PDJ v The Queen

[2004] HCATrans 209

[2004] HCATrans 209

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M7 of 2003

B e t w e e n -

PDJ

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 JUNE 2004, AT 11.44 AM

Copyright in the High Court of Australia

MR I.D. HILL, QC:   If the Court pleases, I appear with my learned friends, MR L.C. CARTER and MR C.B. BOYCE on behalf of the applicant.  (instructed by Fitzroy Legal Service Inc) 

MR W.H. MORGAN-PAYLER, QC:   If it please the Court, I appear with my learned friend, MR C.W. BEALE, on behalf of the respondent.  (instructed by Solicitor for Public Prosecutions (Victoria)) 

GLEESON CJ:   Yes, Mr Hill.

MR HILL:   This application, your Honour, primarily concerns the failure of the learned trial judge to leave manslaughter to the jury as a possible verdict in accordance with the defence case and in accordance with the principles stated by this Court in Markby v The Queen (1978) 140 CLR 108, and that this constituted a wrong decision on a question of law. The applicant was presented on and found guilty of one count of murder. The case for the Crown was put in two ways: either the applicant acted alone, or, alternatively, he acted in concert with two others with a common purpose to rob the deceased and he used very serious physical force against the deceased. So much was recognised by the Court of Appeal at page 244.

The defence case, on the other hand, as developed, was that the applicant should be found not guilty of murder, but guilty of manslaughter.  Indeed, the defence invited the jury to return a verdict of guilty to manslaughter.  The basis of that submission was that the applicant and two other youths, in order to steal a car, had planned to attend the house of the victim, that that victim would be hit, knocked over, distracted or assaulted, and the victim’s car would then be stolen by them.  The harm contemplated as being sustained by the victim was less than serious injury.  Each of the other two youths – the two apart from the applicant – were possessed with two wooden stakes. 

There was, on the defence case, no common purpose to cause really serious injury.  The applicant did not join in any plan to cause really serious injury, nor did he contemplate the causing of really serious injury as a possibility.  The role of the applicant, in effect, was confined to entering inside the house, searching for and obtaining the car keys and then driving the stolen car.  In executing that plan, one of the other two youths, possibly or probably W, formed an intention to kill the victim and killed her by stabbing her with a barbeque fork that appears to have been found within the kitchen of the house.  This was never contemplated by the applicant, not even as a possibility.  Indeed, it could not have been contemplated by the applicant.  It was not a weapon that was taken to the scene.

GLEESON CJ:   Well, the trial judge said if that is right, he is not guilty of culpable homicide.

MR HILL:   We say, your Honour, that when one refers to Markby ‑ ‑ ‑

GLEESON CJ:   That is what he told the jury.

MR HILL:   That is what he told the jury and we say that in part it depends upon the scope of the common purpose.  There may be occasions where a jury may say that that act is so far removed from the common purpose that the person in that position is not guilty ‑ ‑ ‑

GLEESON CJ:   Markby was a case, was it not, where the common purpose involved use of a gun? 

MR HILL:   Markby was, your Honour, that is so.

GLEESON CJ:   It was a rip‑off, or an anticipated rip‑off. 

MR HILL:   That is right, your Honour.  Varley, on the other hand – and we will come to Varley shortly – was the employment of perhaps threatening behaviour, perhaps physical fists assault, and then two persons, interestingly enough, police officers, employed the use of a baton or a cosh.  A distinction has to be drawn between a mere unforeseen consequence of an unlawful act and, we would say – using the language of Lord Parker, I think, in Reid – between mere unforeseen consequence of an unlawful act and an overwhelmingly supervening event which is of such a character that it will relegate into history matters that would otherwise be looked upon as causative factors. 

One of the difficulties here, with respect, was in the way that his Honour the learned trial judge charged the jury in respect to manslaughter.  His Honour fixated upon the causative effect or the issue of causation, rather than, we say, if he had looked at and applied Markby properly, the jury would have been directed to look at the common purpose, scope of the common purpose, what was in contemplation.  Whether, as Markby itself seems to suggest, it requires an objective test or whether Markby has been implicitly overruled by the recent decisions of this Court in McAuliffe and Gillard, where one employs a subjective test in looking at what the particular accused foresaw, did not matter, in our respectful submission, in the way in which this case should have been approached. 

It was the stab wounds which caused the death of the victim.  There was an evidentiary foundation for the factual basis that I have just put before you, and as much seems to be recognised by the applicant’s summary of argument and by the Court of Appeal.

Markby, to be found behind tab 1 of our authorities, previously cited by myself, contains the perhaps well‑known and oft‑quoted passage at the foot of page 112.  It says:

In some cases the inactive participant in the common design may escape liability either for murder or manslaughter.  If the principal assailant has gone completely beyond the scope of the common design, and for example “has used a weapon and acted in a way which no party of that common design could suspect”, the inactive participant is not guilty of either murder or manslaughter –

I think that is what your Honour the Chief Justice was referring to a short time ago.  But Markby continues on:

If however the use of the weapon, even if its existence was unknown to the other party, is rightly regarded as no more than an unexpected incident in carrying out the common design the inactive participant may be convicted of manslaughter –

It is that passage that, we say, dictated the way in which the learned trial judge should have approached his charge to the jury in respect to manslaughter.  What he did was to charge the jury as to a classic unlawful and dangerous act manslaughter, in the sense that the accused was in possession of the barbeque fork either as the active participant or constructively, in that he knew that the others had the barbeque fork, and that the jury could not be satisfied beyond reasonable doubt that he intended that the barbeque fork be used or employed for causing really serious injury or death. 

That, of course, with respect, was a very unrealistic way of putting manslaughter to the jury, because it was not based as the Crown case in its alternative position, that the accused was party to a common design, was based on what the accused said.  What his Honour put was not really based on what the accused said in his records of interview, because the accused had denied knowledge of the existence of the barbeque fork.  For a jury to consider manslaughter in the way in which his Honour was putting it, they would first have to disbelieve in part what the accused had said – that is, when he said he did not know of the possession, of the existence of the barbeque fork – but believe him when he said he thought there was to be no more than a mere assault.

Secondly, the difficulty with the way in which his Honour left manslaughter is that, even as his Honour recognised in argument, the person who used the barbeque fork, having stabbed the deceased with it 12 times through the heart and chest, obviously intended serious injury, if not murder, if not an intent to kill.

So we say, in short at this stage, that his Honour should have followed Markby, that his Honour should have directed the jury in accordance with the lines of Markby on the bottom of page 112 and 113.  Markby was not considered by this Court in McAuliffe at all, but was considered in passing in the recent decision of Gillard v The Queen (2003) 78 ALJR 64. That is behind tab 5. In your Honour the Chief Justice’s joint judgment with Justice Callinan, your Honour and Justice Callinan reproduced at page 67 the passage from Markby.  In respect to the concluding sentence, that being the sentence:

“If however the use of the weapon, even if its existence was unknown to the other party, is rightly regarded as no more than an unexpected incident in carrying out the common design the inactive participant may be convicted of manslaughter.”

Your Honours said:

The concluding sentence of that passage raises what, as it appears to us, is the potential significance of the supposition that Preston “duped” the appellant, although the reference to the possibility of the existence of the material was unknown to the other party is not presently material.

With respect, your Honours were quoting Markby with approval, but saying in that respect that it was irrelevant for the purposes of Gillard, where it would be implausible to say that Gillard was unaware of the existence of the firearm that was used. 

Here, in the instant case, there is and was an evidentiary basis for the fact that the appellant did not know of the existence of the weapon.  Now, it does not follow from Markby, or the authorities that have applied Markby, that because he did not know of the existence of the barbeque fork, he would be not guilty of both murder and manslaughter.  Indeed, from Markby it follows that he could be guilty of the manslaughter even in the circumstances where he did not know of the use of it, if the common purpose was that there be nothing more than an assault with garden stakes, but an assault that did not contemplate possibility of a murderous intention or of that level of violence.

We take your Honours to the way in which Markby has been applied, in particular firstly to Duong (1992) 61 A Crim R 140 which is behind tab 2, this being a decision of the Court of Appeal in New South Wales. If we could take your Honours to page 148 of Justice Mathews’ decision, in which the other members of the court agreed, halfway down the page, her Honour having cited the relevant passage from Markby says:

It is this phrase, “an unexpected incident in carrying out the common design” which has led to some confusion in this area of the law:  see, eg, Woolley (1989) 42 A Crim R 418 at 438. Its meaning is central to the resolution of these appeals.

Her Honour then went on to say that “incident” means “incidental act” rather than “occurrence” or “event”, and said: 

The first step in this as in all cases of accessorial liability must be to determine the scope of the original agreement. 

We say, in that sense, her Honour was in step with what was later said in McAuliffe and in Gillard, but out of step with what the learned trial judge did in this instant case in focusing on causation and which the Court of Appeal seems to have agreed with.  Her Honour goes on: 

What was the extent of the common design?  Was the act which caused death something which, although in fact uncontemplated and unexpected by the accessory, was nevertheless, viewed in retrospect, reasonably within the scope of the joint plan? 

This will always be a question of fact, not law, and in many cases will be a matter of degree. 

Then her Honour refers to Varley and Anderson and Morris, then continues on:

It is clear from the terms of the Chief Justice’s judgment in Varley and the Acting Chief Justice’s judgment in Markby that their Honours were imposing an objective test on this aspect of accessorial liability. 

There may be some tension between Markby and that passage in the judgment of the New South Wales Court of Appeal, because, as I understand it, particularly in Gillard, your Honour the Chief Justice was pointing out that it is a subjective view of the role of the participant, rather than looking back in hindsight objectively.

GLEESON CJ:   What do you say about the first sentence in the paragraph commencing “Accordingly”?

MR HILL:   On page 149?

GLEESON CJ:   Yes.

MR HILL:

Accordingly, in all such cases it will be encumbered upon the Crown to prove either the accessory knew of the presence of the weapon but assumed that it would not –

That, of course, is not the position here, because he did not know of the presence of the weapon.  Nor is it what Markby says, because Markby says that an inactive participant, even if the existence of the weapon is known, can be found guilty.  What her Honour there is saying is as to how the Crown may establish its case depending on the question of degree.  We do note and we do say again that there appears to be a tension between these cases and McAuliffe, because of what McAuliffe decides in respect to the subjective intention.

Her Honour, further on in the judgment on that page, your Honour, refers to the Victorian Court of Appeal in Woolley, where it says – the quote commences:

“The use of a weapon such as a baton, a rock, a knife or a revolver, which brings about death, may be no more than an unexpected incident in carrying out the common design.  If so, then the differing verdicts of murder and manslaughter are still open.  This would appear to be so even if the existence of the weapon was unknown to the second accused.”

They then refer to Varley’s Case, and continuing on:

“But it will be a question of fact in each case and it cannot be said that there is a special rule for knives or revolvers to the effect that their unknown possession and use will invariably involve a complete departure from a common design to carry out an assault where there is no murderous intent.  Thus there is no rule that joint possession of a firearm rather than a baton necessarily precludes the verdicts of murder and manslaughter for different joint assailants ‑ ‑ ‑

GLEESON CJ:   Yes, thank you, Mr Hill.

MR HILL:   Thank you, your Honour. 

GLEESON CJ:   We do not need to hear you, Mr Morgan‑Payler. 

We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter, and the application is dismissed. 

AT 12.05 PM THE MATTER WAS CONCLUDED