Pickett; Mead; Mead; Anthony; TSM (a Child) v The State of Western Australia

No judgment structure available for this case.

[2020] HCATrans 028

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P45 of 2019

B e t w e e n -
ROBERT CHRISTOPHER JAMES PICKETT
Appellant
and
THE STATE OF WESTERN AUSTRALIA
Respondent

Office of the Registry
Perth No P46 of 2019

B e t w e e n -
STEFAN LAZBA MEAD
Appellant
and
THE STATE OF WESTERN AUSTRALIA
Respondent

Office of the Registry
Perth No P47 of 2019

B e t w e e n -
CLINTON FREDRICK MEAD
Appellant
and
THE STATE OF WESTERN AUSTRALIA
Respondent

Office of the Registry
Perth No P48 of 2019

B e t w e e n -
DYLAN TERRANCE WAYNE ANTHONY
Appellant
and
THE STATE OF WESTERN AUSTRALIA
Respondent

Office of the Registry
Perth No P49 of 2019

B e t w e e n -
TSM (A CHILD)
Appellant
and
THE STATE OF WESTERN AUSTRALIA
Respondent

KIEFEL CJ
BELL J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 13 MARCH 2020, AT 9.45 AM

Copyright in the High Court of Australia

____________________

MR S. VANDONGEN, SC: If your Honours please, together with MR A.J. ROBSON I appear for all of the appellants in all of the matters. (instructed by Legal Aid WA)

MS A.L. FORRESTER, SC: If it please your Honours, with MR L.M. FOX I represent the respondent in all of the matters before you today. (instructed by Director of Public Prosecutions (WA))

KIEFEL CJ: Yes, Mr Vandongen.

MR VANDONGEN: Thank you, your Honours. Your Honours should have our outline of oral argument.

KIEFEL CJ: Yes.

MR VANDONGEN: Your Honours, this appeal raises the issue of whether in this particular case the prosecution was required to prove in the case against each of the appellants that a juvenile, PM, who was aged 11 at the time, had capacity, for the purposes of section 29 of the Criminal Code (WA), in order to prove that the appellants themselves were guilty of the same offence by operation of either section 7(b), section 7(c), section 8 of the Criminal Code.

KEANE J: Mr Vandongen, can I just ask - you are here, there is no problem about that, but this issue, it just does not seem to have been there at the trial.

MR VANDONGEN: It was there at the trial. It may not appear in the materials that are before this Court, but it was raised by counsel for one of the accused and directions were sought along the lines of the directions which are sought, which are said to have been not given, being the subject of the ground of appeal before the Court of Appeal. So there were submissions made on behalf - I think it was TSM, I might be wrong about that, to the trial judge that directions ought be given that unless the jury could exclude beyond reasonable doubt the guilt, the primary guilt, of PM, then an acquittal should be entered.

KEANE J: Thanks for that.

MR VANDONGEN: That is probably why the ground of appeal that was run in the court below is expressed in the way in which it was – that is, an error of law, a wrong decision on a question of law by the trial judge in failing to give a direction, which would only really arise if there was a submission made that a direction should be given along those lines.

The appeal, more broadly, raises that specific issue but it more broadly raises an issue of whether, on a proper construction of sections 7 and 8 of the Code, the prosecution must prove, where relevant – and by that I mean where there is an evidentiary foundation – that a principal offender, also known as the actor – was criminally responsible for an act or omission or an event as a necessary step in proving the guilt of a secondary offender.

I deliberately say “where relevant” and “where there is an evidentiary foundation” because it will not be necessary for the prosecution to do this in every case. It is only when there is an evidentiary foundation in relation to a principal offender. There was an evidentiary foundation in this case in relation to a person who could possibly or reasonably possibly have been the principal offender – that is PM – that evidence being that he was 11 years of age, which gave rise to the issue postulated in section 29 of the Code.

So in this case the majority in the Court of Appeal answered both of those issues no. In effect, they held that section 29 and therefore all of the other provisions in Chapter V of the Criminal Code, those dealing with criminal responsibility, operate only to afford a personal exemption or immunity for an act or omission to the person who did the act or made the omission. So the court – the majority – held that, in effect, all of the provisions in Chapter V only afford a personal immunity and there is no distributive immunity, if you like, in the way in which it is contended by the appellants here today.

Each of the appellants submits that the majority erred. In effect, the appellants rely upon the reasoning in the conclusion of Justice Beech in the Court of Appeal. So, our submissions are essentially adopting the reasoning process that his Honour conducted and the conclusion that his Honour reached in the court below.

Before I go to Justice Beech’s reasons, if I could start with the statutory provisions that are relevant to this appeal? Probably the relevant starting point is the offence‑creating provision which is section 279 of the Code which – I think everyone is following the paper version so I do not need to refer to the joint book of authorities. It is section 279 of the Code which is the offence with which all of the appellants were charged – that is, an offence of murder.

Your Honours can see that there are three forms of murder - those set out in subsection (1)(a), (b), and (c). In this case, the prosecution only relied upon paragraphs (a) and (b). There was no reliance upon paragraph (c) at all. So, the allegation was in relation to all of the accused – whether by way of principal offender or by way of secondary offender – was that they either killed the deceased with an intention to kill him or to cause his death or to do so with an intention to cause a bodily harm of such a nature as to endanger life.

Section 279 appears in Chapter XXVIII of the Code. If your Honours then turn back from section 279 to section 277, you will see there a provision that provides that:

Any person who unlawfully kills another is guilty of a crime which, according to the circumstances of the case, may be murder or manslaughter.

So the key words there are, in the context of this matter, “unlawfully kills”. That then takes the reader back to section 268 of the Code. Section 268 provides that:

It is unlawful to kill any person unless such killing is authorised or justified or excused by law.

Now, it would be fair to say that the law about what “authorised” means, what “justified” means and what “excused” means is uncertain. It is not entirely clear where the clear line is that demarks each of those concepts, that is, authorisation, justification or excuse. But for the purposes of this appeal, the majority held – and I do not think it is in dispute – that the criminal responsibility provisions in Chapter V to which I will come in a moment fall within the rubric of “excused”, “excused by law”.

KEANE J: So, whether or not a person has been unlawfully killed depends in part on Chapter V.

MR VANDONGEN: It can. Yes, if one ‑ ‑ ‑

KEANE J: Assuming it was PM, so PM lawfully killed the deceased.

MR VANDONGEN: Well, in the absence of evidence of capacity, yes, that is right.

KEANE J: Yes. So the killing of the deceased was lawful?

MR VANDONGEN: Yes, and therefore we would say not an offence, and I will come to why that is important. The question of whether it is unlawful or not may or may not be significant because Chapter V applies to all offences, whether or not unlawful is an element of offence. It just so happens that in the case of murder it is necessary to prove that the killing was unlawful and “unlawful” is defined to include excused.

If “excused” means Chapter V, then Chapter V is relevant to determining whether or not the killing was unlawful. If it does not mean that and Chapter V operates independently of the question of unlawfulness, then it operates, in any event, in this case, because there was no evidence of capacity in relation to PM.

KIEFEL CJ: Is there any distinction to be drawn between something being lawful or not unlawful, that is, something excused is not unlawful but it is not positively lawful.

MR VANDONGEN: I am not sure what the distinction is.

KIEFEL CJ: It is semantics. I will leave you to ponder that in your spare time.

MR VANDONGEN: Yes, I will.

KEANE J: But there are those provisions that deal with homicide that expressly say “it is lawful to” in contradistinction to “unlawfully”.

MR VANDONGEN: Quite, your Honour, yes.

KEANE J: There are specific provisions that provide for lawful killing.

MR VANDONGEN: That is right, yes, there are, yes. That may well be where the distinction arises in the context of homicide offences. My point is that whether it forms part of the element of unlawfulness that is Chapter V, or whether it operates independently is an interesting point but for the purposes of this appeal matters not because if there was no evidence of capacity then there was no criminal responsibility, there was no offence and, therefore, section 7 and section 8 were not triggered, which is the essence our argument. If it extinguishes the element of unlawfulness, there is no offence committed by the principal, therefore section 7 and section 8 are not triggered, therefore, not guilty.

BELL J: How does that submission, namely, that there is no offence for the purposes of the Code, with the application of Chapter 5, for which section 36 provides, so that provisions of the chapter apply to all persons charged with any offence?

MR VANDONGEN: So there are two things to be said about that. When one looks at the draft Code that was prepared by Sir Samuel Griffith ‑ ‑ ‑

BELL J: Yes.

MR VANDONGEN: ‑ ‑ ‑ and this is not in our written submissions, I apologise for that, but if one looks at the draft Code, and looks at the footnote to that particular provision, in my submission the purpose of that provision was to ensure that it made clear that, at a time when the Code was to be enacted there were Imperial Acts that were in force, and it was designed to make sure that it was clear that the criminal responsibility provisions in the Code did not apply to those Imperial Acts - to the offences created under the Imperial Acts. That is, the offences created under the Imperial Acts would be the subject of common law criminal responsibility concepts and not the Code.

That was the purpose for which section 36 was included in there – not to limit the provisions and the effect of them only to people who were charged with those offences. The second answer to that is that, in this case, the appellants were charged under the provisions of the Code and they were charged with the very offence that the principal offender was alleged to have committed by operation of section 7 and section 8, particularly section 7 which permitted the charging of a secondary offender with the offence committed by the principal offender. So, in my submission, section 36 does not limit the operation of Part V in the way in which the prosecution – and the way in which the majority in the court below – appeared to interpret it.

Now, those offence‑creating provisions occurred in the context of a case – I am sure your Honours have read the case – and the case was outlined by the majority in paragraphs 31 to 34 of the decision below. But the case that was run was one in which one of a group of eight men, or children, committed the act of stabbing. So, it is not a case in which there was a joint enterprise alleged in the sense that a number of people were primarily responsible for the stabbing of the deceased.

The prosecution case was that there was one person and one person only who stabbed the deceased. They were not able to identify who that was. But the significance of that is that the liability that was relied upon for the appellants was not section 7(a) – principal offender, but section 7(b), section 7(c) and section 8.

The prosecution, when it opened, was not able to identify who the principal offender was. In closing, they nominated Mr Pickett as being a possible person responsible for the stabbing but did not nail their colours to the mast in the sense that they were not running a case that he was the one and the only one.

It was in circumstances in which it was clear that the act of stabbing occurred using a screwdriver and that the prosecution relied upon Mr Pickett running up to the area in which the offence was committed carrying the screwdriver. But there was the juvenile, PM, who was coming from the scene of the offence carrying a screwdriver. So, that is the way in which this issue arose and that there was a reasonable possibility that PM was the principal offender, given that he was carrying the screwdriver away.

Now, I have made some reference obviously to the offence‑creating provisions and talked a little bit about Chapter V without going to it, and I wonder if I could take your Honours to Chapter V now, to look at some of the provisions in Chapter V.

Chapter V includes section 29, with which this appeal is concerned. When one looks through the various provisions that are contained in Chapter V, with the exception of a few – and section 36 is one of them ‑ what is immediately apparent is that each provision, with a few exceptions, is concerned with acts or omissions and, in one case, events. It is concerned with the criminal responsibility of a person for an act or an omission or for an event. It is not concerned with criminal responsibility for an offence but with an act or an omission or an event.

NETTLE J: Except 36.

MR VANDONGEN: Except for 36, and there are other provisions as well – for example, section 28, which is concerned with intoxication, which is not directly concerned with acts or omissions or with criminal responsibility but which is concerned with other matters.

So if one looks at, for example, section 24, “Mistake of fact”, you can see there that it postulates the circumstance in which a person does an act or makes an omission under an honest and reasonable but mistaken belief. Where that occurs criminal responsibility does not apply – well, they are not criminally responsible to the extent to which that belief exists. So it focuses upon the belief of an accused, asks whether it was mistaken but reasonably so, assumes that to be the fact and then you are not criminally responsible for that fact. “Emergency”, section 25(2), in circumstances which are set out in subsection (3):

A person is not criminally responsible for an act done, or an omission made, in an emergency -

Section 29 – and this is just by way of example – has two parts to it, the first part dealing with:

A person under the age of 10 years is not criminally responsible for any act or omission.

Then, the second paragraph, where the person is between the ages of 10 and 14 a presumption arises that they are not criminally responsible for an act or omission, unless something is proved – unless capacity is proved, and capacity is proved by the prosecution beyond reasonable doubt. So it can be seen – and I will not take you to all of the other provisions – but there is a focus upon criminal responsibility for an act or an omission.

The one exception is in section 23B. Prior to 2008, section 23B was contained within one section 23. Section 23B is concerned with “Accident”. It does not focus on acts or omission but upon an event. So it focuses upon an outcome in the case of murder, the event of death, for example. So it provides that:

A person is not criminally responsible for an event ‑

in the case of murder, the death, in certain circumstances, that is:

which occurs by accident.

NETTLE J: What is the significance of that?

MR VANDONGEN: It is the only provision in Chapter V which does not focus on acts and omissions. That is the only significance of it. There is no significance in this appeal whatsoever.

BELL J: For the purposes of your argument, Mr Vandongen, do I understand it makes no difference whether the person is, in fact, under 10 years of age, or whether the person is in that period where criminal responsibility may attend, and it is for the prosecution, provided there is an evidentiary basis established, to negative or to establish the fact that the person had the capacity. Your argument draws no distinction between the two.

MR VANDONGEN: No, your Honour. In this case PM was 11, so there was a presumption of lack of capacity.

BELL J: Yes.

MR VANDONGEN: So there was an obligation, we would say, on the prosecution to disprove, or to prove that he did have capacity beyond reasonable doubt.

GORDON J: What happens in relation to a case where someone is under 10, when you are in the first limb of 29?

MR VANDONGEN: Then they are not criminally responsible.

GORDON J: How does that affect the way in which you put it? Does your argument apply regardless, is the question.

MR VANDONGEN: Yes it does, the argument applies regardless, yes.

NETTLE J: Yet if you used such a child as an innocent agent, you would be liable.

MR VANDONGEN: You would be, under section 7, provided that - and your Honour is, I think, referring to the last paragraph of section 7 which, when one looks at the history, was designed to deal with those very situations, not where the child was under the age of 10, but where there was an innocent agent. The procuring of an innocent agent would render the procurer liable for the principal offences, if they were the principal offender. In other words, it effectively deems the procurer to have done the acts ‑ ‑ ‑

NETTLE J: Yes.

MR VANDONGEN: ‑ ‑ ‑ that the innocent agent did. That is not a surprising outcome. That is consistent with the common law.

NETTLE J: There is really no difference, is there, between acting in concert, or extended concert, with a child when it is likely that the offence will be committed in the course of carrying out the enterprise or using a child to commit an offence as an innocent agent.

MR VANDONGEN: Yes.

NETTLE J: There is no difference in point of principle, is there?

MR VANDONGEN: No. I need to be a bit careful about joint criminal enterprise and extended joint criminal enterprise, because neither of those concepts ‑ ‑ ‑

NETTLE J: Are unknown to the Code, I understand.

MR VANDONGEN: In fact, joint criminal enterprise has recently been held by our Court of Appeal not to apply in the context of the Criminal Code.

NETTLE J: Let me put it in terms of one or other of the paragraphs of this section of the Code rather than common law perceptions. It is still the same.

MR VANDONGEN: It is the same.

NETTLE J: Which does not make a great deal of sense.

MR VANDONGEN: No. In the context of an offence being committed by a nine‑year‑old child, and it is not procured, technically, by an adult, it would still be open, depending, of course, upon the evidence, for the adult to be tried as a principal defender, depending exactly upon what they did. For example, in a murder, short of procuring a child, it might be concluded that what the adult did substantially or significantly contributed to the death of the deceased.

So it still would be open to, in those circumstances, successfully charge and convict an adult, for example, of murder. The point of what I am saying is it does not completely eliminate the prospect of an adult utilising a child from being prosecuted successfully for an offence.

So what the effect of the provisions in Part V, or Chapter V, are to do is to in relation to specifically identify acts or omissions provide that a person is not criminally responsible, and, as I say, except for the accident provision. What we say is what that effectively does is it effectively eliminates or extinguishes the act or omission insofar as criminal responsibility is concerned. It displaces those elements, if you like, of the offence where relevant.

The extent to which an act or omission is relevant to the composition of offence will determine the effect that it will have on the outcome because, for example, take “mistake” for an example; mistake may arise in the context of an act or omission which is not relevant to or does not concern directly an element of an offence.

In that case, it may not result in an acquittal. The focus of the act or omission must be upon an element of the offence in order for it to have a practical effect on an outcome. So it is not concerned with acts or omissions at large in a practical sense, they are concerned with acts or omissions that form the foundation, or the conduct foundation, of an offence in order for it to have effect in terms of an outcome.

Now, having dealt with those provisions, the next relevant provisions to be dealt with are the definitional provisions and the starting point there is in section 1 of the Code, and it is the definition of “criminally responsible” and “criminal responsibility” in section 1. Now, there are two concepts there. One is “liable to punishment” and the other is “as for an offence”.

In our submission, what that means is liable – so the words “as for” connect “liable to punishment” with the concept of an offence. In other words, it means liable to punishment in relation to an offence, or in connection with an offence. When one looks at the various offence‑creating provisions in the Act, in the Code, at the end of each provision you will find words such as:

A person who is guilty of a crime . . . is liable to imprisonment –

So it picks up and reflects the words that are used in the various offence‑creating provisions.

So the intention of the provision, the definitional provision, is to do nothing more than to connect the idea or the concept of criminal responsibility, that is, liability to punishment, with a particular offence and not to leave “liable to punishment” open at large. It has a connection to a particular offence.

His Honour, Justice Beech, dealt with what that provision meant at paragraphs 431 to 432 in his judgment below – which you can find at core appeal book 257. I do not wish to repeat what his Honour said there other than to adopt what his Honour said about the meaning of “criminal responsibility”.

Having looked at the meaning of “criminal responsibility” or “criminally responsible” or “criminal responsibility”, the next relevant provision is in section 2 of the Act which is the term “offence”. Again, this definitional provision is in two parts. It is concerned with an act or omission harking back to the analysis that I have just conducted in relation to Chapter V of the Code:

An act or omission which renders the person doing the act or making the omission liable to punishment –

So, where there is an act or omission and that act or omission renders a person liable to punishment – the person doing the act liable to punishment – it is called an offence for the purposes of the Act.

So, it follows from both of those definitions – and this is the reasoning of Justice Beech in the court below which we adopt – that a combination of – not by inserting one definition into the other – but a combination of the two definitions of “criminal responsibility” and “offence” results in this conclusion – that if you are not criminally responsible for an act or omission then you are not liable for punishment as for that act or omission.

BELL J: In relation to a person aged between 10 and 14, acceptance of that argument means one is looking to the circumstances at the end, as it were, of the process. One might say of a 13‑year‑old who does the act causing death with the requisite intention to make the act murder that that person, from the moment of doing the act with that state of mind, is liable to punishment as for an offence. It may be that the prosecution cannot establish capacity, in which case they will not be, but it is rather tortured to suggest that the person does not answer the description of being liable to punishment until that determination is made.

MR VANDONGEN: Of course, and the determination of guilt is not made until there is a trial. But the question of whether or not it constitutes an offence is determined by whether or not the person is liable to punishment. So, when it comes to the point of determining whether or not there is capacity, if there is not capacity then, at that point, it is not an offence.

GORDON J: Does the word “renders” in the first line of the sentence make a difference to the way in which you read “liable to punishment”?

MR VANDONGEN: In what sense, your Honour?

GORDON J: Well, the way Justice Bell put it to you. You are not looking at the conclusion at the end of the process; it is looking at it in the context of the acts and omission.

MR VANDONGEN: Well, in my submission not. In my submission, the way it works is that if you are not criminally responsible for it, you are not liable to punishment as for an offence. If you are not liable to punishment for it, you are not a person who commits an offence. My submissions are consistent, your Honours, with what was said by his Honour Justice Gageler, your Honour Justice Gordon and Justice Edelman in Pickering, to which we have made reference and to which some reliance was placed upon by his Honour Justice Beech and the majority, in my submission, unsuccessfully sought to distinguish ‑ ‑ ‑

NETTLE J: It was a different context.

MR VANDONGEN: I accept that immediately. However, the reasoning process that was engaged in there was an anterior process to the question here, which is whether or not section 7 and section 8 applies. So the fact that it was in a different context, in my submission, is not a sufficient basis to distinguish that reasoning. The reasoning ‑ ‑ ‑

NETTLE J: Well, it works perfectly well in relation to a principal offender, which is what they were considering in that case. The question is whether it carries over from a proper construction and all things considered into a secondary offender.

MR VANDONGEN: Quite. So, in my submission, the reasoning in Pickering, at paragraph 40, to which reference has been made, applies at an anterior point and so its reasoning is not affected by the question of whether or not that then has an effect on section 7 or section 8 of the Code. It is that reasoning, which I have just outlined orally, which we rely upon to get to the point of analysis of whether or not it affects section 7 and section 8.

NETTLE J: Can I ask you this. On the majority’s interpretation, how would it apply, say, to section 24, mistake of fact?

MR VANDONGEN: What it would mean is that if a principal offender, operating under a mistake of fact which was relevant, in the sense that it went to an element of an offence, and was excused from criminal responsibility ‑ ‑ ‑

NETTLE J: The others would still be liable.

MR VANDONGEN: The others would still be liable and that would apply with every provision in Chapter V, which is why I open on the basis that it raises a broader principle. But it goes beyond Chapter V, your Honour. It goes into questions of criminal responsibility not in terms of acts or omissions but in terms of defences that are applicable in other sections of the Code.

An example, your Honours, is section 248, and this may come back to the interaction that I had with Justice Keane at the beginning of the appeal about unlawfulness. Section 248 is concerned with self‑defence. On the majority’s construction the liability of a principal offender – sorry, the liability of a secondary offender is to be considered shorn of the potential liability of a principal offender, even in the context in which the principal offender may have acted in self‑defence because if a principal offender acts in self‑defence, they are not – to use the words in section 2 of the Act – that is not - the act or omission, for example, in a murder, a killing does not render the person doing that act or omission liable to punishment as for an offence. It is not an offence but, nevertheless, on the majority’s construction, the secondary offenders, so‑called, would be liable irrespective of the non‑liability of the principal offender, and that would apply.

KEANE J: If they did not have a defence themselves.

MR VANDONGEN: If they did not have a defence themselves – absolutely. It would be difficult if they did not have a defence themselves. I was going to say it would be difficult to see how a secondary offender could rely upon self‑defence, but perhaps they probably could. So that is the effect when one talks about the consequences of a construction. That is a consequence of the construction of the majority.

BELL J: If one can commit the unpardonable sin of looking at the common law that is not such an odd conclusion if one looks, for example, to the analysis in Osland which contemplated it in relation to joint liability.

MR VANDONGEN: Yes.

BELL J: The principal might have self‑defence available and the other offender might not.

MR VANDONGEN: Yes. But, under the Code, and as interpreted by our court in L v State of Western Australia, there is no joint criminal enterprise in the sense that the ‑ ‑ ‑

BELL J: But it is looking really at an analogy – the section 8 liability.

MR VANDONGEN: Yes.

BELL J: But you come back to the mistake of fact illustration.

MR VANDONGEN: That is an illustration – the self‑defence – duress is another one – duress. So if, for example, the principal offender is acting under duress, not criminally responsible for that act or omission, not an offence because it does not render them liable to punishment on the Pickering analysis – not an offence – and yet section 7 and section 8, on the majority’s construction, would still have work to do in those circumstances.

I was dealing with Pickering and it was at the point that I was going to deal with Pickering only to point out that the majority dealt with the decision in Pickering in the sense of the decision of Justices Gageler, Gordon and Edelman. They dealt with it at paragraphs 185 to 190, which you can find at core appeal book 197 to 199.

I only take your Honours to it to again repeat what I said to your Honour Justice Nettle a few moments ago that the attempt to distinguish Pickering in those paragraphs does not detract from the logic of the reasoning. So, the attempt to distinguish it in its application to section 7 is neither here nor there. The reasoning itself applies at a point anterior to the application of section 7 and section 8.

Can I then go to section 7 and section 8? As I have said we rely particularly upon the analysis of Justice Beech and the construction that his Honour reached at paragraph 422, which you can find at the core appeal book, page number 254. Essentially, and in summary, what his Honour concluded was that in circumstances in which a principal offender does not have criminal responsibility it follows, consistent with the submissions that I have just made orally, that no offence is committed by the principal.

Section 7 and section 8 presuppose, or are dependent upon, the commission of an offence by a principal offender. Where there is no offence by a principal offender it follows that section 7 and section 8 are not engaged. That, in summary, is the construction that his Honour reached.

BELL J: What is the work done by 7(a)?

MR VANDONGEN: Section 7(a) can do, because of the definition of the word “act” in the Interpretation Act, that is, it includes a number of different acts, it can mean that a number of different principal offenders can be deemed to be the principal offender. So that is part of the work that it does. Other than that, it is a bit difficult to understand why it is there, to be frank.

BELL J: Indeed.

MR VANDONGEN: In terms of the historical genesis of section 7, which again is not dealt with in the written submissions, in this Court’s decision of Likiardopoulos [2012] HCA 37, (2012) 247 CLR at 265, which is referred to by his Honour at paragraph 485 at core appeal book page 272, his Honour there, in footnote 195 refers to the relevant passages of Likiardopoulos.

There is a very useful summary of the history of provisions such as section 7 and, in part, what that history reveals is that the purpose of provisions such as section 7 when they were enacted in the United Kingdom was to overcome the common law rule that you had to convict the principal - that had to be obtained before you could charge and convict the secondary offenders.

So, when you look at the words used in the introductory chapeau to section 7 you can see there the words that are similar to the words that were used in the United Kingdom legislation - a device designed to overcome that problem, that is, by deeming a secondary offender as being guilty of, and being able to be charged with, the principal offence.

BELL J: Accepting that, do you still have the difficulty with the function of subsection (a)?

MR VANDONGEN: It is difficult to understand why that is there - I accept that - because that was not something that was dealt with in imperial legislation. All I can say about that is it has been held to extend to and include situations in which there are not joint criminal enterprises known by law, but joint criminal enterprises, people acting in concert, and all being responsible for the combination of acts that have been ‑ ‑ ‑

BELL J: A Mohan situation, where two strike the victim with an instrument.

MR VANDONGEN: Yes, and in Western Australia, the case of Warren and Ireland is the one which is often cited as being a classic example of where two people strike an individual person and are both liable, or found to have been, or potentially liable under section 7(a). But the purpose of putting aside section 7(a), the purpose of section 7(b), (c) and (d) was to deem those persons to have taken part in committing the offence, and to be guilty of the offence, and to permit the charging of those people with the primary offence, contrary to the old common law. Now, all parties accept ‑ ‑ ‑

KEANE J: You do not see any significance in the circumstance that section 7, and 8, for that matter, do not refer to equal criminal responsibility, or equally criminally responsible?

MR VANDONGEN: No, I do not.

KEANE J: I mean, they are distinctly not picking up this notion of criminal responsibility.

MR VANDONGEN: Not directly, but criminal responsibility, in my submission, has already been dealt with logically. When one looks at section 7, for example, and the deeming provision, it is not just deeming that they have taken part in the offence - it is deeming that they are guilty of the offence. So, logically, the question of criminal responsibility has already been dealt with. It is dealt with in determining the question of whether or not an offence has been committed.

So if an offence has not been committed, section 7 does not operate. It does not operate to deem distributively those people in paragraphs (b), (c) and (d) to be guilty of that offence. Equally, section 8 does not ‑ ‑ ‑

KEANE J: It is the difference, is it not, between a provision that is, in turn, speaking of criminal responsibility and a provision that is speaking of being deemed to have committed the act, as Barlow interprets sections 7 and 8?

MR VANDONGEN: Deemed to have committed the act coupled with ‑ ‑ ‑

KEANE J: That constitutes the offence.

MR VANDONGEN: Which constitutes the offence when it is coupled with circumstances, states of mind.

KEANE J: As distinct from deemed to be equally criminally responsible.

MR VANDONGEN: It is distinct from that. In my submission, it operates on the assumption that those people who commit the offence, particularly in this case the principal offender, are criminally responsible for it, and there are two textual – or three textual reasons why I say that. One is the introductory words to section 7:

When an offence is committed –

which suggests, in our submission, in the way in which Justice Beech interpreted, a precondition to the operation of section 7. Secondly – and as I have just submitted – it has the effect not only of deeming that those in paragraphs (a) through to (d) take part in the offence, and if that means did the acts or omissions – that is not clear, but if that is what it means – but also that they are guilty of the offence and the guilt of the offence must mean rendered liable to punishment when one looks at the offence‑creating provisions.

So it must be read as being subject to not only the criminal responsibility provisions in Chapter V but also those other defences, such as self‑defence, which appear elsewhere in the Code for that to work. So the deeming of guilty has to occur after those things have been considered.

The third textual consideration is when you look at paragraphs 7(b), (c) and (d), each of those also are preconditioned upon there being another person who committed an offence, in other words, another person who is rendered – who has done an act or omission ‑ section 2 – done an act or omission which rendered them liable to punishment.

If they are not criminally responsible because of Chapter V, for example, they are not rendered liable to punishment, it is not an offence, they did not commit the offence, there is no other person who committed an offence. In that way, the provisions work harmoniously, in my submission.

That effectively, with one addition that I have added which was not dealt with by Justice – two additions that I have added – is effectively the reasoning process of Justice Beech set out in paragraph 422 of his decision, supplemented by reasons that support that. The two things that he did not mention are the deeming of being guilty in section 7 and the fact that paragraphs (b), (c) and (d) all also require there to have been another person, necessarily a person other than the person being considered for the purposes of (b), (c) and (d), who actually committed an offence. So they are, if you like, additional reasons why the analysis, the conclusion of Justice Beech, ought be preferred, in my submission.

BELL J: How does the provision in section 7, governing what might be described as innocent agency, assist your argument or detract from it?

MR VANDONGEN: It assists only insofar as the consequences are concerned because one of the arguments that was put below was that the consequences, namely the ones that Justice Nettle was putting to me – the consequences argument is dealt with because section 7, the last paragraph, is designed to deal with – I will not say almost all – many of those circumstances.

At least the legislative decision was to deal with circumstances in which a person was an innocent agent either because they were, in the example of White v Ridley, the aircraft – Pinkstone, the aircraft – or in circumstances in which they were an innocent agent because they were under the age of 10. But, in those circumstances, a procurer of that person could still be rendered guilty. So the consequences, therefore, are limited.

NETTLE J: Was that provision there from the start of the Code?

MR VANDONGEN: Yes, your Honour, yes. In fact, when you read Justice Beech’s decision, you will see in there that his Honour refers to the historical context and to some commentary about why that was inserted into the Code to deal with, perhaps, these kind of situations. Section 8 also operates in the same way in which I have explained. It operates on the precondition that an offence has been committed.

Barlow, of course, talks about what an “offence” means – that is, the conduct element, the acts or omissions – but section 8 is talking about an offence being committed. So, Barlow just does not say that an offence being committed is constituted by the conduct. That could not be right because an offence is not committed just by the conduct when one looks at the offence‑creating provisions in the Code. It would be difficult to find one in which the offence is created only by conduct – not one in which it is attended by a result or by a state of mind or committed in a particular circumstance. So, the concept of an offence being committed incorporates all of those ideas.

Again, going back to Chapter V, not criminally responsible definition in section 1, not liable to punishment, therefore not an offence – not rendered liable to punishment, therefore not an offence, therefore an offence is not committed. So, the precondition for the operation of section 8 does not apply and there is nothing to deem anybody else to be responsible for that act or omission.

One of the major planks, I think, of the respondent’s case is relying upon the decision of Barlow. I wanted to take your Honours to Barlow, if I might? It is in the joint book - 592 of the joint book of authorities. What I wanted to do was take your Honours to some of the things that were said there to show that their Honours were mindful of the very argument that I have been putting, that is, that the question of criminal responsibility is a precondition to the operation of section 7 and in particular section 8.

At page 9 of the decision of Chief Justice Brennan and Justices Dawson and Toohey, and I am reading from the Commonwealth Law Reports, in the paragraph that begins with the word “Offence” in inverted commas, what their Honours are doing in that paragraph is setting out the various ways in which the word “offence” has been used and can be interpreted. When you come to about seven lines down from the beginning of that paragraph, after the parentheses where it says:

(as when it is said that the Code defines the offence of murder) ‑

they go on to say this:

or it may be used to describe the element of conduct (an act or omission) which attracts criminal liability if it be accompanied by proscribed circumstances ‑

and then, in the brackets it says:

(as when it is said that a person who strikes another a blow is guilty of the offence of murder if the blow was unjustified or was not excused, if death results and if the blow is struck with the intention of causing death).

Now, this is where their Honours are talking about where “offence”, the word “offence” is used to describe the element of conduct, which ultimately their Honours concluded was the way in which “offence” in the Criminal Code was used. You can tell that because when you come to the next complete paragraph that begins with the words “Section 2 of the Code”, that is where their Honours reach the conclusion that the word “offence” is used in the Code:

to denote the element of conduct ‑

So using the particular example in Barlow, the factual scenario in Barlow, which was the striking of a blow to another, their Honours expressly, and I know this was not an issue, but their Honours expressly expressed themselves in describing the offence as one in which:

the blow was unjustified or was not excused, if death results and if the blow is struck with the intention of causing death) ‑

which are the external elements, if you like, the non‑conduct elements of the offence of murder. Secondly, when their Honours sought to complement their reasoning about the meaning of the word “offence”, their Honours referred to Part V of the Code. You can see that at the bottom of page 9, in the first sentence, beginning:

The structure of Ch V of the Code shows this to be the meaning of “offence” generally in the Code.

So, having used Part V to support the notion of what an “offence” means, that is, an element of conduct, their Honours then said, at the top of page 10, in the first complete paragraph:

In the light of these provisions, “offence” in s 8 must be understood to refer to an act done or omission made.

They then came to interpret section 8, and in the sentence, which I think is the fourth sentence in that paragraph, which begins with the words “It sheets home”:

It sheets home to the secondary offender such conduct (act or omission) of the principal offender as (1) renders the principal offender liable to punishment ‑

I emphasise that particular part. Further down that paragraph, in the last sentence, beginning with the words ‑ ‑ ‑

KEANE J: It renders the principal offender liable to punishment, in the circumstances.

MR VANDONGEN: Yes.

KEANE J: In the circumstances, that is to say depending on the circumstances, given that the circumstances may and, here, are plainly assumed to include the mental elements, et cetera.

MR VANDONGEN: Yes, and whether it is authorised or justified, which is the reason why I took your Honours to what was said earlier in the piece. So it is pregnant with ‑ ‑ ‑

KEANE J: Depending on those circumstances.

MR VANDONGEN: Depending on those circumstances, yes, of course. The last sentence of that paragraph, beginning with the words:

Thus the unlawful striking of a blow by a principal offender –

in the word “unlawful” and then the second‑last paragraph:

Interpreting s 8 in this way, how does it apply to the facts of the present case? It was not only the striking of Vosmaer but also the result of Vosmaer’s death –

and then, in my submission, significantly:

the absence of any justification or excuse for the striking of the blow and the intention to cause death or grievous bodily harm that made the striker of the blow guilty of the offence of murder.

So the offence of murder that rendered the principal offender liable to punishment was the act or omission deemed to be an act or omission of section 8 – of the secondary offender, if it applied, coupled with the result – that is, death – and that the intention of the striker and the absence of any justification or excuse for the striking of the blow. That concept is repeated later in that paragraph, in the sentence:

Absent the intention to cause death or grievous bodily harm, the striking of the blow without justification or excuse and the resultant death rendered the striker liable to punishment for manslaughter.

So it includes within the concept of an offence, being one which is liable to punishment, the acts and omissions, the attendant circumstances, results or intention or states of mind and, necessarily, any justification or excuse on the part of the principal. When they came to look at what the jury must have actually decided in that case for them to have found Barlow guilty of manslaughter, in the last sentence of that paragraph, their Honours said:

The jury must be taken to have found that the striking of a blow –

and your Honours will remember that the blow was not struck by Barlow but was struck by others:

which was not justified or excused and which caused death was a probable consequence of prosecuting the purpose common to Barlow and the principal offender.

So their analysis, albeit it was not the subject of the intent argument in this case, incorporated both acts and omissions, circumstances, results and states of mind and criminal responsibility in the broader sense. It is repeated in the last paragraph, at page 10:

Does Barlow avoid liability for manslaughter because the striker of the fatal unjustified and unexcused blow had an intention that made him liable to punishment for murder?

So, in our submission, the passages in Barlow that are relied upon both by my learned friends and by the majority in fact support the appellants’ argument, significantly.

Now, I was going to take your Honours to the majority’s reasons. I do not think I need to now because when one looks at the majority’s reasons what their Honours do is from about paragraphs 155 onwards they effectively state 12 reasons why the appeal should be dismissed. When one analyses those 12 reasons there really is not very much in dispute, it really seems to come down to their eighth reason which you can find at core appeal book 193 at paragraph 166 and it is concerned with what your Honour Justice Bell put to me earlier today about section 36.

It may or may not be the case that what their Honours concluded was that section 36 meant that the provisions of Chapter V operate so as to excuse a person personally or to provide personal immunity from criminal responsibility. I have dealt with that already orally. I do not propose to go over that again.

Now, when their Honours at paragraph 170, which is at core appeal book 194, reach the conclusion that:

Section 29 confers on the child a personal exemption or immunity from criminal responsibility for ‘an act or omission’ -

in my submission, and with great respect to their Honours, they did so without doing the sort of analysis that Justice Beech did about the interaction between the definition of “criminal responsibility” and the definition of an “offence” in section 2 of the Act – did not reach that conclusion having regard to what was said in Pickering, and did not, in my submission, do what I have just done with your Honours in relation to the decision of Barlow.

What is perhaps interesting is that their Honours did find that if a child is not liable to punishment because section 29 has not been excluded, the child does not commit an offence. If you look at paragraph 173, in the third sentence, which is at about line 47:

He or she therefore will not have ‘unlawfully’ killed the person . . . and he or she will not have committed the offence of murder (or manslaughter).

I have not read the whole paragraph to your Honours but that is in the context of the operation of section 29 on a child. They repeat that at paragraph 175, in the first sentence. They repeat it in paragraph 180 at about line 43 and they repeat it in paragraph 182 in the final three lines.

GORDON J: What was that last one, please, Mr Vandongen?

MR VANDONGEN: Paragraph 182 in the final three lines.

GORDON J: Thank you.

MR VANDONGEN: In those circumstances, in my submission, the analysis is correct - the finding that it was open at least to the jury to conclude that the juvenile, PM, did not commit the offence meant that the trial judge was obliged to direct that if they were not satisfied beyond reasonable doubt that PM did the act causing death, then it would result in acquittal. Those are my submissions, if your Honours please.

KIEFEL CJ: Yes, Ms Forrester.

MS FORRESTER: Thank you, your Honours. Can I first verify that your Honours have been provided with a copy of the respondent’s outline? Thank you. Your Honours, the respondent agrees that the core issue is as stated by the appellants. However, the circumstances in which Chapter V apply are very much in issue in the context of this case, and we say that – perhaps if I can start with the meaning of “unlawful”, as the appellants have suggested.

The Criminal Code, and particularly the provisions in relation to murder, define “unlawful” as being not authorised, justified or excused by law. Barlow, as my learned friend has taken your Honours to, picks up on the justifications and excuse because authorisations are, in effect, non‑existent under the provisions of the Code.

Chapter XXVI of the Criminal Code is entitled in part “Justification, excuse”. Chapter V is entitled “Criminal responsibility”. When one goes back to the Griffith draft, one can see that the rationale for providing for justifications and excuses in Chapter XXVI was, in my submission, quite different to the provisions in relation to criminal responsibility in Chapter V. We have extracted at the joint book of authorities page 854, the letter that Samuel Griffith wrote covering the draft Code and at ‑ ‑ ‑

BELL J: Which volume is that?

MS FORRESTER: Volume E, your Honour.

BELL J: Volume E, thank you.

NETTLE J: Ms Forrester, are we allowed to look at this stuff now under this jurisprudence?

MS FORRESTER: Well, your Honour – and I accept that looking behind the text of the Code is not necessary unless there is something unclear in relation to that text but in the context where the issue around what is a justification or excuse under the Criminal Code is very much in issue in this context.

NETTLE J: It sounds logical. It is just that I had a recollection that it was not permissible to go into Sir Samuel Griffith’s draft in order to interpret the Code.

MS FORRESTER: In my submission, it is if the text itself is unclear. That is fairly well‑established authority and is referred to indeed by both the majority and Justice Beech in the Court of Appeal judgment. At page 854 of that book of authorities, Griffith states that, in relation to “Assaults and Personal Violence”:

In dealing with this subject I have followed the plan adopted in the Defamation Law of 1889–first defining an assault; then declaring that an assault is unlawful and an offence, unless it is authorised or justified or excused by law; and then setting out the various circumstances which afford justification or excuse.

The structure of the Code and the fact that in homicide cases there is a specific definition of what is unlawful, unlike many other offences in the Criminal Code, is one of the factors upon which the respondent relies in seeking the construction be put upon the Code as a whole. It is not, however, our primary point but what it does is it, in our submission, is what the High Court in Barlow picked up on in the passages to which your Honours have been taken. Perhaps if I go back to the outline that the respondent has filed, sections 7 and 8 ‑ ‑ ‑

NETTLE J: Sorry, just before you depart from that - you made the point that Chapter XXVI deals with justifications, whereas Chapter V deals with criminal responsibility.

MS FORRESTER: Yes.

NETTLE J: Is the endplay of that that criminal responsibility is not an authorisation, justification or excuse within the meaning of the provisions?

MS FORRESTER: For the purposes of the meaning of “unlawful”?

NETTLE J: Yes.

MS FORRESTER: Yes. Criminal responsibility – and her Honour the Chief Justice raised this almost at the start of the proceedings this morning – there is a difference between something being lawful and something being not unlawful. This goes back to, in fact, the very start of the Code in Appendix B, section 5, which talks about a person not being criminally responsible for an offence. But an offence might otherwise produce a liability – not in a criminal sense but in a tortious sense. I am going to – with your Honours’ leave – take your Honours to that in the course of my outline. But I can do it now if that is the preferred course.

NETTLE J: No, it is all right. I just wanted to follow it.

MS FORRESTER: But the commencement of the exercise is, in fact, the definition of “offence” in section 2. It is quite clear from the respondent’s submissions that we rely very heavily upon what the Court said in Barlow and, in particular, at page 9.

NETTLE J: But that will not help you, will it, unless you are correct in saying that criminal responsibility, or lack of it, is not an authorisation, justification or excuse for the purpose of lawfulness.

MS FORRESTER: In the sense that their Honours refer to justification and excuse, I accept what your Honour says.

NETTLE J: So, it comes to that in the end. Is the absence of criminal responsibility the consequence of Chapter V not an authorisation, justification or excuse within the meaning of the provision?

MS FORRESTER: No, your Honour. We say that what the principal issue is is whether “unlawful” requires that the actor be criminally responsible. In our submission, those two are very different things.

NETTLE J: Well, he will be criminally responsible unless it is authorised, justified or excused, will he not, assuming he commits the acts that constitute the offence with the appropriate mental element?

MS FORRESTER: The respondent’s submission is that acts can be unlawful, but then a person can be not criminally responsible for it and so an offence is committed and then the issue is whether or not the actor or any of the other parties by sections 7 or 8 are criminally responsible. That is where it comes to criminal responsibility attaching to a person and their responsibility for the act or omission. That is set out in Chapter V. So an act or omission is unlawful, but then whether the person is criminally responsible for that act or omission is governed by Chapter V and that is where I propose to take your Honours over the course of my argument.

GORDON J: Chapter V is not complete, though, is it, because there are other provisions about criminal responsibility in other parts of the Code?

MS FORRESTER: There are, one which was referred to – well, one that was referred to in that context but the respondent says is in fact not dealing with criminal responsibility is self‑defence because the provision in relation to self‑defence does not refer to criminal responsibility. It makes an act which would not be lawful lawful, in the circumstances set out. As I was indicating there is a distinction to ‑ ‑ ‑

NETTLE J: What about mistake of fact, section 23?

MS FORRESTER: Mistake of fact, your Honours ‑ the respondent says that a person can still be liable if the actor was labouring under mistake of fact in this way. One must, in those circumstances, bear in mind the preconditions for someone being a section 7(b), (c), (d) or 8 offender and that is they must have certain states of knowledge. If a, say, section 7(c) party knew that the circumstances were different to that which the actor was aware, then it would make sense that the liability would be different for them and that is one circumstance in which one might envisage that the aider would be more liable than the 7(a) actor, and that is not a concept unknown to the common law. I do not seek to enlist the common law in my argument, by any stretch.

BELL J: You were developing the submission just a few moments ago that one is not as it were concerned for these purposes with criminal responsibility. You referred to Barlow at page 9. At some stage are you going to deal with the passage on page 11, beginning “Thus, if a principal offender”? It may be that this point was not being argued in Barlow, but nonetheless it seems to me to present some difficulty to the argument that you put.

MS FORRESTER: I will come to that, your Honour, but perhaps if I can just - can I deal with that later in my argument?

BELL J: Yes, I am sorry. Yes, I do not want to take you ‑ ‑ ‑

MS FORRESTER: I promise to come back to it. Your Honours, the starting point then from the respondent’s point of view is that definition of “offence”, or the provision of section 2, that is, an act or omission which renders the person doing that act or omission liable to punishment, is called an offence.

The construction placed upon that provision, in conjunction with section 1, definition of “criminal responsibility”, says that because a person is not liable to punishment if they are not criminally responsible, therefore their act or omission does not render them liable to punishment, in our submission, is a circular argument and we say that for a number of reasons. The first is that the definition of “criminal responsibility”, or “criminally responsible”, is that it is:

criminally responsible means liable to punishment as for an offence ‑

If criminal responsibility is required in order for an offence to be committed, it is difficult to see how section 1, the definition of “criminal responsibility” can have any meaning. “As for an offence” means that there is an offence and one is criminally responsible for it. The reason, in our submission, that Chapter V exempts people from criminal responsibility for acts or omissions in the main, although as my learned friend has taken your Honours to, there is also the event, is that it is the act or omission in combination with prescribed circumstances, state of mind, or consequences that constitute an offence, as their Honours stated in Barlow. But saying, as the section 1 definition does:

criminally responsible means liable to punishment as for an offence ‑

in our submission necessarily requires that there be an offence for which a person is liable to punishment. Now, that distinction, we say, is shown again in a quite different context by the provision that I referred to a short time ago in Appendix B of the Compilation Act, and this appears at page 11 of volume A of the joint book of authorities. It states:

When, by the Code, any act is declared to be lawful, no action can be brought in respect thereof.

Except as aforesaid, the provisions of this Act shall not affect any right of action which any person would have had against another if this Act had not been passed; nor shall the omission from the Code of any penal provision in respect of any act or omission, which before the time of the coming into operation of the Code constituted an actionable wrong, affect any right of action in respect thereof.

It is that section which the respondent says is the purpose of the definition of “criminally responsible” in section 1. That provision is not otherwise necessary in the context of the Criminal Code. If a person is not criminally responsible for an act or omission they are not liable to punishment in a criminal sense, but they can, under section 5, be otherwise liable on account of their wrong, unless the act is lawful under the Criminal Code as opposed to something for which a person is not criminally responsible.

It is that distinction which - for many purposes it has lost its importance in the modern era, but at the time that the Criminal Code was enacted it was a very important one. There is no good reason, in our submission, for there to be a distinction between “lawful”, “not unlawful”, and “criminal responsibility” unless the distinction that the respondent puts as part of its case in this matter is accepted.

The provisions of sections 7 and 8 deem a person to be guilty, and your Honour Justice Bell asked about what is the purpose of section 7(a) and that is something that, in our submission, is entirely relevant in the context of this. The purpose, in our submission, is that section 7(a) deems a person to be guilty if they have committed the acts or omissions – if they have committed them, not if they are criminally responsible for it.

I am aware that it is put against us that the opening words of section 7 require that an offence be committed, but there is no purpose in deeming the section 7(a) offender to be guilty of the offence if they must be proved to be guilty of that offence in order for an offence to have been committed. Again, it is circular.

On the appellants’ argument it is necessary to first of all establish all of the facts, circumstances and criminal responsibility that make the section 7(a) offender guilty of the offence before section 7 can operate. It is put that section 7(a) may have some role to play in two people acting together to commit all of the acts or omissions and that does help. But as was stated as far back as Warren and Ireland it is not necessary for those two parties to be liable to have resort to section 7(a).

Can I just divert rather briefly in that regard, that Warren and Ireland was about not being able to determine whether a person was a section 7(a) or 7(c) offender, in which case each could be liable even though you cannot choose which one is the principal offender and which one is the section 7(c) offender.

It is in fact Wyles which talks about people – two parties jointly committing all of the acts which constitute the offence. I do not know what time your Honours were proposing to have the morning break, but I am certainly happy to ‑ ‑ ‑

KIEFEL CJ: How long will your submissions be?

MS FORRESTER: I suspect another 20 minutes to half an hour, your Honour.

KIEFEL CJ: We will continue, Ms Forrester.

MS FORRESTER: Thank you, your Honour. So the purpose of section 7(a), your Honours, we say that it is precisely this case that is its purpose, that for the purposes of the trial of the sections, say, (b) or (c) accused, the actor is deemed to be guilty of the offence if all of the acts or omissions necessary to constitute the offence have been committed.

Issues of criminal responsibility are particular to the person and will be dealt with in their trial and that does justice to the circumstances – it would be quite wrong, one might think, if because a person was suffering from a relevantly serious mental impairment or did not have a capacity but the parties were acting with the requisite knowledge required to constitute a section 7(b), (c), (d) or (a) party it would be quite wrong if they could be exonerated by reason of the personal incapacity or other flaw in the actor for the purposes of this.

Your Honour Justice Gordon raised the issue of the nine‑year‑old and I think, if I might draw in what your Honour Justice Nettle raised in relation to innocent agents in this context because they are the same sides of the particular coin and it was suggested that a person other than a procurer could necessarily be liable under the final paragraph of section 7, in our submission, they could not.

So if the person were an innocent agent, only a procurer could be liable under the final paragraph of section 7. If the procurer or non‑procurer, the person who was acting with the innocent agent, were to be liable, they could only be so as a section 7(a) party. They would have had to do an act or an omission which constitutes one of the parts of the offence.

My learned friend referred to L, which is not extracted in the submissions but our Court of Appeal has held that you must do an act or make an omission as part of the acts or omissions making up the offence to be a section 7(a) party. To be a procurer of an innocent agent does not require presence at the scene.

BELL J: But if the concept of innocent agency carries with it that one procures the agent to do the thing that one would otherwise do oneself.

MS FORRESTER: That is entirely, with respect, correct, your Honour. Your Honours were taken to a passage in Justice Beech’s judgment where he referenced Samuel Griffith’s reasoning for that particular provision and he specifically refers to an accessory before the fact, which is a concept at common law which requires that the person not be present. So there is a whole history to that provision which is, in fact, not incorporated in its exact meaning but the text of the final paragraph of section 7 requires that the person be a procurer.

If I can go on in relation to the concert‑type argument that two people acting together – for example, a nine‑year‑old and an adult who has all of the mental capacity – are both committing all of the acts and omissions required to constitute an offence, on the appellants’ reasoning there can be no offence because the nine‑year‑old is not criminally responsible for their acts and omissions and therefore there are acts and omissions that have not made up the offence.

BELL J: I am not sure that the result is as extreme as you put on Mr Vandongen’s argument because in that circumstance the adult is doing an act that would attract liability, so that it is only in the circumstance such as here where there is only one act that causes death. In many of these situations, Mr Vandongen’s point is you would be able to establish that the adult made a substantial contribution by his or her conduct.

MS FORRESTER: In the case at hand, your Honours, had the State run case such as that, no other person other than the actor could have been liable, and if that person were a nine‑year‑old there is no way that section 7(a) could have operated to assist.

BELL J: Yes.

MS FORRESTER: That is perhaps more my point. There are as many scenarios as there are types of offences and I do not intend to go to them all. Pickering and the statement by your Honour Justice Gordon and Justices Gageler and Edelman in that case at paragraph 40 is put against the respondent and, first of all, as your Honour Justice Nettle pointed out, this was not the situation with which their Honours were grappling, or what your Honours were grappling in that case.

But, importantly, this is something that is picked up by the majority in the Court of Appeal in this case. It is an entirely orthodox construction in the case of a sole offender, or a sole accused, to say that they have not committed an offence if they are not proved to have been both committing all of the acts which make up the offence in the prescribed circumstances and they are not criminally responsible for it; that is the shorthand. What in fact they have not done ‑ they are not guilty of the offence. Section 7 deems people guilty of the offence in this context.

So, in terms of Pickering and saying there is no offence committed, it is our submission that that is distinguishable from this case, and it is made clear that that is a very valid distinction to make when one refers to the passages at paragraphs 173, 175 and 180 of the majority’s reasoning, to which your Honours were taken earlier, where their Honours talk about the child’s – the child has not committed the unlawful act, the child is not guilty of the offence.

That does not mean that section 7 does not operate to deem the child guilty of the offence for the purposes of the trial against the accused in this particular case, and that is precisely, in our submission, the purpose of section 7(a). It makes it clear that the person does not need to be convicted. They are deemed to be guilty by reason of that provision.

Can I just go to paragraph 182, which appears at page 197 of the joint core appeal book, because my learned friend referred to that paragraph as another instance in which the Court of Appeal indicated that the child had not committed an offence. In our submission, this demonstrates the distinction between the two positions that are argued for. One is saying the child has not committed an offence, but at paragraph 182 it is:

the child will not be liable to punishment for the relevant acts or omissions –

As it is then put, “The deeming provisions” – sorry, if I can just start that again. It is:

consequent upon the State’s failure to prove capacity under s 29, the child will not be liable to punishment for the relevant acts or omissions and will not have committed the offence of murder (or manslaughter).

The way in which we generally refer to people accused of criminal offences, if they are found not guilty, they have not committed the offence, and, in my submission, it is not objectionable to put it in that language in the context of a sole offender. When one comes to sections 7 and 8, quite different matters arise and that can be the only reason for the use of the word “deemed” in each of those sections.

There are a number of passages in the Criminal Code and, particularly, in Chapter XXVI which state it is lawful and, as I pointed out, self‑defence is one. Provocation provides that a person is not criminally responsible for an act or omission but there are very few other passages in Chapter XXVI which talk about criminal responsibility.

His Honour Justice Beech in his judgment – he applies the term “criminal responsibility” across – he does not use that term to refer to only Chapter V. He refers to it more broadly. In our submission, in the context of a murder case which, of course this was, there are elements of the offence, that is, the State must prove it is unlawful.

I am, perhaps, coming back again to Chapter XXVI. But there are many other provisions in the Criminal Code which provide that an act is unlawful which do not reference a definition of “unlawful” and there has been some controversy about that over the years in relation to what “unlawful” then means. There has been very little settled on in that but it does not mean “not authorised, justified or excused by law” within the meaning of the Criminal Code. It does mean, quite clearly, that there must be – the act must not be lawful.

I think, with respect to your Honour the Chief Justice, that may well be one of the purposes of that distinction - that in some cases there is an unlawful act, in some cases there is a lawful act. If one does not prove something is unlawful, it does not make it lawful. There is somewhere in between that which is an important distinction historically. If I might just have a moment, your Honours, I want to come back to that matter which your Honour Justice Bell raised.

BELL J: Yes, and I should say it was – I referred you to the conclusion on page 11 but it is really more to page 10 in Barlow where the analysis clearly proceeds upon a view that one is not looking just at the act or omission, one is looking at the act or omission that is neither justified nor excused. It does run rather counter to your argument.

MS FORRESTER: Only insofar as one is equating justification or excuse with a lack of criminal responsibility. Again, traditionally, criminal responsibility has been referred to as an excuse. But there is nothing in the Criminal Code that states that criminal responsibility constitutes an excuse. That is common law terminology that has been used – and not unreasonably. But if one looks at the text, there is not the use of the word “excuse” when it comes to Chapter V. “Justification” and “excuses” is only used in the context of Chapter XXVI. In my submission, one of the issues with Barlow, of course, is that they were not looking at the issue of criminal responsibility. They were solely looking at the construction of section 8.

NETTLE J: Can I just go back to where we were some time ago. It is the Crown’s contention, is it, that a lack of criminal responsibility, the consequence of application of Chapter V, is not an authorisation, justification or excuse within the meaning of the provisions which define what is an offence?

MS FORRESTER: Within the meaning of the provision of section 268?

NETTLE J: Yes.

MS FORRESTER: Yes. It must necessarily be – the foundation of the appellants’ argument is that in order for an act to be unlawful it must be proved that a person is criminally responsible for their act. That is fundamental to the appellants’ case because, for an offence to have been committed in the case of a homicide, the killing must have been unlawful. If there is no unlawful killing then there is no offence, whether in a temporal sense or otherwise, for the purposes of section 7.

The respondent says to that an offence has been committed when an unlawful killing with the requisite intention has occurred, and then the people who are liable are set out in sections 7 and 8. Then Chapter V operates to provide an absence of criminal responsibility but not any other form of criminal responsibility for the acts or omissions on the basis of the matters set out.

NETTLE J: Is that so for all of the provisions of Chapter V?

MS FORRESTER: Yes, your Honour, except that in relation to section 23B one is not responsible for the event rather than the act or omission. So of course one is only exempt insofar as the event is not foreseen or reasonably foreseeable as a possible outcome. One is not exempted from criminal responsibility for the act or omission because that person may well be liable for a lesser consequence than they are charged with by reason of section 23B. So if death is not foreseeable, grievous bodily harm might be and so one would remain liable as criminally responsible for the act or omission but only to the extent that the event was not an accident.

NETTLE J: So that when one reads the passages in Barlow, to which we were taken and to which Justice Bell has referred, which time and again talk about “not authorised, justified or excused”, that does not include anything in Chapter V?

MS FORRESTER: In my submission, that must be true.

NETTLE J: But it does, undoubtedly, include what is in Chapter XXVI.

MS FORRESTER: Yes. So your Honours were asking during the appellants’ submissions about the operation of self‑defence, if a person is acting lawfully because the provisions of section 248 operate to excuse or justify their conduct in that sense, their act would not have been unlawful. It is proclaimed to be lawful by that provision and then section 7 could not operate to make an aider liable in that context because there would not be an unlawful offence or an unlawful act.

BELL J: For some purposes I think it has been accepted in construing the Code that it is not as though one is looking at an entirely blank sheet. Terms were used that had an understood meaning at the time the Code was enacted. On one view it is a big step to consider that justification and excuse do not fall within that concept, that is, that they did not have an understood meaning and one might infer that is the way in which the terms were being used in Barlow at page 11, albeit this particular point was not raised.

MS FORRESTER: I could not but concede that, your Honour. But can I say this in response, that one of the terms that has not been put in use in the Criminal Code is mens rea, and the way in which the common law operates is that mens rea is a fundamental part of the elements of an offence at common law and that is quite distinct from how Code provisions operate.

When one looks at common law decisions in relation to these cases – for example, it suggests that a person is an innocent agent if they were a child of a very young age, or a person who was of unsound mind. The reason those people are innocent in the context of those cases is because it is an element of the offence that they have the necessary mental element to make them guilty.

That is a fundamental distinction of course in the Criminal Code, and that renders a lot of the concepts in relation to which language has moved over into the Criminal Code, quite difficult to – for example, one might note that the final paragraph of section 7 does not refer to the agent being innocent at all. The fact that there is no need for it to operate except in that instance is ‑ gives it some room to operate, but it does not require that the person be an innocent agent.

Justice Beech relied very heavily on that paragraph in supporting his construction in this case because he said that if the final paragraph of section 7(d) did not need to be the only thing that applied to people who were absent criminal responsibility, it would be superfluous.

NETTLE J: Ms Forrester, I am sorry to delay you, can your submission live with paragraph 21 of what the Chief Justice and I said in Pickering v The Queen 260 CLR 151 at 159, paragraph 21, or would it be necessary, as it were, to overrule or not follow that?

MS FORRESTER: It certainly flies directly in the face of the submission that I have put to your Honour. I do not think I can resile from that. Might I say that there are provisions in Chapter V which do refer to the consequences of the offence with which the person is charged in the sense of:

As the appellant points out, cognate provisions in Ch 5, which provide excuses from criminal responsibility for acts, have been held to refer to the offence with which the accused person is charged. They do not refer to the consequences -

In at least the case of section 23B in Western Australia it does refer to the consequences.

NETTLE J: Yes.

MS FORRESTER: In Pickering, again, in my submission it would not require that it be overruled in order for the respondent’s position to stand in this case, because Pickering of course, quite clearly, was a case of a sole accused who did have a personal excuse under Chapter V for the offence with which he was charged, by reason of the provision of section 31 which your Honours were then considering in Pickering.

NETTLE J: But still you say the better view is that what is provided for in Chapter V is not an “authorisation, justification or excuse” within the meaning of 268?

MS FORRESTER: In my submission, yes, your Honour, and I say that because there is no language in the Criminal Code which states that. It is a construct of the common law which has for obvious reasons crept into ordinary vernacular in relation to it. But if one engages in the proper principles of statutory interpretation in relation to section 7 and section 8 parties to offences that is not an appropriate term to use when looking at whether an act is unlawful, that is, not authorised, justified or excused at law.

Again, I turn back to the fact that the term “unlawful” is not defined for all purposes in the Criminal Code. It is defined in relation to assaults and that definition is referenced back from section 268, but “unlawful” is used in many circumstances in the Criminal Code where it does not have a definition.

BELL J: I am sorry to interrupt, but can I just ask how that submission works with section 223 which deals with assaults? This is in Chapter XXVI.

MS FORRESTER: Yes, your Honour.

BELL J: So within Chapter XXVI dealing with justification and excuse and circumstances of aggravation in relation to assaults and offences of violence to the person, provides:

An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.

MS FORRESTER: Yes.

BELL J: What is the function done by that opening sentence of paragraph 223 in light of your argument?

MS FORRESTER: My argument was that in relation to acts of personal violence, as is set out in Chapter XXVI, “unlawful” is defined.

BELL J: Yes.

MS FORRESTER: The word “unlawful” is not defined in respect of a number of other offences that are created by the Criminal Code. That definition is specific to assaults against the person.

BELL J: Yes, but it defines by reference to whether or not the assault is authorised or justified or excused.

MS FORRESTER: That is so, your Honour, and because this chapter is entitled “Justifications and excuses”, if it is authorised, justified or excused under Chapter XXVI the offence is constituted, that is, the assault is unlawful. It comes back to what I was saying earlier about “unlawful” not necessarily meaning lawful. In the context of this particular provision:

An assault is unlawful . . . unless it is authorised or justified or excused by law.

This chapter sets out the circumstances in which an act may be authorised, justified or excused by law – an act or omission.

KEANE J: You say that, if the assault was committed by PM, it was unlawful because it was not authorised, justified or excused, but he was not criminally responsible for it?

MS FORRESTER: Yes, exactly, your Honours, because there is quite a difference, in my submission, between being criminally responsible and being excused or justified.

KEANE J: The killing of the deceased was a lawful act. That seems to be grotesque.

MS FORRESTER: Perhaps I would not go so far as to say it was a lawful act but it was not an unlawful act, yes, your Honour. It does seem to be an unjust result if one construes the Code in that particular manner. It is the submission of the respondent that the construction that it urges upon this Court does both justice according to the meaning of the text that is provided in the Criminal Code, but also has an outcome which does not do offence to ordinary principles of criminal justice.

Your Honours, I have moved some way from the point I was making earlier but I remain determined to make it. One of the matters relied upon by his Honour Justice Beech in his judgment was the fact that the final paragraph of section 7 would be rendered superfluous if the respondent’s construction is correct.

In our submission, his Honour, with all due respect, failed to take account of a particular circumstance where there is no offence committed by the actor where the procurer could be liable and they are cases where knowledge is an element of an offence. An example perhaps might be a person who is procured by a person to bring in a suitcase full of a prohibited drug where they do not know and could not have any of the knowledge required to be guilty of the offence of possession.

In that case, a fundamental element of the offence would not have been committed by the agent but it would be ludicrous for the procurer in that circumstance to evade liability. In those circumstances, the acts of the truly innocent agent – not the “not criminally responsible” agent but the truly innocent agent – are attributed to the procurer. That is the purpose of the final paragraph of section 7 and the respondent’s construction does not do violence to that in any way and that remains wholly operative.

BELL J: So its function is not to deal with the insane or the lacking in capacity by virtue of age; it is to deal with the classic case which you have put, the innocent courier.

MS FORRESTER: Yes, or the utterer or a person who does not have the knowledge requisite in the elements of the offence. One final point, your Honours, and it specifically relates to section 29 and perhaps ties in with what I was submitting earlier about the common law concept of mens rea. Doli incapax of course is a common law concept. Section 29 does not engage with a child’s capacity in the same way as doli incapax.

Their Honours mention this in the course of the majority’s reasons. There is a presumption that a child is incapable of possessing criminal intent. That is a different concept at common law from what is enshrined in section 29 of the Code, but it highlights what I was earlier saying about the common law cases requiring that mens rea be established as part of the elements of the offence.

If a child does not and is incapable of having the necessary mens rea, then they cannot have committed the offence. That is not how the Criminal Code operates, in our submission. Again, the respondent’s submission is that one can commit an offence. The act or omission can be unlawful. The question is whether a person is criminally responsible for it, and then is therefore liable to punishment.

An act or omission renders a person liable to punishment unless you are not criminally responsible for it, because you are not then liable to punishment as for an offence. In our submission, that is the appropriate construction to put upon the provisions of the Criminal Code, and not that urged by the appellants. Thank you, your Honours.

KIEFEL CJ: Thank you, Ms Forrester. Yes, Mr Vandongen.

MR VANDONGEN: Thank you, your Honours. Dealing with a question of what is an excuse for the purposes of the Criminal Code, may I take your Honours to the core appeal book and to the decision of the majority at core appeal book page 188. At paragraphs 146 through to 150, dealing with the question of unlawfulness, their Honours concluded that:

An ‘excuse’ within s 268 –

which is the offence‑creating provision:

includes, relevantly, circumstances in which, by virtue of the Code, a person is not criminally responsible for the act ‑

and your Honours can read for yourselves up until paragraph 150, which includes the express conclusion that:

Various provisions of ch V, which provide excuses from criminal responsibility for acts, have been held to refer to the offence with which the accused is charged, and not to the consequences of that offence.

So, their Honours approached the majority – it is not apparent, at least from the submissions that I have read, that there was a challenge to that by the respondent. But that was the approach taken by the majority. It was the approach taken, as your Honour Justice Nettle pointed out in Pickering at paragraph 21, I think it was, and I have not come with the relevant textbooks but if one reads the textbooks around this area, it would come as a great surprise to the writers of those textbooks that an excuse does not encapsulate Chapter V of the Criminal Code.

In any event, it does not detract from our argument – I think as I attempted, perhaps not successfully at the beginning to say, whether it is an excuse – whether Chapter V, section 29, is an excuse or whether it operates independently to relieve criminal responsibility, either way, in order for an offence to be committed it had to render the person liable to punishment. If there was no liability to punishment, whether it is because it is not lawful or because it falls within Chapter V, it is not an offence and because it is not an offence the preconditions to section 7 and section 8 are not enlivened. So, the discussion about what is unlawful – whether an excuse extends to Chapter V, in my submission, goes nowhere in the context of the issues in this particular appeal.

The second thing is that my learned friend took your Honours to the last paragraph of section 7, the innocent agent provision. Your Honour Justice Bell put to my learned friend, I think, that the purpose of that provision was to deal with the White v Ridley‑type situation – that is, with a truly innocent agent – someone who has no idea that they are being used as an agent. It is true it is applicable in those circumstances.

I do not need to take your Honours to this, but it is in the decision of this Court in IL v The Queen, which is part of the joint book. At paragraphs 34 to 39 of that decision there is discussion about not innocent agency but about two cases in which innocent agency was relevant. They are Bourne and Cogan. They are English decisions. The discussion in there, at least in respect of Bourne, was about whether or not liability could be attracted in circumstances in which a man procured his wife to engage in sexual activities with an animal could be liable on the basis that the wife was an innocent agent. But it is far removed from a White v Ridley‑type situation.

In my submission, the last paragraph of section 7 could and would extend it to a circumstance in which a person, innocent by reason of being insane, is procured to do a criminal act. There is no reason why that situation could not occur, having regard to the words used in the last paragraph.

The final submission in reply concerns the purpose of section 7(a), and the submission made by my friend that its purpose is to deem the principal offender guilty of the offence. Now, it is true that it does do that, but the question is, in what circumstances, and what are the preconditions to that deeming provision applying?

It cannot be the case, in my submission, that it purely deems a person who does the act or makes the omission that constitutes the offence as being guilty of the offence, shorn of questions of criminal responsibility and defences that might otherwise be available, for example, self‑defence. So,

logically, those matters have to be determined before, as an anterior question, before the deeming provision applies, and that is where the work, or the words, “when an offence is committed”, the introductory words do their work, consistent with the way in which Justice Beech approached the problem when he did in the court below. Those are my submissions in reply.

KIEFEL CJ: Yes, thank you. The Court reserves its decision in this matter and adjourns to 10.00 am on Tuesday, 17 March in Canberra.

AT 11.43 AM THE MATTER WAS ADJOURNED

Key Legal Topics

Areas of Law

Criminal Law
Evidence
Civil Procedure

Legal Concepts

Appeal
Jurisdiction
Procedural Fairness
Sentencing
Charge
Expert Evidence

Actions

Download as PDF Download as Word Document

Citations

Pickett; Mead; Mead; Anthony; TSM (a Child) v The State of Western Australia [2020] HCATrans 028

Most Recent Citation

High Court Bulletin [2020] HCAB 2

Cases Citing This Decision

2

High Court Bulletin [2020] HCAB 3

High Court Bulletin [2020] HCAB 2

Cases Cited

1

Statutory Material Cited

0

Likiardopoulos v The Queen [2012] HCA 37

[2020] HCATrans 28

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Civil Procedure

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Sentencing

Charge

Expert Evidence