Morgan v The Queen

[1994] HCATrans 118

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Melbourne     No M6 of 1994

B e t w e e n -

ANTHONY CHARLES MORGAN

Applicant

and

THE QUEEN

Respondent

Second Respondent
  Application for special leave to
  appeal

MASON CJ
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 6 DECEMBER 1994, AT 12.36 PM

Copyright in the High Court of Australia

MR D.F. HORE-LACY:   If the Court pleases, I appear for the applicant.  (instructed by A.I. Crockett, Legal Aid Commission (Victoria))

MR G.R. FLATMAN:   I appear for the respondent, Your Honours.  (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Victoria))

MASON CJ:   Yes, Mr Hore-Lacy.

MR HORE-LACY:   Your Honours, on rereading the judgment and rereading it again and again, I do not propose to argue that there is a special leave point.  I think perhaps some explanation is due to the Court.  In relation to the authority of Smith v The Queen, Clarke and Johnstone, the Court will be aware from having read the judgment and the submissions that what the Full Court said was that in its view perhaps the preferable way of putting the Crown case was in accordance with the doctrine of common purpose as set out in Johns’ case.

MASON CJ:Yes.

MR HORE-LACY:   The Crown or the prosecution and the learned trial judge left it to the jury on the basis of Lowery and King which has been used by directing judges ever since the case was, indeed, reported plus also other cases which have followed that. 

The court said at page 207, that is the Full Court:

We emphasize that no point has been made here of the failure to instruct the jury as to the significance or otherwise of the applicant’s absence from the scene of the crime when some of the blows were struck in the context of the doctrine of common purpose.  The Judge was, of course, not asked to do so.  However, in our opinion, directions which explained the doctrine of common purpose and its possible role when considering the absence of the applicant (as we have discussed it) could not have been favourable to the applicant (see Smith v the Queen).  Indeed, in our opinion, they would necessarily have been less favourable to the applicant than those which

were given (see R v Clarke & Johnstone).  There has accordingly been no miscarriage of justice.

In view of the fact that the court found there was evidence upon which the jury could conclude that the applicant caused the death within the meaning of the definition, it is difficult, indeed, it cannot be, in my judgment, possible to argue that the directions in accordance with Johns’ case would have been more favourable than the directions given in this particular case because presence was required and the jury was told in explicit terms that they had to be satisfied that the act or acts of the applicant caused the death.  Thank you.

MASON CJ:   In the circumstances, the application for special leave to appeal will be refused.

AT 12.39 PM THE MATTER WAS ADJOURNED SINE DIE