NJA v The Queen, CMM v The Queen

[2003] HCATrans 658

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A75 of 2002

B e t w e e n -

NJA

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Adelaide  No A124 of 2002

B e t w e e n -

CMM

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

McHUGH J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 11 APRIL 2003, AT 9.31 AM

Copyright in the High Court of Australia

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MS B.J. POWELL, QC:   May it please the Court, I appear with MR R.B. HARRAP for the applicant, A.  (instructed by Harrap & Stokes)

MR S.W. TILMOUTH, QC:   If the Court pleases, I appear with MR E.N. McGEE for the applicant, M.  (instructed by McGee Solicitors)

MR S.A. MILLSTEED, QC:   May it please the Court, I appear with MR J.P. PEARCE for the respondent.  (instructed by Director of Public Prosecutions for the State of South Australia)

McHUGH J:   Yes, Ms Powell.

MS POWELL:   If your Honours please.  The question raised in this application is how principles of causation should be applied in a charge of statutory murder against an accessory to the principal offender of the major indictable offence relied upon.  In this case the trial judge directed the jury that the presentation of a knife by the principal offender to a companion of the deceased in the course of an attempted armed robbery was the causative act of violence of the later fatal stabbing of the deceased by the principal offender.  The facts of the matter are concisely set out in the opening passages of the judgment of the Court of Criminal Appeal in the matter of A.

KIRBY J:   Did the trial judge so direct the jury or did the trial judge direct the jury that it was open to them to so conclude?

MS POWELL:   Perhaps it would be convenient, your Honour, to take the Court precisely to what the judge said with respect to the charge generally of statutory murder.  I think the significant facts are obviously set out in the judgment.  The important matter is that the actual stabbing occurred in a different position - that is some distance from the first presentation of the knife – and significantly of course was later in time involving a different victim.

KIRBY J:   Not very much later in time.

MS POWELL:   Not very much later in time but at a different time.  The charge with respect to statutory murder appears from page 71 of the application book from about line 18 in the middle of the page.  There is no complaint made in respect generally of the charge.  His Honour from line 30 basically summarises the facts.  He then says:

The four issues upon which you must be satisfied before the accused are guilty of statutory murder are these.  The first is whether the act of violence was committed in the course of or in furtherance of the attempted armed robbery.  That is an essential question.  If you are not satisfied that the act of violence was committed . . . you need proceed no further.

Interestingly, at the top of page 72 he goes on to say:

However, if you are satisfied that the act of violence did occur in the course of the attempted armed robbery, you must consider three further questions.  They are these:

1.  What was the act of violence?

We pause there to say that it is very difficult indeed to imagine how the jury might have followed this direction if its first task was to determine whether the act of violence was committed in the course of the attempted armed robbery and it is then told that it should go on and identify what the act of violence was.  The second question that his Honour raises was:

2.  Was that act of violence intentional?

3.  Did the act of violence cause Bourne’s death?

KIRBY J:   So that was left to the jury then?

MS POWELL:   It was left to the jury but only in this context.  At line 25 he quite properly tells them that the act of violence must be intentional.  He says:

that the presenting of the knife and use of it requires a deliberate and intentional act.

The act of violence and the only act of violence which the learned trial judge identified for the benefit of the jury is from line 16.  He poses the question:

was there an act of violence?  Ladies and gentlemen, I direct you, as a matter of law, that the introduction of the knife into this affray, for the purpose of threatening or intimidating, or for the purpose of stabbing another, is an act of violence.

We do not take any issue that the presentation of the knife is capable of being an act of violence for the purposes of statutory murder, but we say it is not a relevant or applicable or, indeed, most importantly, causative act of violence in respect of this statutory murder.

McHUGH J:   There may be another question, but you do not seem to raise it, and that is whether or not a judge can direct a jury as a matter of law to find one of the elements of the offence.

MS POWELL:   That would be a complaint that we take up and we say that that is in effect what the judge has done.  Albeit that he says to the jury that it is a matter for them, he has identified only one causative act, thereby in a practical sense, we say, withdrawing from the jury any issue as to whether any other act could have been causative.  What he tells the jury from line 29 is:

The next question is whether the act of violence caused Bourne’s death.

In other words, he is again, as he did at line 25, referring the jury to only a single act of violence.  He then says:

Ladies and gentlemen, the law takes a commonsense view about causation.  It looks to see if there is a causal link or a causal connection . . . Did one act cause another to occur?  The act does not have to be the sole cause of the other act occurring.  It is enough if it is a substantial cause.

So far, we would submit, so good.  It is the next sentence which we say really manifests the point which we raise in this matter:

It is enough if it is shown that, but for that one event, all the other events would not have happened as they did.

We say that is erroneous and that is particularly dangerous, given the single act that the judge identified to the jury as a matter of law as being causative.  He has essentially applied a “but for” test to an act which we say in a temporal sense, and indeed in a real sense, could not be causative.

It is interesting, your Honours, that his Honour tells the jury to apply the commonsense approach, and we know of course from Ryan and Royall that that commonsense approach to the issue of causation has been well accepted by this Court.  But in this context, in our submission, it could not have been very helpful to the jury.  If I can take your Honours back to page 30 of the application book, there was discussion between counsel for Mr A and the trial judge in respect of the appropriate direction which was about to be given to the jury in respect of statutory murder and particularly in relation to the question of causation.

The question of what was the causative act was being discussed between the learned trial judge and Mr Barrett, who was then counsel for Mr A, and Mr Barrett asks:

How, with respect, can it be said that the stabbing of Hillam –

at that stage they were talking about the stabbing of Hillam rather than simply the presentation of the knife to Hillam being the causative act, Hillam being the companion of the deceased –

can be the act of violence causing the death of Bourne?  That is untenable.

HIS HONOUR:   I agree.

So that his Honour, having agreed with counsel during the course of the summing up, his Honour having commenced the summing up the day before - his Honour agrees that the causative act identified is untenable as a causative act in respect of the death of the deceased, Bourne.  He goes on to say:

I have already expressed a view to Mr Pearce that I think it may well be that the act of violence is the act of stabbing of Bourne -

Mr Pearce being the prosecutor –

If he wants a direction that is unfavourable to him, so be it.

It is one thing to say it is unfavourable to the Crown and favourable to the accused.  Indeed, it might be said that an earliest causative act was chosen which would be beneficial to the accused.  But the problem really is this, that had the trial judge identified the real causative act of violence to the jury, the jury may well not have been satisfied that that act was in the course or in the furtherance of the attempted armed robbery.  In other words, the real tension in this case was that the Crown were trying to squeeze into the scope of the identified offence, namely attempted armed robbery, both the causative act and therefore the section would come into play.

The real problem is of course that the only identified act within the actual course of the armed robbery as chosen by the Crown and which his Honour described at page 30 as an untenable proposition was not an act causative of Bourne’s death, but the jury would have been left with the direction that as a matter of law the act of violence to be considered is the presentation of the knife; that the direction with respect to voluntariness is towards that act; the question of causation is in the context of that act.

HAYNE J:   All of which, Ms Powell, seems to suggest that a part of your complaint rests in the identification of the intentional act of violence and that the attempted isolation of the question as one of causation, divorced from the identification of the intentional act of violence, leads into some difficulty.

MS POWELL:   What we say is that the identification of the act and the question of whether it is causative is so inextricably linked and the error is so manifest in respect of that linking in this case that it matters not whether the question is identified as one of a problem in respect of causation or whether one says that the matter raised is one as to the incorrect identification of a causative act by the trial judge.

KIRBY J:   But these questions of causation are some of the most taxing questions in philosophy and they consume books and reams of paper and so on, but in the end they just have to be decided by the jury on the particular case.  The only issue is whether there is a misdirection, otherwise we are being invited to substitute our opinion on causation for that of the jury where it belongs.  Apart from the direction that it is a matter of law, where else is there a misdirection by the judge?  The reference to commonsense seems to be correct.  Your complaint is about the “but for” direction, is it?

MS POWELL:   That is significant.  It is the substantial cause.  We say if that had been left alone, then that would not have amounted to a misdirection.  But to finally say “It is enough if it is shown that, but for that one event, all the other events would not have happened as they did” is to lead the jury into error.  If one applies a “but for” test, the logical way a jury may progress is to say, “We know what caused the death of Bourne.  It was E stabbing him”.

McHUGH J:   In substance, it is arguable that all that the judge left to the jury was the question whether or not the introduction of the knife was intentional.  He told them as a matter of law it was an act of violence and he told them that “but for” and there could be no answer other than but for the introduction of the knife there would have been no killing.

MS POWELL:   Nothing left; nothing left for the jury to decide.  Indeed, over on page 73 he told them further that the presentation of the knife was in the course of the attempted armed robbery.  What we say effectively this direction did was to take away any decision from the jury in respect to statutory murder.  They were virtually directed to convict.

HAYNE J:   Where do we find that reflected in your proposed grounds of appeal?

MS POWELL:   Your Honours, what I would say is that those grounds are sufficient to embrace all of the complaints that we make with respect to the direction of the trial judge in that the ultimate question of course is whether this act could have been causative and the context of how the causation matter was put to the jury, we say will embrace the issues of the sufficiency and correctness of the direction.

McHUGH J:   I would need some convincing of that.  It seems to me that your ground of appeal is set out on page 130 of the book and it does not seem to me to get anywhere near ‑ ‑ ‑

KIRBY J:   Similarly, Mr Tilmouth’s ground of appeal at 147.  They are both expressed in terms of what it was capable in law of amounting to, whereas your complaint is that the judge foreclosed the capability and decided the matter for himself instead of leaving it to the jury.

MS POWELL:   Yes, I cannot resile from that.

KIRBY J:   The grounds of appeal just do not reflect the issue that seems to be presented.  However, presumably that could be corrected to bring the grounds of appeal into line with the complaints that by his directions of law the judge foreclosed the jury’s consideration of the issue of causation and that the judge misdirected the jury on the issue of causation.  They are the two essential points that you want to argue, as I understand it.

MS POWELL:   That is right your Honour.

HAYNE J:   Where were they argued in the Court of Criminal Appeal?  They are not reflected in the grounds of appeal in the Full Court as far as I can see.

MS POWELL:   I understand they arose in the outline of argument.  The judgment of the Court of Criminal Appeal with respect to statutory murder appears from page 123 and we say that the error of the Court of Criminal Appeal appears in the decision at page 125 line 29:

The direction given by the trial judge was proper and consistent with the decisions of the High Court in Ryan v R and Royall v R.

We say that is not correct.

The trial judge identified the earliest act of E, which could have been selected –

We say no, not selectable.  It is dramatically different from Ryan, where the earliest act there identified of course was the presentation of a loaded gun to the back of a man who was in the process of being tied up in a robbery.  It is enough, the Court of Criminal Appeal says, if juries are told that the question of cause is for them to decide.  As your Honours have properly identified to me, a fundamental complaint that we make is that it was not left to the jury to decide.

KIRBY J:   We properly identified it, but neither you nor Mr Tilmouth seem to have identified it in your grounds.  We are faced with a decision of the Court of Criminal Appeal in which Justice Prior says at 126 paragraph 43:

In the instant case, the direction given by the judge has not been shown to be inappropriate in the circumstances.

So, without the benefit of the Court of Criminal Appeal’s consideration of the matter, we would be ploughing through the transcript to try to understand what the circumstances were and working it out for ourselves effectively for the first time.  It is not a very satisfactory state for the High Court to come to this issue, which in the end is an issue of fact so long as the jury are correctly directed.

MS POWELL:   Yes, although there still is that question of whether the act identified was, as the Court of Criminal Appeal said, capable of being a cause of Bourne’s death.  That is obviously a mixed question of the sort of

factual matters that your Honour is talking about and also embraces the sort of philosophical issues that have agitated this Court on ‑ ‑ ‑

KIRBY J:   Do not try to make it interesting by referring to philosophy.  I suppose you can say following Gipp and other cases that if there is a misdirection and the case is still alive and in the judicial system and it is before the court, this Court can allow the matter to be raised for the first time if it is a serious error, but the Court has said that that will only be done in exceptional circumstances.  What is the exceptional circumstance here that would allow us to explore an issue that really was not explored in the Court of Criminal Appeal?

MS POWELL:   Conviction of murder on a statutory basis is serious, and for a matter to stand where the trial judge has agreed that the suggestion of a causative act is untenable but then directs the jury that as a matter of common sense it can act on that, in my submission, it is very serious indeed.  If the Court pleases.

McHUGH J:   Thank you.  Yes Mr Tilmouth.

MR TILMOUTH:   If the Court pleases, can I adopt those submissions and make one or two points if I may in aid of them.  In my submission, in the end result the effect of the summing up was to withdraw from the jury any real question of whether there was any room for them to acquit of statutory murder.  If one goes back to page 72 of the summing up, the first question of course was answered emphatically “Yes” by the direction as a matter of law.  Even the case of Butcher on which the ‑ ‑ ‑

HAYNE J:   Just before you go on to develop that point, was that direction that the introduction of the knife is an act of violence the subject of discussion with trial counsel?

MR TILMOUTH:   It was, if the Court pleases.  It is not in your Honours’ transcript.

HAYNE J:   What did trial counsel say about that proposal to direct?

MR TILMOUTH:   As I recollect it, your Honours, there certainly was a long debate about it in the trial court.  It went over many pages.  As I recollect it, it was argued by trial counsel that the mere introduction itself and the mere introduction at that point in time was not enough for the purposes of section 12A.  It was argued in effect that the appropriate act was the introduction of the knife by E, in relation to B, the deceased.  That was the effect of the matter in the trial court.

All of that question of 12A and its associated arguments were argued in both appeals in the Court of Criminal Appeal.  My point is, your Honours, even the case of Butcher says only that it was open to the jury to conclude that the mere introduction of the knife was available.  Butcher itself does not condone an emphatic direction that it is an act of violence for the purposes of statutory murder.  So that issue was taken from the jury, a direction of law which the trial judge told the jury in conventional terms they were bound to follow.

The second issue, “Was that act of violence intentional?”, that has been dealt with.  The third issue, which is the other important matter, your Honours, “Did the act of violence cause Bourne’s death?” – that is the third point on the top of page 72 – we have the “but for” direction in effect on page 72 at lines 33 to 35 which have been read.  The fault with that, if the Court pleases, is that it withdrew from the jury’s consideration whether or not in their opinion the production of the knife at the early stage involving Hillam was a negligible or de minimis cause in the eventual death of Bourne.

McHUGH J:   But, if I remember rightly, none of the judgments in Royall accepted the “but for” test, did they?

MR TILMOUTH:   No, they did not, your Honour.

McHUGH J:   I think I referred to four different theories of causation in criminal law and the joint judgment applied the commonsense test, if I remember rightly.  It is a long time ago.

MR TILMOUTH:   That is so.  Your Honour was critical of the “but for” test for effectively the same reasons that the Court in March v Stramare on the civil side was critical of it.  It is true to say that the Court said that the “but for” test could be in effect one attribute of causation but it is not a sole criterion of a causation at all.  Your Honour Justice McHugh also said that the principle should be the same in the criminal and civil spheres.  That is at 448 in Royall.  The test you propose is the “reasonably foreseeable” test at page 449.

This Court has, so far as criminal cases is concerned, never embraced the “but for” test and, as I put it, your Honours, the problem with this direction, which, in my submission, really left the jury no room to make any practical decision about causation at the bottom of 72, leaves out from their consideration ‑ ‑ ‑

KIRBY J:   Not really, because they could have taken the view that the presentation of the knife at an earlier point of time, even if that happened, was separate in terms of causation on a commonsense basis from the subsequent stabbing of the deceased.  What was the length of time between the one and the other?  It would only be a matter of a minute or so, would it not?

MR TILMOUTH:   That is true, but it was at a completely different place on the other side of the road, as I understand it, separated physically and a quite separate event.  That was the basic argument.  In my submission, nevertheless the jury as a matter of common sense would have said that the immediate and the principal cause of this death was the stabbing by E of Bourne.  The jury might have thought that the production of the knife at the stage of the earlier scuffle with Hillam ‑ ‑ ‑

HAYNE J:   It is not bare production according to the direction, is it?  It is production for the purpose of threaten or intimidate or stab.

MR TILMOUTH:   That is true, but the jury might well have thought that that incident had either a negligible or de minimis relationship with the ultimate cause of death of Bourne.

HAYNE J:   Why?  If it is presentation for the purpose of threaten, intimidate or stab, does that not suggest relevant causation?

McHUGH J:   But it is Hillam; it was the presentation of the knife to Hillam.

MR TILMOUTH:   That is right:  “I direct you, as a matter of law”, et cetera.  It was isolated to Hillam.  It had nothing to do with the later incident, so it was plainly confined to the earlier incident.

McHUGH J:   The other thing I notice about the trial judge’s directions is that he did not tell the jury to apply their own common sense; he told them that the law takes a commonsense view about causation and then he told them what the law’s view was and ultimately that it was enough that “but for that one event, all the other events would not have happened as they did.”

MR TILMOUTH:   Exactly.  So, your Honours, ultimately my submission on the two key issues on what was the act of violence and did the act of violence cause Bourne’s death, the jury practically had no alternative other than to find adversely to the applicants on those issues.

KIRBY J:   Was any application made for redirection on these points at the trial?

MR TILMOUTH:   No, but the point had been sufficiently established already beforehand.  As I have pointed out already, the issue of section 12A

was a matter of hot and long debate during the course of this trial.  Your Honours will see that formed no difficulty from the applicants’ point of view in the Court of Criminal Appeal.

Your Honours, the only other matter I want to add if I may to that basic submission, apart from adopting Ms Powell’s submissions, is that in the case of applicant M there is the extension of time issue.  The affidavit in support is at page 149 of the application book.  It was basically a question of waiting for the judgment in Ms Powell’s client’s matter to be handed down and then a Legal Aid issue.  I do point out that the application for special leave to appeal does seek the extension of time at page 147 of the application book.

In my submission, this clearly raises an important issue.  These two men have been convicted of murder on a very narrow statutory basis where effectively the jury had nothing to decide apart from adverse to them.  If the Court pleases.

McHUGH J:   Thank you, Mr Tilmouth.  Yes, Mr Millsteed.

MR MILLSTEED:   May it please the Court.  May I begin with the point your Honour Justice McHugh raised, that is whether the learned trial judge effectively withdrew from the jury an element of the offence, namely the existence of an act of violence.  In my submission, that is not what happened.  His Honour directed the jury that the production of the knife for the purpose of threatening or intimidating the victim would constitute an act of violence, but it was left to the jury to determine whether the knife had been produced for that purpose.  The directions appear at page 72 of the application book at line 15:

The first is, was there an act of violence?  Ladies and gentlemen, I direct you, as a matter of law, that the introduction of the knife into this affray, for the purpose of threatening or intimidating, or for the purpose of stabbing another, is an act of violence.  It constitutes a form of assault.  If you find that [E] presented the knife for the purpose of threatening . . . that constitutes an act of violence.

So in essence his Honour directed the jury that it would be necessary for them to find that the knife was being produced for a specific purpose and, if it was, that in those circumstances as a matter of law it would constitute an act of violence for the purpose of section 12A.  That direction was plainly correct.  The presentation of the knife for the purpose of intimidating, threatening or stabbing constitutes an act of violence, and that accords with established authority.

KIRBY J:   I just do not understand why the judge would not have explained what an act of violence is in law and then said, “It is for you the jury to decide whether on the facts proved this amounted to an act of violence”.  Is that not the proper delineation between what the judge has to do and what the jury has to do?

MR MILLSTEED:   Your Honour, that may have been a more appropriate course to take but if he had directed the jury as to what constituted an act of violence, he would have been required to direct them, in my submission, that the production of a knife at close quarters for the suggested purposes is capable of constituting an act of violence.

KIRBY J:   Exactly, is capable of constituting.  But it still remains for the jury to decide whether something happening on the other side of the road is a relevant act of violence for this particular homicide.

MR MILLSTEED:   But here that was effectively achieved, in my submission, because his Honour left it to the jury to determine whether the production of the knife was for one of the purposes relied upon.

KIRBY J:   The problem is that expression, “I direct you, as a matter of law”.  It appears on the face of things to leave very little space for the jury to perform their role in applying the law to the facts of the particular case, which is the fundamental delineation between their respective functions.  I think Justice Debelle’s summing up on the whole was a very careful and thorough one, but it is just that at this critical moment he does not seem to have left much space for the jury.

MR MILLSTEED:   In my submission, if that space had been left, the jury inevitably would have come to the conclusion that the production of a knife at close quarters for the purpose of threatening or stabbing a victim of an attempted armed robbery constituted an act of violence.  Even if it had been pitched on that basis, the jury would inevitably have come to that result.

The second point that has been raised is whether as a matter of fact the production of the knife at the outset of the attempted robbery could be regarded as being a cause of Mr Bourne’s death.

McHUGH J:   It could be but that is not the issue, is it?  The problem as I see it at the moment is the “but for” direction.  Suppose the judge had directed the jury, “You have to determine whether or not the presentation of the knife for the purpose of threatening Hillam was a substantial cause of the death of Bourne”.  That raises, it seems to me, a real issue of fact upon which the jury may well have acquitted, but the judge’s “but for” direction in effect precluded them from determining the issue.  No sensible jury could come to any other conclusion.  If the knife had not been produced at that stage, then Bourne would not have died.

MR MILLSTEED:   If your Honour pleases, I accept that the introduction of the “but for” approach was most unfortunate in the circumstances.

McHUGH J:   If the judge had stopped at the sentence before, a different case.  I doubt if we would be here.

MR MILLSTEED:   What I would say to that is that his Honour did not leave it to the jury solely on the basis of the “but for” test.  The “but for” test is preceded by an appropriate direction that:

The act does not have to be the sole cause of the other act occurring.  It is enough if it is a substantial cause.

McHUGH J:   But then he goes on to define it in effect:

It is enough if it is shown that, but for that one event, all the other events would not have happened –

That is the story of the King losing his throne because his horse lost a nail from its shoe.

MR MILLSTEED:   In my submission, the total effect of the direction on page 72 is that whilst it can be said that Mr Bourne’s death would not have happened but for the production of the knife, that is so provided the production of the knife was a substantial cause of Mr Bourne’s death.  That passage has to be read in context and that was the total effect of that direction.

KIRBY J:   That last submission is in the nature of a proviso submission, is it not?  You are saying that even if there is a slip in that particular sentence, that looked at as a whole there is no prospect of a miscarriage of justice on that basis.

MR MILLSTEED:   That is right.

KIRBY J:   But that is not the way the Court of Criminal Appeal dealt with it.

MR MILLSTEED:   The point I make is that even in Royall and March v Stramare, it is not suggested that leading a “but for” test is necessarily a misdirection.  The vice that is identified in March v Stramare and Royall, and in particular by your Honour Justice McHugh, is that it should not be left as the sole criterion of determining legal responsibility.  In my submission, it was not left in this case as the sole criterion of attributing criminal responsibility in relation to the fatal stabbing of Mr Bourne.

Can I put to the Court a further argument.  This really is a proviso argument.  In my submission, a realistic interpretation of the verdict of wounding Mr Hillam with intent to do him grievous bodily harm, when viewed against the background of the trial judge’s directions as to how the jury could arrive at that verdict, is that the jury found the applicants guilty of complicity in common law murder and not statutory murder.  In other words, this issue of whether the production of the knife caused death did not enter into their deliberations.

In relation to the charge of wounding Mr Hillam, the jury were directed that there were two possible routes to conviction.  The first involved an application of the principles governing common purpose and the second is that they aided and abetted Mr E in the commission of the offence.  Those directions can be found at page 49 of the application book.  They start at the bottom of page 49 and they continue over the next two to three pages.

In relation to common purpose, the jury were directed that the applicants could be convicted of murder if they were parties to a common purpose, to rob Mr Hillam, and that they were armed for that purpose with knives and the billiard ball and that further the applicants either shared with Mr E a common intention of inflicting grievous bodily harm or contemplated the infliction of grievous bodily harm by one of them as a possible outcome of the attempted robbery.  That direction of course complies with the principles enunciated by this Court in McAuliffe v The Queen.

If the jury convicted each applicant on that basis of common purpose, extended liability arising out of common purpose, it means they were at least satisfied that the applicant foresaw that E might stab Hillam with the intention of causing grievous bodily harm as a possible outcome of the attempted robbery.  On that basis the jury could not have failed to find, and must have found, in my submission, that each applicant foresaw the possibility that Hillam’s companion, Mr Bourne, might also be stabbed by E with the intention of causing him grievous bodily harm.  The plan was to rob these two men of the telephone.  There was no basis for differentiating between Hillam and Bourne with respect to foreseeing the possibility that they might be stabbed in the course or in the furtherance of the attempted hold‑up.  Mr Bourne was as much a target as Mr Hillam.  He was with Hillam and he had to be dealt with in the same way as his companion.

KIRBY J:   The practice is to take a jury verdict on the charge of murder and not to differentiate between the common law and statutory murder?

MR MILLSTEED:   I am sorry, your Honour?

KIRBY J:   Did the jury’s verdict in any way indicate the foundation on which they found the accused guilty of murder?

MR MILLSTEED:   No, but ‑ ‑ ‑

KIRBY J:   Did the jury’s verdict indicate that it was statutory murder?

MR MILLSTEED:   No, not the verdict of murder, but what I submit to the Court is that the verdict in relation to wounding with intent indicates that the jury have travelled along a path of applying the principles in McAuliffe.  They found the applicants guilty of the stabbing of Hillam on the basis that they foresaw such a stabbing in the course of carrying out the joint enterprise.

KIRBY J:   I understand what you are saying.  The charge in the information on page 1 is murder and the jury merely brings in a verdict of murder and you do not know whether they have done it on the foundation of common purpose at common law or section 12A, statutory murder.

MR MILLSTEED:   My submission is that you can discern that they have done it via common purpose because of their approach to the wounding with intent charge against the background ‑ ‑ ‑

KIRBY J:   This is not a matter that was considered in the Court of Criminal Appeal, I think.

MR MILLSTEED:   No, it was not, your Honour.  This was not raised in the Court of Criminal Appeal.

KIRBY J:   This is in the nature of a notice of contention, that you say that in the event that they get up on this argument concerning the misdirection, that you contend that there was another avenue and that that was available to the jury and fully available in the facts and that therefore that sustains the verdict of guilty of murder.

MR MILLSTEED:   Not only available to the jury, your Honour.  In my submission, it can be inferred ‑ ‑ ‑

McHUGH J:   The way you put it, as I understand it, is the jury’s verdict on the third count indicates that they must have found common law murder.

MR MILLSTEED:   Yes, your Honour, that is precisely right.  They have reached that route via the approach that was taken in the findings in relation to count 2.

KIRBY J:   I understand that, but if we were of the view that there was a misdirection on the section 12A offence, then you could only really come to that conclusion for the first time in this Court on a full consideration of that argument, which has not been considered in the Court of Criminal Appeal.

MR MILLSTEED:   I agree with that, your Honour, except that, in my submission, the members of the Court can draw that inference now from an understanding and reading of the directions that were given in relation to common purpose and that effectively the point that the applicants seek to raise is quite academic in the context of the verdicts which were returned against the background of the directions that the trial judge did give.

McHUGH J:   That depends upon whether the jury were bound to find as a fact that there was this possibility of stabbing Bourne.

MR MILLSTEED:   Your Honour, how could they fail to find that possibility when ‑ ‑ ‑

McHUGH J:   That is the argument and you have to say that there is no other alternative open, that it would have been a perverse verdict for the jury to find them not guilty of murder if they found them guilty on the third count.  That is what it comes to.

MR MILLSTEED:   That is essentially our argument, your Honour, yes.  I do not think I can develop that point any further.

McHUGH J:   Thank you, Mr Millsteed.  Yes, Ms Powell.

MS POWELL:   Your Honours, Mr Tilmouth will deal with the reply.  There is just one thing which I omitted to draw your Honours’ attention to:  page 131 of the application book.  Apparently applicant A also needs an extension of time within which to make this application.  If the Court pleases.

McHUGH J:   Yes, Mr Tilmouth.

MR TILMOUTH:   Your Honours, just one point in reply, and this is for Mr Millsteed’s last point.  At page 73 of the application book his Honour explained at about line 10, after the directions which have already been discussed, held at line 11:

there are two alternative routes by which it is open for you to find these accused guilty of statutory murder.

The difference between the directions on joint enterprise in statutory murder and at common law are demonstrated at line 19.  The direction was given between lines 14 and 19 and his Honour then said:

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 –

more importantly, in our submission –

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.

McHUGH J:   I appreciate the force of that, but what Mr Millsteed says is that, given the jury’s verdict on the third count, which is an unlawful joint enterprise of maliciously wounding Hillam, they must have found common law murder either in fact or they would have in any event.

MR TILMOUTH:   Not in our submission because when it comes to considering the separate incident of Bourne, the jury would have understood by that direction that any question of mental element, actual or imputed, would be irrelevant for their purposes.

HAYNE J:   But the point against you, as I understand it, is that the verdict on the third count required the jury to conclude that a contemplation of the participants in the joint enterprise was death or GBH, is that right?

MR TILMOUTH:   As against Hillam, the holder of the knife, possibly.  With respect, as regards the Bourne incident, the answer is no.

HAYNE J:   Because you say they are separate incidents?

MR TILMOUTH:   Yes.  That was the issue the jury never passed judgment over.

HAYNE J:   That requires the notion that the continued hold‑up of two men with one phone for the purpose of securing the phone becomes a separate incident once you have crossed the road.

MR TILMOUTH:   In my submission, yes, and also because of the way the directions were given initially, because of the direction that it was the

introduction in relation to Hillam solely.  There was never a direction in relation to both of them, Hillam and Bourne; it was confined to Hillam himself.  The jury might well have taken a different view in relation to the Bourne matters and they would have understood and only understood, in my submission, because of the directions at page 73, that common law murder effectively – no, I put it another way:  that for statutory murder in relation to Bourne, that there was no question of mental element at all.  It is that area in which one cannot conclude safely that they must have found the appropriate mental element for common law murder because of that direction.  If the Court pleases.

McHUGH J:   Thank you, Mr Tilmouth.  Ms Powell and Mr Tilmouth, subject to you getting an appropriate notice of appeal in order, the Court is inclined to grant special leave to appeal, but we will make no formal decision until something is produced.  Could a document be produced and presented later in the day?

MR TILMOUTH:   Yes, your Honour.

McHUGH J:   We might stand the matter down until that is done.  Of course, if leave is granted, it may well be that the Crown will want to put on a notice of contention of some sort to rely on the proviso.

AT 10.23 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 12.26 PM:

KIRBY J:   What I am about to say I am authorised to say on behalf of Justice Hayne, who is with me, and also on Justice McHugh’s behalf. 

The Court has received the amended application for special leave which is made on behalf both of NJA and CMM.  The Court has noted the revised grounds upon which the application will be made to the Court.  Upon the basis of those grounds, the Court dispenses with the rule as to the obligations of time, grants special leave to each of the applicants on those grounds and directs that within 21 days each of the applicants file and serve the amended notice of appeal containing those grounds.

MS POWELL:   Thank you, your Honour.

KIRBY J:   How long will those appeals now last, Ms Powell, in your estimate?  Will they be completed in the space of a day?

MS POWELL:   I would think so.

KIRBY J:   Do you agree with that, Mr Tilmouth?

MR TILMOUTH:   Yes, I do, if the Court pleases.

KIRBY J:   Very well.  Will you pass those orders on to Mr Millsteed?

MS POWELL:   Yes, your Honour.

KIRBY J:   Thank you.

AT 12.27 PM THE MATTERS WERE CONCLUDED