R v Bosworth, Gibbins, Nance & Richards
[2007] SASC 150
•4 May 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BOSWORTH, GIBBINS, NANCE & RICHARDS
[2007] SASC 150
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice White)
4 May 2007
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY
Appellants found guilty of murder of one victim and causing grievous bodily harm with intent to do grievous bodily harm to another victim - alleged that the appellants attacked the occupants of a vehicle after a car chase in which the appellants' vehicle was pursued by the victims and their associates - alleged that murder victim killed by knife wound inflicted by one appellant and that other appellants liable in accordance with principles of joint liability.
Trial judge directed jury that mental element for murder would be established against secondary parties if they intended to cause grievous bodily harm or "anticipated that the infliction of grievous bodily harm was a possible incidence of the carrying out of the joint venture" - held that it was not made sufficiently clear to the jury that it was necessary to find that the secondary parties had foreseen that a co-accused might act with intent to inflict really serious injury as opposed to simply foreseeing that such injury might be caused.
Criminal Law Consolidation Act 1935 s 15; s 15(1); s 15(2); s 15(4); s 15(4)(a) & (b), referred to.
McAuliffe v The Queen (1995) 183 CLR 108; Gillard v The Queen (2003) 219 CLR 1; R v Sharah (1992) 30 NSWLR 292; R v Dang [2001] NSWCCA 321; Chan Wing-Sui v The Queen [1985] AC 168; R v Hartwick and Clayton (2005) 159 A Crim R 1, applied.
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY
Use of knife by co-accused to inflict fatal wound - whether trial judge adequately related principles of joint enterprise to facts by instructing jury on significance of knowledge or otherwise of principal offender's possession of knife - held that directions were required concerning the knowledge or otherwise of each secondary party as to the principal offender's possession of the knife in order to determine whether it had been established that grievous bodily harm was intended or contemplated as a possible incident of joint enterprise. Held further that the directions on this issue were inadequate.
Directions on this topic were also necessary in relation to the alternative offence of manslaughter.
Woolley, Woolley, Whitney & Rayment (1989) 42 A Crim R 418; Chan Wing-Siu v The Queen [1985] AC 168; Duong, Lu, Do & Tran (1992) 61 A Crim R 140; R v Cozzi (1999) 73 SASR 374, applied.
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE
Whether directions were requried in relation to -
(a) the relevance of intoxication to the principal offender's claim of self-defence and
(b) s 15(4) of the Criminal Law Consolidation Act 1935 dealing with resistance of another who is acting in response to an unlawful act.
Discussion as to directions required to be given concerning the implications for the defence of self-defence where participants engage willingly in a fight.
Whether directions on self-defence were sufficiently related to the facts of the case of each appellant.
Bedi v The Queen (1993) 61 SASR 269; Morgan v Colman (1981) 27 SASR 334; Zecevich v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; England v The Queen [2001] FCA 1722; R v Bikic [2002] NSWCCA 227; R v Nguyen (1995) 36 NSWLR 397, applied.
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY
Whether miscarriage of justice arose by reason of the case against the appellants being left to the jury on the basis of an intention to cause grievous bodily harm and not an intention to kill.
R v Cunningham (1981) 73 Cr App R 253; Clayton & Ors v The Queen [2006] HCA 58, applied.
R v BOSWORTH, GIBBINS, NANCE & RICHARDS
[2007] SASC 150Court of Criminal Appeal: Duggan, Gray and White JJ
DUGGAN J. The appellants were found guilty by verdicts of a jury of murdering Jeffrey Newman and causing grievous bodily harm with intent to do grievous bodily harm to Shayne Caddies. The prosecution alleged that the offences took place on 4 June 2004 at Elizabeth Grove. The appellants have appealed against their convictions.
According to the prosecution case, the offences took place against the background of a history of rivalry between two groups of youths. This culminated in a car chase in the Elizabeth area on the evening of 4 June 2004. The appellants were passengers in a Commodore sedan driven by a youth named Gabell who was not charged with any offence arising out of the incident.
The Commodore sedan was pursued by a Nissan utility driven by Shayne Caddies (“Caddies senior”) and a Mazda sedan driven by his son Shayne Caddies (“Caddies junior”). There were two passengers in the utility; Rajinesh Narayan and Jeffrey Newman. There were four passengers in the Mazda; Roxanne Barber, who is Caddies junior’s girlfriend, Adam Pockeridge, Marc Gower and Nathan Cronan.
At one point in the chase, the Commodore came to an abrupt halt outside the home of Warren Wittmann, an acquaintance of the appellant Gibbins. Wittmann’s house is situated on Main North Road, Elizabeth Grove.
According to the prosecution case, the four appellants alighted from the Commodore as soon as it stopped. They ran back towards the cars which had been following them and which had also come to a halt. Some members of the appellants’ group then attacked these vehicles, kicking them and smashing windows.
This was followed by a physical altercation between both groups after the occupants of the utility and the Mazda alighted from those vehicles. It is not in dispute that, in the course of that altercation, Jeffrey Newman was fatally stabbed by a single stab wound inflicted by the appellant Richards. Caddies senior’s jaw was broken and this incident gave rise to the charge of causing grievous bodily harm with intent to cause grievous bodily harm. The Crown alleged that this injury was caused by the appellant Gibbins, although the appellant Nance admitted to kicking Caddies senior while he was on the ground.
I will say more about the lead-up to the incident and the circumstances of the incident itself in the course of these reasons.
The appellants were presented for trial on an information which alleged the following offences:
First Count
Statement of Offence
Murder. (Section 11 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Adrian Steven Bosworth, Wayne Robert Anton Gibbins, Ashley Mathew Nance and Clinton John Richards on the 4th day of June 2004 at Elizabeth Grove, murdered Jeffrey Newman.
Second Count
Statement of Offence
Causing Grievous Bodily Harm with Intent to do Grievous Bodily Harm. (Section 21 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Adrian Steven Bosworth, Wayne Robert Anton Gibbins, Ashley Mathew Nance and Clinton John Richards on the 4th day of June 2004 at Elizabeth Grove, unlawfully and maliciously caused grievous bodily harm to Shayne Caddies, with intent to do him grievous bodily harm.
Third Count
Statement of Offence
Assault Occasioning Actual Bodily Harm. (Section 40 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Adrian Steven Bosworth, Wayne Robert Anton Gibbins, Ashley Mathew Nance and Clinton John Richards on the 4th day of June 2004 at Elizabeth Grove, assaulted Shayne Caddies, thereby occasioning him actual bodily harm.
The third count was charged as an alternative to the second count.
The prosecution case on the charge of murder proceeded on the basis that the appellant Richards was the principal offender and that the other appellants were parties with him to an agreement involving a common unlawful purpose to intentionally inflict grievous bodily harm, or alternatively, that they were part of an agreement to assault others and that the intentional infliction of grievous bodily harm was a possible incident in the venture. The same basis was put forward to found secondary liability for the offence of causing grievous bodily harm with intent to cause grievous bodily harm to Caddies senior.
The appellants against whom secondary liability was asserted denied that they were parties to an agreement of the kind alleged and all appellants claimed to be acting in self-defence throughout the incident. The grounds of appeal relate mainly to the directions given by the trial judge to the jury in relation to joint enterprise and self-defence. It is convenient to consider first the appeals against the convictions for murder.
The appeal by the appellant Richards
Mr Richards denied acting pursuant to a common unlawful purpose and he claimed that, at all times, he was acting in defence of himself and the other occupants of the Commodore.
Richards was the only appellant to give evidence at the trial.
Richards was 21 years of age at the time of the incident. He gave evidence about meeting up with Ryan Gabell and the appellant Gibbins during the afternoon of 4 June 2004. He said that during the afternoon he was driving around with these two youths and they saw Mr Nance and Mr Bosworth walking along a side street. Nance and Bosworth then joined them in the vehicle and they went to Mr Gibbins’ house.
Later, as they were driving around the area, Mr Richards said that the Commodore driven by Mr Gabell was rammed from behind by another vehicle. He said that, at this point, he realised that two cars were following the Commodore. He said that these two vehicles then chased them through streets in the area. He said he believed that their vehicle was rammed on three or four occasions by one or other of the vehicles chasing them. He said he realised that there were a number of occupants in each of the pursuing vehicles. He said that he believed that he saw some of the passengers in those vehicles with weapons such as a machete or a pole. According to his evidence, there was chaos in the vehicle in which he was travelling and the passengers were shouting. He said he thought they were going to be killed by being run off the road. His examination-in-chief continued:
Q.When you thought you might be run off the road and these people might attack you, did you do anything?
A.Yes, I did.
QWhat did you do?
A.I looked for something in the vicinity of where I was sitting, something to protect myself.
Q.Were you looking for anything in particular?
A.No, I would have - anything like that I could use, anything.
Q.As you looked, did you find anything?
A.Yes, I did.
Q.What did you find?
A.I found a knife.
Q.As best you can now remember, where was the knife when you found it?
A.Under - just a little bit out from under the front passenger seat, just under it a little bit.
Q.Had you seen that knife at any time. So far as you know, had you seen that knife before?
A.No, I had not seen that weapon prior.
Q.You hadn't seen it, no-one had produced it or shown it to you in the course of the afternoon or the evening?
A.No, I did not.
Q.So then why, when you found the knife, what did you do, having found it in the condition you described. What did you do, did you pick it up or leave it there or what?
A.I picked it up.
Q.Why did you pick it up?
A.Because I feared for my life.
Mr Richards said that the vehicle in which he was travelling stopped and he thought that someone may have pulled the handbrake. He said he got out of the car and ran to the utility in order to kick the door shut so that people could not get out of the vehicle. He said that when he got to the utility he kicked the window of the utility. A fight ensued and he heard someone scream out, “He has got a machete”. He said he then saw a person with a pole or machete in his hand. The person charged him. His evidence continued:
Q.As best you can describe it, what happened next?
AHe took a strike for my head and I ducked, it just missed me, and that's when I turned and I cut or stabbed this person.
Q.With what speed did that happen, how quickly did it happen?
A.One second, a second and a half.
Q.At the time that you stabbed this person, did you intend to kill that person?
A.No, I did not.
Q.Did you intend to harm that person in any way?
A.No, I did not.
Q.In the time that it all happened, did you have any intention at all, that you can think about?
A.My intention was to protect myself and that was the only intention I had, but I didn't have time to think about that intention, just instincts happened.
He said he then ran to Warren Wittmann’s house.
The grounds of appeal in the case of the appellant Richards relate to the directions on self-defence. The directions on this issue addressed two stages in the incident. The trial judge told the jury that they were to look at the state of mind of each appellant as he emerged from the Commodore at the scene of the incident. The jury were also directed to look at the state of mind of the actual perpetrators at the time of the stabbing of the deceased and the alleged assault on Caddies senior. The directions are considered in more detail later in these reasons.
Ms Davison, for Mr Richards, submitted that the trial judge failed to direct the jury on the significance of intoxication to the defence of self-defence. She pointed out that Mr Richards claimed he had a large amount to drink on the evening of the offence and that he was also smoking marijuana.
Reliance was placed on the following statement in Bedi v The Queen[1]:
The appellant’s intoxication was also relevant to the defences of self-defence and defence of property which he raised. In deciding whether the prosecution had negatived a genuine belief that the actions taken by the appellant were necessary and reasonable in defence of himself or his property it was necessary for the jury to consider the effect of the consumption of alcohol and marijuana on his perception of events.
[1] (1993) 61 SASR 269 at 274.
The learned trial judge directed the jury on the relevance of intoxication generally. He said:
I will just deal with one or two matters which perhaps affect the reliability of evidence given by witnesses, and this is the final general comment I make about assessing evidence.
It would have been obvious to you during the course of the trial that the recollection of a number of the witnesses may well have been affected by various factors. You should make allowance for that in determining how much reliance you can place on the evidence of a particular witness.
Factors which are relevant to that aspect of the matter include the consumption of alcohol and the ingestion of marijuana. A number of witnesses spoke of having used one or both of those substances during the course of the day leading up to the fight.
There is no evidence about the effects of the use of marijuana, but so far as alcohol is concerned you may take into account your ordinary experience of life, and your observation of people who have been affected by it.
It is common knowledge that drinking alcohol can release inhibitions, cause people to do things that they would not dream of doing when sober. In some people it can cause them to be aggressive. It can also affect their perception of things happening around them, they can misjudge the actions of others and make inappropriate responses to situations.
Alcohol can also affect one’s understanding of what is occurring at the time and one’s recollection afterwards of what may have happened while they were affected by alcohol.
However, nothing was said during the summing-up as to the relevance of intoxication to self-defence.
In the course of their deliberations, the jury returned with a question which was in the following terms:
Can you please clarify the use of drugs and alcohol by the defendant Clinton Richards in our decision to choose between murder and manslaughter?’
The trial judge commenced his answer to the question by repeating what he had said in his summing-up in the passage set out above. He continued:
Now, as you have raised this question specifically with reference to Clinton Richards, what I would say about those matters, they are just general things that you would bear in mind. You do not have any evidence as to just how it affected Clinton Richards in particular. Nobody said he was staggering, nobody said he was obviously drunk or incoherent or whatever. There are no observations of him which would enable you to be more specific about those things. They were general observations that I made to you to explain the sorts of things that you might make allowance for.
But there is obviously a limit, in Mr Clinton Richards’ case, as to your assessment of the extent to which alcohol or drugs might have affected him at the critical time.
His Honour then addressed the question asked by the jury more specifically and commented on the requirement of voluntary action and the specific intent required for the offence of murder. He continued:
So that if his awareness as to the circumstances surrounding the conduct was impaired by alcohol, you may allow for that, and if you want to have regard to the question whether the Crown has established beyond reasonable doubt that he had the necessary intention to cause grievous bodily harm, that is, as opposed to his intention to actually stab, the consequence, namely, if you want to address the question whether the Crown has proved he had the intention to cause grievous bodily harm, you can take into account what the evidence tells you as to his consumption of alcohol and drugs.
Before the jury retired to the jury room, the following exchange took place between his Honour and counsel for Mr Richards:
HIS HONOUR: Does that cover it?
MR APPS: Yes, it has clearly covered the question. It may assist the jury to remember with manslaughter as with murder there still remains that other issue of self-defence which has not been directly raised by the question.
HIS HONOUR: Are you saying that it may affect the question whether he thought he was under threat?
MR APPS: No, not so much that, I mean simply that in their deliberations, as they are looking at murder, manslaughter, the effect of alcohol, and that’s as I understand it, the question is confined to that, but a consideration of the question of the ingestion of alcohol and its effects does not remove a consideration later on down the line perhaps of the issue of self-defence, it’s still there.
HIS HONOUR: I have explained to you what state of mind he had to have with respect to self-defence and I explained all of that to you. There were two questions.
The first of them depended on his own state of mind, the second of them depended on whether the action was reasonably proportionate and does not depend on his state of mind, it depends on what you think. To the extent that his state of mind is relevant either to the elements of murder and manslaughter or the question of self-defence, you can take it into account.
Of course you first have to come to a view as to what extent it may have affected him and, as I say, we do not get a lot of help out of the evidence there.
It is apparent that in this final comment, his Honour adverted to the relevance of intoxication to each of the two stages of the statutory test for self-defence. His Honour was correct in pointing out to the jury the paucity of the evidence concerning the effects of drugs and alcohol which Mr Richards claimed he had consumed. Mr Richards said he was drinking on the evening of the offence and he was also smoking marijuana. He claimed that he drank 11 or 12 cans of pre-mixed bourbon.
The prosecution sought to rely on these assertions to establish that Mr Richards’ account of events was unreliable. Mr Richards was cross-examined on the topic after he said he was not driving on that evening:
QIt would have clouded your judgment a bit, wouldn’t it, that much to drink and cannabis?
AYes,
QWould have changed the way you look at things, wouldn’t it?
AYes.
QThat’s why you smoke it, cannabis, isn’t it?
AYes.
QThat’s why you drink, isn’t it?
AYes.
QWhen you have 11 or 12 cans and that many bongs, it changes the way you look at things pretty significantly, doesn’t it?
AYes.
QYou are not even sure where you were and how you got there, are you?
ANot – yes, I’m aware - I did not know exactly the route we took to –
QMr Richards, that must have clouded your recollection of everything that happened that night?
ANo.
QNo?
ANo.
QYou can flash in and out, can you?
ANo.
QWell you must be able to flash in and out if you can remember some things really well, but not others?
AWell, when we were attacked, it scared me sober.
QScared you sober?
AOh yes.
Mr Richards appears to have given a clear account of the altercation with the occupants of the other vehicles. There is no suggestion in his evidence that his perception of events was impaired in a manner relevant to the assessment of the defence of self-defence. He was able to give a clear account of the events relevant to self-defence. Furthermore, his counsel at the trial did not rely on impaired perception as being in any way relevant to self-defence.
In my view, it would have been appropriate for the trial judge to have addressed this issue when he discussed self-defence in the early part of his summing-up. However, he did mention it, albeit briefly, when answering the question by the jury. And apart from the assertion made by this appellant that he had a large quantity of alcohol to drink and that he had been smoking marijuana, there was no other evidence upon which the jury could have made any assessment as to impairment of perception.
For these reasons, I am of the view that no miscarriage of justice resulted from the failure of the trial judge to deal with this issue in more detail.
The next ground of appeal raised on behalf of Mr Richards complained that:
The Learned Trial Judge erred in not directing the jury in terms of section 15(4) of the Criminal Law Consolidation Act1935, in that the applicant would not have been guilty if he had resisted the attack of the deceased, who in turn was responding to an attack by him, genuinely believing on reasonable grounds that the deceased was acting unlawfully.
Section 15(4) of the Criminal Law Consolidation Act 1935 (“the Act”) states:
However, if a person –
(a) resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or
(b) resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party;
the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.
In my view, this provision has no relevance in the present case.
The purpose of sub-section (4)(a) is clear enough. It deals with resistance to a person who is purporting to act in enforcement of the law. Self-defence or defence of another is not available in such circumstances unless the person who is resisting genuinely believes on reasonable grounds that the other person is acting unlawfully.
Sub-section (4)(b) addresses the situation where a person resists another who, although not purporting to act in an official capacity, is nevertheless acting in response to an unlawful act. The sub-section contemplates a situation in which the person resisting has acted in an unlawful way towards another person who responds in some way, presumably by using or threatening force. The person resisting cannot be said to be acting for a defensive purpose unless he or she genuinely believes on reasonable grounds that the other person is acting unlawfully.
If sub-section (4)(b) were to be applied to Mr Richards, it would be on the basis that he had committed some unlawful act towards Mr Newman who had responded to that unlawful act, causing Mr Richards to resist that response. This is not the way in which Mr Richards sought to put forward his case of self-defence. He denied that this incident resulted from an unlawful act on his part.
In my view, sub-section (4) has no application to a case such as the present, where it is alleged that force was used as a protection against a straightforward demonstration of violence initiated by Mr Newman and his associates. If it were otherwise, then sub-section (4) would replace the requirements of s 15(1) of the Act in every case in which it was alleged that defensive means were taken in the face of actual or apprehended violence.
Next, the appellant Richards complained of a misdirection in the following passage in the summing-up:
So in considering the question of self-defence in this case, the first stage is to look at the state of mind of each of the accused as they emerged from the VL Commodore, and then you look at the state of mind of Clinton Richards when he knifed Jeffrey Newman, and the state of mind of Wayne Gibbins and Ashley Nance when they struck Shayne Caddies Senior.
As I understand the argument on this ground, it is that the relevant time for considering Mr Richards’ state of mind for the purposes of self-defence is at the time of the stabbing and that the jury would have been confused by the direction to consider the state of mind of each appellant as he emerged from the vehicle.
I agree that the crucial time for considering Mr Richards’ state of mind for this purpose was the time of the stabbing. However, in order to consider self-defence in its application to the alleged secondary offenders, it was relevant to consider first the state of mind of each of them immediately prior to the commencement of the altercation. This included Mr Richards in so far as the offence alleged in relation to Caddies senior was concerned.
In so far as the charge of murder against Mr Richards is concerned, the essential question raised by this ground is whether the trial judge made it clear to the jury that they were to determine the issue of self-defence by reference to his state of mind at the time of the stabbing.
This instruction was given to the jury in the passage in the summing-up which is impugned by this ground. The trial judge said that the next task was to look at the state of mind of Mr Richards at the time he stabbed the victim.
His Honour repeated this direction a short time later in his summing-up when he told the jury that, when considering self-defence, they were to address the state of mind of the perpetrator or perpetrators against the background of events which preceded the incident but that, as far as Mr Richards was concerned, the time at which that assessment was to be made in relation to the charge of murder was at the time of the stabbing.
Later, when considering the partial defence to murder under s 15(2) of the Act in relation to the perpetrators in each alleged offence his Honour said:
So this central issue, for the purposes of these questions, is the state of mind of each of Wayne Gibbins and Ashley Nance, and Clinton Richards. You must have regard to the state of mind of those people at the time when the acts said to constitute the offence in question [occurred].
In my view, the jury could not have been left with any impression other than that the relevant time for considering Richards’ state of mind for the purposes of assessing the issue of self-defence in relation to the charge of murder was at the time of the stabbing.
There is a further ground in relation to self-defence which was raised by the appellants Nance and Richards. It arises out of the following comment by the trial judge:
Self-defence would have no place and could not afford a defence to charges of murder and assault if you simply had a situation where there was no more to it than two groups of people both attacking each other. If that was all that was involved then you would not have to consider the question of self-defence. If you have just got an all-in brawl between two groups of people, you would not be troubled about self-defence.
After an adjournment his Honour returned to this comment. He said:
I said mutual aggression between two people that resulted in an all-in brawl would not leave it open for self-defence, but in this case you have to address that doctrine.
I did not mean to convey that you need not necessarily regard this as just an all-in brawl. It is open for you on the evidence in this case to think it is in that category an all-in brawl, stoush, a fight which was not prompted by self-defence but it was just a matter of each of them having it out with the other. I did not mean to suggest that was not a possibility in this case. Of course it may be, it is up to you to make a decision as to that, otherwise however you have to go on and look at this question of self-defence.
It is clear that the trial judge was referring to the situation where a person willingly engages in an unlawful fight. If there is no more to it than that, then the participant in the fight cannot claim that he was acting in self-defence.
When explaining the principles in self-defence in Morgan v Colman[2], Wells J said:
Defence means defence; a person who claims to have been acting in justifiable self-defence must have acted, and believed himself to have been acting, in defence. To engage willingly in combat is not acting in self-defence.
See also Zecevich v Director of Public Prosecutions (Vic)[3]; England v The Queen[4]; R v Bikic[5].
[2] (1981) 27 SASR 334 at 336.
[3] (1987) 162 CLR 645 at 663-4.
[4] [2001] FCA 1722 at [52].
[5] [2002] NSWCCA 227.
The trial judge prefaced these remarks by postulating a case of “mutual aggression” between the two opposing groups. He also referred to “pure aggression” on either side so that “both attacked each other”.
Understood in this context, the trial judge was not referring to an “all-in brawl” irrespective of the manner in which it commenced, but rather a situation “where what is going on is a fight which the fighters have willingly joined in, whether to carry out or settle a quarrel, or for some other reason”: R v Nguyen[6].
[6] (1995) 36 NSWLR 397 per Priestley JA at 407.
In my view, the appeal by Mr Richards against the conviction for murder should be dismissed.
The appeals by the appellants Bosworth, Gibbins and Nance
The grounds of appeal relating to these appellants complain mainly of the directions given on the issues of joint enterprise and self-defence. A number of the grounds were common to the appeals of all three appellants.
Joint enterprise and extended common purpose
Before commenting on the matters raised in the grounds of appeal relating to the directions on joint enterprise, it is necessary to say something about the versions which Bosworth, Nance and Gibbins gave to the police.
Mr Bosworth said that he and the appellant Nance were walking along a side-street next to Bosworth’s house when they were given a lift by Ryan Gabell, who was driving the Commodore. Bosworth and Nance said they were going to a party at Craigmore and they accepted a lift. The appellants Gibbins and Richards were also in the vehicle. Bosworth said they then went to Gibbins’ house. Later they drove away from the house and it was then that they were chased by the utility and the Mazda.
Mr Bosworth said that he had not been involved in any previous incidents with the occupants of those vehicles. He added that he did not know them. He said that the utility rammed the Commodore on a couple of occasions during the chase and he was terrified. He said he thought that at one stage someone pulled the handbrake on the Commodore. He said the only conversation he heard in the Commodore when it stopped was someone saying, “Go, move it, before I get smashed”.
Mr Bosworth said that, to his knowledge, no-one in the Commodore took a weapon from the car when it stopped. He said he had no knowledge of the knife in Richards’ possession at any time. According to his version, he did not attack the other vehicles. Bosworth said that shortly after he alighted from the Commodore, someone came at him with a pole and attempted to swing it at him. The person was holding it over his head and Bosworth said that he hit the person in the jaw, grabbed the pole from him and hit him on the head with the pole. It appears to be common ground that the person that Bosworth hit was the deceased. Bosworth said he left the scene shortly afterwards in the Commodore and, after going to a friend’s house, they rang the police. He told the police:
I did not know there was any weapons in the car. If there was I did not know who had it, especially not a knife and I couldn’t tell you who stabbed him because I didn’t see it.
Mr Nance told the police that he and Bosworth were given a lift in the Commodore and they went back to Gibbins’ house. He said that, after leaving the house they were driving up the road and a vehicle rammed into the rear of the Commodore. He described the chase which followed. He said that when the Commodore stopped, everyone jumped out of the car because they did not want Gabell’s car to be smashed and they were not going to sit there and “get mobbed”. He said he ran towards the vehicles which had been chasing them. He said that before he reached the vehicles an older man (Caddies senior) swung at him with a pole. Nance said he dodged the pole and Gibbins then hit the older man in the face, causing him to drop to the ground. Nance said that he jumped over the person who was on the ground but kicked him in the head at the same time. He said he was unsure whether the person had his pole at that stage. He then went over to one of the vehicles and kicked it. He said he did not know that anyone had a knife until after the altercation. He said he did not know where the knife came from, because it was not in Gabell’s car. He said that the occupants of his car did not have weapons in the car.
Mr Gibbins told the police that he had been warned earlier in the evening that the occupants of two cars were out looking for him. He said that Gabell arrived at his house with the other appellants and he decided to leave the house. He said it was not long after they left the house that one of the other vehicles rammed their car. He said he was terrified throughout the incident. He described the chase. He said that when the Commodore stopped he jumped out of it and ran to some bushes. He said the occupants of the other vehicles got out and he saw one of them standing over Ashley Nance about to hit him with a pole. Mr Gibbins said that he then approached the man with the pole and punched him on the right jaw. The man dropped to the ground.
Mr Gibbins said that none of the people in the Commodore had weapons, although he said he did have some drink cans which he carried out of the vehicle. He said he did not smash the windows of any cars. When asked why he punched the man, he said:
He had a pole and he was going to hit one of my mates.
He said he delivered only one blow and that was with a clenched fist.
The trial judge commenced his directions on joint enterprise with the following general statement:
If two or more persons act together in pursuance of a common unlawful purpose, every act done in furtherance of that purpose, by any one or more of them, is in law done by them all. In other words, the actions of any one or more of a number of persons with a common criminal intent, which is previously agreed on by them, may make them all guilty of the resulting crime.
His Honour then gave the common example of various participants in a bank robbery. He continued:
In order to prove that an accused who is not the actual perpetrator, or who has not been shown to be the actual perpetrator, is guilty of the crime charged, it is necessary for the prosecution to prove beyond reasonable doubt these elements.
One, that the alleged crime was committed. In this case, murder, on the one hand, and one of the two forms of aggravated assault on the other.
Two, that the accused - that is the particular accused whose guilt you are considering - was party to a common purpose or agreement between them and one or other of the accused.
Three, that the common purpose or agreement included, at least with respect to the first two counts, the infliction of grievous bodily harm, or at least the infliction of grievous bodily harm was within the contemplation of the parties to it, a possible incidence of the carrying out of the joint venture.
As to the third count, it would be sufficient if the scope of the joint venture included an assault involving the infliction of actual bodily harm - and the difference has already been explained to you and I will repeat it later - in the course of carrying out the joint enterprise.
Four, that the particular accused whose guilt you are considering was present at or in the vicinity of the scene of the crime by playing out his part in carrying out the common purpose or being ready to do so if required.
The trial judge then stated that mere presence at the scene of a crime does not necessarily involve participation in that crime. He said there need not be a formal agreement in order to constitute a common understanding, but that a tacit understanding would suffice. He added that the necessary agreement could be reached “on the spur of the moment”. He said:
All that needs to be shown is that, on this night, when they emerged from the VL Commodore - that is the time when you have to apply your mind to this principle - there was an understanding between them that they would attack the occupants of the utility and the Mazda, and that grievous bodily harm would, or could possibly, be inflicted in carrying out that understanding.
The directions continued:
In this case, on the issue of joint enterprise, what the Crown must satisfy you of beyond reasonable doubt is that when the accused emerged from the VL Commodore, their intention, which was common between the four of them, or at least between the particular accused whose guilt you are considering, and another or others of them, was that they would assault the occupants of the utility and the Mazda and that they intended to cause grievous bodily harm to them, or anticipated that the infliction of grievous bodily harm was a possible incidence of the carrying out of the joint enterprise.
The point in issue in this ground of appeal arose in R v Hartwick and Clayton[7]. In that case it was argued that the trial judge failed to direct the jury that, in order for extended common purpose liability to apply, the prosecution would have to prove not only that the principal committed the actus reus of the offence, but it was necessary also to prove foreseeability on the part of the accessory of the principal’s intention to commit the relevant crime.
[7] (2005) 159 A Crim R 1.
The Victorian Court of Criminal Appeal were of the view that such a direction was necessary, but it was held that, on the facts of that case, the direction had been given and that there was no chance that the jury might have thought it was open to convict the accused on the doctrine of extended common purpose “without being satisfied that the accused had foreseen that a co-accused might act with intent to kill or inflict really serious physical injury”[8].
[8] at [19] and [20].
Leave to appeal on other grounds was refused by the High Court Clayton & Ors v The Queen[9]. The court refused the invitation of the appellants to reconsider the principles of extended common purpose which were established in McAuliffe v The Queen[10] and Gillard v The Queen[11]. The summary of those principles in the joint judgment of Gleeson CJ, Gummow, Hayne, Callinan, Haydon and Crennan JJ at [17] is relevant to the present ground of appeal:
A person who does not intend the death of the victim, but does intend to do really serious injury to the victim, will be guilty of murder if the victim dies. If a party to a joint criminal enterprise foresees the possibility that another might be assaulted with intention to kill or cause really serious injury to that person, and, despite that foresight, continues to participate in the venture, the criminal culpability lies in the continued participation in the joint enterprise with the necessary foresight McAuliffe v The Queen (1995) 183 CLR 108 at 118; Gillard v The Queen (2003) 219 CLR 1 at 36 [112]. That the participant does not wish or intend that the victim be killed is of no greater significance than the observation that the person committing the assault need not wish or intend that result, yet be guilty of the crime of murder. (emphasis added)
[9] [2006] HCA 58.
[10] (1995) 183 CLR 108.
[11] (2003) 219 CLR 1.
It was submitted on the hearing of the present appeal that the trial judge’s directions did not effectively draw a distinction between contemplation of the intentional infliction of grievous bodily harm as a possible incident of the common criminal enterprise and a realisation that grievous bodily harm might occur. The former requires contemplation of an intention to cause grievous bodily harm; the latter would require no more than a realisation that such harm might occur. In each of the above passages, the trial judge, when identifying the necessary state of mind to establish liability by way of extended common purpose, referred to the contemplation of grievous bodily harm resulting, but did not refer to the contemplation of an act being done with the intention to cause grievous bodily harm.
In McAuliffe v The Queen[12], the court approved the trial judge’s direction that –
A shared common intention – that is, a common purpose, to inflict grievous bodily harm or an individual contemplation of the intentional infliction of grievous bodily harm as a possible incident of the venture would be a sufficient intention on the part of either of [the accused] for the purpose of murder. (emphasis added)
[12] (1995) 183 CLR 108 at 118.
In Gillard v The Queen[13], this aspect of joint enterprise arose in the course of a discussion on the difference between murder and manslaughter in the circumstances of that case. In their joint judgment, Gleeson CJ and Callinan J, after referring to McAuliffe’s case, said at [25]:
The general principle there referred to extends to the possibility that a person who intentionally assists in homicide may be guilty of manslaughter even though the principal offender is guilty of murder. The existence of that possibility assumes a difference in the intentions of the two parties. The secondary party may not know of, or foresee, the principal offender's murderous intention, but may foresee the possibility of the act causing death as an incident of the common design. The essence of the reasoning in the above passage is that, when the secondary party continues to participate in the venture without having agreed to, but foreseeing as a possibility, the act causing death, that party is regarded as intentionally assisting in the commission of a crime. In the present case, if a jury decided that the appellant foresaw as a possibility that Preston would fire the loaded gun at Knowles, and continued to participate with that foresight, then he would be intentionally assisting in the commission of culpable homicide. The level of his own culpability would depend upon whether he foresaw that Preston might act with intent to kill or cause grievous bodily harm. (emphasis added)
[13] (2003) 219 CLR 1.
In R v Sharah[14], Carruthers J (Gleeson CJ and Smart J concurring) said:
It is well-established that there are two classes of common purpose murder. The first class is where the Crown proves that the accused was present and that the deceased was killed in accordance with an understanding or arrangement to which the accused was a party and that that understanding or arrangement included the intent charged, that is, either to kill or to cause grievous bodily harm. The second class of case is where the accused lends himself to a criminal enterprise knowing that a potentially lethal weapon was being carried by one of his companions and in the event that it is in fact used by one of his partners with an intent sufficient for murder, then the accused too will be guilty of that offence of murder if the Crown establishes beyond reasonable doubt that the accused contemplated that in the carrying out of the common unlawful purpose, one of his partners might use a lethal weapon with the intention of at least causing serious bodily harm. (emphasis added)
[14] (1992) 30 NSWLR 292 at 301.
In R v Dang[15], the New South Wales Court of Criminal Appeal approved directions on extended common purpose which included the following direction which is set out it the judgment of Wood CJ at CL [16]:
The fifth element of the offence of murder which the Crown must prove beyond reasonable doubt is that, at the time of entering into the joint criminal enterprise to rob Miss Kaskardi and up to and including the time of the stabbing the accused contemplated that, as an incident in the carrying out of the joint criminal enterprise to rob Miss Kaskardi, Mr Ton might use the knife to stab someone, otherwise than in self-defence, with the intention of killing or with the intention of inflicting grievous bodily harm and the accused, having that contemplation, continued to participate in the joint criminal enterprise to rob Miss Kaskardi.
[15] [2001] NSWCCA 321.
These authorities reflect the rationale for extending liability for the crime of murder in such circumstances. Liability is imputed because the commission of an offence outside the scope of the common purpose is contemplated as a possibility in the carrying out of the enterprise: McAuliffe at [115]. Contemplation for this purpose requires advertence to the possibility that the actor will carry out the act accompanied by the necessary intention to commit the offence. The intention for murder relevant to this case is the intention to cause grievous bodily harm. It is of significance that in McAuliffe’s case, at [116], the court quoted with apparent approval the formula for jury directions suggested by Sir Robin Cooke in the advice prepared by him in Chan Wing-Siu v The Queen[16]:
… did the particular accused contemplate that in carrying out a common unlawful purpose one of his partners in the enterprise might use a knife or a loaded gun with the intention of causing really serious bodily harm?
[16] [1985] AC 168 at 178.
If no weapon is involved, the direction may be adapted accordingly, but the requirement for contemplation of the possibility of the act being accompanied by the intention to cause really serious bodily harm would remain.
In the present case, the trial judge referred to the intentional infliction of grievous bodily harm being within the contemplation of the secondary parties in one passage in his summing-up. He said:
A person is criminally liable only for the acts that are carried out within the scope of the common purpose to which he was a party.
In this case, on the issue of joint enterprise, what the Crown must satisfy you of beyond reasonable doubt is that when the accused emerged from the VL Commodore, their intention, which was common between the four of them, or at least between the particular accused whose guilt you are considering, and another or others of them, was that they would assault the occupants of the utility and the Mazda and that they intended to cause grievous bodily harm to them, or anticipated that the infliction of grievous bodily harm was a possible incidence of the carrying out of the joint enterprise.
It is not necessary, with respect to count 1, that they had an intention, or specific intention, to kill. The Crown, through Mr Hinton, does not rely on an intention to kill. It is sufficient if they had an intention to cause or inflict grievous bodily harm. That is a sufficient intention to make them liable for the murder of Jeffrey Newman and the assaults on Shayne Caddies Senior if the elements of murder and aggravated assault were otherwise proved.
What the Crown has to prove - I am sorry to labour it - is that each of the accused contemplated that the killing or the intention of infliction of grievous bodily harm by one or other of them was a possible outcome of the joint enterprise and that, with that knowledge or foresight, each continued to participate in that enterprise.
In the final paragraph of this passage, the trial judge refers to an intention to cause grievous bodily harm when discussing what is contemplated as a possible outcome of the joint enterprise. However, in the second paragraph, when referring to the alternative state of mind, he speaks of the infliction of grievous bodily harm as a possible incident of the carrying out of the venture.
The written directions provided to the jury by the trial judge, when dealing with the contemplation of the appellants, do not refer to the contemplation of an intentional infliction of grievous bodily harm. In the written directions, the trial judge referred to the requirement –
That the common purpose or agreement to which the joint enterprise to which the particular accused is a party relates included the unlawful infliction of grievous bodily harm or at least the unlawful infliction of grievous bodily harm was within the contemplation of the parties to it as a possible incidence of the carrying out of the venture.
It follows from what I have said that the complaint made by the appellants is made out to the extent that in most of the passages in the summing-up to which reference has been made, and in the written directions, the jury were given to understand that contemplation of the possibility of the infliction or unlawful infliction of grievous bodily harm was sufficient in order to establish the state of mind necessary to prove the charge of murder by way of extended liability. In my view, the jury should have been instructed that liability depended upon the particular accused contemplating that a co-accused would act with the intention of causing grievous bodily harm.
The appellants Bosworth, Gibbins and Nance contended that, in the summing-up, the principle of joint liability was not sufficiently related to the facts of the case, and that, the case of each of these appellants on the issue was not put to the jury adequately.
It is not in dispute that the Commodore was being chased by the other vehicles. It was important for the jury to decide whether to accept, as a reasonable possibility, the version given by the three appellants that, as a result of being chased and rammed, they got out of the vehicle; they were not armed at the time; and they had no knowledge that Richards was armed with a knife. In the light of the facts of the case, whether or not a particular accused was armed or had knowledge that another accused was armed were important considerations in the determination of the state of mind necessary for liability by way of joint enterprise and, in particular, extended common purpose. If it was reasonably possible that a particular appellant was not armed and had no knowledge of other appellants being armed, the matter would take on a different complexion. The jury would then have to decide whether, in the case of each of these appellants, the state of mind required to establish the crime of murder by way of joint enterprise or extended common purpose had been proved by the prosecution in those circumstances.
If the appellants agreed to inflict grievous bodily harm or an intention to inflict grievous bodily harm was within the contemplation of the appellants, knowledge of the manner in which such harm was to have been caused would not have been essential for liability for the crime of murder: Woolley, Woolley, Whitney & Rayment[17]. However, the question whether or not a particular appellant had knowledge that weapons might be used remains important in determining whether there was an intention to inflict grievous bodily harm or whether conduct involving such an intention was contemplated.
[17] (1989) 42 A Crim R 418 at 438.
As it was, the jury received no instruction on the evidence relevant to whether the appellants other than Mr Richards intended to cause grievous bodily harm or anticipated the intentional infliction of grievous bodily harm. In particular, they were not directed on the relevance of the presence or otherwise of knowledge on the part of each of the alleged secondary parties as to whether anyone in their group was carrying a weapon.
There was no direct evidence that the other appellants were aware that Mr Richards had the knife in his possession at any time prior to or during the incident. Furthermore, the attention of the court on the hearing of the appeal was not directed to any evidence from which such an inference might be drawn.
However, Mr Hinton, for the Director of Public Prosecutions, submitted that there was evidence on which the jury could conclude beyond reasonable doubt that the appellants embarked on a joint enterprise with intent to cause grievous bodily harm or at least contemplated as a possibility that such harm would be caused intentionally.
According to the prosecution argument, it was open to the jury to conclude that the Commodore was brought to a halt outside Mr Wittmann’s home after the occupants deliberately refrained from driving to the Elizabeth Police Station which was not far from the route they took during the chase. It was argued that there was some significance in the fact that the occupants of the Commodore moved quickly towards the other vehicles and started to damage those vehicles. It was also said that the appellants could have left the area after getting out of the car. Finally, it was argued that there was some evidence to suggest that the appellants or some of them were armed with poles and other weapons. Some weapons of this nature were found at the scene after the incident. It was argued that these were additional to the weapons which were acknowledged to be in the possession of the occupants of the other group, although it was conceded that other persons who were not occupants of the three vehicles may have joined in the incident and that these persons could have been armed. There was also the evidence that Mr Gibbins took some drink cans from the Commodore.
Nevertheless, the trial judge did not direct the jury’s attention to this material in the course of a specific discussion on the evidence relevant to the formation of a joint enterprise and the intention or state of mind of the appellants in relation thereto. The jury were not invited to make findings on that evidence, nor were they directed on the implications of any findings which they might have made on the evidence.
The trial judge made two observations in the course of his summing-up which are relevant to the present discussion. After referring to the prosecution argument that the knife used in the incident came from Christopher Short’s house, his Honour said:
You also have to consider other evidence which suggests that those who finally emerged from the VL Commodore on Main North Road, or some of them, were armed.
His Honour also said:
It is open for you on the evidence, as I said, to find that the knife with which Jeffrey Newman was stabbed was taken some time before the chase and before the fight from Christopher Short’s house. It is equally open to you to find that it was returned to his house, or at least thrown into a shrub at the back of his house, or under a shrub, and was later retrieved after having been put into a rubbish bin in a nearby street.
It is a matter for you to consider what conclusions you might draw from those circumstances, and whether they throw any light on the question whether or not you can accept the assertions made by those associated with the VL Commodore; that they were unarmed, and that there were no arms in the car, and it was the Caddies and those associated with them who were armed and put fear into them.
This was the only reference in the summing-up to the assertions by Bosworth, Gibbins and Nance that, to their knowledge, their group was unarmed. There were no directions to the jury requiring them to consider whether such assertions were reasonably possible and, if so, the significance of such a finding on the issue of the scope of any joint enterprise which arose.
In these circumstances, it cannot be said that the jury were sufficiently equipped by the summing-up to determine whether, as the prosecution alleged, there was a common purpose to cause grievous bodily harm or whether any of the three appellants contemplated the intentional infliction of grievous bodily harm. A further difficulty lay in the fact that the summing-up in relation to both joint enterprise and self-defence tended to be in general terms as opposed to an examination of the situation of each appellant separately.
The practical considerations appropriate to a direction on extended liability were summarised by Sir Robin Cooke in Chan Wing-Siu v The Queen[18]:
The test of mens rea here is subjective. It is what the individual accused in fact contemplated that matters. As in other cases where the state of a person’s mind has to be ascertained, this may be inferred from his conduct and any other evidence throwing light on what he foresaw at the material time, including of course any explanation that he gives in evidence or in a statement put in evidence by the prosecution. It is no less elementary that all questions of weight are for the jury. The prosecution must prove the necessary contemplation beyond reasonable doubt, although that may be done by inference as just mentioned. If, at the end of the day and whether as a result of hearing evidence from the accused or for some other reason, the jury conclude that there is a reasonable possibility that the accused did not even contemplate the risk, he is in this type of case not guilty of murder or wounding with intent to cause serious bodily harm.
In some cases in this field it is enough to direct the jury by adapting to the circumstances the simple formula common in a number of jurisdictions. For instance, did the particular accused contemplate that in carrying out a common unlawful purpose one of his partners in the enterprise might use a knife or a loaded gun with the intention of causing really serious bodily harm?
The present was such a case. It was not necessary for the trial judge to say more on the subject than he did. He drew the jury’s attention fully to the unsworn statements of each accused. He emphasised that if the jury were to conclude that it was reasonably possible that an accused had an intention less than the infliction of serious bodily injury on any occupant of the flat, or that he did not foresee that one of his colleagues was going to inflict injury of a serious bodily nature, then that accused did not have the necessary intent or foresight of consequences for murder. He told them that if Tse thought that the knives would be used to do no more than frighten the occupants, then he would be guilty not of murder but of manslaughter.
[18] at 177.
There is the further consideration that, if the jury reached the conclusion that there was an agreement to inflict harm less serious that grievous bodily harm, the principles referred to in Markby v The Queen[19] would apply. The application of those principles would determine whether a verdict of manslaughter or a complete acquittal would be appropriate: see also Duong, Lu, Do & Tran[20]; R v Cozzi[21]. Knowledge or otherwise of the possible use of a weapon would be a relevant consideration in the application of these principles.
[19] (1978) 140 CLR 108 at 112.
[20] (1992) 61 A Crim R 140.
[21] (1999) 73 SASR 374 at 389.
It will be seen that these remarks raise the further consideration that, if the jury reached the conclusion that there was an agreement to inflict harm less serious than grievous bodily harm, consideration as to whether the accused was guilty of manslaughter would be relevant. Again, the question whether any member of the group, in particular Richards, was armed with a weapon would be a relevant factor for consideration in the manner explained in R v Cozzi.
There was a further ground of appeal put forward by the appellants which complained that the directions given by the trial judge on joint enterprise did not make it sufficiently clear that the enterprise had to relate to an unlawful purpose. It was also argued that the relationship between self-defence and the requirement of unlawful purpose was not explained adequately.
The trial judge commenced his directions on joint enterprise by referring to “a common unlawful purpose”. In the same passage he referred to “a common criminal intent”. The reference he then made to the example of a bank robbery included an obvious unlawful purpose.
It is true that the trial judge did not refer to the unlawfulness of the purpose when explaining the necessary elements of derivative liability as a result of an agreement or understanding. However, he told the jury that his comments on what was required to establish murder and manslaughter were “subject to this question of self-defence”. In dealing with the offence of causing grievous bodily harm with intent to cause grievous bodily harm, he said:
Once again, self-defence rises up as an issue.
In his later directions, his Honour said that the first stage at which the question of self-defence was to be considered was when the appellants emerged from the Commodore.
As has been pointed out, the written directions refer to the unlawful infliction of grievous bodily harm.
When the summing-up is read as a whole, the trial judge said enough to indicate that any agreement or understanding had to involve an unlawful purpose and that, in the circumstances of this case, consideration of self-defence was essential to the assessment of guilt.
Self-defence
Next, criticism was made of the directions on self-defence in so far as they related to the appellants who were charged as secondary offenders.
It was necessary for self-defence to be considered in relation to two stages in the history of the events. In considering whether a particular accused was acting in concert with others to pursue a common criminal design, it was necessary to address the issue of unlawfulness. This involved consideration of the defence of self-defence. The test prescribed by s 15(1) of the Act had to be applied to the circumstances and, in the case of the first count in the information, it was necessary to consider the partial defence provided for in s 15(2) of the Act, whereby the crime of murder could be reduced to manslaughter.
Contrary to the arguments of the appellants, I do not think it was incorrect to direct the jury that the time for considering these issues in the context of joint enterprise was at the time the appellants left the vehicle and approached the occupants of the other two vehicles. There were no events subsequent to that time which had a bearing on self-defence in its application to the formation of an unlawful criminal purpose. This was the first stage at which a consideration of self-defence was relevant and the situation of each appellant had to be examined separately.
However, as the case was put to the jury on the basis of derivative liability, the question whether the actors were acting in self-defence was also relevant to the liability of the alleged secondary offenders. If, for example, Mr Richards had been found not guilty of murder by reason of self-defence, the secondary offenders could not have been convicted of that offence. The situation would have been different if it had been alleged that the appellants were aiders and abettors present at the scene. In that event, the appellants would have been responsible for the acts of the actors, but the liability of the secondary parties would not necessarily be coextensive with that of the actors: Osland v The Queen [22].
[22] (1998) 197 CLR 316 at [75].
The first complaint which was made about the summing-up in this respect was that the directions did not deal adequately with self-defence in its application to the stage at which the unlawfulness of the alleged joint enterprise was under consideration.
In order to deal with this ground, it is necessary to refer to the main body of the directions on self-defence.
The trial judge explained to the jury the elements of each offence charged against the appellants. Included in these directions was reference to the requirement to prove that the appellants acted unlawfully. He then explained that this gave rise to a consideration of self-defence.
His Honour commenced his directions on self-defence by saying:
You might be perfectly justified in thinking that if there was mutual aggression on the part of those who emptied out of the VL Commodore on the one hand, and those who emptied out of the utility and the Mazda sedan on the other, that is pure aggression, and they both attacked each other, it would be difficult to say that those who came out of the VL Commodore would have been acting in self-defence. To think in those terms is not only reasonable, but in accordance with the law.
Self-defence would have no place and could not afford a defence to charges of murder and assault if you simply had a situation where there was no more to it than two groups of people both attacking each other. If that was all that was involved then you would not have to consider the question of self-defence. If you have just got an all-in brawl between two groups of people, you would not be troubled about self-defence.
But here it is necessary for you to consider whether the Crown has excluded the possibility that if the accused, or one or other of them, is guilty of conduct otherwise constituting either murder, or one of the forms of assault, that the doctrine of self-defence applies.
It arises in this way. As I have explained when I dealt with the elements of the offences the Crown bears the onus of proving, and in this case, that the conduct of the accused was unlawful. Their conduct would not be unlawful if it occurred in lawful self-defence, and the law recognises that if a person is attacked or threatened with an attack, he or she is entitled to defend himself, in certain circumstances, even to the extent of causing the death of the attacker or potential attacker.
So, it is very important for you to understand at the outset that when self-defence arises in a case such as this, an accused person is not required to prove that he was in fact acting in self-defence. It is for the prosecution to prove that he was not acting in self-defence. So that the onus is on the Crown to prove and to satisfy you that the particular accused whose guilt you are considering, is not acting in self-defence.
The principles of self-defence are set out in an Act of Parliament. The Act requires that the matter be approached by having regard to the facts as the particular accused genuinely believed them to be.
The trial judge explained this last-mentioned concept by reference to an example and continued:
So in considering the question of self-defence in this case, the first stage is to look at the state of mind of each of the accused as they emerged from the VL Commodore, and then you look at the state of mind of Clinton Richards when he knifed Jeffrey Newman, and the state of mind of Wayne Gibbins and Ashley Nance when they struck Shayne Caddies Senior.
Against that background I come to the first question which you have to address in considering the issue of self-defence. The question is this: has the prosecution excluded the possibility that the perpetrator of either of those attacks genuinely believed that his actions were necessary and reasonable to defend himself?
His Honour told the jury that, in considering the belief of the appellants, they were to have regard to the totality of the circumstances, which included the events during the weeks leading up to the incident itself. He continued:
Circumstances which you have to consider in this context will include the obvious concern by Shayne Caddies Senior as to who might have thrown a brick through the window of his ute, an action which he attributed to Wayne Gibbins, and his reaction to it; the seeking out of Wayne Gibbins at at least three addresses on the Friday of the incident in question; previous acts of aggression such as the football incident and most importantly, the chase which took place immediately before the incident in question, including the ramming more than once of the VL Commodore, and so on.
Wayne Gibbins says that he was terrified. The other accused might also have had good reason to believe that if they did not do something about it, the occupants of the car and the utility which was ramming them posed a serious threat to them.
Against the background to those matters and other matters which you might find relevant to the issue, you address the state of mind of the perpetrator or the perpetrators. You do so as at the time when Shayne Caddies Senior was attacked and as at the time when the knife went into the back of Jeffrey Newman.
So, I put the question again; as at those moments of time, has the Crown excluded the possibility that the perpetrator of either of those attacks genuinely believed that his actions were necessary and reasonable to defend himself? If the answer to that question is that the Crown has not excluded that possibility, you proceed with the second question.
The trial judge then proceeded to direct the jury on the second question which arises when self-defence is being considered, namely, whether the prosecution has excluded the possibility that the conduct constituting the offence was, in the circumstances as the perpetrator genuinely believed them to be, reasonably proportionate to the threat which he genuinely believed to exist. This, he said, required consideration of the state of mind of the perpetrators at the time of the knifing of Mr Newman and the assault on Caddies senior respectively. The events leading up to and including the incident were again relevant and the assessment had to be made whether their actions were reasonably proportionate to the threat which each of them believed to exist.
His Honour went on to explain the effect of s 15(2) of the Act giving rise to the partial defence which could reduce murder to manslaughter.
The trial judge concluded his directions on self-defence with the following remarks:
Finally, at the end of the day of course you must return once more to the situation of the four accused. You have regard to such of them and you may conclude that it may be all or only some of them, but part of the joint enterprise in the sense in which I have explained it. If you answer that question affirmatively with respect to all or any of the accused, and it is within the scope of a joint enterprise, that those who are party to it would necessarily inflict grievous bodily harm, if what I have said as to whether or not self-defence operates, then it will apply in this way; you look first at the situation when the four accused emerge from the VL Commodore. Each of them may have had one of two intentions relevant for the present purposes.
One or more of them might have thought that the car having stopped, it was necessary for them to emerge and attack the occupants of the two Caddies’ vehicles by way of self-defence in order to neutralise or prevent any further assault or any assault on them. That is the first situation.
The second situation which may reflect an intention of one or more of them was that when they emerged they did not do so with a view to defending themselves from any threat which might have been posed by the Caddies but with the intention of teaching the Caddies a lesson, or to have it out with them, or as it were, to give them a thrashing. That is the second possibility.
You must address the state of mind of each of the accused and ask yourselves whether each of them fit into one or other scenario. Bear in mind that it is for the Crown to exclude the possibility, in the case of each of them, that the first scenario, namely, they were intending to defend themselves by attacking and neutralising the threat posed by the Caddies, was not the case.
Having answered that question, you must then have regard to what was actually done at the time by Wayne Gibbins, Ashley Nance and Clinton Richards. You must ask whether they acted beyond what was called for at the time, even if they were acting generally by way of self-defence to neutralise any threat from the Caddies, or does, what I call for convenience, excessive self-defence properly describe what they were doing?
If it is a case of excessive self-defence, in either or both of those situations, then certainly the Crown would have excluded the possibility that Wayne Gibbins, Ashley Nance or Clinton Richards, as the case may be, were acting in self-defence, and you would then have to consider the question of Adrian Bosworth’s involvement.
If he emerged from the VL Commodore with the intention of carrying out an assault on the Caddies not related to any question of self-defence, then he would be liable for whatever offence was committed by the other three or any of them. But if he emerged with a view to defending himself, and if the actual perpetrators of that attack were responsible for what I have - that is the individual attacks responsible for the death and injury - described as excessive self-defence, then it would be open for you to find the actions of the other three were outside the scope of the common purpose and he would not be liable for any offence, it would be outside the scope of what he intended to happen.
These directions addressed self-defence at the joint enterprise stage of the enquiry, but they dealt with it in broad terms. The precise tests prescribed by sub-sections 15(1) and (2) of the Act were not directly applied to the position of the secondary parties at the time when the prosecution alleged the joint criminal enterprise was formed. Furthermore, the situation of the individual appellants was not discussed. The knowledge or otherwise of the possession by members of the group of weapons, which was a relevant factor to the consideration of self-defence at this stage of the enquiry, was not mentioned.
The trial judge then returned to discuss self-defence in its application to the actors, but the significance of the result of that enquiry to the earlier issue of self-defence in the context of joint enterprise was not explained.
Finally, the written directions handed to the jury dealt only with the application of self-defence to the actors. The result, in my view, was to focus attention on the application of the principles of self-defence to the actors.
Towards the end of his directions on self-defence, the trial judge directed specific attention to Mr Bosworth’s situation, but again in general terms and without reference to his denial of knowledge of the possession of any weapons by members of his group.
In my view, the knowledge or otherwise by one appellant of the possession of a weapon or weapons by any other appellant should have been an element of the discussion of self-defence in its application to the formation of the joint venture alleged by the prosecution. When considering the issue of self-defence in relation to those appellants who were not the perpetrators of the alleged offences, the jury were required to apply the two step enquiry required by s 15 of the Act. It was necessary, as part of this process, to consider whether the particular appellant whose case the jury were considering genuinely believed that his conduct was necessary and reasonable for a defensive purpose. An important aspect of this assessment was whether weapons were to be used as part of the response to the conduct of passengers in the other cars. If the prosecution did not exclude such a belief, the jury were then required to consider whether the conduct which the appellant contemplated was, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat which he faced. If the prosecution proved that the intention or conduct was not reasonably proportionate to the perceived threat then, if all other elements were established, the proper verdict would be not guilty of murder, but guilty of manslaughter. Again, this assessment would require consideration as to whether weapons were to be used.
It was argued in support of another ground of appeal raised by Bosworth, Gibbins and Nance that the jury were not instructed on the relevance of the partial defence to murder under s 15(2) of the Act. The trial judge gave adequate directions on the question of excessive self-defence when dealing with the case of Richards as the perpetrator in relation to the charge of murder. However, he did not specifically direct the jury to address this aspect when considering the position of the other appellants who were alleged to be parties to the joint enterprise.
I agree with the submission that the relevance of the concept of excessive self-defence to the secondary parties was not adequately explained to the jury. I am also of the view that the directions on self-defence generally in relation to the secondary parties fell short of what was required by the circumstances of the case.
Appeal by the appellant Nance
Additional grounds of appeal were relied upon by Mr Nance.
It was argued on behalf of the appellant Nance that the trial judge erred in refusing to exclude two interviews with the police which took place on 6 June 2004. According to the argument, the interviews should have been excluded on the ground that the statements made by the appellant were involuntary. In the alternative, it was argued that the interviews should have been excluded in the exercise of the judge’s discretion.
At the time of the interviews, the appellant was almost 18 years of age. He was sharing a house with a 19 year old man, Blake Foley. Foley was present at the house on 6 June 2004 when the police officers arrived to speak to the appellant.
When they arrived at the appellant’s house, Detective Senior Constable McDonald and Senior Constable Trimboli told the appellant they wished to speak to him about the incident which led to the death of Jeffrey Newman. The appellant was told that he was not under arrest, but that the detectives wished to conduct a video recorded interview with him at the Elizabeth Police Station. He was told that he need not answer any questions.
The appellant agreed to accompany the officers to the police station. He was told that, as he was a juvenile, it would be necessary for him to have an adult present. McDonald then asked him about his parents. He said his mother lived at Penfield. McDonald asked if the appellant would like the police to arrange for his parents to be present. The appellant was non-committal about this proposal and McDonald asked him who he wanted to be present. The appellant then appeared to suggest that Mr Foley could accompany him to the station and Foley did so.
Before leaving the premises, the following conversation took place:
QYou said your mum was at Enfield, where’s your dad live?
ANo um Penfield.
QPenfield, what about your dad?
AI don’t know my dad.
QDo you want us to ring mum and get her to come down as well or what?
QUm
AThe thing is, this bloke’s a mate of yours right?
AYep.
QYeah, at the same time it’s meant to be someone best represents your interests, so do want us to ring mum or not. Depends, I don’t know what your relationship is with your mum or when you last saw her or anything like that.
AUm, well I haven’t seen her …. (inaudible).
The conversation then turned to other matters. There was no conversation at the house about the details of the alleged offences.
The conversation with the appellant at the house was recorded with a hand-held video camera. The main interview which took place later at the police station was also video recorded.
At the commencement of the main interview, the appellant was again told that he was not required to answer questions. The interview lasted an hour. Towards the conclusion of the interview, the appellant was told that he was being placed under arrest for causing grievous bodily harm to Caddies senior.
Before the commencement of the trial, the trial judge conducted a voir dire hearing to determine the admissibility of the interviews. The grounds for exclusion were set out in the appellant’s application in the following terms:
That all conversation between police and Nance on the 6th June 2004 at 26 Knowles Road Elizabeth Vale be excluded.
Particulars of the grounds relied on are as follows:-
(a)Given his age at the time (16 years – DOB 7/7/86)[23] he was not afforded the opportunity to speak to his parent (mother) nor the opportunity to have her present at the “conversation” later that same day at the Elizabeth Police Station;
(b)At that point in time given other information including statements and interviews police had obtained, Nance was the suspect and therefore should have been given full arrest rights pursuant to Section 79a Summary Offences Act;
(c)At that point in time Nance was under de facto arrest and accordingly should have been given full arrest rights pursuant to Section 79a Summary Offences Act;
(d)In light of police stating to him that they wanted him to come down to the Station “so we can have a further conversation with you and ask you about what happened” it was not made clear to him the following:-
(i) he could attend at his own time;
(ii) he could use his own transport;
(iii) he was free to leave at any time.
[23] This is in error. He was 17, almost 18 years, at the time.
The direction was upheld by the Court of Criminal Appeal and the House of Lords.
It is also of relevance to note that in Clayton & Ors v The Queen[27], the prosecution proceeded on the basis of an intention to cause grievous bodily harm and not an intention to kill. The presentation of the case in this manner was not criticised in the High Court or the Court of Criminal Appeal.
[27] [2006] HCA 58.
The allegation of murder in the information implies the assertion that one or other of the necessary states of mind for that crime existed at the time of the killing. As either state of mind, an intention to kill or an intention to cause grievous bodily harm, will suffice, it is irrelevant whether one or other is relied upon by the prosecution or emphasised by the trial judge. In my view, no miscarriage of justice could result from the prosecution relying on one or other state of mind instead of leaving the question of intent in the alternative.
I would refuse leave to appeal on this ground.
Summary
I have said that, in my view, the appeal by the appellant Richards against the conviction for murder should be dismissed.
As to the appellants Bosworth, Gibbins and Nance, it is my view that there is a real risk that a miscarriage of justice occurred by reason of the deficiencies in the directions on joint enterprise and self-defence in relation to the charge of murder. As it cannot be said that no substantial miscarriage of justice has occurred as a result, it is inappropriate to apply the proviso.
It remains to deal with the convictions of all appellants for the offence of causing grievous bodily harm with intent to cause grievous bodily harm.
The fact that Richards was found guilty of murder on the basis that he intended to cause grievous bodily harm does not necessarily lead to the conclusion that he held that intention at a time earlier than the stabbing and as part of a joint criminal enterprise. As his conviction on the offence of causing grievous bodily harm was based on joint enterprise or extended common purpose, I would set aside that conviction in the light of the concerns which I have expressed about the directions on that issue. I would set aside the conviction of Bosworth on the charge of causing grievous bodily harm for the same reason.
The position with respect to Gibbins and Nance on the charge of causing grievous bodily harm is more complicated. Their liability for that offence was left to the jury on two alternative bases. The first was that they were parties to a common purpose to inflict grievous bodily harm in which event it would not matter which of them caused grievous bodily harm.
The alternative path to conviction was that each may have delivered a blow which, of itself, was a substantial cause of grievous bodily harm.
It is clear that these alternatives were available to the jury. However, it cannot be known which was relied upon for conviction. Joint enterprise may have been the basis of conviction for each of these appellants in view of the conviction of Richards and Bosworth on this charge.
As the convictions of Gibbins and Nance may have been based on directions relating to joint enterprise affected by the difficulties to which I have referred, it is my view that they should be set aside. Again, it is inappropriate to apply the proviso.
Proposed orders
I would dismiss the appeal against conviction by Richards on the charge of murder.
I would allow the appeal by Richards against conviction on the charge of causing grievous bodily harm with intent to cause grievous bodily harm, set aside the verdict and order a retrial.
I would allow the appeals by the appellants Bosworth, Gibbins and Nance on the charges of murder and causing grievous bodily harm with intent to cause grievous bodily harm, set aside the verdicts of guilty and order a retrial on those charges.
GRAY J:
This is an appeal again conviction.
I have had the advantage of reading Duggan J’s reasons for judgment. I agree with his reasons and the orders that he proposes. I wish, however, to address one aspect of the appeal – the adequacy of the trial Judge’s directions on joint enterprise having regard to the evidence of Nance, Gibbins and Bosworth’s lack of knowledge that Richards was carrying a knife or foresight that he might use a knife to stab anyone.
I adopt the exposition of the facts contained in Duggan J’s reasons, and only refer to the facts as necessary for my reasons.
It was the prosecution case that in the course of a “car chase” instigated by a group known as Caddies, the defendants – Bosworth, Gibbins, Nance and Richards – stopped their vehicle on Main North Road, and then left the vehicle to attack the Caddies group who had stopped their two vehicles directly behind the defendants’ vehicle. Both the Caddies group and the defendants were said to be acting unlawfully. It was alleged that in the course of the attack by all four defendants, Richards stabbed Newman, a member of the Caddies group, causing his death.
The prosecution alleged that the defendants were part of a joint enterprise to attack the Caddies group, and that each had foreseen the possibility that grievous bodily harm could be caused to someone in the course of that attack.
On the night of the incident, the Caddies group gathered at a house in the Elizabeth area. Prior to leaving, some of the group armed themselves. Weapons were also present in the two cars in which the group then travelled. The group went to premises looking for Gibbins and “his mates”. There was a perceived grievance over damage to a Caddies vehicle.
At trial, the court heard evidence that prior to the commencement of the chase, Gibbins, Richards and another, Gabell, had been at the home of Christopher Short. Gibbins received phone calls warning that the Caddies group were out looking for them.
Richards evidence was that he wanted to stay at Short’s home because it was safer and that there was a risk of trouble if they left. However, they left apparently to check Gibbins’ house. On the way they came across Nance and Bosworth. They gave them a lift.
The chase commenced when the vehicle being driven by Caddies Jnr hit the rear of the vehicle in which the defendants and Gabell were travelling. This incident occurred as the defendants were leaving Gibbins home. The chase continued through the back streets of Elizabeth Grove. All vehicles travelled at high speed.
Richards gave evidence that he picked up a knife that he came across by chance in the vehicle during the chase. He thought that at some point he was going to have to protect himself.
As earlier observed, the defendants’ vehicle came to a stop on Main North Road. It was the prosecution case that the stop was deliberate and made at a time and in a place that the defendants thought that they could get assistance from persons at a nearby property. The two Caddies vehicles also came to a stop behind the defendants’ vehicle. The defendants left the vehicle and ran toward the Caddies vehicles.
Richards gave evidence that he was aware that everyone had exited the defendants’ vehicle. He said that he did not have time to think. He asserted that he acted on instinct and ran to deal with the Caddies group.
It was the prosecution case that upon leaving their vehicle, all the defendants took part in an attack and that the actions of the defendants in running at the Caddies vehicles and striking the windows and doors were committed in furtherance of that attack.
In the course of the attack, there were altercations between individuals and small groups, within the context of the broader attack. Richards came across Newman and inflicted a single stab wound to Newman’s back.
An autopsy showed that Newman’s cause of death was the stab wound to his back. The wound passed through his left shoulder, including the shoulder blade and through a lung. The track of the wound was around 100-120 millimetres deep.
Following the fight, the defendants left the scene and returned to the home of Short. At some point Bosworth, Nance and Richards left Short’s house and went to Bosworth’s sister’s house that was nearby. While at her house they told her that they had been involved in a fight on Main North Road. Richards told her that he had stabbed somebody.
The prosecution case was that the defendants were carrying weapons as they left the car on Main North Road. Witnesses to the incident gave evidence that all involved appeared to be armed, particularly noting that people with poles were attacking the cars.
The prosecution case was that the knife used by Richards to stab Newman came from a set of knives located at Short’s house. Richards had been at Short’s house earlier in the evening, and Short had been in Gabell’s car on the day of this incident. There was a similarity in the style of the knives and similar markings were present on the murder weapon and the knives seized from Short’s house.
Richards
Richards gave sworn evidence in his defence at the trial. During examination in chief he said:
QWhen you thought you might be run off the road and these people might attack you, did you do anything.
A Yes, I did.
Q What did you do.
AI looked for something in the vicinity of where I was sitting, something to protect myself.
QWere you looking for anything in particular.
ANo, I would have – anything like that I could use, anything.
QAs you looked, did you find anything.
AYes, I did.
QWhat did you find.
AI found a knife.
QAs best you can now remember, where was the knife when you found it.
AUnder – just a little bit out from under the front passenger seat, just under it a little bit.
QHad you seen that knife at any time. So far as you know, had you seen that knife before.
ANo, I had not seen that weapon prior.
QYou hadn’t seen it, no-one had produced it or shown it to you in the course of the afternoon or the evening.
ANo, I did not.
QSo then why, when you found the knife, what did you do, having found it in the condition you described. What did you do, did you pick it up or leave it there or what.
AI picked it up.
QWhy did you pick it up.
ABecause I feared for my life.
…
QWhen you got out of the car, that’s your car, the VL, did you take the knife.
AYes, I did.
QDid you think about why you were taking the knife.
AAt the time I – I really didn’t have any real knowledge of me carrying that weapon.
QBut you know you took it with you.
AI do know that I picked it up.
And in cross-examination by the prosecution:
Q When did you discover that the knife was there.
AWhen did I discover it? I discovered it after I realised and seen them try to kill Wayne Gibbins, because I thought they were going to ram us off the road into a tree or a light pole.
…
Q But at that time when the door’s attempted to be taken out, you find the knife.
A Sometime after that.
Q Sometime after.
A Yes.
Q Not at that time now.
A It wasn’t at the exact time of the attack, but after. That’s when I realised.
Q What, you realised that they were serious, did you.
A Yes.
Q Still didn’t know if they were after you, though, did you.
AI knew they were after the vehicle by the way they were chasing us and ramming us.
QSo you start looking for something.
AYes.
QBecause you expected somehow you were going to be stopped.
ABe rammed off the road.
QYou expect you are going to get out at some point once you stop.
AI prepared to protect myself.
QSo you go searching the car for a weapon.
AFor anything.
QYou must have thought ‘There’s got to be a weapon in here’, isn’t that right. You must have thought ‘There’s got to be a weapon in here’ to make you start looking for one.
AI thought that my life was in danger, that I needed something.
QSo you start feeling under the seat, do you.
AYes.
QSo you must have thought there would be something there then.
ANo.
QWell, people don’t normally leave knives under their seats, do they.
AI don’t understand that question.
QIs it just lucky that you happened to start looking under the seat and there you are, you find a knife. Is that what you are telling us.
AI’d say I was unlucky.
QThat knife came from Christopher Short’s house, didn’t it.
AI do not know where that knife came from, no.
…
QLooking at Exhibit P30, you see amongst P30 there are at least three knives, not the same size, but with a similar handle, the same sort of handle, ‘Stainless’ written in the same way.
AYes.
QAll part of the same set, aren’t they. P20 came from Christopher Short’s house where those knives came from, didn’t it.
AI do not know.
QYou took it from Christopher Short’s house, didn’t you.
ANo, I did not take no weapons from Chris Short’s house.
…
QThat’s why you knew exactly where to get that knife, because you put it there.
AUntrue.
Nance, Gibbins and Bosworth
Police records of interview with Nance, Gibbins and Bosworth were tendered as part of the prosecution case. In the course of the interviews, each claimed to be unaware that Richards had a knife until well after the stabbing occurred.
Nance informed the police that he was offered a lift a short time before the incident began. He had not been involved in any prior altercations between the two groups. He explained to the police that, before the fight occurred, he had no knowledge of anyone in the car having a weapon:
QAll right. Take you back a little bit, when yous got out of the car, who had weapons?
AYeah, they all had the weapons.
QWho’s they?
AWell, whoever pulled up on us, the two cars that pulled up, like behind us.
QYeah, and what about your guys in your car?
ANo I didn’t see anyone with weapons, all I, you know I hopped out right behind [Gibbins] and then the dude in the front jumped out, we all jumped out and yeah, and me, I just seen, ran around the bush and I didn’t see no one. Then I seen this dude coming for me, so I was like, seeing him drop. I think [Gibbins] come and hit him and then, well [Gibbins].
…
QSo when [Richards] has talked about stabbing this person at the house, other than saying words to the effect of what you’re telling us that he was crying and he was like, “I’ve killed him, I’ve killed him,” did he say, did he say or talk about what he’d actually done to stab this person? I suppose my point there is, has he indicated to you that he’s gone there armed with a knife or has he said, I got this knife because it was laying on the ground or I got this knife from the glove box of [Gabell’s] car or someone attacked him with a knife or what?
ANo, someone, I’m not sure. I honestly don’t know because it wasn’t in [Gabell’s] car, I know that. We didn’t have no weapons, we were just going to meet, go and have a good night, Friday night and then, I’m not sure where he got it from. I wouldn’t have a clue, like.
Similarly, Gibbins told the police that he was unaware of anyone from his group having a weapon before the fight:
Q What’s happened then?
AI had to jump out the window to run, none of us had any weapons on us and he come straight at us, I’m not sure what happened from there really it was just a big fight.
…
QSo given that we’ve got these boys who, this other group of people who are out to get you and your friends and it’s been ongoing for a couple of weeks, no one in your group has taken up any weapon or kept a weapon with them if they’re set upon, so there was no weapons in the commodore last night?
ANo we had no weapons on us.
QMy question to you then is how does someone end up getting killed as a result of this incident if no one in your group had a weapon?
AI’m honestly not sure.
…
QSo what I’m saying to you is, explain to me how this person has ended up, this boy has ended up dead on Main North Road last night?
AI’m not sure, maybe he got cut or hit with his own weapon because they had knives and everything.
QSo if he got cut or hit with his own weapon, did someone take it off him?
AI’m not sure, it was
…
QSo [Richards] must of obviously had a weapon then?
AMm probably I’m not sure.
QWell I will ask you this did [Richards] have a weapon last night, a knife a machete or something similar to that effect?
ANot that I seen no, I didn’t see him have a knife.
QDid you see him have a machete or something. Something that would cut or cause an injury?
ANo. I would of took it off him, I’m pretty sure I would of took it off him but I was pretty scared.
…
QMy partner asked you did anyone in the car have weapons we’re talking about knives, machetes, poles, bats anything. Now is your time to tell us alright, obviously someone has been stabbed, he didn’t stab himself. Who had what in the car?
A I’m not sure who had anything in the car or if [Richards] had the knife on him.
The following day Gibbins continued:
Q You just said there were a couple of weapons that weren’t ours?
A Yeah
Q Which suggests to me that there were other weapons already in the car?
A No there was just this one other thing next to it that didn’t even look like a weapon.
…
QAlright. Now just getting back to what you said, a couple of weapons there that weren’t ours. From that I take it that people in your car did have weapons, I think yesterday you said that nobody in the car had weapons but from what you’ve said now I understand people did have weapons in the VL, the white car?
A Not when we got out of the VL though.
…
QAre you still saying that nobody from the white commodore be it you [Gabell], [Nance], [Bosworth] or [Richards] got out of that car carrying a weapon on Friday night?
AI was totally not aware of anyone jumping out of the car with a weapon, I was the first one out of the car.
Bosworth informed the police that, before the fight occurred, he did not know or believe that anyone in their car had a weapon:
Q You earlier stated that you, and correct me if I’m wrong.
A Yes
Q That you didn’t have weapons. Is that what you said?
A We did not have weapons in the car, no.
QNow, are you saying you didn’t see any weapons in the car or do you know for sure?
AI did not see any weapons inside the car. I’m not sure about the boot and not inside the car, no weapons at all, because why would we jump out, two car loads like.
…
Q[Newman] [d]ied of a stab wound to his back. What can you tell me about what you know about that?
ANothing, I did not know there was any weapons in the car. If there was I did not know who had it, especially not a knife and I couldn’t tell you who stabbed him because I didn’t see it.
QAll right, but the people that you’ve been with back at Christopher Short’s place.
AYes.
QSomebody there knows about it and there would have been conversation about it at Christopher Short’s place.
AI didn’t hear anything about a knife.
QOkay, but what did you hear about the person that was stabbed?
AThat’s what I mean, I didn’t know he was stabbed. I just thought that he, like sounded like a beer bottle got broke, but I thought he got hit with a beer bottle.
In a separate interview later that day, Bosworth continued:
Q Well, we might ask you some questions about that in a second. All right.
AAnd I’ll answer whatever now, because I didn’t even see the knife, I didn’t know there was a knife.
…
QIt’s been suggested to us that at the house that [Richards] has attempted to look for the knife.
ATo?
QHe’s looking for the knife, he’s looking for a knife, he can’t find a , this knife that’s allegedly been used, supposedly been used in the stabbing and is concerned about that and is in fact looking for it, making a frantic search for it. Do you recall that happening?
ANo, cause I didn’t even know there was a knife mate.
Nance, Gibbins and Bosworth, through the records of interview, maintained that they did not know that anyone in their vehicle had a weapon. As earlier observed, none of the three gave evidence in the trial.
Legal Principles
In the last three decades the High Court has considered and reconsidered the scope of the doctrine of common purpose. In that process the court has developed the doctrine of extended common purpose. The Court has confirmed in the authorities to be referred to that it is critical to identify the scope of the common purpose and that in doing so, a subjective test is to be applied. As has been observed, the criminal culpability lies in participation and necessary foresight. It is convenient to set out appropriate extracts from the authorities that are of particular relevance to the present proceedings.
In Markby,[28] Gibbs A-CJ observed:[29]
If ... two men attack another without any intention to cause death or grievous bodily harm, and during the course of the attack one man forms an intention to kill the victim, and strikes the fatal blow with that intention, he may be convicted of murder while the other participant in the plan may be convicted of manslaughter… The reason why the principal assailant is guilty of murder and the other participant only of manslaughter in such a case is that the former had an actual intention to kill whereas the latter never intended that death or grievous bodily harm be caused to the victim, and if there had not been a departure from the common purpose the death of the victim would have rendered the two participants guilty of manslaughter only. In some cases the inactive participant in the common design may escape liability either for murder or manslaughter. If the principal assailant has gone completely beyond the scope of the common design, and for example `has used a weapon and acted in a way which no party to that common design could suspect', the inactive participant is not guilty of either murder or manslaughter… If however the use of the weapon, even if its existence was unknown to the other party, is rightly regarded as no more than an unexpected incident in carrying out the common design the inactive participant may be convicted of manslaughter.
[emphasis added]
[28] Markby v R (1978) 140 CLR 108.
[29] Markby v R (1978) 140 CLR 108 at 112-113.
In McAuliffe,[30] the High Court reviewed the doctrine of common purpose. The Court observed:[31]
The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms -- common purpose, common design, concert, joint criminal enterprise -- are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.
Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose.
[emphasis added]
[30] McAuliffe v R (1995) 183 CLR 108.
[31] McAuliffe v R (1995) 183 CLR 108 at 113-114 (footnotes omitted).
The Court, in referring to Johns (T S),[32] commented:[33]
The second question was whether the scope of the common purpose was confined to the probable consequences of the joint criminal enterprise or whether it extended to the possible consequences. The Court held that the scope of the common purpose did extend to the possible consequences of the criminal venture, but, accepting that the test was a subjective one, held that the possible consequences which could be taken into account were those which were within the contemplation of the parties to the understanding or arrangement. Thus Mason, Murphy and Wilson JJ, after referring to a number of authorities, said:
"In our opinion these decisions support the conclusion reached by Street CJ, [in the court below] namely, `that an accessory before the fact bears, as does a principal in the second degree, a criminal liability for an act which was within the contemplation of both himself and the principal in the first degree as an act which might be done in the course of carrying out the primary criminal intention -- an act contemplated as a possible incident of the originally planned particular venture'. Such an act is one which falls within the parties' own purpose and design precisely because it is within their contemplation and is foreseen as a possible incident of the execution of their planned enterprise."
[32] Johns (T S) v The Queen (1980) 143 CLR 108.
[33] McAuliffe v R (1995) 183 CLR 108 at 114-115 (footnotes omitted).
McAuliffe was reviewed and approved in Gillard.[34] Hayne J, with whom Gummow J agreed, observed:[35]
In its simplest application, the doctrine of joint criminal enterprise means that, if a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime, and one or other of the parties to the arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, all are equally guilty of the crime regardless of the part played by each in its commission.
The doctrine has further application. It is not confined in its operation to the specific crime which the parties to the agreement intended should be committed. "[E]ach of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose". The scope of the common purpose is to be determined subjectively: by what was contemplated by the parties sharing that purpose. And "[w]hatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement".
As McAuliffe reveals, the contemplation of a party to a joint enterprise includes what that party foresees as a possible incident of the venture. If the party foresees that another crime might be committed and continues to participate in the venture, that party is a party to the commission of that other, incidental, crime even if the party did not agree to its being committed. In such a case, as was said in McAuliffe, "the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind". To hold the individual liable for the commission of the incidental crime, when its commission is foreseen but not agreed, accords with the general principle that "a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it". The criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight.
[emphasis added]
[34] Gillard v The Queen (2003) 219 CLR 1.
[35] Gillard v The Queen (2003) 219 CLR 1 at [110]-[112] (footnotes omitted).
The High Court was invited to reconsider McAuliffe and Gillard in Clayton,[36] but by majority declined to do so. In joint reasons, Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ observed:[37]
There are several reasons for the Court not to reconsider what was said in McAuliffe or Gillard about extended common purpose. …
…
A person who does not intend the death of the victim, but does intend to do really serious injury to the victim, will be guilty of murder if the victim dies. If a party to a joint criminal enterprise foresees the possibility that another might be assaulted with intention to kill or cause really serious injury to that person, and, despite that foresight, continues to participate in the venture, the criminal culpability lies in the continued participation in the joint enterprise with the necessary foresight. That the participant does not wish or intend that the victim be killed is of no greater significance than the observation that the person committing the assault need not wish or intend that result, yet be guilty of the crime of murder.
[emphasis original]
[36] Clayton v R; Hartwick v R; Hartwick v R (2006) 81 ALJR 439.
[37] Clayton v R; Hartwick v R; Hartwick v R (2006) 81 ALJR 439 at [15], [17] (footnotes omitted).
Several English authorities provide further illustration of these propositions. In Davies,[38] Lord Simonds LC stated:[39]
In particular, I can see no reason why, if half a dozen boys fight another crowd, and one of them produces a knife and stabs one of the opponents to death, all the rest of his group should be treated as accomplices in the use of a knife and the infliction of mortal injury by that means, unless there is evidence that the rest intended or concerted or at least contemplated an attack with a knife by one of their number, as opposed to a common assault. If all that was designed or envisaged was in fact a common assault, and there was no evidence that Lawson, a party to that common assault, knew that any of his companions had a knife, then Lawson was not an accomplice in the crime consisting in its felonious use.
Similarly, in Anderson and Morris,[40] Lord Parker CJ stated:[41]
It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today.
[38] Davies v DPP [1954] AC 378.
[39] Davies v DPP [1954] AC 378 at 401.
[40] R v Anderson; R v Morris [1966] 2 QB 110.
[41] R v Anderson; R v Morris [1966] 2 QB 110 at 120.
In Powell,[42] the House of Lords accepted the argument that to be guilty of murder on the basis of joint criminal enterprise, the secondary party must foresee an act of the type that the principal party committed, and that in the circumstances the use of a knife was fundamentally different from the use of a wooden post. The Court held that the trial Judge needed to qualify his direction by stating that if the jury considered that the use of the knife by the primary offender was the use of a weapon and an action on his part that the secondary offender did not foresee as a possibility, then the secondary offender should not be convicted of murder. Further, if unforeseen use of a knife would take the killing outside the scope of the joint venture the jury should also have been directed that the secondary offender should not be found guilty of manslaughter. In the leading speech, Lord Hutton observed:[43]
Accordingly, in the appeal of English, I consider that the direction of the trial judge was defective … because in accordance with the principle stated by Lord Parker C.J. in Reg v Anderson, at p.120B, he did not qualify his direction on foresight of really serious injury by stating that if the jury considered that the use of the knife by Weddle was the use of a weapon and an action on Weddle’s part which English did not foresee as a possibility, then English should not be convicted of murder. As the unforeseen use of the knife would take the killing outside the scope of the joint venture the jury should also have been directed, as the Court of Criminal Appeal held in Reg v Anderson, that English should not be found guilty of manslaughter.
On the evidence the jury could have found that English did not know that Weddle had a knife. Therefore the judge’s direction made the conviction of English unsafe and in my opinion his appeal should be allowed and the conviction for murder quashed.
[42] R v Powell [1999] 1 AC 1.
[43] R v Powell [1999] 1 AC 1 at 30.
A recent application of this principle by the South Australian Court of Criminal Appeal can be found in Cozzi,[44] where Martin J (with whom Doyle CJ and Bleby J agreed) stated:[45]
If the appellant was party to an arrangement to perpetrate a dangerous assault, but that arrangement did not encompass the use of a knife, she was entitled to be acquitted of manslaughter if Menendez had, in using the knife to stab the deceased, gone completely beyond the scope of the common design and acted in a way which no party to that common design could suspect. She could only be convicted of manslaughter if the jury were satisfied that the use of a knife to kill the deceased was no more than an unexpected incident in carrying out the common design.
[44] R v Cozzi (1999) 73 SASR 374.
[45] R v Cozzi (1999) 73 SASR 374 at 389.
The Elements of Joint Criminal Enterprise
In the circumstances, on the charge of murder, the prosecution was required to prove that Nance, Gibbins and Bosworth were parties to unlawful conduct, in which each contemplated the use of a knife by one of their party other than in lawful self defence. For these three defendants to have been found guilty of murder, on the basis of a joint enterprise, the jury had to be satisfied that the defendants were aware that Richards left the vehicle with a knife, and that the defendants knew that it was a possible consequence of the joint common purpose that Richards would use the knife and that it was possible that grievous bodily harm would occur.
In the present case, if the jury – having regard to the evidence of Richards and the tendered statements of Nance, Gibbins and Bosworth of their lack of awareness of the knife – believed that it was a reasonable possibility that Richards acted in a way that Nance, Gibbins and Bosworth could not have suspected, then it was open to the jury to return a verdict of acquittal for Nance, Gibbins and Bosworth on the charge of murder. This is because if the jury accepted their evidence, then it could have taken the view that Richards, in using a knife and stabbing Newman, had gone beyond the scope of the common purpose by using a weapon and acting in a way which no party to that common design could suspect.
In the course of the summing up only brief references are made to the knife. The question of whether the common purpose extended to the use of a knife or a similar weapon was not canvassed. The extent of necessary foresight was not addressed. There was no discussion of the evidence of knowledge or awareness on the part of Nance, Gibbins and Bosworth, of Richards carrying a knife. This was a critical matter on which the members of the jury were entitled to receive assistance and direction. The summing up did not do so.
The trial Judge’s directions to the jury on the topic of the scope of the common purpose were not sufficient to make clear to the jury, insofar as Nance, Gibbins and Bosworth were concerned, that knowledge or otherwise of Richards being armed with a knife was a material consideration. The relevant extracts from the summing up are referred to in the reasons of Duggan J.
Given that it was open to the jury to accept this evidence, the trial Judge was required to direct the jury in accordance with the recent authority including Markby, McAuliffe and Gillard. The directions given by the trial Judge in relation to the scope of the common purpose were not sufficient to make clear to the jury that Nance, Gibbins and Bosworth were entitled to acquittals on the counts of murder if the jury considered that it was a reasonable possibility that they did not know that Richards had a knife before and during the fight, and did not suspect that he might use a knife or similar weapon with the criminal intent sufficient for the crime of murder.
As no direction was given to the jury on these matters, it is possible that the jury accepted the defendants’ evidence about their lack of knowledge of the knife but still returned a verdict of guilty of murder, whereas having regard to a proper direction, a verdict on the facts as the jury found them (in the event that they did accept this evidence) would have been an acquittal.
There is a real possibility that the jury were not satisfied that the enterprise to which Nance, Gibbins and Bosworth were parties included or contemplated the use of a knife. There is a real possibility that the jury convicted Nance, Gibbins and Bosworth on the basis that they were parties to an enterprise to commit assault, but that enterprise did not contemplate the use of a knife. As the jury were not directed that this assessment could lead to an acquittal, there is a risk that a miscarriage of justice has occurred.
I agree with the orders proposed by Duggan J.
WHITE J. I agree with each of the orders proposed by Duggan J. I also agree with his reasons.
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