R v Batak
[2025] HCATrans 27
[2025] HCATrans 027
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S148 of 2024
B e t w e e n -
THE KING
Appellant
and
CEM BATAK
Respondent
GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 8 APRIL 2025, AT 10.01 AM
Copyright in the High Court of Australia
MS S.C. DOWLING, SC: Your Honours, I appear with MS A.L. BONNOR and MS M.L. MILLWARD for the appellant. (instructed by Solicitor for Public Prosecutions (NSW))
MS G.A. BASHIR, SC: May it please the Court, I appear with MR C. PARKIN and MR J.R. MURPHY for the respondent. (instructed by Fahmy Lawyers)
GAGELER CJ: Thank you, Ms Bashir. As was indicated during the directions hearing, we will deal as a preliminary issue with the question of whether special leave to appeal should be retained or revoked. As an aspect of that, Ms Dowling, you may be seeking leave to amend your notice of appeal.
MS DOWLING: Yes.
GAGELER CJ: It is not apparent from the documents that have been recently filed what your intention is in that respect.
MS DOWLING: That is my first thing to do, it is to seek leave to rely on the amended notice of appeal, please, your Honour.
GAGELER CJ: We will take that into account as part of the argument.
MS DOWLING: Thank you. Your Honours, may I start by handing up two authorities of this Court. The first is North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470. The second is Driclad Pty Limited v Commissioner of Taxation of the Commonwealth of Australia (1966) 121 CLR 45. I have copies for the Court.
GAGELER CJ: Thank you.
MS DOWLING: Your Honours, this appeal relates to the orders made by the CCA, rather than merely its reasons for judgment. As your Honours are aware, the issue raised by the appeal is whether the respondent can be liable for murder on the basis that he was an accessory before the fact to constructive murder under section 18(1)(a) of the Crimes Act (NSW), that is, whether principals of accessorial liability are excluded from application to constructive murder for the purpose of that section.
In the Court of Criminal Appeal, the respondent challenged his conviction on the basis of CCA ground of appeal (1), to paraphrase, that the offence of accessory before the fact to constructive murder, or that pathway of liability to murder, is not an offence known to law and, in the alternative, he relied on CCA ground of appeal (2), that the directions given at the trial as to the elements of accessory before the fact to constructive murder were erroneous. The Court of Criminal Appeal’s orders are set out in the core appeal book at page 245. Relevantly to this morning’s submission, order (3) was:
(3)Uphold the appeal with respect to count 1 on the indictment.
Count 1 being the murder charge. Order (4):
(4)Quash the applicant’s conviction on count 1.
And:
(5)A retrial is on count 1 is to be had.
The CCA’s conclusion that it was an error of law to permit constructive murder to be left to the jury on the basis of accessorial liability reflected the terms in which CCA ground of appeal (1) was pleaded by the respondent. That conclusion, and only that conclusion, is embodied in order (3), which is:
(3)Uphold the appeal with respect to count 1 on the indictment.
There can be no question, in my submission, that order (3) was definitive of the party’s rights and liabilities on the issue jointed in CCA ground (1). The CCA’s determination that accessory before the fact to constructive murder under section 18 is not an offence known to law is the only basis upon which the respondent’s appeal to that court was upheld.
Order (3) precludes the appellant Crown from prosecuting the respondent in any retrial for murder on the basis of accessorial liability. That order prevents the prosecution of the respondent and any other accused person in the future on the correct legal footing, and in so doing, that order operates adversely to the interests of the Crown in New South Wales.
GLEESON J: That would be an approach which was not taken by the prosecution in the trial that was had – that is right, though, is it not?
MS DOWLING: I am sorry, your Honour?
GLEESON J: The basis that you are now saying that the prosecution is deprived from running was not sought to be run in the trial that was had.
MS DOWLING: That was the basis that was run in the trial, the accessorial liability.
BEECH-JONES J: But, Ms Dowling, the form of state of mind for the accessory that you point out in paragraph 28 of your submissions was not the basis that the trial was run on, nor the basis that the DPP sought to defend the existence of that basis of murder in the CCA. Is that correct?
MS DOWLING: It is a little more complicated than that, in my respectful submission. As your Honour is aware from the CCA reasons, the introduction of the Sharah element – element 5 in the directions that were given at trial – marks a significant difference between what we are advancing in this Court and what was the direction that was actually given at the trial and occupied much of the argument in the CCA.
BEECH‑JONES J: But did, in answer to the contention that this crime does not exist, the DPP say: it does exist, and one of the principal reasons it does exist is because there is essential matter which differentiates it from, say, JCE or extended JCE. As far as I know, it did not say that.
MS DOWLING: The occasion for making that submission, as I understand it, did not arise at the trial in the first instance, and that was the submission that was sought to be made in the CCA.
BEECH‑JONES J: It was, I understand. Is that recorded in the reasons?
MS DOWLING: Your Honour, when the learned Deputy‑Director who appeared in the CCA was positing that knowledge of the fact of the act causing death was an essential matter that the accessory should know, although the CCA, in my submission, elided knowledge of consequences of the act causing death into its consideration of that submission, that was in fact what was sought to be put. Of course, the argument in the CCA was also addressing the Sharah element, which was direction number 5, which is absent to the discussion in this Court.
JAGOT J: Ms Dowling, what I understood your outline to be saying is that, when you look at order (5) of the CCA – it has got one error in it in the sense that there is an extra “is” there, anyway, it is a slip, but it is also the substance of the order is to the effect of a retrial on count 1 is to be had, either in accordance with these reasons for judgment or other than on the basis of accessory before the fact constructive murder, and you say – that order – you challenge that. That is the substance.
MS DOWLING: Yes. Thank you, your Honour. We say that it is implicit in that order that a retrial may not be conducted on the basis of accessorial liability for constructive murder.
EDELMAN J: If that is right, the order then has to build in some form of declaration, implicitly. It is not usually the way orders are interpreted. The orders you seek in this Court might be read that way.
MS DOWLING: Yes.
EDELMAN J: But I am not sure that one could read order (5) in that way, in the CCA.
GLEESON J: What I do not understand is the principle on which you would have that limitation. In Rogers, Chief Justice Mason explained that an issue estoppel does not apply in criminal proceedings. So, what is the doctrine that would preclude you from raising the issue on a retrial on the basis of the orders that have been made?
MS DOWLING: The statement of the penultimate Court of Appeal, the CCA, to the effect that it is not an offence known to law, that would, in my submission, support a permanent stay.
JAGOT J: Well, it would have to, would it not? Because there is binding authority on the trial judge, there is no offence known to law.
MS DOWLING: Leaving aside whether it would be proper for a prosecutor to bring in that action.
JAGOT J: To bring it in the first place, yes, because you might be saying, well, you know that it does not exist at law, therefore it is an abuse of process to put it, even.
MS DOWLING: Yes, that is the Crown’s position.
BEECH-JONES J: Well, that might be depending on whether you had the opportunity to agitate that in this Court or not, of course, because if there was a stay, you could appeal that.
MS DOWLING: Your Honours, that torturous route, in my respectful submission, is not one that is desirable in the context of the criminal law and the context that there are the rights of accused persons who are at play. To engineer a situation by which one could bring this issue back to this Court and drag an accused person along with the Crown is not one that would commend itself either to the prosecution or to the Court.
GORDON J: You might be able to do it by reference, though. If you went back, putting aside this question of whether or not it is able to be put, but in light of what has transpired here, you were able to say to the trial judge, we wish to put both bases; and the trial judge said, well, it is not an offence known to law; and then he was acquitted; you could bring it up. He would have to be acquitted, of course.
MS DOWLING: Your Honours, there is, of course, nonetheless the respondent to consider in any such process like that, and the respondent ‑ ‑ ‑
GORDON J: But that does not have the problem of – that does not have the problem I think that you are alluding to.
MS DOWLING: Of standing to be convicted again.
GORDON J: Correct.
MS DOWLING: That is correct. However, in our submission, there is a way through this for this Court in this appeal, and the concern – I think that your Honour Justice Edelman put – about the form of the order is one that was dealt with in the authorities that I have handed up to you, and I will come to those in a very, very brief moment, if I may.
As the discussion, in my respectful submission, has just indicated, this appeal is not speculative or hypothetical, and it relates to the decision of the CCA as to the law to be applied in the actual case, which is shortly to be retried. Of course, if we were successful in this Court, then order (3) should be set aside. Order (5), unelaborated as it is, as your Honour Justice Jagot has put to me, is an order for a retrial in accordance with the decision of the CCA.
GAGELER CJ: I am sorry, can we just go back to order (3), for a moment. Does it not follow, from what you say is the correct mental element of the offence that you propound, that the appeal was correctly upheld? Although, it should have been upheld on a different basis, on your argument, and you still say that the conviction should have been quashed and a retrial should be had.
MS DOWLING: That would require the success of the notice of the contention, of the appellant’s notice of contention.
BEECH-JONES J: But the consequence of your submission has to be that conviction had to go, is it not? It just has to be.
JAGOT J: Sorry, I could not hear you, Justice Beech‑Jones.
BEECH-JONES J: The consequence of your submission in this Court is that the conviction has to go.
MS DOWLING: There are some steps that need to occur before one reaches that.
EDELMAN J: But you do not invoke the proviso, or you do not propose to invoke the proviso.
MS DOWLING: In the event that this Court finds that it is an offence known to law and that – depending on this Court’s formulation of the mental element, which may or may not in accordance with the way in which we have framed it in our submissions at 28 – there is a world in which the directions that were given may be not productive of a miscarriage, in which case the conviction should stand.
GAGELER CJ: Let us just concentrate on your appeal – your argument in the appeal – for a moment. Is it not the logical consequence of your argument as to the elements of the offence for which you propound that there was a misdirection of law by the trial judge?
MS DOWLING: In accordance with the formulation that we have set out in paragraph 28, we accept the direction that was given was not adequate to reflect the mental element as we have formulated it.
GAGELER CJ: Is not the consequence of that that the appeal should have been upheld on count 1 of the indictment in any event, even if you are correct on your argument on the appeal?
MS DOWLING: Not in those broad terms, in our submission, because what is bundled up or implicit in the formulation of the order in that way is the ground of appeal. I appreciate the difference between reasons and orders, and the proposition that an appeal lies only from orders. However, as was the case in Ligon and in Driclad – the two authorities that I have referred you to – an order on its face in which the party succeeded was held to still operate adversely to that party and to, therefore, support the competency of an appeal.
GAGELER CJ: Ms Dowling, I may be being just far too technical, but I can see that those – your argument there would say, perhaps, that order (3) is okay, order (4) is okay, but order (5) should be refined to state precisely the way in which the retrial is to be had, which is a different form of retrial from that which was contemplated by the Court of Criminal Appeal.
MS DOWLING: Yes, so, proposed – order a new trial to be conducted in accordance with the judgment of this Court.
JAGOT J: Or, they are really saying: a retrial is to be had other than on the basis of accessory before the fact to constructive murder that is carried in the order.
MS DOWLING: That is the CCA order, and the order that we would seek would be an order ordering a new trial to be conducted in accordance with the reasons of the judgment of this Court.
JAGOT J: Of this Court. Yes.
MS DOWLING: Yes.
GAGELER CJ: Which you would have include the mental element in paragraph 28.
MS DOWLING: Yes.
GAGELER CJ: So, let us just follow that through for a moment. You have already brought a trial, prosecuted a trial on the basis of an offence of being an accessory before the fact to constructive murder; you have propounded certain elements before the – in that trial. What you are asking from this Court is a retrial on what we label the same offence, but with different elements.
MS DOWLING: No, we do not say that they are different elements. We say that the statement of the mental element can be better expressed than the way it was conducted in the trial.
EDELMAN J: It is still a different case.
MS DOWLING: No, I disagree with that proposition.
GLEESON J: Is that because you put this argument to the trial judge when he was deciding how to direct the jury?
MS DOWLING: I would have to go back and refresh my memory on the argument that preceded the formulation of the directions.
GORDON J: Was there exchange between counsel, between the Crown and the trial judge, about the elements that were to go into the direction?
MS DOWLING: There was, and ‑ ‑ ‑
GORDON J: And was this formulation that is in 28 put to the trial judge by Crown counsel?
MS DOWLING: Not in those terms.
BEECH‑JONES J: Ms Dowling, can I ask you, then, about what you said in answer to me about the CCA. Could you look at paragraph 163 of their reasons, which records the Crown’s supplementary written submissions. The last six lines are directed to the circumstances such as this case, where the act that causes death is not an act of the foundational offence.
MS DOWLING: Yes.
BEECH‑JONES J: The state of knowledge attributed to the accessory there does not appear to be the one that you are putting in paragraph 28.
MS DOWLING: In my respectful submission, it is consistent with the argument being made here. We are saying the state of mind of the accessory is knowledge of the essential matters and circumstances, which includes knowledge of the act causing death, but not knowledge of the consequence of death. The difference in this Court is the reference to possible ways, but we say that that is – when a court is directing the jury by reference to the particular facts of the matter, that that is what will be the content of the direction on knowledge, because, of course, it is going to be referable to the facts in the particular case.
BEECH-JONES J: For my part, and speaking only for myself – I can see a difference between having knowledge that they would do the act causing death, should the occasion arise ‑ ‑ ‑
MS DOWLING: Yes.
BEECH‑JONES J: ‑ ‑ ‑ and having knowledge that one of the possible ways in which the acts constituting the foundational crime may be carried out is the commission of the act. They seem, to me, quite different. “Possible” certainly sounds to have a JCE or extended JCE tone about it.
EDELMAN J: In either case, though, you need to express knowledge at an appropriate level of generality. Knowledge can be expressed at different levels of generality in any case.
MS DOWLING: Yes. So, the statement of knowledge of the essential facts, matters and circumstances from Giorgianni and repeated in Productivity Partners would, in the charge to the jury, be fleshed out. The proposition is not that it would be so narrowly framed as to be impossible to apply across a broad range of offences.
Your Honours, may I take you to the decision of North Sydney Council v Ligon. In that case, the Court of Appeal of New South Wales allowed an appeal by North Sydney Council on a ground that was not ultimately challenged in the High Court. The reasoning upon which we seek to rely in this court starts at 474, at about point 6 of the page.
On a separate question concerning the construction of section 77 of the Environmental Planning and Assessment Act and whether the consent of a third party under that provision was necessary for a development consent, the Court of Appeal split. The Court of Appeal then ordered the matter to be remitted to the Land and Environment Court to be determined:
“in accordance with” its reasons.
That is seen at the bottom of the last paragraph of page 474. The Council then appealed to this Court to have this order set aside. That is, the Council, in this Court, contended that there should be a retrial, but not in accordance with what had been said by the Court of Appeal about section 77. That, again, is at the bottom of page 474. The Court unanimously accepted that an appeal of that kind was competent, and the statement of the Court is in the last paragraph on page 474 and over the page at 475.
EDELMAN J: That is because the:
“in accordance with” its reasons.
Has effectively built in a declaration as to the state of the law.
MS DOWLING: And we say, in practical reality, your Honour, that is what is ‑ ‑ ‑
EDELMAN J: Well, it may not matter for your argument, because even if, as a matter of strictly construing the orders made by the CCA, at least in this Court, you are seeking orders that have the effect of building in a declaration and thus varying the orders of the Court of Criminal Appeal.
MS DOWLING: Yes. And we say that, in reality, it would, to use the language suggested by her Honour Justice Jagot, amount to an abuse of process to commence a proceeding for accessory before the fact of constructive murder in the face of the reasons of the CCA.
EDELMAN J: That may be so, but that does not necessarily mean that that is what the orders said.
MS DOWLING: A similar point was considered in Driclad Pty Limited v Commissioner of Taxation, which is one of the authorities referred to in Ligon. The relevant passages commence at page 63 of the judgment, your Honours. In that case, this was an appeal to the High Court from a decision of a single judge of the High Court, Justice Taylor, who had allowed the taxpayers’ appeals with costs and set aside the assessments as to taxation. On the face of the orders made by Justice Taylor, the taxpayers had succeeded at first instance, and that is seen from the decision of Chief Justice Barwick and Justice Kitto at the bottom of page 63.
But when read in light of the reasons for judgment, it was apparent that the taxpayers had not succeeded entirely below, and were relevantly aggrieved, and that conclusion is seen at the top of page 64. The fact of that aggrievement, notwithstanding the form of the orders, was dispositive of the question for Chief Justice Barwick and Justice Kitto as to whether there was an entitlement to appeal to the Full Court when what the taxpayers sought in that case were orders that would be appropriately moulded to achieve what the taxpayers sought and which the first instance judge had denied.
We say that is similar – a similar position in our application today. Your Honours, unless this Court intervenes to modify the orders, the retrial ordered by the CCA will proceed in accordance with the judgment of the CCA and the appellant would not be in a position or permitted to prosecute the respondent as an accessory before the fact.
GAGELER CJ: Ms Dowling, can I just understand what orders you would actually seek. We have the notice of appeal, we have the amended notice of appeal, you have just taken us to Driclad, or Ligon, in particular, I note the form of the order that was made there. I think what I am hearing is what you could seek from this Court would be to set aside order (5) made by the Court of Criminal Appeal, and in its place, order that a new trial be had on the charge of being an accessory before the fact to constructive murder in accordance with the explanation of that offence given by this Court. Is that effectively what you are asking for?
MS DOWLING: Yes, with some unimportant tweaking in the middle, because the charge is one of murder and, as the CCA observed, and even the trial judge observed, JCE constructive murder has always been available.
GAGELER CJ: What was the point of this elaborate process of sending the matter back to the Court of Criminal Appeal that you were proposing in your amended notice of appeal?
MS DOWLING: Because, as I have already submitted, there is – it is not – I withdraw that. The formulation in our submissions at AS 28 we accept may not be the formulation of the Court, and in that case, in our submission, it would be appropriate for the respondent and the appellant to make submissions on the adequacy or otherwise of the directions that were given at trial.
EDELMAN J: This is for the purposes of the proviso, then?
MS DOWLING: Of determining miscarriage in the first place.
JAGOT J: From the misdirection, from the purported ‑ ‑ ‑
MS DOWLING: That is right.
JAGOT J: If we do not go with 28, there might still be an argument to be had that there was no misdirection.
MS DOWLING: Yes, or that the misdirection that was given, as was found in relation to ground (2)(a), in a distorted or a different context, was not productive of error, because it set the bar higher than it should have.
JAGOT J: Higher, yes.
MS DOWLING: I am not suggesting that that is what will happen.
GAGELER CJ: Why would we ask the Court of Criminal Appeal to do that? Why would we not do it ourselves?
MS DOWLING: The principal reason for that is that there has not been argument. The suggestion was raised in the notice of contention, and there was not detailed argument given to that in the submissions of the respondent, nor in the appellant’s reply submissions. That is the extent of that.
GORDON J: One of the things that worries me about that is that we are being asked, on your merits case, really, to consider the adequacy of the direction, in a sense, in a vacuum, without the benefit of submissions on it. I speak only for myself, but it is often very helpful to understand, actually, how it is to work in a particular factual situation.
MS DOWLING: Yes.
GORDON J: But we have not had that – we have had none of that before us.
MS DOWLING: That is the argument – that is an argument in support of remitter, or ‑ ‑ ‑
JAGOT J: Remitter to the Court of Appeal, you mean?
MS DOWLING: Yes.
GLEESON J: They would not be in any better a situation.
MS DOWLING: Well, then there would be argument with the benefit of the reasons of this Court.
GORDON J: No – my point is that you are asking us to formulate an element absent the material before us to consider how it would work practically.
MS DOWLING: No, with respect, in my respectful submission, that is not what is required to determine ground 1 in this Court. There is consideration of the coherence argument, which is the nub of the reasoning of the CCA and the respondent’s argument in this case, and consideration of whether the offence is one that is good at law. And the mental element ‑ ‑ ‑
GORDON J: But the question is: what is the offence and what is the element – the mental element?
MS DOWLING: We say that can be formulated by this Court on the materials before your Honours.
EDELMAN J: But if you are right and this Court formulated the mental elements in different terms from those that you propose, you are suggesting that we would then remit the matter to the CCA to apply that, to determine whether there was a miscarriage or not; then the parties would, potentially, appeal back up to this Court to determine whether or not, on the Court of Appeal’s decision, on the same facts, the Court of Appeal was correct in relation to the application of the test for knowledge that this Court had proposed.
MS DOWLING: We accept that it would be open to this Court, of course, to determine the notice of contention, and if, in that event, the orders to the CCA would still – assuming the success, of course, of the appellant – the order (3) would still need to be varied by this Court, because – in the manner that your Honour the Chief Justice put to me.
GORDON J: Order (5), you mean?
MS DOWLING: Yes. No – I am sorry, order (3).
GAGELER CJ: Ms Dowling, what orders, precisely, would you seek in the appeal?
MS DOWLING: In that event, an order allowing the appeal, an order setting aside orders (3) and (5) made by the Court of Criminal Appeal, and in place of order (3), dismiss the respondent’s appeal to the Court of Criminal Appeal on grounds (1), (2)(b), (3) and (4) of the respondent’s notice of appeal.
Assuming the success of the notice of contention against the appellant in this Court, the next direction would be: uphold the respondent’s appeal to the Court of Criminal Appeal on ground (2)(a) of the respondent’s notice of appeal to that court, order a new trial to be conducted in accordance with the judgment of this Court.
EDELMAN J: And you say that is moulding the orders of the Court of Appeal within the language of Driclad.
MS DOWLING: We do.
JAGOT J: It would be good to have that set out, I must say, on a bit of paper ‑ ‑ ‑
MS DOWLING: Certainly.
JAGOT J: ‑ ‑ ‑ in terms of if the notice of contention succeeds or fails, or the proposed notice of contention succeeds or fails, because it is two different sets of orders, then.
MS DOWLING: Yes, I will have that done now.
GLEESON J: So, both parties would be arguing in support of the notice of contention?
MS DOWLING: No, I do not quite get to that point, but that is taking what I, in my submission, consider to be a principled and pragmatic approach to the issue raised in the notice of contention.
GAGELER CJ: Principle and pragmatism do not always coincide.
MS DOWLING: True.
GAGELER CJ: There is a lot more pragmatism than principle, I think, in your current position.
MS DOWLING: I am hoping to lean on the side of the principle, your Honour. Your Honours, those are the submissions of the appellant on the issue of the revocation. In the submission of the appellants, this is not a hypothetical appeal. I am sorry, I do have a few more things to say – I withdraw my previous statement.
The question of continued utility in this appeal and, relatedly, of revocation of the grant has applies – it has arisen because of the Crown’s engagement with the issue raised in the notice of contention.
BEECH-JONES J: Does it not arise because of the way you have put the necessary element of accessory before the fact? That is what has raised the issue, because – speaking for myself – the logical consequence of success on that appears to be a new trial. That was in your submissions‑in‑chief long before the notice of contention was conceived of.
MS DOWLING: Yes.
BEECH‑JONES J: Is that not how we get here?
MS DOWLING: Partly, your Honour. I am reluctant to accede to the suggestion that it is all caused by the Crown’s reformulation of the case, because it has evolved, particularly with the presence of the Sharah element distorting, in one view, the consideration of or the arguments that was conducted in the CCA.
And now that that fifth direction – I am just going to call it the Sharah direction – has been removed from discussion, the framing of the mental element, or the framing of the elements of accessorial liability to constructive murder in accordance with Giorgianni are, in my submission, clearer. And, as the respondent has quite properly pointed out, are not consistent with the directions that were given at trial. Would your Honours excuse me for a moment?
Your Honours, just finally, there may be a degree of uncertainty in the ultimate disposition of the appeal because of the need to reassess the adequacy of the directions given to the jury. Whether that is by this Court or by the CCA, we say, does not deprive this appeal of utility or justify the revocation of the grant of special leave.
JAGOT J: Can I just clarify, the reason you still say order (3) has to be set aside is because you also say, in common with order (5), that order (3) carries with it an implicit upholding of the ground that there is no offence known to law of ‑ ‑ ‑
MS DOWLING: Yes, so it should be modified.
JAGOT J: Yes, to make it clear that it is not relating to that basis, if ‑ ‑ ‑
MS DOWLING: That it is directed to the directions actually given, rather than the existence of the cause of action.
JAGOT J: In fact – depending on the notice of contention argument.
MS DOWLING: Yes.
JAGOT J: Because you would set aside order (3) altogether, if the notice of contention argument fails, if you succeed on everything.
MS DOWLING: Yes.
JAGOT J: Yes. Okay.
GLEESON J: Why would it not be an abuse of process for the Crown to seek to run the accessorial liability trial again, on the different basis that appears to be reflected in paragraph 28 of the written submissions?
MS DOWLING: Because the breadth of the CCA’s reasoning is that that pathway of liability is incapable of sitting conformably within the second limb of murder.
BEECH-JONES J: Ms Dowling, could I just make one inquiry about the balance of the appeal, just so I could get – is it either common ground, to your understanding, that extended JCE does or does not apply to constructive murder in New South Wales following Mitchell, or is that just an area that no one has gone near?
MS DOWLING: No one has gone near it, your Honour.
BEECH‑JONES J: I see.
MS DOWLING: I am certainly not wishing to enter ‑ ‑ ‑
BEECH-JONES J: You are not seeking to reopen that?
MS DOWLING: ‑ ‑ ‑ that discussion today.
BEECH-JONES J: No, I understand.
MS DOWLING: There has not been appellate consideration of that issue, either at – obviously not in this Court, but not in the CCA either.
BEECH-JONES J: I see.
MS DOWLING: Thank you, your Honours.
GAGELER CJ: Thank you. Ms Bashir.
MS BASHIR: Your Honours, the appellant’s argument in this Court does rely on newly fashioned and reformulated directions in their submission at paragraph 28. That was not previously contended for on the special leave application to this Court or in the Court of Criminal Appeal, and it is accepted in the reply of the appellant in that part of the first sentence of paragraph 2 – that part that has not been abandoned – that that direction was not given at trial.
Just in reply to my learned friend’s submission that it was submitted in the Court of Criminal Appeal, we dispute that vehemently, and we refer the Court to paragraph 163, which Justice Beech‑Jones has already taken the Crown to.
JAGOT J: Sorry, what paragraph?
MS BASHIR: Sorry, it is core appeal book page 220, paragraph 163. Can I take the Court, also, back to paragraph 138, which is core appeal book page 211, where it is clear that there was plainly an issue before the court, because we were arguing that Giorgianni applied and, as such, the:
accessory before the fact is required to know and intend all of the elements comprising the offence to be committed –
that is, including the act causing death. The Crown’s position is at the end of that paragraph, in relation to Sharah, but the Crown did not seek at all to defend Sharah in the Court of Criminal Appeal. It is in that context that the Crown’s concession in the Court of Criminal Appeal – which is at 163 and following, that there does need to be knowledge attaching to the act causing death – was made, although they sought to cast it, then, in terms of possibility or probability, on what the Court of Criminal Appeal found was a “halfway house”.
So, it is our submission that this is a matter that has not previously been contended for. It is a new, and it is a very different formulation. Without going to the heart of the argument, it is necessary to take the Court to the trial directions, very briefly, which are at core appeal book 171 to 172, where your Honours will see – and it is important to recall, in this case, it was not suggested that Mr Batak was part of a joint criminal enterprise in the foundational offence; he was said to be an accessory before the fact to the foundational offence.
That is clearly articulated in the directions at 171, at paragraphs 2 and 3, and paragraph 3, very importantly, confining the section 72(2) or foundational offence, at the top of page 172, to knowledge of an intention:
to steal property . . . by threat of force while armed with a dangerous weapon.
But for murder, the separate count of murder, proof of those elements 1, 2 and 3 needed to be established, but, in addition, the Court goes on:
To prove . . . the offence of murder –
two matters. The first, which refers to the act causing death, was something that could not be challenged – there is no knowledge requirement, none at all. Then the fifth was one that the judge found himself bound to give by Sharah, but which had nothing to do with or did not come anywhere near close to Giorgianni knowledge, particularly if one looks at the print underneath it explaining awareness in terms of contemplation of a possibility.
So, we do say that the Crown had every opportunity to embrace Giorgianni strict application, or to put their reformulated 28 case, but they did not do it. One of the reasons they did not do it is this was a distinct act – the act causing death was distinct from the foundational offence. And that is clear in those directions.
BEECH-JONES J: Now, that element would appear to be what was contemplated by the submission at 163.
MS BASHIR: It is different, your Honours.
BEECH-JONES J: Yes, which, if you were defending the conviction, you could well understand, as it were. If you were defending the conviction and saying the directions were fine, the element at the bottom of 163 was probably justified. That is the only point I am making. And your point is, now, what is being suggested is very different.
MS BASHIR: It is very different.
BEECH-JONES J: I understand.
MS BASHIR: And we say, too, your Honours, to cast it in those terms of AS 28, which bears no relationship to the concrete case here at hand, is in the nature of seeking an advisory opinion from the Court. It is in the nature of seeking an opinion on a hypothetical formulation that did not arise in the Court of Criminal Appeal, it did not arise at trial, it was never argued to be applicable in the actual case; and it is news to us, your Honour, that the appellant – well, here, they do not seem to seek to defend the directions at trial, that is, element 5, which are the only ones that could be said to potentially be knowledge. In truth, they are seeking an opinion as to how it could conduct a future retrial.
So, through the reformulation, they would have this Court embark on a consideration of an hypothesis essential to the success of their appeal but inapt to produce any result other than a new trial. The hypothesised reformulation, we say, in our argument, is, at its heart, joint criminal enterprise, and a new trial has been ordered on the basis of joint criminal enterprise, not in accordance with that hypothesised reformulation.
It is our submission that, whoever is correct on the appeal, the order for a new trial is inevitable. Of course, I have not even yet sought leave formally for an extension of time and to rely on the notice of contention, and we would only get there if special leave were not to be revoked now, but ‑ ‑ ‑
GORDON J: Ms Bashir, I put to the Director that one possibility, if you are right about this, is that the Crown might, in the circumstances of this case, seek to put accessory before the fact with constructive murder as part of the charge with the trial judge being bound by the Court of Criminal Appeal’s reasons, then not permitting it to go to the jury, and if your client was acquitted, a reference up. Is that an available pathway?
MS BASHIR: Your Honour, there are different pathways. So, there is – in this case or in other cases, the pathways are: the section 5F pathway, that is, if a stay is granted, section 5F, and then it goes up; there is the Crimes (Appeal and Review) Act section 107 and 108, which is the pathway that your Honour has just postulated; and there is also, in the event of a conviction, a section 5A of the Criminal Appeal Act pathway, where there can be a formulation there or a submission of a question of law there, under the Criminal Appeal Act.
GORDON J: And in that last formulation, is that taking what happened at trial as the basis upon which it is brought up, notwithstanding the conviction?
MS BASHIR: Yes, your Honour.
GORDON J: And both the last two formulations, what happened at trial is not affected in terms of the result of the accused?
MS BASHIR: If we are talking – sorry, your Honour, but in terms of this accused?
GORDON J: Any accused in these pathways.
MS BASHIR: So, your Honour, whether there is an acquittal – and it could come up as a question of law through 107, 108 – and if there is a conviction, the trial judge could submit a question of law under the Criminal Appeal Act section 5A.
BEECH-JONES J: But with 107(1), you need a direction of an acquittal, and that can affect the outcome; and, if I remember rightly, 108, it does not affect the outcome.
MS BASHIR: Yes, your Honour. Sorry, your Honours, I just want to go back to 5A, I may need to correct that. I will just read the terms of section 5A:
The judge before whom any person is tried and convicted on indictment may submit any question of law arising at or in reference to such trial or conviction to the Court of Criminal Appeal for determination, and such submission shall be dealt with as if it were an appeal under section 5.
GORDON J: Thank you.
GLEESON J: So, how would the question arise in this context?
MS BASHIR: I am sorry, your Honour?
GLEESON J: How would the question arise in this context?
MS BASHIR: Your Honour, if special leave was revoked and, in a future trial, the Crown sought to run an accessory before the fact to constructive murder liability, there would presumably be a stay application put on, and it would probably come up via section 5F. But if the trial did run its course, either way, it could still be challenged through those modes of 107 or 5A.
BEECH‑JONES J: Could it unfold this way, that, if there were two bases being put by the Crown, and the trial judge refused to allow accessory before the fact and it went to the jury on the other basis, and they convicted, and that appellant appealed their conviction, could the trial judge state a question under 5A by saying this question of law arose in the trial?
MS BASHIR: Your Honour, that might be difficult, but there may be, for example ‑ ‑ ‑
EDELMAN J: Is that because 5A contemplates a point of law stated prior to conviction, not subsequent to conviction?
MS BASHIR: I am sorry, just excuse me, your Honour. Your Honour, I do not think I would embrace that, because it is:
before whom any person is tried and convicted on indictment –
so, they would need to be convicted before the question of law could arise in reference to the trial for determination.
EDELMAN J: What is the obstacle, then?
MS BASHIR: I am sorry, your Honour?
EDELMAN J: What is the obstacle to the trial judge stating that question to the Court of Criminal Appeal?
MS BASHIR: There may simply be arguments that it does not relate to the conviction. There may be no obstacle to it. We do put it before the Court as a way by which, if there is a conviction, there could be an appeal.
GORDON J: But also, if there is an acquittal, there are pathways available which do not affect the acquittal.
MS BASHIR: Yes – that is, the 107, 108 pathways.
GORDON J: Thank you.
MS BASHIR: Your Honours, I have already made the point that, implicit in the argument, and even on the outline today, the appellant must accept that the jury were not directed as to the knowledge the respondent was required to have as to the act causing death, and such a direction was certainly required on second limb felony murder, that act causing death being one of the elements of the offence, and knowledge always being applicable through the application of Giorgianni. It is a critical element which distinguishes murder from simply being an accessory before the fact to the foundational offence, and that is the way that the directions flowed in the trial and, as such, it is our submission that orders (3) to (5) of the Court of Criminal Appeal would inevitably remain in place.
The proposed remittal, as we understood from the directions hearing, was, we understood, to enable invocation of the proviso. We are now told that it is to say there is no miscarriage at all. It is our submission, first of all, the proviso was eschewed, and, in particular, eschewed in relation to element 5 in the court of criminal appeal. It was sought to be maintained in relation to element 4 of the trial directions, but that was not a direction on knowledge. So, there had been a specific turning of the minds in the Court of Criminal Appeal to the application of the proviso, and it did not apply even when we had specifically said that Giorgianni knowledge should apply in the face of that.
There is no reason to doubt the correctness of the judgment of the Court of Criminal Appeal in any case, and we also say that there are insufficient prospects of success, in terms of – particularly, when one looks to the core of the argument, which is the submission at paragraph 28 of the appellant’s submissions as to this hypothesised reformulation.
We make the point, in relation to North Sydney Council v Ligon, the only way that the Court of Criminal Appeal’s judgment here could operate adversely to the appellant’s interests is if the appellant were proposing to run both pathways on a retrial, but implicit in that is surely an indication that there would be a new trial. Here, we have heard that their remitter is sought in order to go back to the Court of Criminal Appeal and argue against that, to argue that there is no miscarriage. On the directions hearing, it was specifically said that they would be seeking to argue against a new trial being ordered, if it was sent back to the Court of Criminal Appeal. This Court would not facilitate that occurring.
In terms of Driclad, of course, that case concerned an appeal as of right from the single Justice of the High Court pursuant to section 73 of the Constitution. It was not a case about section 35 of the Judiciary Act or a grant of special leave. In our submission, your Honours would, without any ado, and particularly, given the argument that has been put and repeated – can I just take the Court to the appellant’s submissions. At paragraph 28, it is postulated as an “essential” matter that:
the accessory must know or believe at the time of giving assistance or encouragement . . . that the principal would do the act causing death, as a means of effecting the venture, should the occasion arise –
that is all joint criminal enterprise knowledge:
and with this knowledge the accessory must intentionally assist or encourage –
and it is not only seen there – paragraph 48, paragraph 52, paragraph 54, paragraph 56, paragraph 57, paragraphs 58, 59, 60 and paragraphs 64, 68, 76 – that is the argument and the hypothesised formulation on which this application and appeal depend. Excuse me, your Honours.
Your Honours, I have just been handed the submissions below of the Crown, the appellant, under the heading: Application of the proviso in relation to ground (2)(a). It is specifically stated that any miscarriage in the
event that it is so characterised is limited to the absence of a direction that the jury had to be satisfied beyond reasonable doubt that Coskun was the shooter. Such an error – which is 4, which is them applying it to element 4. Such an error could not logically have had any effect on the understanding of the jury of any of the other elements, all of which were correctly explained and of a different nature. So, no invocation of the proviso at all on element 5.
Thank you, your Honours.
GAGELER CJ: Thank you, Ms Bashir. Ms Dowling.
MS DOWLING: Just very briefly, if I may, your Honours, just in relation of the proviso. At the directions hearing last week, it was not the Crown’s submission – we made no submission about the proviso, and that is the position that I am maintaining in this Court.
Just in relation to the possible pathways identified by the respondent, section 5F of the Criminal Appeal Act, that is the interlocutory appeal provisions of New South Wales. That has the obvious undesirability of fragmenting the jury trial, because that application would be made mid‑trial. Sections 107 and 108 of the Crimes (Appeal and Review) Act are predicated – 107 – on an acquittal, and we are hoping that that is not going to be the result in this matter.
In relation to 5A of the Criminal Appeal Act, that permits the stating of a question of law arising at trial in reference to the conviction. In our submission, there are some very significant limitations on that.
BEECH-JONES J: Is that arising at the trial or in reference to the conviction?
MS DOWLING: That is right. It would not be in reference to the conviction, one would think, because it would have been precluded from being run in front of the jury. Arising at the trial – and just speaking without the benefit of detailed consideration of the point – but, arising at the trial, when, if one party raises a possible basis of liability that is precluded by a standing authority of the penultimate Court of Appeal – the ultimate Court of Appeal of that State – arguably, it is not a question of law arising at the trial.
EDELMAN J: It is:
arising or in reference to –
the trial, and the “reference to” is much broader, but the more powerful point seems to be it would be an exercise in futility to refer a matter to the Court of Criminal Appeal where the Court of Criminal Appeal has already decided that precise point.
MS DOWLING: Yes. And, of course, if there was a conviction on the other basis of liability, then it really does become an advisory opinion.
BEECH‑JONES J: But that is what it is ‑ ‑ ‑
GORDON J: It is what it is – exactly.
BEECH‑JONES J: ‑ ‑ ‑ is it not? That is what those provisions are for.
MS DOWLING: Yes. My familiarity with 5A of the Criminal Appeal Act suggests that it has been narrowly – my memory is that it has been quite narrowly construed, to greatly confine the type of question that may be referred to the Court of Criminal Appeal.
GAGELER CJ: To focus on the trial that was had.
MS DOWLING: Yes. So, that is my submission in relation to 5A. That is all that I wish to say in reply, unless I can help your Honours further.
GAGELER CJ: You were going to reformulate the orders you seek. It would be helpful if that could be done in the form of a further amended notice of appeal.
MS DOWLING: There are two – there are the orders that are sought in the further amended notice of appeal, and then there is the formulation on the assumption that the notice of contention is upheld in this Court.
GAGELER CJ: So, your primary position is still what is contained in the proposed amended notice of appeal.
MS DOWLING: It is.
GAGELER CJ: And the alternative form of orders, you will put on a separate piece of paper?
MS DOWLING: Yes, I can do that.
GAGELER CJ: Could you do that very soon?
MS DOWLING: Immediately – yes.
GAGELER CJ: This morning?
MS DOWLING: It may be that it has already been done. It is being done.
GAGELER CJ: All right. Provide those, please, to the Registry as soon as you can, this morning. We will adjourn until 2 o’clock, when we will announce the course we will take.
MS DOWLING: Thank you, your Honours.
AT 11.07 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY
UPON RESUMING AT 2.01 PM:
GAGELER CJ: By majority and for reasons which will be provided, the Court makes the following orders:
1.Leave to file the proposed amended notice of appeal is refused.
2.Special leave to appeal is revoked.
The Court will adjourn until 10.00 am tomorrow.
AT 2.01 PM THE MATTER WAS ADJOURNED
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