about the common law principles of application of complicity still apply to the new formation of the rule. His Honour Justice Perry at 425 speaks about the contrast with the common law rule – 12A requires an intentional act of violence and therefore would have a more limited application but, in my submission, on the facts of this case that is of no moment, given the factual matrix that we are dealing with.
To go back now to the judgment of his Honour Justice Peek in the joint core appeal book at 378 where at paragraph 120, as I mentioned, he is setting out those relevant portions from R v R and importantly, in my submission, at paragraph 121, he refers:
to King CJ’s approach to the matter of complicity in a case involving constructive murder –
He refers to the appellant’s arguments, acknowledges that the comments from Chief Justice King were obiter but takes the view that they were in fact correct, and that is where his Honour then takes the process of reasoning through to the decision of this Court in Arulthilakan which he sets out in part at paragraph 123. The quoted passage, in my submission, the last four lines of that, are also important here where the Court concluded that:
it is not necessary that any of the accused had an intention to cause death, or to cause grievous bodily harm, or contemplated as part of the joint enterprise the possibility that the use of the knives could result in an intentional inflicting of grievous bodily harm.
In my submission, that is important on the grounds as articulated by each of the appellants. It is authority for the proposition that they do not have – an accused does not have to foresee the possibility of death whilst acting in the course of a major indictable offence in which death arises. The death is the fact of the actions but it is not the fault element. The fault element is participating in the crime of a certain category.
KIEFEL CJ: But I thought you would not even accept an intentional infliction of grievous bodily harm. You say any intentional act of violence is sufficient.
MR PEARCE: Yes.
KIEFEL CJ: But that is not what is said here.
MR PEARCE: No, but it is ‑ ‑ ‑
KIEFEL CJ: Their Honours say extended joint enterprise applied to section 12A requires a foresight of an intentional infliction of grievous bodily harm.
MR PEARCE: The reference to intentional infliction of grievous bodily harm, in my submission, is not to be taken as saying that the act of violence must be one that involves infliction of grievous bodily harm.
KIEFEL CJ: What else could it mean?
MR PEARCE: In my submission, it means that there must be an intentional act of violence simpliciter, and in the facts of that case, the fact of the matter was that the intentional act of violence caused grievous bodily harm.
KIEFEL CJ: Yes, I see. You are saying that Arulthilakan is talking about the consequence when it talks about, could result in an intentional infliction of grievous bodily harm. That that is the outcome or consequence of the act of violence.
MR PEARCE: Yes, the fact of ‑ ‑ ‑
KIEFEL CJ: Would you accept that, would you?
MR PEARCE: Yes, I think I must. Although, that said, that is, of course, that very same issue is dealt with in the following paragraph by Justice Peek. So, to the extent – in fact, if I could just backtrack slightly, I apologise – I think I just need to qualify my assent to your Honour Chief Justice’s proposition there.
In my submission, what is required is an act of violence simpliciter, and not one that involves a contemplation of grievous bodily harm, because in Arulthilakan if I can now take the Court to that decision, it is at 448 of the joint book of authorities, at paragraph 16, page 260 of the judgment, the directions on statutory murder were set out in some detail. Over onto page 261 of the report, his Honour there having set out issues pertaining to joint enterprise at the bottom of the preceding page where he said, and I quote:
As to joint enterprise, if you are satisfied that all of the accused had the common purpose that they would roll or rob Hillam, and for the purpose of their joint enterprise they would be armed with knives and a billiard ball, that they would use the knives and billiard ball if necessary to achieve their purpose in the course of the attempted armed robbery, the knives or billiard ball would be used to threaten or intimidate the victims.
So, there were three ways that it was left that the presentation of the knife could be an act of violence for that offence: it was either to threaten or intimidate or to inflict grievous bodily harm. So again, it is sensitive to the factual matrix. And the directions went on:
I realise that sounds very similar to the concept of joint enterprise in relation to common law murder, but it is different in that it is not necessary that any of the accused had an intention to cause death, or to cause grievous bodily harm, or contemplated as part of the joint enterprise the possibility that the use of the knives could result in an intentional inflicting of grievous bodily harm. That is the difference between them.
And those directions were upheld. The Court went on, over on to page 263 in a slightly different context, talking about the concept of the old felony murder rule and the introduction of 12A, at paragraph 28. There, at paragraph 28, the Court spoke of:
Causing death of another by committing an intentional act of violence in the course of a major indictable offence, even though there is no intent to kill or cause grievous bodily harm, constitutes statutory murder.
GORDON J: That is explained though, is it not, at paragraph 29, when they explain why that is not artificial because it was part of the agreement?
MR PEARCE: Yes. Here, of course, there is an issue that the prosecution had to face – that the agreement was not to commit an act of violence. The agreement was to commit an aggravated serious criminal trespass – a component of which, the prosecution alleged, was that violence was, if not inevitable but was clearly going to be contemplated by those ‑ ‑ ‑
GORDON J: But that is not joint criminal enterprise.
MR PEARCE: No.
GORDON J: That was not part of your joint criminal ‑ ‑ ‑
MR PEARCE: That is extended joint criminal enterprise.
GORDON J: This, here, is dealing with joint criminal enterprise in 29, and explaining why it does not give rise to anything artificial.
MR PEARCE: Yes.
GORDON J: Because it is part of the agreement.
MR PEARCE: Yes. My submission about that is that the same principle applies for extended joint enterprise.
GORDON J: What is that principle?
MR PEARCE: That their contemplation of the possibility that acts of a certain type will be committed and their continued participation in that enterprise gives assent to those acts – that they are acknowledging their continued participation.
GAGELER J: I thought you could have extended joint criminal enterprise when the accused positively does not want the act to occur.
MR PEARCE: Yes, and we have set out examples of that in our written submissions.
GAGELER J: It is very hard to reconcile that with the explanation you have just given.
MR PEARCE: It is, but they are different paths. They are different scenarios. As part of a joint criminal enterprise – dealing with that for the moment – you might – as is referred to in Clayton at paragraph 17 – you might quite positively intend that certain things do not happen. It can be the same in an extended joint criminal enterprise as well. If you are foreseeing that a co‑offender might act in a certain way, even though you do not want them to cause death or grievous bodily harm, you are still liable for their actions.
In my submission, it is the same principle – it is the same point. It is the continued participation. Even though you do not want that outcome – you expressly disavow that outcome – because you are still involving
yourself, then the policy of felony murder – to use the old language, constructive murder now – is that, if you are going to participate in these sorts of activities, then you wear responsibility for them. That is the policy consideration, in my submission. Again, we have dealt with that in our written submissions. And, in response to your Honour Justice Gageler’s question, you had something to say about that, if I recall, in Miller.
GAGELER J: In dissent.
MR PEARCE: Yes. But that is the policy consideration. I started my submissions by looking at the factual scenario here in the context of harsh outcomes, but the Court has acknowledged, in my submission, that there are certain types of behaviours that produce harsh outcomes for the community as well. That is why we have sections like 12A as a response to those issues.
I used the phrase before – this was a home invasion – it was a violent home invasion, and the policy outcome does not leave us, in my respectful submission, with a principal, whoever that may have been here, his liability or culpability of being so far removed from that of his co‑offenders or co‑participants by virtue of the nature of what these people did. There is one final matter I did want to address. It concerns the question of the directions on common law murder.
As I understood the submission this morning, the attack on them is that they are in fact wrong at law. Page 58 of the joint core appeal book, page 50 of the summing‑up. If I have understood the criticism correctly – in fact it starts at the previous page, page 57, dealing with extended joint criminal enterprise, the complaint is that references to violence that was inflicted with intent to cause really serious bodily harm are in error. In my submission, that is, with respect, incorrect.
The direction was about people engaging in a joint enterprise involving violence, albeit in the context of common law murder, but what was essential was that the jury be directed that the perpetrator act with an intention to cause grievous bodily harm or kill. That direction was repeated multiple times throughout the summing‑up, and it is significant, in my submission, that there was no challenge to this at first instance.
So, with that proviso, I otherwise rely on the written submissions that we have filed which arguably, probably, almost certainly set things out a little more clearly. If the Court pleases, they are my submissions.
KIEFEL CJ: Yes, thank you, Mr Pearce. Yes, Mr Game, anything in reply?
MR GAME: Yes, your Honour. Just two things. If one looks at section 12A again, the construction that the Crown puts on it and shows really why the provision does not work to bring in extended joint criminal enterprise, because, on their construction, you have a joint criminal enterprise that picks up “while acting in the course or furtherance of a major indictable offence”, you do not have a joint criminal enterprise that picks up “commits an intentional act of violence”, so you have extended joint criminal enterprise to foresee that and then you have nothing for “causes the death”. So, that their position is – the very way in which they put it shows that it cannot work to bring in section 12A – to bring in extended joint criminal enterprise.
KIEFEL CJ: That is on the assumption their construction is correct for the purposes of extended joint enterprise.
MR GAME: That is correct. So, we say that it cannot work for that – we say section 12A does work as a deeming provision. It takes you back into section 11, but there is no more work to be done in section 11. And, as it were for their argument to work – and I put this before, it is kind of like an extended joint criminal enterprise is floating around outside section 12A. Whereas, it has to be a matter of necessary implication. The section, to make extended joint criminal enterprise work, the proposition has to be borne that the provision is capable of taking a joint criminal enterprise that foresees another crime. And that then takes me into that crime, and if the provision cannot bear it – and we say this provision cannot bear it – then it is not picked up.
STEWARD J: So, you say that the availability of this extended liability must arise as a matter of intention from 12A?
MR GAME: Necessary inference from ‑ ‑ ‑
STEWARD J: Necessary inference, yes.
MR GAME: Capable of bearing, is the way I would put it, your Honour.
STEWARD J: If that is so, what do you then say about the fact that the provision was enacted the year before McAuliffe? Do you rely upon that at all?
MR GAME: I do. I do, your Honour, but in the sense that it was put against us that this legislation was passed – they must have understood about extended joint criminal enterprise. What we had before McAuliffe was Johns v The Queen which was in the process of working out principles, but it is based on common purpose and accessorial liability propositions. There is no clear emergence of the McAuliffe principle at that point. But, as
I have said before, if section 12A was to work with extended joint criminal enterprise, you would need to foresee, as a possibility, all of the three things in it. I have put that argument. That is all I wanted to say about that.
Just coming back to something that your Honour Justice Edelman said – and this is my last point – your Honour, in the course of that exchange with another counsel, said that there was a pretty fine distinction between an act done with intention to kill or do grievous bodily harm and inflicting it. But, your Honour, the distinction – in our submission, it does not quite work that way because the foresight has to be of the incidental crime. The incidental crime is murder.
It may be, in some cases which are extrinsically dangerous to human life, that talking about the consequence of grievous bodily harm is acceptable, but it does not mean that any act done with intention to cause grievous bodily harm gets you into extended joint criminal enterprise murder. That is the critical step. Moreover, in this case, the repeated use of the words “use of violence” discounts the idea of grievous bodily harm or death being a necessary element.
Finally, one thing that had not occurred to me to put before is this: the jury are repeatedly told what “violence” means in the context of section 12A. It would not be at all unlikely that they would think “violence” had the same meaning because they were never told otherwise when they were coming to common law extended joint criminal enterprise; namely a slap, or something of that kind.
Those are our submissions in reply, if the Court pleases.
KIEFEL CJ: Thank you. Yes, Mr Tokley.
MR TOKLEY: Thank you, your Honours. Your Honour Justice Gageler mentioned earlier that the Court might be seeking the assistance of the parties. Your Honours have not been taken to the judgment, but I just thought that there may be paragraphs in the case of Gillard (2003) 219 CLR 1. If I can just give your Honours the references, please, which may be of assistance. It is at page 9, paragraph 15; page 11, in paragraph 19; and over to page 12 and page 13, in paragraphs 24 and 25.
The emphasis there, in the joint judgment of their Honours, the Chief Justice and Justice Callinan, was on the fact that in cases of joint criminal enterprise, the way that the doctrine works is that one can distinguish between those guilty of murder because of the relevant intention and those guilty of manslaughter because they lack the relevant intention.
That is one of the points we seek to make when we talk about the conceptual difference between the doctrine and the section. Section 12A does away with any relevant intentions, save and except in respect of the particular act concerned, whereas the operation of the doctrine at common law enables the distinction to be drawn between murder and manslaughter.
May it please the Court, those are my submissions by way of reply.
KIEFEL CJ: Thank you. Mr Henchliffe, anything in reply?
MR HENCHLIFFE: Your Honours, two brief points. My friend indicated he could not point to any cases in South Australia where the extended joint criminal enterprise principles have been applied to common law felony murder and I think he said that that was – because that was unnecessary, it had not happened, and also that it had never become an issue. Well, I agree there are no such cases, but I think the explanation is that felony murder was abolished prior to McAuliffe being delivered and so that form of liability simply did not exist for consideration and so we do not have any cases dealing with it.
Secondly, in relation to Arulthilakan, that was a joint criminal enterprise case. There is discussion – this is in the court below – in relation to incidental crimes within contemplation, but they are talking there about incidental crimes within the joint contemplation of the participants in the joint enterprise, so we are in the Johns category; we are not in the McAuliffe category, if you like.
Just so that it is clear, your Honours, there are actually two cases in the joint book of authorities from the court below that relate to the same trial that eventually became Arulthilakan in this Court. The case of NJA at joint book of authorities 731 – that is Mr Arulthilakan, his initials – but there is another case, CMM, which is at joint book of authorities 628, which was a co‑accused of Arulthilakan. They were tried together but they had their appeals heard separately, so you will see each of those cases are talking about the same trial, but only one then came up to the High Court.
My friend suggested that the issues of extended joint criminal enterprise were touched upon in the court decisions below from Arulthilakan and, in my submission, that is not so; that when one looks carefully at the directions that have been talked about it is the Johns contemplation and not the McAuliffe contemplation. The end result is that – as far as I am aware, having practised in South Australia since about 1991 – there has been no application of extended joint criminal enterprise principles to a section 12A charge. There is no authority in South Australia, other than the case now being appealed, that deals with that interaction, and
I am not aware of any authority that – or any other court in our State has dealt with that connection.
May it please your Honours.
KIEFEL CJ: Thank you. Mr McDonald.
MR McDONALD: If the Court pleases, there is no reply on behalf of Mr Tenhoopen.
KIEFEL CJ: Thank you. The Court reserves its decision in this matter and adjourns to 10.00 am tomorrow.
AT 2.43 PM THE MATTERS WERE ADJOURNED
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