Pickett v Western Australia Mead v Western Australia Mead v Western Australia Anthony v Western Australia TSM (a child) v Western Australia
[2020] HCA 20
Date of Hearing: 13 March 2020 Date of Judgment: 29 May 2020
P45/2019, P46/2019, P47/2019, P48/2019 & P49/2019
ORDER
In each matter:
Appeal dismissed.
On appeal from the Supreme Court of Western Australia
Representation
S Vandongen SC with A J Robson for the appellants in all matters (instructed by Legal Aid WA)
A L Forrester SC with L M Fox for the respondent in all matters (instructed by Director of Public Prosecutions (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Pickett v Western Australia Mead v Western Australia Mead v Western Australia Anthony v Western Australia TSM (a child) v Western Australia
Criminal law – Parties to offences – Where group of eight males assaulted victim – Where group included appellants and a youth aged 11 years ("PM") – Where one member of group stabbed victim causing death – Where appellants charged with murder under Criminal Code (WA) – Where Crown alleged seven males who did not stab victim deemed to have taken part in committing offence under s 7(b), s 7(c) or s 8 of Criminal Code – Where ss 7(b), 7(c) and 8 of Criminal Code operated when "an offence is committed" – Where reasonably possible that PM inflicted fatal stab wound – Where PM could not be criminally responsible for acts unless he had capacity to know he ought not to do act under s 29 of Criminal Code – Where prosecution adduced no evidence to establish capacity – Where trial judge declined to direct jury that they could not convict appellants of murder unless satisfied beyond reasonable doubt PM did not cause death – Where appellants convicted of murder – Whether trial judge erred in declining to direct jury that they could not convict appellants of murder unless satisfied that PM did not cause death – Whether "offence" committed for purposes of ss 7(b), 7(c) and 8 where failure to prove criminal responsibility of person who may have done act constituting offence.
Words and phrases – "accessorial criminal liability", "an offence is committed", "authorised or justified or excused by law", "commission of an offence", "common law antecedents", "construction of the Code", "criminally responsible", "enabler or aider", "excuse", "justification", "liable to punishment", "offence", "participants in the offence", "parties to the offence", "party…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Pickett v Western Australia [2020] HCA 20
Case
[2020] HCA 20
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered appeals by Robert Pickett and others against their convictions for murder. The appellants were part of a group of eight males who assaulted the deceased, Patrick Steven Slater. One member of the group, an 11-year-old youth referred to as PM, may have inflicted the fatal stab wound. The Crown alleged that the appellants, who did not inflict the fatal wound, were guilty of murder under sections 7(b), 7(c), or 8 of the *Criminal Code* (WA), which deal with parties to offences. A key issue was whether the appellants could be convicted of murder if the person who inflicted the fatal wound, PM, lacked the criminal capacity to understand he ought not to have committed the act, as required by section 29 of the Code.
The legal issues before the High Court were whether the trial judge erred in declining to direct the jury that they could not convict the appellants of murder unless satisfied beyond reasonable doubt that PM did not cause the death. This question hinged on whether the term "an offence is committed" in sections 7 and 8 of the *Criminal Code* required proof of the criminal responsibility of the person who physically performed the act constituting the offence, or if it referred to the act or omission itself.
The High Court, in dismissing the appeals, reasoned that the liability of the appellants under sections 7 and 8 of the *Criminal Code* did not depend on proof that the person who inflicted the fatal wound was criminally responsible. The Court held that sections 7 and 8 attribute the act or omission constituting the offence to other persons, not the criminal responsibility of the actor. Therefore, the circumstance that a participant may have an immunity from criminal responsibility due to their personal circumstances does not prevent the operation of these sections against other participants. The Court clarified that "an offence is committed" refers to the act or omission that constitutes the offence, and the relevant sections deem each category of person to be a party to that offence, irrespective of the actor's criminal responsibility.
Orders
Orders of the court
In each matter:
Appeal dismissed.
Background
Background to the litigation
In the present case, the circumstance that the person who actually killed the deceased may not have been criminally responsible for his act by reason of s 29 of the Code is immaterial to the guilt of each of the appellants under s 7(b), s 7(c) or s 8 of the Code. The liability of each of the appellants to punishment for the murder of the deceased did not depend on proof beyond reasonable doubt that the child who may have fatally wounded the deceased had the capacity to know that he ought not strike that blow.The facts On 27 January 2016, at about 3.30 am, Patrick Steven Slater ("the Deceased") died as a result of a stab wound to his chest[1]. The wound was inflicted during an attack by a group of eight male persons. That group included the appellants: Clinton Mead, Dylan Anthony, Robert Pickett, Stefan Mead and a youth identified as TSM[2]. [1]Birdsall v Western Australia (2019) 54 WAR 418 at 427 [1].[2]Birdsall v Western Australia (2019) 54 WAR 418 at 427 [3], [6]. The stabbing took place on the first floor of The Esplanade Train Station complex in Perth[3]. It occurred at the conclusion of the third of three altercations that took place in the early hours of 27 January 2016, between two groups of people[4]. One group comprised the five appellants as well as three other persons: Christopher Birdsall and the juveniles PM and JW ("the Appellants' Group"). PM was aged 11 at the time of the stabbing; it is uncontested that he may have been the person who inflicted the fatal wound to the Deceased. The other group consisted of the Deceased and his acquaintances ("the Deceased's Group")[5].[3]Birdsall v Western Australia (2019) 54 WAR 418 at 428 [17].[4]Birdsall v Western Australia (2019) 54 WAR 418 at 428 [18].[5]Birdsall v Western Australia (2019) 54 WAR 418 at 428 [18]. The first altercation commenced about 2.45 am and lasted for about five minutes[6]. Physical fighting broke out between members of the two groups[7]. It involved the Deceased producing a machete without striking or threatening anyone with it[8]. Another member of the Deceased's Group hit Robert Pickett with a tomahawk[9].[6]Birdsall v Western Australia (2019) 54 WAR 418 at 428 [19].[7]Birdsall v Western Australia (2019) 54 WAR 418 at 428 [19].[8]Birdsall v Western Australia (2019) 54 WAR 418 at 428 [19].[9]Birdsall v Western Australia (2019) 54 WAR 418 at 428 [19]. The second altercation occurred about 15 minutes after the first had concluded[10]. It involved members of both groups throwing rocks and pieces of concrete at one another[11]. The Deceased's Group ran up the escalators or stairs to the first floor of the complex; members of the Appellants' Group ran after them[12]. Some members of the Appellants' Group threw objects towards the Deceased and another member of the Deceased's Group, but the objects did not strike anyone[13].[10]Birdsall v Western Australia (2019) 54 WAR 418 at 428 [20].[11]Birdsall v Western Australia (2019) 54 WAR 418 at 428 [20].[12]Birdsall v Western Australia (2019) 54 WAR 418 at 428 [20].[13]Birdsall v Western Australia (2019) 54 WAR 418 at 428 [20].
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, BELL, KEANE AND GORDON JJ
(dissent)
NETTLE J
(dissent)
The appellants advanced a further argument, adopting the view of Beech JA, that the final paragraph of s 7 of the Code supported their preferred construction. Beech JA considered that this paragraph was an express and exhaustive statement of the only circumstances in which a participant may be criminally responsible where the doing of the relevant act does not render the actor liable to punishment[80]. But the last paragraph of s 7 cannot be read as having a limiting operation upon the scope of paras (a) to (d) of s 7. The last paragraph has a different scope: it is apt to cover cases to which the earlier paragraphs do not apply. The last paragraph of s 7 is apt to cover cases where the act done or omitted simply does not, for some reason such as ignorance of facts on the part of the person doing the act, constitute an element of any offence at all[81]. Given that the last paragraph of s 7 has work to do, it is not to be seen as implying a more limited operation for the provisions which it follows.[80]Birdsall v Western Australia (2019) 54 WAR 418 at 496‑497 [438]‑[444].[81]See White v Ridley (1978) 140 CLR 342 at 346‑347; R v Webb [1995] 1 Qd R 680 at 684‑685. See also Kehoe v Dacol Motors Pty Ltd; Ex parte Dacol Motors Pty Ltd [1972] Qd R 59 at 75‑76.Conclusion On the authoritative exposition of the Code in Barlow, s 7, in referring to "an offence", refers to the act or omission which constitutes the offence. In its operation, s 7 deems each category of person referred to in paras (a) to (d) to be a person who may be charged with the offence constituted by the act or omission. Similarly, s 8 of the Code deems each of two or more persons to have done the act, the doing of which was a probable consequence of the prosecution of an unlawful purpose. It is the doing of the act or the making of the omission by the actor that is attributed to another person or other persons, not the criminal responsibility of the actor. Sections 7 and 8 of the Code render a person other than the actor liable to criminal punishment for those acts or omissions, subject to the personal circumstances of that other person having regard to the other provisions of the Code. The circumstance that one of those persons may have an immunity from criminal responsibility by reason of his or her personal circumstances addressed in Ch V of the Code does not prevent the operation of ss 7 and 8 against the other persons[82].[82]The position has been held to obtain in cases arising otherwise than under the Code. See Osland v The Queen (1998) 197 CLR 316 at 329‑330 [27], 342 [72], 346 [81]; IL v The Queen (2017) 262 CLR 268 at 272‑273 [2], 282 [29], 296‑297 [65]. Accordingly, paras (b) and (c) of s 7 apply to an enabler or aider of another person to do an act or make an omission that is the element of conduct of an offence under the Code, whether or not that other person is criminally responsible for the act or omission. And s 8 of the Code applies to a person who, with one or more other persons, forms a common intention to prosecute an unlawful purpose with another, where in the prosecution of that purpose an "offence" is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose; and that is so, whether or not those other persons or some of them are criminally responsible for the act or omission.