R v Taufahema

[2006] HCATrans 662

[2006] HCATrans 662

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S142 of 2006

B e t w e e n -

THE QUEEN

Applicant

and

MOTEKIAI TAUFAHEMA

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 DECEMBER 2006, AT 10.03 AM

Copyright in the High Court of Australia

MR N.R. COWDERY, QC:   May it please the Court, I appear for the applicant with my learned friends, MS D.M.L. WOODBURNE and MS J.A. GIRDHAM.  (instructed by Solicitor for Public Prosecutions (New South Wales))

MR T.A. GAME, SC:   If the Court please, I appear for the respondent with MS G.A. BASHIR.  (instructed by Legal Aid Commission of New South Wales)

GLEESON CJ:   Yes, Mr Cowdery.

MR COWDERY:   Your Honours, this is an adjourned application for special leave to appeal to this Court against an order of the Court of Criminal Appeal of New South Wales ordering the entry of an acquittal of the respondent.  On this application the Crown, the applicant, seeks an order for a retrial of the respondent on the charge of murder.

GLEESON CJ:   Mr Cowdery, you may not want to respond to this now, but there is nothing in the written submissions about a matter that may have fallen through the cracks or may just be a matter that is not to be pursued, but it is the question of manslaughter.  The Court of Criminal Appeal upheld a ground of appeal to the effect that the judge erred by not leaving manslaughter to the jury.  That, presumably, involves an assumption that there was a case of manslaughter to go to the jury.  I cannot see anything either in the reasoning of the Court of Criminal Appeal thereafter or in your written submissions here about the manslaughter aspect of the case.

MR COWDERY:   On the hearing of the appeal the Crown conceded that the conviction could not stand because of the failure of the trial judge to give a direction on manslaughter.  The Crown would argue that there is a case for murder or manslaughter, being the alternative verdict to murder, that if the matter proceeded to retrial on the charge of murder, then an acquittal of murder and a conviction of manslaughter would be available, and it would be on that basis that the Crown would propose to proceed.

GLEESON CJ:   But why did the Court of Appeal, having held that it was an error not to leave manslaughter to the jury, then simply enter a verdict of acquittal?  One might have thought that consistently they would have said it has got to go back for a trial on manslaughter.

MR COWDERY:   Indeed, your Honour.

KIRBY J:   But they said that on the analysis of the evidence there was no evidence to sustain the conviction of the count that you had presented against the accused.

MR COWDERY:   For the reason that there was no foundational offence that had been properly made out, yes.  The identification of an appropriate foundational offence would be essential to either a prosecution on murder or manslaughter.

GLEESON CJ:   Yes, but if you prosecute somebody for unlawful homicide, you do not have a separate count for manslaughter.

MR COWDERY:   No.

GLEESON CJ:   Manslaughter is just an alternative verdict that is available.

MR COWDERY:   Yes.

GLEESON CJ:   Now, if the Court of Criminal Appeal was right to say manslaughter should have been left to the jury, that can only have been on the basis that there was a case of manslaughter to go to the jury.

MR COWDERY:   One would assume so, your Honour, yes.

GLEESON CJ:   If there was a case of manslaughter to go to the jury and they thought the judge should have left it to the jury, why did they not at least order a new trial on manslaughter?  I do not see any reference to that in the written submissions.

MR COWDERY:   No, that point has not been expressly addressed, your Honour.  Your Honour indicated that I might not wish to respond to that immediately.  Could we come back to that a little later?

GLEESON CJ:   By all means.

MR COWDERY:   Thank you, your Honour.  Your Honours, what I propose to do is to address first the way in which the question of a retrial was dealt with in the Court of Criminal Appeal, then to identify what the applicant submits are errors by the Court of Criminal Appeal in dealing with the matter in the way in which it did and then to move on to why those matters are such as to attract a grant of special leave to appeal to this Court.  If I may take your Honours first to volume 3 of the application book at page 1099, at about line 30:

HOWIE J:   I know but I thought your major point that was raised was that the foundational crime was not a crime?

GAME:   That is correct.

HOWIE J:   Do you need more than that?

GAME:   No your Honour.  I do need to explain to you how this thing unfolded, so you can understand.  If I succeed on that –

“that” being that the foundational crime was not a crime –

then I must succeed but if it was a crime then the judge did not properly direct on it.  If it was a crime then one had to identify the joint enterprise in support of it and one had to put the case and see if there was a case of that joint enterprise -

the proper joint enterprise.

HAYNE J:   Just a point of nomenclature.  This notion of foundational enterprise, where does that stem from and what is wrapped up in it?

MR COWDERY:   I do not know the first time on which that expression was used, your Honour, but it has been used in decisions.

HAYNE J:   What is intended to be conveyed by the expression “foundational crime” in this realm of discourse?

MR COWDERY:   We would submit, your Honour, that the foundational crime is the crime that the participants have agreed to commit, that there is an arrangement or an understanding amounting to an agreement, to use the words in McAuliffe, that a particular offence will be committed.

HAYNE J:   It is the particularity of the offence which may be right to identify but it may present the seeds of the difficulty with which we are now faced.  Joint criminal enterprise, at least as I have hitherto understood it, focuses upon agreement or understanding, true it is, agreement or understanding to commit criminal or to engage in criminal conduct, but is it to be an agreement to commit a crime that the Crown must establish beyond reasonable doubt was the intended outcome?  What, where are we?

MR COWDERY:   Well, in the facts of this case, your Honour, the agreed foundational crime was armed robbery, and there was clear evidence of that.  These four men had set out to commit armed robberies, at least in relation to three of them that was not contested.  In relation to the fourth, this respondent, it was an issue and in fact the principal issue in the conduct of the trial was whether or not this man, the respondent, was the fourth man in that foundational crime, in that primary agreement.

Now, what seems to have happened in the Court of Criminal Appeal and, indeed, at trial is that the identification of a foundational offence was postponed until the circumstances arose in which they had been detected by Senior Constable McEnallay.  Nevertheless, the evidence established that the foundational crime was well in existence long before that.

HAYNE J:   Well, again, I do not want to be captious about this, Mr Cowdery, but homicide may be committed in the course of a joint criminal enterprise where what you describe as the foundational crime is never committed.  If you focus upon the foundational crime, it seems to me there is at least a difficulty presented by the possibility at least of diverting attention from the identification of the agreement, arrangement, understanding, whatever you have to establish, that shows that there is a joint enterprise.

MR COWDERY:   The joint enterprise is to be found in, in this case, the foundational crime of armed robbery we would submit.  What has happened by reason of the decision of the Court of Criminal Appeal in this case is that the wider concept of common purpose or of extended joint criminal enterprise has been destroyed, removed, because what the Court of Criminal Appeal has determined is that you must establish a separate and new agreement for the commission of what is described as the incidental crime before the person in the position of this respondent can be held liable for it.

GUMMOW J:   The word is “enterprise”, is it not?

MR COWDERY:   Well, your Honour, various words are used to describe it:  joint criminal enterprise, common purpose, common design, extended joint criminal enterprise – they are all used in different ways by different courts at different times, and so there is some confusion about the precise definition of those terms and the use of them in precise circumstances.  But what your Honour Justice Hayne said in Gillard we would submit applies very clearly in this case.  At page 38, paragraph 119 of the report ‑ ‑ ‑

GLEESON CJ:   What is the reference?

MR COWDERY:   219 CLR 1. At page 38, paragraph 119, your Honour said:

If liability is confined to offences for the commission of which the accused has previously agreed, an accused person will not be guilty of any form of homicide in a case where, despite foresight of the possibility of violence by a co‑offender, the accused has not agreed to its use.  That result if unacceptable.  That is why the common law principles have developed as they have.

In this case, we would submit, this is the error that has been committed by the Court of Criminal Appeal.  The Court of Criminal Appeal has required there to be a separate agreement, not just foresight of a possibility, which is sufficient for what I would describe as extended joint criminal enterprise or what might be described as common purpose, consistently with other authorities.

GLEESON CJ:   There is an article in the latest issue of the Law Quarterly Review which examines the doctrinal and historical basis of this concept.

MR COWDERY:   Your Honour, we are not arguing that there should be any change to the understanding of these concepts in the law at present.  Our argument is that the Court of Criminal Appeal has misapplied settled principle to the facts of this particular case with the result that the Court of Criminal Appeal has created an additional requirement for liability in these circumstances that the law does not presently support and that the creation of that additional requirement by a Court of Criminal Appeal will lead to further error in the application of that principle to other cases.

GLEESON CJ:   The problem is, is it not, Mr Cowdery, that the reasoning of the Court of Appeal was very closely bound up with the way the case was presented at trial by the prosecution and the way it was left to the jury at trial by the trial judge?

MR COWDERY:   Yes, I cannot escape from that, your Honour.  That is so.

GLEESON CJ:   As I understand it, but perhaps we need to be clear about this, that was not in either respect on the basis that the relevant common enterprise was armed robbery.

MR COWDERY:   That is so, your Honour, as the case was formulated, argued, presented.  Nevertheless, the evidence in support of the charge of murder did establish, in our submission, a relevant offence of armed robbery, or conspiracy to commit armed robbery, at least.  They were going to do an armed robbery.

HAYNE J:   Exactly so, Mr Cowdery.  It did not establish armed robbery at all, did it?  It may, it may not, have established the completed offence of conspiracy to commit armed robbery – who knows – but what has that to do with the present question?  The question is, was there a joint criminal enterprise?  Now, that involves understanding what was criminal about this joint enterprise – I understand that – but this notion of foundational offence distracts.

MR COWDERY:   Your Honour, it may not be necessary to identify in precise terms an offence.  If four men with four loaded guns are driving across Sydney, the inference may be drawn that they are in pursuit of an unlawful purpose that involves at least the presentation, if not the hostile use, of arms.  There may be a number of offences that could arise out of that factual situation, depending on what happens, but the criminal enterprise, aside from the identification of any specific offence, is the presence and the conduct with loaded weapons and means of disguise.

Now, if that is sufficient to constitute a joint criminal enterprise in the relevant sense, then there would be no need to talk about a foundational offence and identify one specifically.

GUMMOW J:   Assume you are right about that, where does that lead this case?

MR COWDERY:   Where it leads it, your Honour, is to the decision of the Court of Criminal Appeal requiring that there be a separate agreement to commit a specific offence before an adherent to that criminal enterprise can be made liable for the incidental offence.

GLEESON CJ:   But it is not enough, is it, to say these people were up to no good?

MR COWDERY:   No, there would have to be something more inferred than simply that.

GLEESON CJ:   Because, ultimately, the jury are going to have to be instructed by the judge that the culpability of the accused for the fatal shooting by Penisini of the police officer depends upon whether that conduct was within the contemplation of the accused as a possible incident of the unlawful enterprise on which they were embarked.  Where this case went off the rails is that ultimately at trial the view was taken that it was enough to show that the unlawful enterprise on which they were embarked was running away.

MR COWDERY:   That is the way it was formulated, but in this case there is not a problem with that issue, in our submission, because there is clear evidence that they were planning to carry out armed robberies.

GLEESON CJ:   There is a factual aspect I am not sure I understand, Mr Cowdery.  As I understand it, the man whose name begins with “C” was called in the defence case.

MR COWDERY:   Yes.

GLEESON CJ:   He was called by the defence to prove, was he not, that while there was an armed robbery in progress, as it were, or in contemplation, and while the three other people in the car were participants in that enterprise, the driver of the car, the present respondent, was not.  Who was the fourth man according to Mr C?

MR COWDERY:   He was to be the fourth man.

GLEESON CJ:   So Mr C got into the witness box and said I was the party to the armed robbery enterprise with the other three men, not the accused.

MR COWDERY:   Yes.  It was a matter for the jury as to whether or not they accepted that.  That really was the issue in the trial, that was the way in which the trial was fought.  The understanding by the defence of the nature of the Crown case was that at least three of these people were off to commit armed robberies.  The real issue was whether or not the respondent was the fourth.  The jury was entitled to believe part or all or none of the evidence of Cackau.  He was, he said, standing at a railway station in the west of Sydney while these people were travelling in the east of Sydney and they had been travelling for over an hour by that stage.  Four men in a car, the respondent driving, there being four fully loaded weapons in the car, means of disguise and additional ammunition. 

One of the other persons in the car was this respondent’s brother with whom he had been earlier that day.  Both of them had been contacted by Penisini to join in this operation.  The respondent says that he was not becoming a party to the criminal enterprise.  He was just providing services as a driver for a short time.  So the jury – it was a factual question, a factual issue, in our submission, as to whether or not this respondent was the fourth person.  If the jury did not accept that evidence, the jury could find on the basis of the other evidence by inference, in our submission, that the respondent was the fourth person. 

HAYNE J:   One of the hurdles that this respondent had to confront was his admitted disposal of a weapon immediately before he was arrested, was it not?

MR COWDERY:   Yes, your Honour.

HAYNE J:   He said he had got the weapon from one of the other men, but one of his hurdles was he had, at least at one point soon after these events, been in possession of a weapon that he had disposed of?

MR COWDERY:   Yes, and he was convicted of that offence.  He gave a version that he was thrown that weapon, fully loaded weapon, as a sort of an afterthought before Penisini took off, whereas he also gave evidence that he reached back into the car to pick up all his possessions before he took off as well.  So again the jury had an issue to deal with.  It is our submission that the evidence is sufficient to leave open the inference that, contrary to the defence assertions, this respondent was the fourth person and therefore party to a joint criminal enterprise by the four to commit armed robberies. 

Now, essentially the Crown says, when you have that kind of a joint criminal enterprise, it is open to the jury to conclude that it must have been in the contemplation of the respondent that one or more of the weapons would be used, presented in a hostile manner or actually fired.  If it can be proved that he contemplated that their use might cause death or grievous bodily harm then he would be liable for murder.  If it cannot be concluded that that was the case, then he would liable for manslaughter.

The Crown submits that it is fundamentally wrong to require the formation of an additional agreement surrounding the use of the weapon in circumstances of that kind, that it is an incident of the joint criminal enterprise, within the contemplation of the respondent, in the face of which he nevertheless persisted in the enterprise and which resulted in the shooting and in the death of the police officer.  At page 1100 at about point 10 in volume 3 of the application book my learned friend made the argument that:

There is neither a foundational offence nor a joint enterprise.

BEAZLEY JA:   Let us work through those.

GAME:   If they are there –

that is the foundational offence or the joint criminal enterprise –

then the judge had to direct on them.

If I could then take your Honours to page 1108.

GLEESON CJ:   By the way, just before you leave that, what does section 33B provide?

MR COWDERY:   That is an offence of shooting at with intent to prevent or – pardon me a moment, your Honour.  It is in my learned friend’s volume of additional material, your Honour.  It is:

Any person who:

(a)uses, attempts to use, threatens to use or possesses an offensive weapon or instrument . . . 

with intent to commit an indictable offence or with intent to prevent or hinder the lawful apprehension or detention either of himself or herself or any other person or to prevent or hinder a member of the police force from investigating any act or circumstance which reasonably calls for investigation by the member shall be liable –

et cetera.

GLEESON CJ:   I appreciate that there are a variety of offences that one might commit by resisting arrest, and this is one of them, but it is not an offence just to run away from a policeman, is it?

MR COWDERY:   No, your Honour.

GLEESON CJ:   And that concept that it is a criminal offence just to evade arrest is the error of the primary judge.

MR COWDERY:   Of the primary judge, yes, your Honour.  Then there was a second attempt at this, in fact, suggested by the appellant in the Court of Criminal Appeal, as I recall, or at least first hinted at, to substitute for that an offence of hindering a police officer, and that also failed, and for good and valid reasons, we concede.  But the error in both of those approaches is to require the formation of an additional agreement between the parties to a joint criminal enterprise when an incidental event arises which the Crown would submit must have been in the contemplation of the parties to that joint criminal enterprise from the beginning.  All of that evidence about the joint criminal enterprise was before the jury and before the Court of Criminal Appeal.

CALLINAN J:   The respondent took one of the guns with him when he tried to evade the police officer when he ran away, did he not?

MR COWDERY:   When he ran away from the car.

CALLINAN J:   He was actually armed with a loaded gun?

MR COWDERY:   He was, your Honour.

KIRBY J:   Is it true that he took it – it was handed to him in a bandanna, was it not, and he just had it?

MR COWDERY:   He said that before Penisini, the shooter, ran away he threw to the respondent the fully loaded gun wrapped in a bandanna just without warning and I think ‑ ‑ ‑

KIRBY J:   There is no suggestion, or we can put out of our minds, that what the person saw passed between people within the car was the then passing of the loaded gun?

MR COWDERY:   I think that has to be put out of one’s mind, your Honour, yes.

KIRBY J:   So it cannot be suggested that the present respondent passed the loaded gun to Penisini which was used to shoot the constable?

MR COWDERY:   Not from the evidence of the observation of the other driver, no.  No, that would be an impermissible inference.  But there is also the evidence of this respondent that a few seconds after the shooting – this is in volume 2 of the application book, your Honours, at page 565 at about point 10.  This is the respondent’s evidence:

After the gun fire, a few seconds after that I grabbed all my stuff, my phone and that, from the middle of the thing of the car and I went to get away from the car.

His feet were on the ground, his body was inside the car, he picked up the phone and cigarettes, he stepped from the car, and then there was a sketch prepared.  At page 566 at about point 40:

After I picked up all my stuff from the car, I went, stepped away from the car and stepped around the door.

There was some detailed evidence of where he was facing and the like and how the car was at that point.  Page 567, point 30:

Then I seen Penisini on the other side of the car.

Page 568, point 30:

When I looked around he was walking up towards the front –

this was Penisini –

the front of the car as well like, the same, I am stepping away from the car, walking, he called me walking away from the back . . . 

A.  He called out to me and when I looked at him he was right there, like, he was – right on the other side of the bonnet . . . 

A.  When he called out to me.  I looked at him.  He throws me this thing.  This thing that was in a blue bandana.  I didn’t know what it was at the time but after when I caught it -

and that turned out to be the fully loaded gun wrapped inside the bandanna which he took away and which he then secreted as he escaped or tried to escape from the police.  That was the evidence of his receipt of the gun.  Again, we would submit, it is very much a matter for the jury, the tribunal of fact, to determine whether or not it accepts that version or whether, having regard to all the other circumstances of the case, it is fanciful to suggest that in those circumstances, Penisini having just fired five shots from his gun, he would throw to this respondent a fully loaded gun as he was about to make his escape.

That, we would submit, is a factual issue that should be left to the tribunal of fact.  If I may return to page 1108 at about point 20 in volume 3 my learned friend made reference to the dropping of the section 33B charge and continued:

He has now common purpose manslaughter not common purpose murder used in some way –

and then there was something read to the Court:

That’s obviously an unlawful –

and I think the next word should be “dangerous act”:

and would be common purpose for manslaughter, but not common purpose for murder.  That vice is never corrected –

My learned friend says that he read at that stage what the prosecutor had said at page 644 of the trial transcript.  The question of manslaughter had well and truly arisen at that point and, of course, the additional ground of appeal had been put on on the day of the hearing.

GLEESON CJ:   The ground of appeal complaining of the failure to leave manslaughter to the jury?

MR COWDERY:   Yes, your Honour.

GLEESON CJ:   And that ground of appeal was upheld.

MR COWDERY:   Yes, your Honour, and it was conceded by the Crown.

KIRBY J:   And you continue in that concession?

MR COWDERY:   Yes, your Honour.

GLEESON CJ:   That is, that the trial judge should have left manslaughter to the jury?

MR COWDERY:   Yes, your Honour, as an alternative.

GLEESON CJ:   What is the case of manslaughter that the present respondent said should have been left to the jury and the Crown agreed should have been left?

MR COWDERY:   The way the Crown would put it is this, that there was a joint criminal enterprise, as I have described, to which the respondent was a party; that it was within the contemplation of the respondent that one or more of the weapons would be used, but if the jury was not satisfied that the respondent contemplated as a possibility that death or grievous bodily harm would be intended in the use of that weapon, then they could nevertheless find him guilty of manslaughter.

GLEESON CJ:   That is like that South Australian case we had.  Was that Gillard?

HAYNE J:   That is Gillard.

MR COWDERY:   Yes, your Honour.

GLEESON CJ:   But what did the present respondent, then the appellant, put to the Court of Criminal Appeal was the manslaughter case that should have been left to the jury?  What did the Court of Criminal Appeal agree was the manslaughter case that should have been left to the jury?

MR COWDERY:   Your Honour, in the judgment of the Court of Criminal Appeal that issue was adverted to at page 1149 of volume 3.  At page 1150, paragraph 36, the court said, Justice Adams said:

It is obvious, I think, from what I have already said about the facts of the matter that, if the jury concluded that there was indeed a joint enterprise to avoid arrest ‑ ‑ ‑

GLEESON CJ:   There it is.

MR COWDERY:   And so on.

GLEESON CJ:   That is different from the joint enterprise you are talking about.

MR COWDERY:   Yes, because the court had been proceeding on the basis of a joint enterprise formed at a later time than the Crown submits was the appropriate time.  The requirement of an additional agreement which the Crown says is contrary to the law as it is presently understood.  Nevertheless, the same sort of principles emerge in relation to that later agreement or that later joint criminal enterprise.  Further down paragraph 36, his Honour said:

I do not see a sufficient evidentiary basis for concluding that there was such a joint enterprise or that the appellant thought that there was a possibility that one of the others would use a gun in the course of it.  It seems to me –

This is really, I suppose, in a sense getting into the area of unreasonable and unsupportable verdict, which was then not further addressed later, but I will come to that:

inescapable that a jury might well not be prepared to conclude beyond reasonable doubt that the appellant adverted to the possibility that one of the others might intentionally shoot at the officer with the intention of killing him or causing him serious injury, as distinct from the mere possibility that the gun might be used in some way.

Accordingly, the alternative verdict of manslaughter must have [been] left to the jury and it would have been an error of law not to do so.

That seems to be the basis on which the Court of Criminal Appeal dealt with the question of manslaughter.

GLEESON CJ:   This is what is puzzling me.  Was that a purely hypothetical exercise at that stage?  You see that expression “it would have been an error of law not to do so”.  What is puzzling me is how a Court of Criminal Appeal could uphold a ground of appeal that complains that the case of manslaughter was not left to the jury and, having upheld that ground of appeal, not order a new trial so that the case of manslaughter may be considered by the jury.

MR COWDERY:   Indeed, your Honour.

GLEESON CJ:   What I am wondering is whether the explanation for what happened is that they did not really uphold that ground of appeal at all, but said if contrary to our principal opinion, which is that there was no case of homicide at all to go to the jury, then it should have been left to the jury as an alternative case of murder or manslaughter.  On the face of it, it is paradoxical to uphold a ground of appeal in terms of the additional ground that was raised and then not to order a new trial.

HAYNE J:   If there is an answer, the answer lies, does it not, in paragraph 39 of the Court of Criminal Appeal’s reasons, the second sentence and the last sentence of that paragraph.  Now, whether that is the answer I do not know, but if there is an answer, that is where it is:

no evidentiary basis for a conclusion that the appellant was party to an agreement –

hypothesised in paragraph 36.  The conclusion at the end of paragraph 39:

the appellant could not be convicted of murder or manslaughter on the cases as formulated –

at trial and on appeal.

GLEESON CJ:   That would explain why they said in the first sentence of paragraph 37 not “it was an error of law not to do so”, but:

it would have been an error of law not to do so.

MR COWDERY:   Your Honours, there is no doubt, or at least we would submit there is no doubt, that the reason why the Court of Criminal Appeal upheld the appeal was because what was identified as a foundational offence or a joint criminal enterprise had not been established.

GLEESON CJ:   It was identified on an erroneous view of law.

MR COWDERY:   Yes, a proper basis had not been identified.

GLEESON CJ:   The basis that was identified was identified on the assumption that it is a crime to run away from the police.

MR COWDERY:   Yes.  The applicant says, nevertheless, your Honours, that if the case is properly formulated and properly presented, the alternative verdict of manslaughter would still be open and I think I made some submissions about that just a short time ago.  There was the joint criminal enterprise being properly identified as the robbery enterprise. 

Your Honours, at the beginning of the judgment of the Court of Criminal Appeal in volume 3 of the application book at page 1133 in the first paragraph of Justice Adams’ judgment, a number of the facts of what the Crown says is the relevant antecedent joint criminal enterprise are recited.  It is set out there the four men:

in a Commodore that had been reported stolen –

which therefore, of course, made it more difficult to trace it back to anybody, even though the report was false:

Each of the occupants was on parole.  In the car were four loaded firearms, each of which was stolen.

Indeed, they had all been stolen at the same time from the same place -

The appellant was driving.  He was unlicensed . . . The appellant accelerated to avoid apprehension –

and then turned into Grace Campbell Crescent and came to a stop.  So many of the circumstances constituting the, the Crown would say, correct joint criminal enterprise had been identified there from the evidence.  However, what was not identified specifically were the telephone calls.

KIRBY J:   Is the inference that at that stage they were on the way to executing armed robbery?

MR COWDERY:   Armed robberies, according to the evidence, yes.  What was not included in that recitation of those facts was the series of telephone calls that had been made amongst the participants later that morning leading to the meeting up.  The additional clip of ammunition was not mentioned.  The means of disguise, the hockey mask and the two sets of gloves, were not mentioned.  Nor, indeed, is there any mention of the way in which the contest had been carried out at trial, that is, the issue of the respondent being the fourth person.  Nor is there any mention of Cackau’s evidence in that recitation of the events.

KIRBY J:   What is the relevance of the telephone calls?

MR COWDERY:   The telephone calls show that there was a degree of organisation in this involving all four and later, when the four were apprehended by police, each one of them had in his possession a working mobile telephone.  So that, if I may just make an aside ‑ ‑ ‑

KIRBY J:   That is not unusual nowadays.  That is almost compulsory.  It is only old fogies like me that do not have that.  I am sure you have got one, Mr Cowdery ‑ ‑ ‑

MR COWDERY:   Not in this Court, your Honour.

KIRBY J:   ‑ ‑ ‑ because you are always very with it.

MR COWDERY:   Not in this courtroom.  Why that is important, or an additional reason why that is important, is that this respondent said in his version of events that Penisini had contacted him on his mobile phone not to talk to him but to talk to his brother, John, who just happened to be with him at the same place at that time of day.  Now, each of the offenders, including John, was found with his own working mobile telephone.  So it is another factual circumstance that a jury would be able to take into account in not accepting that part of this respondent’s evidence, given no doubt in an attempt to distance himself from the agreement and to make himself not the fourth man, but it is inconsistent with what is later found.

The curious thing, in our submission, about that recitation of events is that while it displays part of the basis for the joint criminal enterprise and therefore indicates that the court was aware of this body of evidence that was capable of constituting a relevant joint criminal enterprise, it glossed over completely the issues at the trial, the real factual issues at the trial, and the whole of the defence case.

Now, it is the applicant’s submission that the Court of Criminal Appeal should have had regard to the body of evidence which constituted the Crown case and from which the issues at the trial had been extracted.  It did to an extent, but then it moved on and put that joint criminal enterprise out of mind by focusing on the necessity to establish a later agreement.  Now, I accept that that is the way the Crown had run it at trial and again in the Court of Criminal Appeal, but the Court of Criminal Appeal, we would submit, had an obligation to have regard to the body of the evidence that constituted the case.

GLEESON CJ:   That raises, in my mind, a more fundamental issue.  The case, as left to the jury, appears on page 973 in the written instructions that were given to the jury and on page 674 in the oral directions.  Page 973 may be a convenient place to go.  It is evident that the prosecution’s acceptance of this was under some pressure, under some encouragement from the judge, but that case at page 973 involves drawing the battle lines in a way that has a major tactical attraction to the prosecution because that eliminates the significance of the argument about whether the present respondent was the fourth man or Mr Cackau was the fourth man.

In other words, by putting the prosecution case to the jury in the way in which you see it put on page 973, one has avoided having to come to grips with what you earlier described as the central factual issue in the case, that is, whether Cackau was the fourth man or the respondent was the fourth man.  In effect, that is the prosecution saying, “We don’t care whether Cackau was the fourth man or the respondent was the fourth man.  We’ve got him by identifying the joint criminal enterprise as jointly evading lawful apprehension.”

MR COWDERY:   It certainly has that effect.  Of course, whether that exercised the mind of the prosecutor at the time is another matter altogether.  I does have that effect, I concede that.

HAYNE J:   But it also has the further effect of avoiding the prosecution having to confront directly the issue presented as a result of Cackau’s evidence, particularly at 635 to 636, which, apart from this question of whether he was the fourth man, has entered the issue of when the enterprise started and finished.  Cackau’s evidence at the foot of 635 over to 636 was that he was to meet the three others and they were going to head off to Melbourne and they were going to do some armed robberies there.  Now, query whether four men who happened to hop into a car to travel interstate for the purpose later – a day later, perhaps – of committing armed robbery have embarked then on the joint criminal enterprise.

MR COWDERY:   Insofar as the timing is concerned, he said at the bottom of page 635 that it was “prior to the 27th” that he and Penisini had discussed matters and he said that that was why he was standing, on the 27th, on the street waiting to be picked up.

HAYNE J:   Yes, to go down to Melbourne is one inference.

MR COWDERY:   Yes.  Again, there is an issue there about whether some or all of his evidence in relation to that is accepted by a tribunal of fact but, nevertheless.  That evidence would have to be put against the evidence of the telephone contact between all of the participants, all four, on the morning of the 27th and the events that then saw them going across Sydney away from Cackau before, presumably – or what the Crown would argue are reasons that have absolutely nothing to do with Cackau or with his involvement in the enterprise.

HAYNE J:   What do you say is the joint criminal enterprise that all four men had agreed upon and were participating in at the time that the officer was shot?

MR COWDERY:   The joint criminal enterprise was their coming together, all four of them, with arms and with means of disguise to commit armed robberies.  Whether it is in Sydney or in Melbourne, we would submit, is beside the point.  We would submit that the tribunal of fact would not accept the Melbourne part of the story, if only for the reason there was nothing found in the car that would support the coming of a 10 hour drive to Melbourne.

CALLINAN J:   They might have been going to live off the land, Mr Cowdery.

MR COWDERY:   Yes, indeed, your Honour.

GLEESON CJ:   Like Napoleon.

MR COWDERY:   Like Ned Kelly.  The addition of the Melbourne particular, again, we would submit, suggests a degree of artificiality about that part of the story.  Your Honours, if I could go back to volume 3 at page 1141 in the judgment of the Court of Criminal Appeal, in paragraph 16 of the judgment at the top of the page, there is a passage with which the Crown does not take exception subject only to this, the use of the word “involved” which is potentially uncertain.  What the Court said there is:

It is obvious that the crucial questions involved the extent to which the jury were persuaded that the applicant was party to an agreement that involved the joint attempt to escape (or hinder the officer) of all four, together foresight by the applicant that one or other of the other three might use a gun to effect that hindering or joint escape, that the gun might be fired and that it might be fired with the intention to cause death or grievous bodily harm.

In the context in which that was said, the agreement was the evading or avoiding or escaping from the police officer.  But if you read that passage importing into the word “agreement” the joint criminal enterprise to commit armed robberies there is nothing exceptional about that as a statement of principle, we would submit.  Similarly, in paragraph 17, his Honour says:

it is convenient to set out the law as I understand it to be.  As I have mentioned earlier, the way in which the applicant’s guilt was ultimately left to be determined involved a common purpose arising out of a joint criminal enterprise in which the shooting of the deceased was a foreseen though unintended consequence of the “foundational crime” to which the appellant was a party.

Accepting what your Honour Justice Hayne says about the use of the words “foundational crime” and putting that expression to one side, the joint criminal enterprise could encompass a shooting, if that is part of the original agreement.  There is no evidence that it was.  But if it is extended to the broader extended joint criminal enterprise or common purpose, understood in the broader sense, then the issue was whether or not this respondent foresaw, though unintended, the consequence of the shooting of the officer.  There is then reference to some of the authorities on the subject.

GLEESON CJ:   The paragraph on 1142 between lines 30 and 45 in the judgment of this Court in Micallef is a very orthodox expression of the principle that is sometimes called extended common purpose, is it not?

MR COWDERY:   Yes, your Honour.  Your Honour, there is an error in the citation of that name.  It has been given the Maltese version.  It is actually McAuliffe, the Irish version; it should be a reference to McAuliffe.  In the passage that your Honour the Chief Justice just referred to there is discussion about Johns and then a statement of the principles.  As you go on, which is a quotation from pages 117 to 118 of the report of the decision, at the bottom of page 1142 this Court said:

There was no occasion for the court [in Johns] to turn its attention to the situation where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture.  However, the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose.

So there is reference to incidental crimes falling within the common purpose or the joint criminal enterprise or the foundational offence, if that terminology is used, but there are other incidental events that can occur outside the scope of that agreement but for which a party to that agreement will nevertheless be liable.

GLEESON CJ:   Yes, McAuliffe was a case in which the agreed common purpose was assault occasioning bodily harm.

MR COWDERY:   Yes.  If I could just finish that passage, your Honour, it says:

Of course, in that situation –

this is with the contemplational foresight of a further offence and participation in the joint criminal enterprise nevertheless –

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.

So there is the additional requirement that the Crown must prove the contemplational foresight of that situation which in this case is established, we would submit, by inference from the circumstances in which this respondent was operating for the better part of the day of 27 March.

Now, when the Court of Criminal Appeal made its decision, it held expressly that in this situation it was necessary to establish a further agreement to evade the constable and that it was not sufficient for this respondent merely to have contemplated for or foreseen the use of the weapon in circumstances of that kind and to have continued in the joint criminal enterprise.  Now, admittedly that was on the basis of another agreement that had been set up wrongly.

GLEESON CJ:   Yes, the agreement that is stated to the jury on page 973 line 30.

MR COWDERY:   That is so, your Honour, yes, but I could add to that, your Honour, that in requiring that there be a separate agreement, the court is saying that the accepted legal position in relation to extended joint criminal enterprise is no longer sufficient, because it is saying that even if you have an agreement to evade the constable, you then have to have an agreement to use the weapon in that attempt to evade.  That is, we would submit, to graft onto the law an additional requirement that it is not necessary to establish.

That is the danger of allowing this decision to stand as it does, because in situations where there is a joint criminal enterprise and an incidental event, incidental crime committed in the conduct of the joint criminal enterprise, this Court is saying it is not enough for a party to the joint criminal enterprise to have contemplated or foreseen that additional offence or, indeed, that each one of them might commit an offence of that kind, there has to be another agreement.

GLEESON CJ:   Am I right in thinking that Justice Wood was the trial judge in McAuliffe?

MR COWDERY:   My learned friend confirms that, your Honour, yes.

GLEESON CJ:   Yes.  Now, Justice Wood was also the trial judge in the trial of John Taufahema, was he not?

MR COWDERY:   He was, your Honour.

GLEESON CJ:   And presumably he instructed the jury in the case of John Taufahema consistently with McAuliffe?

MR COWDERY:   Broadly, your Honour, yes.

GLEESON CJ:   Now, there is an appeal in the case of John Taufahema?

MR COWDERY:   There is.

GLEESON CJ:   Is there a ground of appeal that that was a misdirection?

MR COWDERY:   My learned friend says no, your Honour.  It is the nature of the foresight of what would be done and with what intention.

CRENNAN J:   Was there a different foundational offence?  Was it section 33B?

MR COWDERY:   Section 33B in that case, your Honour, yes.  Nevertheless, the decision in this case potentially has consequences for the appeal in John Taufahema’s case and, indeed, we would submit, in any other situation where a group of people have come together armed and have not had the opportunity to carry out whatever offence they were planning to carry out, were intercepted on the way.  If this decision is allowed to stand in the way that it has been decided, then it would be necessary for the Crown to establish not only participation in the primary joint criminal enterprise and agreement to carry out its objects, but a further and fresh and new agreement amongst the participants to commit the incidental crime that is then committed.

CALLINAN J:   Mr Cowdery, was there evidence about how they came to have the gun and get the guns and why there were four guns?

MR COWDERY:   If your Honour would pardon me a moment, I will try to answer that.

CALLINAN J:   You may not be able to answer now, but I would be interested in that.

MR COWDERY:   My understanding, your Honour, is that there was no direct evidence on how they came to be in possession of them at that time.  There was evidence that they had all been stolen from the same place at the same time some weeks before this offence, as I understand it.

CALLINAN J:   And where were the four guns in the car?  Is there evidence about that?

MR COWDERY:   There is no evidence about that, your Honour, no, because the only occupant of the car to give any evidence in this case about what happened is the respondent and he says he did not know they were there.

CALLINAN J:   Is there any evidence about how big the guns were?

MR COWDERY:   They were pistols, each of them.  I think some were .38s.

HAYNE J:   We have the inevitable photographs, have we not, Mr Cowdery?  We have endless photographs of the weapons at about page 795 and following, I think.  Pages 795, 803, et cetera.

MR COWDERY:   Thank you, your Honour.  Yes.  I think the largest one was in the possession of this respondent, but it was still a pistol.  That is at page 798.  I may not be technically correct.  A pistol may be different from a revolver but they were handguns.

Your Honours, there was no ground of appeal before the Court of Criminal Appeal in this case that the verdict was unreasonable or could not be supported, having regard to the evidence.  Nevertheless, we would submit that when the court came to decide what order should be made it in fact decided that there was no reasonable case that could be the subject of a retrial, properly.

I accept that that is on the basis of the agreement which the Crown now says is not the appropriate joint criminal enterprise, but nevertheless, if the court was contemplating directing the entry of an acquittal, in our submission, it should have had regard to the nature of the evidence that was available and that was constituted by the record of the trial and to the nature of the offence which is murder and make a determination before directing an acquittal that there could not be a proper verdict of guilty of either murder or manslaughter such as to justify a retrial.

The court referred to part of what the Crown says is the proper joint criminal enterprise.  It must have been aware, at least broadly, of the nature of the evidence that had been led in the course of the trial, but it acted on the basis of what has proven to be the false characterisation of the nature of the joint criminal enterprise and said that there could be no evidence in support of a conviction on that basis and entered an acquittal.

It is the Crown’s submission, your Honours, that it should have had regard to the nature of the evidence, the strength of the evidence and whether or not that evidence was capable of supporting a conviction for the charge of murder on a proper basis before it made the order disposing of the appeal.

HEYDON J:   In either the oral argument or the written arguments in the Court of Appeal, was any attention directed to what order the Court of Criminal Appeal should have made?

MR COWDERY:   There was, your Honour, and I can take your Honour to those references.  In volume 3, the question was asked by Justice Adams at page 1119, at the top of the page:

Are they new trials?

GAME:   In a sense, one of the ways of putting it is it was not open to convict on the basis of the way in which it was led –

There seems to be little dispute about that now –

which would be in a fashion of unsafe and unsatisfactory.  It is against my client’s interests to say this, but I am not sure that means you can enter a verdict of acquittal because if there is evidence and there is a way in which the case could be put, then it is a retrial.

ADAMS J:   Is there a way in which the case could be put?

GAME:   I think I would have to concede that if the Crown can prove that he is in possession of the gun, from whoa to go -

My learned friend said “from whoa to go”, I am sure he meant “from go to whoa”.

ADAMS J:   But what is the evidence?

GAME:   It is not satisfactory for me to make a submission about a retrial on the basis of what I think.

We would submit that they are rather telling words in the course of discussion at that point.  My learned friend then said:

I think I will make a submission about the entry of a verdict of acquittal.

The subject is raised again ‑ ‑ ‑

HAYNE J:   Just before you leave that page, at about line 38.

MR COWDERY:   Yes:

the way in which the case was ultimately left, it was not open to convict –

but bear in mind that there had been reference to putting the case a different way –

it would not be appropriate for your Honours to engage in some other exercise enquiring for yourselves as to whether there was some other basis, other than the way it was left.

The Crown would ask why not.  Why should the court not be obliged to do that on the basis of the evidence?

KIRBY J:   In between those two passages you have read is the passage which refers to the authority which says you do not get two bites of the cherry to present the case in a different way at a second trial.  This Court has said that on many occasions.

MR COWDERY:   Yes, indeed, but this is not a case where the Crown would seek to make a case that it did not put.  The evidence would be the same.  There would be no change.  It is not a case where the Crown seeks a second bite of the cherry to improve its case.  It is only the legal characterisation of the way in which the evidence is put and argued that would be different.  It is the same case, the same body of evidence, the same facts.

GUMMOW J:   One question that rises from Parker is whether there would need to be “a substantial amendment to the indictment”.  That is Parker 186 CLR at 520.

MR COWDERY:   There would need to be no amendment to the indictment.  The charge is murder, the charge would remain murder.

GLEESON CJ:   Murder with manslaughter being a possible alternative verdict.

MR COWDERY:   Indeed, your Honour, yes.  Further down page 1119 my learned friend said:

My submission is this:  the way in which the case was ultimately left, it was not open to convict -

and there is no argument about that –

it would not be appropriate for your Honours to engage in some other exercise . . . 

ADAMS J:   It is impossible to think of the evidence being any different.

That is quite right.

GAME:        Quite, and the accused’s case appears in the accused’s record of interview as high as in the evidence and, in fact, higher.  That would leave the Crown to charge some other offence other than manslaughter – I’m not sure what it would be, but it would leave them free to charge some other offence if they saw fit. –

There is no suggestion of that and no intention of that –

My submission is, given the way the case was ultimately put, there was no evidence to support that case that was ultimately put and for that reason your Honours should enter a verdict of acquittal.

Over the page at 1120 the Crown, Mr Bennett, said:

Accepting the prosecution should not be allowed to put a case restructured and different from that which was presented on the first occasion –

and it would not be a different case –

in our submission it is a matter for the trial, for proper directions, accepting the accuracy of what my learned friend has said, that there be proper directions so that the jury are properly instructed in regard to what must be established beyond reasonable doubt, before they could find the accused guilty of murder, followed by an appropriate direction as to the alternative of manslaughter or 33B, should that be pleaded in the alternative.

Which it is not.

GLEESON CJ:   There is really an inherent ambiguity in the expressing “seeking to make out a new case”.

MR COWDERY:   There is, your Honour.  If that is defined as meaning a new charge or different evidence, then we would agree that the Crown should not ordinarily be given an opportunity to do that, but in this case neither of those situations arises.  It is not a new charge like Gerakiteys.  It is not new evidence.  The Crown is not seeking to bolster up its case in some way or, indeed, to change the basic thrust of the case.

GLEESON CJ:   Sometimes what is said to be involved in a new case, and I am not saying it is this one, is drawing different inferences from the evidence, taking a different view of the facts.  But the kind of new case with which we are here concerned is for the purposes of establishing criminal complicity by reason of participation in an enterprise re‑identifying or re‑characterising the enterprise and a question may arise as to whether that is relevantly a new case for the purpose of the application of principles that are often stated in very general terms that do not address in particularity the different forms of novelty that may arise.

MR COWDERY:   We would submit, not even re‑characterising the enterprise, but re‑characterising the stages of the enterprise in its working out, bringing back to the beginning the first basis for liability of the respondent and not having it pitched at a later point in the evolution of events.

KIRBY J:   If it is the same crime and the same evidence and the opportunity for different argument and putting it in different ways, it is not as offensive to principle to say that there should be a trial.  After all, we have a case here where there has been a homicide, a homicide of a police officer, and a jury ought normally to be the body that passes on such a matter.  I can see an objection if there is to be a different count or new evidence or evidentiary material of some kind that really gives you a second bite of a different cherry, but here you just want to have the same cherry.

MR COWDERY:   Indeed.

KIRBY J:   Normally that would have been what would follow from a misdirection by the trial judge if both parties agree.

MR COWDERY:   Normally it would.

KIRBY J:   There is not a lot of elaboration as to why the Court of Criminal Appeal saw fit to take the step that it did.  This Court recently, I think, on a couple of occasions – is it Dimes, or Dives or some name like that – said that it is a very rare case where the Court will not just order a retrial and leave it to the Director of Public Prosecutions to determine whether the matter should go to retrial or not.

MR COWDERY:   That is a much more common occurrence, your Honour, yes.

GLEESON CJ:   I think that might have been a slightly different point.  That was the court making the point that an order for a new trial does not quite mean what it says.  It opens the way for a new trial, but it reserves to the executive branch of government the decision as to whether to proceed.

KIRBY J:   But it said that in the context where it reserved that there were exceptional cases where the court would need them and I suppose no evidence is such an exceptional case if there is no evidence – I am sorry, I interrupted you.  You were answering the Chief Justice.

MR COWDERY:   In this case there should be no doubt about it, your Honours.  If there is a retrial in this case it will be on a charge of murder, full stop, and on the same evidence.

GLEESON CJ:   Charge of murder, full stop, but with manslaughter being an available verdict.

MR COWDERY:   With manslaughter as the alternative verdict, but that is an alternative without being specifically charged.

GLEESON CJ:   Yes, quite.

MR COWDERY:   To come back to Justice Heydon’s inquiry, there are some other references.  At page 1126 at about point 10, Justice Adams asked the Crown:

What do you say about a new trial?

BENNETT:   Our submission is there should be a new trial presented on the same case but with proper instructions.

The same case perhaps in the mind of the Crown at that time meaning the evasion as the agreement, but we would submit the same case would be the same evidence.  Justice Adams said:

Do you say that with proper instructions a jury is capable – is it a case on which a jury is capable of convicting – I suppose that must be so.

BENNETT:   Yes.

Again at page 1129, my learned friend at the top of the page:

Now, the other thing is that there is an uncertainty about what Mr Bennett is putting because he says the same case.  He must mean –

it says “3b”, but I am sure that means 33B –

is the foundation because this one has gone and the question for your Honours is, is it appropriate to allow the Crown to present that case?

ADAMS J:   I understand.

That was the end of the hearing.  In the judgment, your Honours, at pages 1151 and 1152 in paragraph 39 the orders are referred to.  It came to the question of the agreement:

to evade the police officer, as distinct from having made a decision that he would attempt to do so and knew that the others would do the same.

Now, that comes back to a point that I made a little bit earlier that if it is necessary for the incidental crime to be the subject of a fresh agreement rather than simply contemplation and continuation in the joint criminal enterprise, then that is a legal error that has the potential to cause difficulty in other cases where those facts arise.

HEYDON J:   If you won on that point, it would avail you nothing unless you win on this remedy point.  You come here about the remedy problem.

MR COWDERY:   Yes.

HEYDON J:   It seems to me if the Court was strongly against you on remedy, it would arguably be pointless to deal with the other matter.  It would be pure dicta on the part of the Court.  On the other hand, special leave could be refused with some reference to it.

MR COWDERY:   Yes, it is relevant to the issue of special leave, I would submit.

HEYDON J:   That first two lines of page 1152 does not help you on this remedy.  Your criticism of it does not help you.

MR COWDERY:   In the next sentence the court went on to say:

Nor was there as basis for concluding that [the respondent] adverted to the possibility that one of the others might use a gun in the course of evading the officer.

In that sentence they are really saying that there is no evidence of the relevant state of mind by the respondent.

KIRBY J:   You say that is a matter that should be determined by a jury.

MR COWDERY:   Indeed, and had not been examined to any extent in the hearing in the Court of Criminal Appeal.

GLEESON CJ:   This is a consideration that may cut both ways, but I understand you to rely upon the consideration to illustrate the artificiality of the way in which the matter was presented that the total time that elapsed between when Constable McEnallay appeared on the scene, as it were, and the time of his death was about 60 seconds.

KIRBY J:   You say that is the real issue in the case, but it was not the way that it was formulated by you.

MR COWDERY:   I accept that.

KIRBY J:   There are lots of restraints that have been gone through.  I mean, I do think Mr Game made some very telling points by going through all those passages in the conduct of the trial that showed that this was not some chance slip or oversight; this was a deliberate decision of the prosecutor to present the case against the accused in a very particular way because it was simple and it had certain tactical advantages and it enhanced the possibility of getting a conviction, which it got.

MR COWDERY:   But my point is that even at the end of the Crown case and in the defence case both parties and the court were approaching it on the basis of the robbery joint criminal enterprise.  Given the nature of the Crown opening, there was no additional prejudice to the defence because the defence was still conducting the case on the basis that the armed robbery part of it was central to the issues between the parties and was, over the trial judge’s warnings, insistent on calling Cackau to give evidence.

The Crown would say that the evidence of Cackau is not essential to the proof of its case on the joint criminal enterprise constituted by the armed robbery scenario, that there are sufficient available inferences to be drawn from the rest of the evidence even without the evidence of Cackau.

GLEESON CJ:   How does that fit with the way the prosecution case was put against John Taufahema?

MR COWDERY:   I have no detailed knowledge of the conduct of those proceedings, your Honour.  I have approached that on the basis they are completely separate proceedings, different indictment, different trial, different proceedings altogether, and so I regret to say that I have not ‑ ‑ ‑

GLEESON CJ:   At all events, you say the difference cannot be explained by the presence of Cackau?

MR COWDERY:   No.

KIRBY J:   But, as the Chief Justice made the point earlier, special leave has not been granted here.  It has been referred into the Court.  You stand at the gate, you are knocking on the gate, and against you is you are the Crown, you are a model litigant, you deliberately conducted your case in a particular way, it was repeatedly presented in that way, it would have affected the way the case was presented for the accused at trial and it is oppressive, in a sense, now in this Court, the final court, when it has not even been raised in the Court of Criminal Appeal, to be coming back here and then asked to, as it were, have a chance to present the case in a different way. 

In favour of doing that is the very serious nature of the homicide and the availability of certain inferences in the facts.  But against that is the judgment of the prosecutor and, in a sense, the sanction that we give for strategic and tactical reasons to be given and if they do not work out right, well, the High Court will fix it all up in the end, which is not a good message to be sending to your prosecutors.

MR COWDERY:   I accept all of that, your Honour, but this is the last opportunity for justice to be done in this case.  It is the last opportunity for the community to achieve justice in relation to this matter and, in my respectful submission, your Honours have an obligation to approach it in that way and, I would submit, to order a retrial.

May I refer to I think four separate points that have arisen in the course of my learned friend’s address.  The first is the decision in Weaver.  My learned friend took your Honours to the passage at page 337.  I would submit that that is distinguishable from this case because there it was only one of the two accused who would have been subjected to a new trial and that was essentially an injustice that would have occurred had that order been made.  So my submission is that that can be distinguished.

Your Honour Justice Kirby referred to the situation that theoretically might have developed where the Court of Criminal Appeal ordered a retrial and the Crown subsequently gave notice of a change in the way in which that retrial would be conducted in some way.  In the judgment of the Court of Criminal Appeal at page 1152, the last page of the judgement, there is reference to a case of Chekeri 122 A Crim R 422. We have not provided a reference to it but it is referred to in the Court of Criminal Appeal judgment. The Court of Criminal Appeal having referred to that case may have overlooked a qualification to the principle that it was no doubt seeking to rely upon there. At page 434 of the report the Court said:

This submission is said to be supported by the general proposition that the Crown is to conduct proceedings against an accused fairly.  But particular reliance is placed upon the practice of this and other appellate courts to refuse to exercise their discretion to order a retrial where a conviction has been quashed as a result of some defect in the prosecution at trial and where to order a retrial would permit the Crown to make a new or different case before another jury.

I appreciate the submissions that have been made about that and the comments.  The court went on:

But this practice is an aspect of the principle of double jeopardy and seems to me to have no relevance at all to the further trial of a count which did not result in a verdict at a previous trial.  In any event, there is no general rule or practice that prohibits or hinders the Crown on a re‑trial after appeal from presenting its case in any way or on any charge it deems appropriate.  If there is a change in the tactics employed or in the evidence to be led at the re‑trial which results in any prejudice to an accused, the remedy is to be found in an adjournment before the trial or a discharge of the jury during the trial.  It does not by itself justify a stay of proceedings in the present case.

Which was the remedy that was sought in that case.  I would rely on those propositions.  May I conclude by reference to King and Wilkes, the two cases to which my learned friend has referred.  Again, we would submit that both of those are distinguishable from the situation in this case.  In King Justice Dawson at the top of page 433 referred to the fact that section 8 of the Criminal Appeal Act “nevertheless confers a broad discretion”.  There are a number of cases then cited where matters relevant to the exercise of that discretion have been discussed.  Then the next full paragraph in the middle of the page:

It is well established that the discretion to order a new trial should not be exercised when the evidence in the court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective.

Neither of those is the situation in this case, we would submit.

In particular, the Crown should not be given an opportunity to make a new case which was not made at the first trial.

The reference there is to Wilkes and in Wilkes at page 518, Justice Dixon, as he then was, said:

in the circumstances a new trial should not be granted.  I would have done so –

that is come to that conclusion –

because it would necessitate the presentation by the Crown either of the case on which the accused had substantially been acquitted or of a new case which had not been made at the first trial, a case moreover which, I should have thought, was highly improbable –

in the circumstances of Wilkes –

and a desertion of the assumptions which the jury’s previous verdict seems to require.

We would submit that this case is not caught by any of the injunctions expressed there.  Unless there is anything further, your Honours, those are our submissions.

GLEESON CJ:   Thank you, Mr Cowdery.  We will reserve our decision in this matter and we will adjourn until 9.30 tomorrow in Canberra and 9.30 tomorrow in Sydney.

AT 3.20 PM THE MATTER WAS ADJOURNED