R v Tiet
[2002] WASC 17
R -v- TIET & ORS [2002] WASC 17
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 17 | |
| Case No: | INS:66/2001 | 7 FEBRUARY 2002 | |
| Coram: | MURRAY J | 12/02/02 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Ruling given | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN AN VAN TIET GIANG THANH TIET HO THANH TIET TUOI VAN TIET AARON TRUONG LOUIS LE HOANG PHI TRAN TEO VAN PHAM THANH PHONG NGUYEN JOSEPH CONDELLI JONATHON PERSIVAL O'DRISCOLL DANIEL FRANK HEARNE |
Catchwords: | Criminal law and procedure Indictment charging attempted murder and unlawful wounding with intent to do grievous bodily harm in the alternative Application to case of Criminal Code (WA), s 7, s 8 |
Legislation: | Criminal Code, s 7, s 8 |
Case References: | Alister v R (1984) 154 CLR 404 Markby v R (1978) 140 CLR 108 Mason v R (1995) 15 WAR 165 McAuliffe v R (1995) 183 CLR 108 Nguyen v The Queen [2001] WASCA 176 R v Barlow (1997) 188 CLR 1 Saunders v R [1980] WAR 183 Stuart v R (1974) 134 CLR 426 Ward v R (1997) 19 WAR 68 Warren & Ireland v R [1987] WAR 314 Beck v The Queen [1991] 1 Qd R 30 Director of Public Prosecutions v Stonehouse [1978] AC 55 Johns v The Queen (1980) 143 CLR 108 Knight v The Queen (1992) 175 CLR 495 R v Betty (1963) 48 Cr App R 6 R v Grimwood (1962) 3 All ER 285 R v Lovesey [1970] 1 QB 352 R v Mohan [1976] QB 1 R v Smith [1963] 1 WLR 1200 R v Whybrow (1951) 35 Cr App R 141 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
AND
AN VAN TIET
GIANG THANH TIET
HO THANH TIET
TUOI VAN TIET
AARON TRUONG
LOUIS LE
HOANG PHI TRAN
TEO VAN PHAM
THANH PHONG NGUYEN
JOSEPH CONDELLI
JONATHON PERSIVAL O'DRISCOLL
DANIEL FRANK HEARNE
Catchwords:
Criminal law and procedure - Indictment charging attempted murder and unlawful wounding with intent to do grievous bodily harm in the alternative - Application to case of Criminal Code (WA), s 7, s 8
Legislation:
Criminal Code, s 7, s 8
(Page 2)
Result:
Ruling given
Category: B
Representation:
Counsel:
Crown : Mr P D Yovich & Ms A L Forrester
Accused A V Tiet : Mr R M Utting
Accused G T Tiet : Mr R W Keeley
Accused H T Tiet : Mr R G W Bayly
Accused T V Tiet : Ms L Boston
Accused A Truong : Mr S V Smith
Accused L Le : Mr P J Hogan
Accused H P Tran : Mr M R Hall
Accused T V Pham : Mr P Heywood
Accused T P Nguyen : Mr J D Hawkins
Accused J Condelli : Mr G J Huggins
Accused J P O'Driscoll : Mr A O Karstaedt
Accused D F Hearne : Mr D J McGrath
Solicitors:
Crown : Director of Public Prosecutions (State)
Accused A V Tiet : D Webb
Accused G T Tiet : Legal Aid of Western Australia
Accused H T Tiet : Bayly & O'Brien
Accused T V Tiet : L Boston
Accused A Truong : S V Smith
Accused L Le : Andree Horrigan
Accused H P Tran : M R Hall
Accused T V Pham : Youth Legal Service
Accused T P Nguyen : J D Hawkins & Associates
Accused J Condelli : G J Huggins
Accused J P O'Driscoll : Max Crispe
Accused D F Hearne : D J McGrath
(Page 3)
Case(s) referred to in judgment(s):
Alister v R (1984) 154 CLR 404
Markby v R (1978) 140 CLR 108
Mason v R (1995) 15 WAR 165
McAuliffe v R (1995) 183 CLR 108
Nguyen v The Queen [2001] WASCA 176
R v Barlow (1997) 188 CLR 1
Saunders v R [1980] WAR 183
Stuart v R (1974) 134 CLR 426
Ward v R (1997) 19 WAR 68
Warren & Ireland v R [1987] WAR 314
Case(s) also cited:
Beck v The Queen [1991] 1 Qd R 30
Director of Public Prosecutions v Stonehouse [1978] AC 55
Johns v The Queen (1980) 143 CLR 108
Knight v The Queen (1992) 175 CLR 495
R v Betty (1963) 48 Cr App R 6
R v Grimwood (1962) 3 All ER 285
R v Lovesey [1970] 1 QB 352
R v Mohan [1976] QB 1
R v Smith [1963] 1 WLR 1200
R v Whybrow (1951) 35 Cr App R 141
(Page 4)
1 MURRAY J: Following the opening address of the Crown prosecutor in this case, a ruling was sought on behalf of a number of accused persons upon various matters of law arising out of statements made in the opening address. It was suggested that I needed to give directions to the jury at this early stage of the trial so that they might approach their consideration of the evidence in the case against the background of correctly formulated references to the law.
2 In my opinion, as I indicated to counsel, observing that I would give my reasons later, no such direction is required.
3 The question which arises is the law by which the criminal complicity of secondary offenders might be established by the application of the Criminal Code (WA), s 7 and s 8.
4 In the case of none of the accused persons before the Court, as I understand the prosecution case, is it suggested that any of them was a principal offender in the sense that he actually did the acts accompanied by an intention to kill alleged to constitute the making of that attempt or, alternatively, did an act of unlawful wounding while having the intent to do the victim, one Leo Le, grievous bodily harm. In the majority of cases, the Crown relies exclusively upon the application of s 8 of the Criminal Code, but there are other cases in which it contends that upon the evidence, the jury might find, pursuant to s 7 of the Code, that the particular accused person is one who has done an act for the purpose of aiding or enabling a principal offender to commit the offence, or has aided that person to commit the offence, pursuant to the Code, s 7(b) or (c). If at the end of the day the jury should find themselves not so satisfied beyond a reasonable doubt, then in relation to those accused persons also, the Crown invites the conclusion that they are secondary offenders whose guilt is established pursuant to the Code, s 8.
5 Mr Bayly puts to me that I should direct the jury that it is not legally possible for the Crown to present its case in that way. He argues that it must, effectively, elect upon which basis it puts the case to the jury. It is sufficient to say that, in my opinion, there is no merit whatsoever in that submission. To rely on both sections involves no inherent inconsistency in relation to the mental state of the particular accused person. The state of mind of an accused relevant to the application of s 7 and s 8 will be a different state of mind. One state of mind may be established and the other not. Indeed, it might be open to the jury to find that a particular accused person has the state of mind or knowledge which would establish
(Page 5)
- his guilt under both sections. In many cases, appellate courts have dealt with the relevant law in just that way.
6 An offence is committed when a person deliberately or wilfully performs all the acts and/or omissions which constitute the physical elements of the offence: Code s 2 and s 23. If a specific intention is defined as an element of the offence, then, in addition, the act or omission must be performed with that intention: Code s 23.
7 Section 7 deems to be guilty of the offence not only, under par (a), every person who actually does the act or makes the omission which constitutes the offence, but also those who act in aid of its commission: pars (b) and (c). This is not in any sense a derivative liability. It is a liability which flows directly from the aid given. In the circumstances relevant to this case, the question would be whether the accused person consciously performed (ie for the purpose of providing aid) before, during or after the commission of an offence charged, an act in aid of or to assist or to encourage the person or persons, whether charged or not, who attempted to kill Leo Le, if so the jury find beyond a reasonable doubt, or, if they so find in the alternative, unlawfully wounded him with intent to do him grievous bodily harm.
8 If so, then any such accused person might be convicted of the relevant offence by the application of s 7 if he has the required state of mind. That state of mind is neither the intent to kill, nor the intent to do grievous bodily harm, which are states of mind relevant to the commission of the offence by a principal offender. The relevant state of mind for the secondary offender under s 7 differs depending upon whether the jury finds the aid was rendered before the commission of the offence or, alternatively, during or after it.
9 If the aid is rendered before the commission of the offence, the secondary offender must know generally what offence would or might be committed, ie that the principal offender might attempt to kill Leo Le intending that result or might wound him with intent to do him grievous bodily harm, not precisely how he might go about it. If the aid was rendered during or after the commission of that offence, then the relevant state of mind of the secondary offender is that he must know that there is or had been an attempt to kill Leo Le, intending to cause his death, or that he was being, or had been, wounded or harmed in some such manner of that general degree of severity with the intention to do him grievous bodily harm. In each case, the relevant state of knowledge must exist at the time when the acts found by the jury to constitute the rendering of aid
(Page 6)
- were performed: Ward v R (1997) 19 WAR 68, 75 per Steytler J with whom the other members of the Court of Criminal Appeal agreed.
10 For the purposes of the application of s 8, again it is to be noted that the liability is not derivative. It flows directly from the acts and state of mind proved against the secondary offender. That offender does not have to have the specific intent necessary to establish guilt of a principal offender of the offence in question any more than a secondary offender under s 7 has to have that intent. Of course, such a secondary offender liable under s 7 or s 8 may have such a specific intent as the purpose for which the aid is rendered or additional to the common purpose formed with others which is necessary to the application of s 8. In that case the existence of such a specific intent will support a particular conviction which may be different from that of the principal offender or other offenders: Warren & Ireland v R [1987] WAR 314, but that is not the point presently debated or, as I understand it, a point likely to arise on the evidence in this case.
11 Here, in my opinion, the proper operation of s 8 of the Code flows directly from the wording of s 8(1). The section requires that:
(1) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another;
(2) the particular accused whose case is under consideration is one who actually joins in the prosecution of that purpose by doing some act or acts directed to the furtherance of the purpose: McAuliffe v R (1995) 183 CLR 108;
(3) an offence is committed, as the jury find, which is different from the unlawful purpose prosecuted by accused persons but the commission of which is a probable consequence of the prosecution of that purpose;
(4) in that event, the question whether the offence committed as found by the jury was a probable consequence of the prosecution of the common unlawful purpose is an objective question for the jury having regard to the position of and circumstances surrounding the particular accused person whose case is under consideration.
(5) Then each accused person in that position is deemed to have committed the offence in question.
12 In this case, the Crown alleges that the accused persons formed a common intention to go to the house of Phuc Huynh where his birthday
(Page 7)
- party was being held, to invade that house (thereby committing an offence of aggravated burglary) and physically attack or assault Huynh and his guests, of whom Leo Le was one. In my opinion, if in the prosecution of that purpose and, more particularly on the way to the party, Le was attacked, that would simply be part of the prosecution of the common unlawful purpose.
13 But if he was unlawfully wounded by way of an attempt to kill him, or with intent to do him grievous bodily harm, that would carry the offence committed outside the alleged common purpose and make the relevant question whether such offence, committed with either specific intention, was a probable consequence of the prosecution of the purpose of assaulting, even seriously assaulting, the person who was Leo Le. To my mind, the reasoning of the High Court in the case of Stuart v R (1974) 134 CLR 426 dictates that conclusion although, of course, the facts of the two cases would be different.
14 Ms Boston and Mr Hogan join, on behalf of their clients, in the different submission that where s 8 is relied upon, the Crown must prove that the secondary offender had the requisite intent to establish guilt if that person had been a principal offender, ie an intention to kill or do grievous bodily harm. As I have said, in my opinion, the plain meaning of the words used in s 8(1) is to the contrary. Liability flows to a secondary offender under s 8 because the commission of the offence in question, including the establishment against a principal offender of the necessary specific intent which must accompany its commission, is an objectively probable consequence of the prosecution of the unlawful purpose which was the common intention of all who are implicated. The commission of the offence in question need not be contemplated at all by the secondary offender made liable by the application of s 8, but the relevant state of mind for that offender is the establishment of the common intention of which the section speaks.
15 That that is the law is, in my opinion, established by the decision of the High Court in R v Barlow (1997) 188 CLR 1 and the judgment of the majority of the High Court at 10 – 11. Referring to s 8 their Honours said:
"It fastens on the conduct of the principal offender, but it does not deem the secondary party to be liable to the same extent as the principal offender. It sheets home to the secondary offender such conduct (act or omission) of the principal offender as (1) renders the principal offender liable to punishment but (2) only to the extent that that conduct (the doing of the act or the
(Page 8)
- making of the omission) was a probable consequence of prosecuting a common unlawful purpose. The secondary party is deemed to have done an act or made an omission but only to the extent that the act was done or the omission was made in such circumstances or with such a result or with such a state of mind (which may include a specific intent) as was a probable consequence of prosecuting the common unlawful purpose. Those circumstances, that result and that state of mind are factors which, either together or separately but in combination with a proscribed act or omission, define an offence of a particular 'nature'. Thus the unlawful striking of a blow by principal offender will constitute an offence the nature of which depends on whether the blow causes bodily harm or grievous bodily harm or death and on the specific intent with which the blow is inflicted." (My emphasis)
16 It is clear from this passage, particularly from those portions to which I have given emphasis, that the specific intent will be that of the principal offender who in fact delivered the blow. The victim in Barlow was killed by a blow. In the passages following that quoted above, on 10 – 11, their Honours discuss the application of the law so stated to the facts of the particular case. They note that the principal offender, "the striker of the blow", would be guilty of murder only if the blow was struck with the intention to cause death or grievous bodily harm. As to the position of Barlow, their Honours rejected as "bizarre", the proposition that was advanced in that case, that Barlow should be acquitted entirely if the jury were left in doubt on the evidence as to whether the principal offender had the intention to kill or do grievous bodily harm. The Court concluded that what was found as to the relevant state of mind of the principal offender would be relevant to the criminal complicity of the s 8 offender to the extent that that state of mind was itself a probable consequence of prosecuting the common unlawful purpose.
17 Their Honours noted that that view accorded with the previous decision of the High Court in Stuart v The Queen at 453 - 4 and with its decision in Markby v R (1978) 140 CLR 108, as well as the decisions of relevant state courts. As to this State, their Honours referred to Saunders v R [1980] WAR 183 at 184, 189, Warren v Ireland at 322 – 324, 330 – 331 and Mason v R (1995) 15 WAR 165 at 174, 189.
18 In my opinion, nothing said by the High Court in Alister v R (1984) 154 CLR 404 is to the contrary. I note that this is a common law decision which came from NSW and was not referred to by the High Court in
(Page 9)
- Barlow, but the case was concerned with the question whether the accused persons together were principal offender, aider and abettor in the attempted murder of police officers who intercepted the car in which they were travelling, when one of them tried to detonate bombs in the vehicle. They were convicted on the basis that they were acting in concert, both having the intent to kill police officers. The question sought to be raised on the application for special leave in relation to the offender who encouraged the other was that there was insufficient evidence to establish that fact, that the applicant had a common purpose with the other accused to murder anyone, rather than simply to detonate the bombs and destroy themselves. It is sufficient to refer to what was said by two of the Judges who formed part of the majority in that case, Wilson and Dawson JJ in their judgment at 444 – 6.
19 Finally, I should say that what I have written here accords with my judgment, with which Malcolm CJ and Owen J agreed, in Nguyen v The Queen [2001] WASCA 176; 13 June 2001.
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