O'Dea v Western Australia

Case [2022] HCA 24

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, GORDON, EDELMAN AND STEWARD JJ

BRETT CHRISTOPHER O'DEA  APPELLANT

AND

THE STATE OF WESTERN AUSTRALIA  RESPONDENT

O'Dea v Western Australia

[2022] HCA 24

Date of Hearing: 4 May 2022
Date of Judgment: 10 August 2022

P53/2021

ORDER

1.Appeal allowed.

2.Set aside the orders of the Court of Appeal of the Supreme Court of Western Australia made on 13 April 2021 and, in their place, order that:

(a)there be an extension of time within which to apply for leave to appeal;

(b)leave to appeal be granted;

(c)the appeal be allowed;

(d)the appellant's conviction be set aside; and

(e)there be a new trial.

On appeal from the Supreme Court of Western Australia

Representation

S Vandongen SC with A O Karstaedt for the appellant (instructed by NR Barber Legal)

A L Forrester SC with S D Packham for the respondent (instructed by Office of the Director of Public Prosecutions (WA))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

O'Dea v Western Australia

Criminal law – Parties to offence – Principal offenders – Where appellant and another charged jointly with offence of unlawfully doing grievous bodily harm with intent under s 294(1)(a) of Criminal Code (WA) – Where prosecution relied on s 7(a) of Criminal Code, which deems "[e]very person who actually does the act … which constitutes the offence" to be guilty of offence – Where uncertainty as to which act or acts of appellant or co-accused, or combination of their acts, caused grievous bodily harm – Where trial judge relevantly directed jury they could convict appellant under s 7(a) if satisfied beyond reasonable doubt that appellant and co-accused were "acting in concert, each of them doing one or more of the acts which caused" grievous bodily harm and that "[t]he relevant accused's acts were unlawful" – Whether s 7(a) permits acts of person to be attributed to another – Whether jury direction occasioned miscarriage of justice.

Words and phrases – "acting in concert", "actually does the act", "attribution", "criminal responsibility", "deemed to have taken part in committing the offence", "parties to offence", "principal in the first degree", "principal offender", "unlawful common purpose".

Criminal Code (WA), s 7(a).

  1. KIEFEL CJ AND GAGELER J. The appellant and his co‑accused Jacob Jefferson Webb were tried in the District Court of Western Australia before a jury on a count that each of them, with intent to maim, disfigure, disable or do some grievous bodily harm to one Alimamy Koroma, unlawfully did grievous bodily harm to Mr Koroma, contrary to s 294(1) of the Criminal Code (WA) ("the Code"). The facts relevant to that charge are set out in the reasons of Gordon, Edelman and Steward JJ. The jury returned a verdict of guilty in respect of the appellant but was unable to agree upon a verdict in respect of Mr Webb.

  2. At the trial, the prosecution…

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O'Dea v Western Australia [2022] HCA 24
Case
[2022] HCA 24
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal by Mr O'Dea against his conviction for unlawfully doing grievous bodily harm with intent. The prosecution's case at trial relied on section 7(a) of the *Criminal Code* (WA), which deems a person who "actually does the act" constituting an offence to be guilty. The central dispute arose from uncertainty as to whether the appellant's actions, his co-accused's actions, or a combination thereof caused the grievous bodily harm. The trial judge directed the jury that they could convict the appellant if they were satisfied that he and his co-accused were "acting in concert, each of them doing one or more of the acts which caused" the harm, and that the relevant acts were unlawful.

The legal issues before the High Court were whether section 7(a) of the *Criminal Code* permits the acts of one person to be attributed to another, and whether the trial judge's direction to the jury occasioned a miscarriage of justice. The Court considered the historical context of section 7, noting that the *Criminal Code* was intended to replace common law principles of criminal liability, which distinguished between principals and accessories. The common law concept of a principal in the first degree involved those who "actually and with their own hands committed the act."

The High Court reasoned that section 7(a) requires proof that the accused person "actually does the act" that constitutes the offence. It rejected the notion that acts of one person could be attributed to another under this section, particularly in the absence of an allegation of a joint criminal enterprise or unlawful common purpose. The Court affirmed that the act causing the harm must be the "actual" act of the accused, not an attributed act. Consequently, the trial judge's direction that the appellant could be convicted based on a combination of his acts and his co-accused's acts while "acting in concert" was an error of law.

The appeal was allowed, the conviction was set aside, and a new trial was ordered. The Court clarified that the concept of "acting in concert" is not part of section 7(a) and should not be included in directions to the jury concerning that provision. Instead, for a conviction under section 7(a) where harm results from multiple individuals' acts, it must be proven that the accused's own acts were sufficient to cause the harm and were not undertaken in self-defence or due to an honest and reasonable mistake.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Western Australia made on 13 April 2021 and, in their place, order that:

(a) there be an extension of time within which to apply for leave to appeal;

(b) leave to appeal be granted;

(c) the appeal be allowed;

(d) the appellant's conviction be set aside; and

(e) there be a new trial.

Background

Background to the litigation

Mr O'Dea's second ground of appeal concerned the conclusion of the Court of Appeal that it was sufficient for the trial judge to direct the jury that "acting in concert" meant that Mr O'Dea and Mr Webb "were acting together". This ground of appeal was premised upon the correctness of the trial judge's direction that it was necessary for the jury to conclude beyond reasonable doubt that Mr O'Dea and Mr Webb were acting in concert, in the sense of that expression at common law. For the reasons below, the Court of Appeal was correct that this premise was misconceived.The background to the drafting of s 7 of the Criminal Code The Criminal Code "should be construed ... without any presumption that it was intended to do no more than restate the existing law"[40]. There is no such presumption because the Criminal Code was intended to replace the common law.[40]Brennan v The King (1936) 55 CLR 253 at 263 per Dixon and Evatt JJ, quoted in Pickett v Western Australia (2020) 270 CLR 323 at 337 [22] per Kiefel CJ, Bell, Keane and Gordon JJ. Nevertheless, in its goal of providing a comprehensive statement of criminal liability, the Criminal Code inevitably borrowed from some common law concepts. Hence, it has been held that it is permissible to resort to the common law prior to the Criminal Code in circumstances "where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning"[41]. In each instance, the common law is considered as part of the contemporary context of the drafting of the relevant provision of the Criminal Code. In relation to ss 7 and 8, the common law prior to the Criminal Code formed an important part of the context in which the provisions were drafted: "[o]bviously s 7 ... employs words which previously had acquired a technical meaning"[42].[41]Stuart v The Queen (1974) 134 CLR 426 at 437 per Gibbs J, quoted in Pickett v Western Australia (2020) 270 CLR 323 at 337 [23] per Kiefel CJ, Bell, Keane and Gordon JJ.[42]Gillies, The Law of Criminal Complicity (1980) at 28. The common law, prior to the introduction of s 7, drew a distinction between principals in the first degree, whose criminal responsibility was primary, and principals in the second and third degrees, who were accessories and whose liability was derivative of, or dependent upon, a finding of criminal responsibility of another: "[o]bviously ... accessorial liability is dependent upon the commission by someone of an offence"[43].[43]Gillies, The Law of Criminal Complicity (1980) at 5. As to principals in the first degree, the core instance of such criminal responsibility, as expressed in Russell's Treatise on Crimes and Misdemeanors[44] three years prior to the enactment of the Queensland Criminal Code, concerned "those who have actually and with their own hands committed the [act]". Sir James Fitzjames Stephen described principals in the first degree as "those who actually committed the offence"[45]. As Sir Courtney Kenny said, a principal in the first degree is "[a]lmost always ... the [person] by whom this act itself was done"[46].[44]Russell, A Treatise on Crimes and Misdemeanors, 6th ed (1896), vol 1 at 161 (emphasis in original).[45]Stephen, A General View of the Criminal Law of England, 2nd ed (1890) at 82.[46]Kenny, Outlines of Criminal Law, 5th ed (1913) at 84.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ GAGELER J GORDON, EDELMAN AND STEWARD JJ
If this broad approach were correct, then Mr Pickett could have been made criminally responsible under s 7(a). It would not have mattered whether the person who "actually" inflicted the stab wound that caused Mr Slater's death was PM rather than Mr Pickett. In other words, if the stab wound had been inflicted by PM, it would have been possible on this approach for Mr Pickett to be criminally responsible under s 7(a) by the attribution to him of PM's acts that were committed as part of a series with the acts of Mr Pickett, and while PM and Mr Pickett were acting in combination. Such an approach was emphatically rejected by this Court. As Kiefel CJ, Bell, Keane and Gordon JJ said, the person who actually inflicted the stab wound, "and only that person, actually caused the death of the Deceased for the purposes of s 7(a) of the Code"[87].[87]Pickett v Western Australia (2020) 270 CLR 323 at 334‑335 [14], referring to Birdsall v Western Australia (2019) 54 WAR 418 at 430 [31].Application of s 7(a) to this case and conclusion In Whitby v Western Australia[88], Buss P and Mazza JA observed that a "remarkable feature of the State's case at the trial was the prosecutor's reliance solely upon s 7(a) of the [Criminal Code]". Equally, in this case, a remarkable feature of the State's case against Mr O'Dea and Mr Webb was that the State made no attempt to allege that, at any point during the assaults on Mr Koroma, Mr O'Dea and Mr Webb tacitly formed an unlawful common purpose of doing grievous bodily harm to Mr Koroma, which extended beyond a reasonable response to the circumstances that they believed to exist[89]. Instead, the State sought to attribute the acts of Mr O'Dea or Mr Webb to each other by a novel doctrine of agency that cannot be justified by the text or context of s 7(a) and has never been justified as a matter of principle.[88][2019] WASCA 11 at [119].[89]Criminal Code, s 248(4)(b). The acceptance by the Court of Appeal of the broadest approach to s 7(a), which was the basis of the trial judge's direction to the jury as to the first pathway, was an error. Rather, and in light of the acceptance by the prosecutor in closing that it was possible that the grievous bodily harm had been caused by a combination of the acts of Mr O'Dea and Mr Webb, the proper legal meaning of s 7(a) in its application to Mr O'Dea required a direction to the jury as follows. The jury could convict Mr O'Dea if they were satisfied beyond reasonable doubt that: (i) Mr Koroma's traumatic brain injury was grievous bodily harm; (ii) Mr O'Dea's acts, by themselves, were sufficient to have caused Mr Koroma's traumatic brain injury; and (iii) Mr O'Dea's acts that were sufficient to cause Mr Koroma's traumatic brain injury were not undertaken in self‑defence or as a result of an honest and reasonable mistake. The Court of Appeal should have found that the trial judge erred in his direction to the jury that Mr O'Dea could be convicted under the first pathway based upon a combination of the acts of Mr O'Dea and Mr Webb acting "in concert". That direction was an error of law amounting to a miscarriage of justice. The appeal should be allowed on the first ground of appeal. It is, therefore, strictly unnecessary to address Mr O'Dea's second ground of appeal, although it should be apparent from these reasons that the second ground was based upon a misconceived premise. There was no requirement for the trial judge to explain to the jury the meaning of "acting in concert" in relation to s 7(a). The concept of "acting in concert" is not contained in s 7(a) and it should not form part of any direction concerning that section.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, GAGELER J, GORDON, EDELMAN AND STEWARD JJ

This principle in Pickett was not novel. As Nettle J observed in Pickett[75], the plurality of Brennan CJ, Dawson and Toohey JJ in R v Barlow had said that in ss 7 and 8 the reference to an "offence" was used "to denote the element of conduct … which, if accompanied by prescribed circumstances, or if causing a prescribed result or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment". And in Jackson v Horne[76], this Court held that criminal responsibility of a person who procures the commission of an offence by another person, under the provision of the Queensland Criminal Code equivalent to s 7(d) of the Criminal Code, required the other person to have committed an offence. Indeed, it would have been astonishing to extend criminal liability to a person who aided another in the commission of a lawful act, thus creating "a kind of ghost crime committed by the actor which is sufficient to inculpate the [accused person]"[77].The operation of s 7(a) of the Criminal Code[75](2020) 270 CLR 323 at 369 [109], quoting R v Barlow (1997) 188 CLR 1 at 9 per Brennan CJ, Dawson and Toohey JJ (emphasis of Nettle J).[76](1965) 114 CLR 82 at 88 per Barwick CJ, 94 per Taylor J, 95 per Menzies J.[77]Glanville Williams, "Secondary Parties to Non‑Existent Crime" (1953) 16 Modern Law Review 384 at 385.The proper approach to s 7(a) In R v Melling[78], Holmes JA (with whom McMurdo P and Applegarth J agreed) correctly reasoned, in an appeal concerning the criminal responsibility of two accused persons for grievous bodily harm, that "for the Crown to succeed in establishing criminal responsibility on the part of both appellants under s 7(1)(a), it was necessary that against each there be proved an act causing injuries amounting to grievous bodily harm, as well as the necessary intent". In other words, the act "causing" the grievous bodily harm must be the "actual" and not the attributed act of the accused person. In the words of s 7(a), the act that constitutes the offence of grievous bodily harm must be one that the person "actually does".[78][2010] QCA 307 at [25] (concerning the equivalent provision to s 7(a) in the Criminal Code (Qld)). This approach is consistent with the text and drafting history of s 7(a), including the incorporation of a requirement in s 7 for the commission of an offence, either by the actual acts of the accused person (s 7(a)) or by the acts of others (ss 7(b), 7(c) and 7(d)). It does not require the recognition of any contrived or fictitious implication in s 7(a). And it respects the correctness of the unchallenged reasoning in Pickett. The clearest instance in which s 7(a) will apply, using the example of a fatal stabbing, is where the accused person's actual act is proved to have been the only act that caused the victim's death. It will also apply, in the same manner, where the death is the result of the acts of two or more people acting independently, and where the acts of each person were sufficient to cause the death. Thus, if the accused person and another person both fatally stab a victim without any underlying common purpose or joint criminal enterprise and the victim dies, it is not open to either the accused person or the other person to deny criminal responsibility for their acts on the basis that, but for their acts, the death would have resulted from the acts of the other individual.The second approach – attribution of acts in a series on the basis of joint criminal enterprise