Prochilo v The Queen

[2005] HCATrans 300

[2005] HCATrans 300

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S536 of 2003

B e t w e e n -

FRANCESCO ROCCO PROCHILO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 29 APRIL 2005, AT 11.10 AM

Copyright in the High Court of Australia

MR P.L.G. BRERETON, SC:   May it please the Court, I appear for the applicant.  (instructed by Jeffreys & Associates)

MR G.E. SMITH, SC:   If the Court pleases, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ:   Yes, Mr Brereton.

MR BRERETON:   May it please the Court, the doctrine of joint criminal responsibility operates to hold criminally responsible for an offence any one of several persons who agreed that the offence should be committed and who was present at the scene, notwithstanding that he or she did not personally commit the acts which constitute the crime.  That concept is to be distinguished from conspiracy in that, first, in conspiracy it is the agreement itself and not the substantive offence which constitutes the crime, whereas, secondly, in a joint criminal enterprise the doctrine attributes to the accused the acts of the other parties to the agreement so as to make the accused guilty as a principal of the substantive offence. 

In this case those distinctions became blurred and the blurring was exacerbated by the extended definition of “supply” including, as it does, the concept of agreeing to supply.  As appears from the indictment at page 1, the applicant was charged as a principal.  However, the case was not left to the jury on the basis that the applicant himself committed any act of supply, howsoever widely defined.  No such suggestion is to be found in the summing up, nor in the judgment of the Court of Criminal Appeal, although it does appear, we say, for the first time in our learned friend’s response in this Court.  Rather, the case was left to the jury on the basis of joint criminal enterprise, as appears from the summing up at pages 15 to 18 of the application book. 

The Crown needs to rely on joint criminal enterprise if, and only if, it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged.  Justice Hunt, when his Honour was Chief Judge at Common Law, so held in R v Tangye.  Were the Crown alleging that the applicant himself physically committed the offence charged, as the present submissions, now suggest is the case, joint criminal enterprise would have been irrelevant.

In the context of this case, the Crown had to prove essentially three things if it were seeking to prove guilt by joint criminal enterprise.  First, it had to show that the applicant and his co-entrepreneur, Mr Hunt, had agreed that an act or acts constituting supply, howsoever defined, should be committed.  Secondly, it had to establish that Mr Hunt, the co-entrepreneur, had committed such an act or acts, and, thirdly, it had to establish that the applicant was present when such act or acts were committed. 

But that is not how the jury was instructed.  To the contrary, the summing up at page 15 to 18 focused attention on the need not to prove the substantive offence, but the need to prove a joint criminal enterprise by agreement and participation.  It did not address the need to prove a supply by Mr Hunt which could be attributed to the applicant by joint criminal enterprise or pre-concert and, in particular, it nowhere referred to the requirement for presence of the applicant at the scene of any act which might fall within the definition of supply.

Moreover, the Court of Criminal Appeal denied the presence of the scene was a necessary element.  That presence is a necessary element can best be illustrated by reference to the judgment of Justice McHugh in this Court in Osland v The Queen 197 CLR 316 which should be in the papers which your Honours have. In that judgment, his Honour referred at page 342 and following to – I see there is a problem, but ‑ ‑ ‑

GLEESON CJ:   We know what Osland is about.

GUMMOW J:   We remember it well.

MR BRERETON:   His Honour referred repeatedly to the requirement that the person said to be liable be present at the scene, the liability of each person present, if the acts were performed in the presence of all.  His Honour referred to R v Tangye in which Justice Hunt had said:

A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time –

And after that discussion, his Honour cited Professor Lanham, who was critical of Matusevich but accepted that it was authority for the proposition that:

in cases of concert, a non-participant present at the scene of the actus reus may be convicted as a primary and not as a derivative offender.

GUMMOW J:   Well, that is what happened in McAuliffe, for example.

MR BRERETON:   Yes, and Professor Lanham also recorded:

“Australian cases which in effect treat those acting in concert as principals in the first degree stress the requirement of presence and show no disposition to extend the concept to those absent from the offence.”

Now, that was touched on by – well, in your Honour Justice Gummow’s judgment in the same case, your Honour referred to what was said in McAuliffe, noted that in part of the passage in McAuliffe reference was made to the requirement for presence but not in the second, but then your Honour observed that a footnote referred to R v Lowery in Victoria, Justice Smith’s decision, in which Justice Smith had said, “Remember, the accused can only be proven guilty by this doctrine” – I paraphrase – “if presence at the scene is established”.

GUMMOW J:   That assumes there is a scene.  That is part of the trouble with this case.  In those cases you can understand why they are using the word “scene”.

MR BRERETON:   But even if the scene is broader than the physical scene, a direction was still required that he be present in some way, whether it was by telephone contact or the like, at an act which constituted something in the definition of supply.  As I was putting, what Justice Smith had said in Lowery and King was, and I have just found the words:

Remember, however, that before a person can be found guilty of a crime under this doctrine he must have been present when it was committed –

and that was cited with approval by Chief Justice Gibbs in Matusevich v The Queen in this Court.  In the present case, the summing up in the pages to which I have referred did not address the requirement of presence at all.  At page 15 at line 30 the trial judge directed the jury that in order to prove the accused’s supply or what his Honour called his “involvement in the offence” but what should have been his “commission of the offence” by joint enterprise, the Crown had to establish the existence of the joint enterprise and the participation in the enterprise of the accused. 

From about line 50 on that page through until line 20 on page 17, his Honour in unexceptional terms directed the jury as to what was required to prove the agreement, but when his Honour came to participation at page 17, line 27, his Honour spoke of “intentionally assisting and encouraging” without reference to presence.  The summing up focused the jury’s attention, at the foot of page 17, on the requirement to prove knowledge and intentional participation rather than on the requirement to prove a supply by, relevantly, Mr Hunt and then to prove presence in the light of pre-concert on the part of Mr Prochilo.  That thus fails to identify for the jury the need to prove, first, the commission of an offence by Mr Hunt, secondly, the presence of the accused when it was committed.  As appears from page 141 of the application book ‑ ‑ ‑

GUMMOW J:   What do you say about point 3.6 on page 190 of your opponent’s submissions?

MR BRERETON:   That was not the way the case was conducted and that was not the way the case was left to the jury.  The case was conducted on the basis of a joint criminal enterprise case.  If that was the case, if the case was the case contained in paragraph 3.6, then joint criminal enterprise was completely irrelevant and that was a primary liability of acts committed by the accused for whom I appear ‑ ‑ ‑

GLEESON CJ:   Where do we find the exceptions taken to the primary judge’s directions, while we are on the subject of the way the case was conducted?

MR BRERETON:   Your Honour will not find that exception taken.  But what I was going to say is that this point was, it will be seen, squarely taken in the Court of Criminal Appeal at page 141, paragraph 46, and, of course, there was no need to take a point about the 3.6 point that your Honour Justice Gummow raises with me because that is not the way the case was put to the jury.  Now, the joint enterprise point and the requirement for presence was squarely taken at paragraph 46, page 141 of the application book.  The Court of Criminal Appeal at page 144, line 55, accepted that:

There was no direct evidence of any specific act of supply of cannabis by the appellant –

At page 145, line 20, it found that:

actual acts of supply had occurred during the period –

but it did not find that the applicant was present at any of them.  At 153, line 25, it summarised what it perceived to be the applicant’s role, but, again, it did not find that the applicant was present on the occasion of any offence committed by Hunt.

GLEESON CJ:   Well, it is the bottom of 144 and the top of 145, is it not, that explains the way the case was conducted: 

There was no direct evidence of any specific act of supply of cannabis by the appellant to any person.  However, there was much evidence establishing that the appellant and Hunt were involved in a joint enterprise to obtain and distribute cannabis to others.

MR BRERETON:   And that, with respect, illustrates the vice.  Being in a joint enterprise is not a crime.  The crime is the ultimate substantive offence which is committed as a result of that joint enterprise, and the trial judge did not focus on the need to prove the ultimate offence of supply by Hunt in which the applicant was implicated, nor did the Court of Criminal Appeal focus on that.  At page 154, line 35, the Court of Criminal Appeal found that there had been acts of supply by Hunt “in accordance with the inferred agreement” but, yet again, not that the applicant was present at the time or place of any such act.

GLEESON CJ:   Well, it found that:

the appellant gave Hunt numerous directions as to the distribution of the cannabis.

That is on 154, line 25.

MR BRERETON:   That might well have supported a charge had it been brought on the basis of primary liability that the applicant had thereby supplied rather than that he was implicated by way of joint criminal enterprise, but nowhere was it left to the jury on that basis.  Nowhere was it put to the jury that he was guilty by reason of his instructing or directing Hunt as distinct from being liable through a joint criminal enterprise, and that is why, with respect, that is not an answer to the complaint.

GUMMOW J:   Is this sentence expired?

MR BRERETON:   Yes, I understand it has.

GUMMOW J:   You want a new trial, page 176.

MR BRERETON:   I think we primarily want a verdict of acquittal, at 174, 3(b), on the basis that the elements were not proved.  At page 145, line 30, is the holding of the Court of Criminal Appeal that presence is not essential and presence, their Honours or Justice Smart said:

is one way of proving participation . . . not the only way.  Participation is frequently proved by telephone intercept tapes and listening device tapes.

Now, that, in our submission, is wrong and wrong in principle.  It is inconsistent with the line of authority summarised in Osland’s Case.  If it stands, it will greatly expand the scope of the doctrine of joint criminal enterprise.  No doubt telephone intercepts and listening devices can be used to prove the agreement, but not the relevant act of participation which, as a minimum, is presence at the scene.  The other evidence, the tapes, can be

used to prove the pre-concert but not to prove the participation required by presence at the scene.  Because that is an error of principle and because it is one which, if it stands, will widen very considerably a doctrine which already has its difficulties, this case calls for a grant of special leave.

GLEESON CJ:   Thank you, Mr Brereton.  We do not need to hear you, Mr Smith.

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

AT 11.25 AM THE MATTER WAS CONCLUDED