Sailor v The Queen

[1992] HCATrans 46

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S24 of 1991

B e t w e e n -

EDWARD COOKE SAILOR

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 FEBRUARY 1992, AT 10.27 AM

Copyright in the High Court of Australia

Sailor 1 13/2/92

MR M.F. ADAMS, QC:  Your Honours, I appear with my learned

friend, MR P. BYRNE, for the applicant.

(instructed by Arden Associates)

MR R.O. BLANCH, QC:  May it please the Court, I appear with

my learned friend, MR A.M. BLACKMORE, for the

Crown. (instructed by the Director of Public

Prosecutions (New South Wales))

BRENNAN J: Yes, Mr Adams.

MR ADAMS:  The Court will have appreciated that this is yet

another appeal that raises the applicability and

possibly the correctness of this Court's decision

in Johns. The matter has been agitated, I think,

last year in a number of cases but did not directly raise the argument in the way that we seek to argue it here. I wonder if I could very briefly refer to the facts and then sum up, in a couple of

sentences, what we say, with respect, is the real

question.

TOOHEY J: Could I just ask you this before you do,

Mr Adams? Something in what you just said might

suggest that Johns' case was under attack as

opposed to the application of that decision in the

particular case?

MR ADAMS:	No, we would hope
TOOHEY J:	I only mention it because it is not apparent from

the draft notice of appeal that that is in

contemplation.

MR ADAMS:  I see, Your Honour. I must confess that we would

hope to glide past Johns in the sense that we say

that we would rely on certain of the language used in Johns to make good our submission as to what is

really the substance of the common purpose

direction and confine the Johns' direction and	observations to the two issues with which Johns was	fundamentally concerned, namely, what is the effect
of a circumstance of the taking to a crime known to all parties of a lethal weapon. We say lethal
weapon cases are on one side and Johns is one.
Secondly, the issue which we do not seek to agitate
here which is the probability/possibility debate in relation to foresight of consequences where the question is whether what is foreseen is the
intentional infliction of death or grievous bodily
harm. We do not seek to agitate either of those
two points. And I think that that is, if I may say
so with respect, what distinguishes the way in
which we seek to put this argument and the way in
which it has been agitated before this Court
recently.

Sailor 2 13/2/92

BRENNAN J:  What is the principle in this case which allows

you to glide past Johns, as you say?

MR ADAMS:  We say that Johns was concerned with the - it is

an unsatisfactory word, but I might as well - with

imputed intention or constructive intention that

comes from the knowledge that a lethal weapon is or

might be used in an unlawful enterprise.

BRENNAN J:  You would restrict it simply to a legal weapon

case, is that what you are saying?

MR ADAMS: 

Yes. Although there are general statements - but

the Court in Johns was principally concerned with
the argument that foresight of the use of the

weapon was a probability - whether it must be a

probability or could simply be a possibility. That

was the principal question with which Johns was

concerned. There are expressions in Johns which

seem to accept what we submit in our outline of

argument is the proper rule, namely, that the

possibility of an event identifies the act or event
for which the accused is criminally responsible or

might be criminally responsible but that you then

must look at his actual intent to see what is the
extent of that responsibility.

In a lethal weapons case, we say that intent

may be very readily inferred and, indeed,

Mr Justice Stephen in his judgment makes that

observation two or three times, and the English

cases, for example Chan Wing-Sui, make the same

point. However, the broad underlying principle

which seems to be adopted by Johns is this, as we

understand it, and with this, indeed, we may well
need to differ: the scope of the enterprise is the
critical question. In Johns there are observations

to the effect that that scope is determined not

only by what is explicitly or implicitly agreed to

but also by the advertence to the possibility of an event occurring, that is, being committed by one of

the other participants or occurring as a result of

the enterprise as a whole.

What happened in this case was that

Mr Justice Badgery-Parker directed the jury as to

common purpose in terms of the enterprise to rob,

then has told them that if, as it was a part of

that enterprise, either explicit or implicit, that

grievous bodily harm or death would occur, that
would make the applicant guilty, but that if they
were not satisfied that it was a part of the common

design or specifically intended, then the applicant

was criminally responsible if he contemplated the

possibility of death or grievous bodily occurring

or being inflicted.

Sailor 3 13/2/92

BRENNAN J:  Now, do you find that in conflict with anything

that is in Johns?

MR ADAMS:  Yes, it is in conflict, Your Honour, because

Johns - - -

BRENNAN J: Could you point us to the passage in Johns and

the passage in the summing up which, in your

submission, are in conflict?

MR ADAMS:  Certainly. And then after I do that,

Your Honour, may I take the Court back to Markby on

this question. But going to Johns: there are a

number of statements of the principle. Taking the

judgment at page 113 of 143 CLR, half-way down the

page:

The participants in a common design are liable

for all acts -

and may I just here flag the use of the words

"acts" for a moment -

done by any of them in the execution of the

design which can be held fairly to fall within
the ambit of the common design. In deciding
upon the extent of that ambit, all those
contingencies which can be held to have been

in the contemplation of the participants, or which in the circumstances ought necessarily to have been in such contemplation, will fall

within the scope of the common design.

And then having stated that general principle,
His Honour went on, as did other members of the

Court, to concern himself with whether it needed to be in the contemplation as a possibility or

probability, which is the substance of the case.

And there are other expressions to the same effect.

BRENNAN J:  Do you challenge that proposition?

MR ADAMS:  No, we do not.

BRENNAN J: Where then do we find something in conflict with

that proposition in the summing up?

MR ADAMS:	His Honour dealt with this matter at a number of places but, having come back on 26 April - page 100
of the application book - His Honour summed up what he describes as his "principal directions" in, if I
may say so with respect, in a useful form.

Can we go then to page 102, paragraph (9):

Sailor 4 13/2/92

On the first count the accused is not to

be found guilty of murder unless the Crown has

proved:

(i) the doing of an act which caused the

death -

the relevant intention in the person who did that

act, and then:

(iii) that that act was done in circumstances

in which the law holds the accused responsible

for it.

And then, if we can go to page 104 - His Honour

dealing with other matters I do not think we need

to trouble the Court with - paragraph (12):

(12) If you are satisfied that the accused was

party to a joint enterprise, sharing a common

purpose to rob Mr Gilmore -

and there, in this case, can be absolutely no doubt

that that was at least the case -

still you may not find him guilty of murder

unless you are satisfied that the act which

caused death was an act specifically agreed to

or intended by the accused, that is that he

shared with the actual perpetrator the

intention at least to inflict serious injury

on Mr Gilmore.

Or if you are not satisfied of that, unless

you are satisfied at least that the accused

contemplated that it was possible that, in the

course of the robbery, the actual perpetrator

might intentionally inflict serious injury on

his victim.

Now, we say that all that did was to isolate

the act for which the applicant was responsible

but, in the terms of the direction, which he did

not intend.

BRENNAN J:  I am sorry, I do not quite follow. Would you

say that again?

MR ADAMS:  I am sorry. No, that is badly put. Let me say

it identifies the act for which the applicant was

responsible as being sufficient to make him guilty

of murder, providing the actual killer had the

necessary intent, and excluded from that

consideration whether he himself might have

intended death or grievous bodily harm. We say

that the proposition in Johns does not exclude the

Sailor 13/2/92

requirement that there must be an intent in the

accused to cause death or grievous bodily harm.

Perhaps inconsistent is not the correct characterization of this comparison, that is,

between the passage I have read from Johns and

this, but that His Honour was of the view that

Johns excluded the necessity for the jury to consider what was the actual intention of the

accused.

BRENNAN J: If one looks simply at the infliction of serious

injury on the victim as the relevant act, is not

the direction given at page 104 entirely in

accordance with what is said at page 113 of Johns

in the sense that the accused contemplates the

possibility - and we can leave that word go for the

moment - that the victim will be seriously injured?

MR ADAMS:	Yes.
BRENNAN J:	Now, if that is within the scheme of a common

design, why is it that the infliction of the

serious injury, pursuant to that common design,

that is, intentional infliction of that injury,

does not attract the liability to conviction for

murder?

MR ADAMS:  It would if that were the intention of the

accused.

BRENNAN J:  Why is it that the intention of the accused that

serious injury might be inflicted not the relevant

intention?

MR ADAMS:  May I approach that question just in a round about way like this: in dealing with the problem

of the accused's own acts that probably or possibly caused death or grievous bodily harm in Crabbe, the

Court was fortified in making the distinction

between probable and possible by saying that if a

person appreciates the probability of an act - the
probability of a result, I might say - then he may
be taken to have intended that result, but

foresight of a possibility does not amount to an

intention to encompass that result. That was the

mode of analysis used, in Crabbe to distinguish from

the point of view of the person's own acts between

probable and possible results.

Now, the answer is then, with respect, that

where a person contemplates a possible result, that

certainly fixes him with responsibility for that

result - criminal responsibility - but the extent

of that responsibility will depend upon what his

actual intention was.

Sailor 6 13/2/92

TOOHEY J: What do you mean "his intention"? What do you

mean by those words in this context?

MR ADAMS:	Whether he intended to cause death or grievous bodily harm, the same as the intention that would
apply to his own acts.  The distinction, of course,
between Crabbe and such cases as this is that with
these cases, the proposition is the foresight of the possibility of the intentional infliction of either death or grievous bodily harm and we say
that what Johns makes clear is that that makes that
act, such an act, the responsibility of the accused
in terms of defining what is the common purpose or
joint enterprise and that where a lethal weapon is
used it may readily be inferred that that is an intention to cause or encompass that result.
TOOHEY J:	I rather thought, reading the judgment of the

Court of Criminal Appeal, that the argument

addressed to that court was a rather different one

to the one that is being addressed to us now. I

thought that what was being put to the Court of

Criminal Appeal was that His Honour the trial judge

left it open to the jury to conclude that if,

immediately before the act which led to the death
of the deceased, an act which was committed during
the course of the robbery, the accused contemplated

the possibility that death might result, that was

enough, in the circumstances, to fix him with

liability for murder and the criticism of that was

that it extended, as it were, the range of time

during which common design might be inferred right

up until the moment when the blow was struck.

MR ADAMS Quite.

TOOHEY J: But is that the argument that you are putting to

us now?

MR ADAMS:  No, no, we are putting a somewhat different

argument.

TOOHEY J: But are you abandoning the argument that was

addressed to the Court of Criminal Appeal or is

that an additional argument?

MR ADAMS:  No, Your Honour. We would cite that as, in a

sense, a subset, that is, it highlights the

difficulty with an application of Johns to a

situation where one defines the joint enterprise by

the contemplation of possibilities. If one brings

a weapon to a scene to the knowledge of an

individual or one becomes aware of the weapon

whilst, as it were, the joint enterprise is

underway, then it is perfectly easy to see in that

context how, at that stage already, the possibility

Sailor 7 13/2/92

of death or grievous bodily harm must necessarily

be present.

So that we accept that the point at which

there must be some contemplation can be a moving

point. It must be at a time, however, when one can

truly say there was a joint enterprise.

BRENNAN J: Is this your proposition, Mr Adams, that

applying Johns' case one sees that there is an act

done, namely, in this case, the assault upon the
deceased, which was within the scope of the common

purpose and for which all participants are, to some

extent or other, criminally responsible but in

determining whether, in this case, in the case of

your client, he is liable as for murder rather than

manslaughter, it is necessary to find a specific

intent that the accused should be killed or be done

grievous bodily harm?

MR ADAMS:	Yes, Your Honour.
BRENNAN J:	I think I can understand the argument clearly

enough but it seems to me that once there is a

joint venture and the joint venture extends to the

deliberate infliction of grievous bodily harm or of

serious injury - - -

MR ADAMS:  Does Your Honour mean by that, if I may

interrupt, the possible deliberate - - -?

BRENNAN J:  Yes. And the relevant participant then says,

"Let the plan proceed", though it is one which

contains the possibility that somebody will be

seriously injured and somebody is seriously injured

and deliberately so, why is it that the mind does

not become fixed, for criminal purpose, with the

intention that that result should occur?

MR ADAMS:  Your Honours, there are two answers to that. The

first one is that that must be a question of fact,

firstly, a matter for a jury to determine in the

circumstances; that is, we would submit, that you

cannot proceed from an advertence to a possibility

as a matter of law to the finding that there was an

intention and we cite in support of that Crabbe.

In Crabbe's case the actor knows what his intent is

and ex hypothesi knows that it is possible that his

acts will cause death or grievous bodily harm.	If
he nevertheless proceeds he is guilty of murder
only if he foresaw that it was probable - or

perhaps "likely" might be a better word, although this Court did say "probable" in Crabbe - and the

analysis in Crabbe of probable and possible fixed

itself on intention. This Court said that because

he foresees it as probable, it may fairly be

imputed to him that it was intentional.

Sailor	13/2/92
BRENNAN J:	Now, Mr Adams, where do we find some indication

of this argument as having been raised and

rejected, either by the trial judge or by the Court

of Criminal Appeal?

MR ADAMS:  The way that it was raised by the - this is why I

need to come to Markby before the trial judge, and

I must confess it was not directly confronted in

the Court of Criminal Appeal. The way that it was

raised directly before the trial judge was by the

reference to Markby. If I can briefly state what

Markby says in this context, it says this, again in

the context of a weapon: that where the use of a

weapon is wholly unexpected and the result a

complete surprise, then although one is engaged in

a joint criminal enterprise, one is not responsible

either for murder or manslaughter if the use or if

what was done which was a complete surprise and

totally unexpected, occurred.

If, however, on the other hand, it was a

merely unexpected incident of the joint enterprise,

that is to say, one which was suspected, ie, we

would interpolate, the possibility of which was

adverted to, then the result is manslaughter, not

murder, and this must be by process of inference

from the judgment, if the murder or grievous bodily

harm is expected, that the accessory will be guilty

of murder. It is quite clearly stated in Markby in

that way. It, of course, was dealing with a

different question. It was where the trial judge

had limited the circumstances in which manslaughter

could be found.

I wonder if I could just very briefly take the

Court to Markby and, on reflection, I must say, it probably would have been better if Crabbe were on

the list of cases to be read than to be referred

to, and I apologize.

MCHUGH J:  We have all got Crabbe, I think.

MR ADAMS:  Just to give the Court the page references that I

rely on for my assertion that they equated

probability with intent and pass on, because

otherwise we concede Crabbe is quite a different

circumstance and is distinguishable from these

cases:  Markby, 140 CLR 108. The Commonwealth Law

Report, in fact, has a misprint which I have

corrected from the Australian Law Journal Report.

If I can take the Court to page 112 of the Court's

judgment in Markby, Your Honours will see just over

half-way through the page a reference to Reg v

Smith?

BRENNAN J: Yes.

Sailor 9 13/2/92

MR ADAMS: That passage should read, following the reference

to "Lovesey" :

The reason why the principal assailant is

guilty -

and these are the words that need to be

interpolated -

of murder and the other participant only of

manslaughter -

then ignore the reference to the cases which are

simply the bringing down of the immediately

preceding line by error -

in such a case -

and then it reads correctly. And I think the

Australian Law Report also corrects it.

BRENNAN J: That is a regrettable misprint, is it not?

MR ADAMS: It certainly is. It changes the whole meaning:

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" -

if I may interpolate, a reference to the

possibility point -

the inactive participant is not guilty of

either murder or manslaughter.

And I doubt you would get an argument at the bar

table about that.

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.

Sailor 10 13/2/92

And we would add by implication, if it were an

expected incident in carrying out the common

design, then one would be guilty of murder.

McHUGH J:  I still do not see how these references help you.

If you go back to what the trial judge was dealing

with, he is dealing with the question of

responsibility and the hypothesis is that the

actual perpetrator has intentionally inflicted

serious injury on his victim.

MR ADAMS:	Yes, Your Honour.
McHUGH J:	If it was part of the common purpose that that

consequence was a possible incident, then the

person in your client's position is as guilty as if

he himself had intentionally inflicted the serious

injury.

MR ADAMS:  With respect, that is not the principle as Markby

makes clear.

McHUGH J:  No, but Markby is dealing with a case where the

two men go out and they do not begin with any

intention to kill or inflict serious bodily harm

but they go out to rob and in the course of it one

of them forms an intention to kill. Now, if he

does, then he is obviously guilty of murder and the

other person is guilty of manslaughter but that is

a very different case.

MR ADAMS: But, with respect, it is not because - in this

particular case the time at which, of course, the

principal assailant may have formed his intention

was unknown. Indeed, it may have simply been a

frenzy on the occasion.

TOOHEY J: That is the argument that was raised before the

Court of Criminal Appeal.

MR ADAMS: Quite.

TOOHEY J: But, Mr Adams, if you look at the direction to

which you took us on page 104 at line 10, that

direction that begins "Or", now can you just tell

us precisely what is objectionable about that part

of the direction by reference to Johns or Markby or

any other authority?

MR ADAMS:  Your Honour, we say that all that does is

identify the act for which the accused is

responsible which is precisely what Johns says in

the passage that I have quoted although I must

point out, if I may interpolate here, that the

Court does sometimes refer to "acts" and other

times refer to "crimes", for example, at page 118,

in the middle of the page, Mr Justice Stephen, but

Sailor 11 13/2/92

we say that it is inadequate, it falls short of the
requirement of section 18 of the Crimes Act that a
person is guilty of murder only if - leaving aside

being recklessly indifferent to human life - they

intend to cause death or grievous bodily harm.	And
the learned trial judge has specifically - he is
not saying "This amounts to intention", he says,
"If you are in doubt that he had this intention,

then if you have this view of the case then that is

sufficient for you to find murder." We say that

that is wrong and, if not inconsistent with Johns,

it is not justified by Johns because Johns was a

case, as I have said, where the possible use of a

lethal weapon was plainly in contemplation from the

very beginning of the enterprise.

McHUGH J: Well, that is a factual matter. The question is

as to whether or not the direction is correct.

Supposing somebody said to another person, "Go and rob the bank. Do whatever you've got to do to get

the money", now, the person saying that may have no

intention himself of any kind but if the person

goes in and intentionally kills somebody in robbing

the bank, then both are guilty of murder.

MR ADAMS:  Only if the accomplice actually has in mind the

possibility of - - -

McHUGH J: But if he gives him open authority, says, "Do

what you've got to do"?

MR ADAMS: Well, Your Honour, if those words in the context

amount to a contemplation of doing death or

grievous bodily harm, which is the fundamental

question, then the way in which it was dealt with

by the trial judge here, the way in which it was

dealt with by the Court of Criminal Appeal and the

way in which it has been dealt with in a number of other cases including, for example, Miller in this

Court, then they would be liable - would be liable

for murder, but we say -

McHUGH J: This is all to do with agency.

MR ADAMS: With respect, section 18 of the Crimes Act

determines what are the necessary requirements for

the commitment of murder in New South Wales. They

are: an intention to kill; an intention to cause

grievous bodily harm; being recklessly indifferent

to human life and felony murder, neither of those

two latter we are not concerned. We submit if you

do not fall within those four categories you are

not guilty of murder, and you cannot be guilty of

murder if you do the act yourself and you cannot be

guilty of murder because it is done by someone

else. It is only, if I may say so, if the learned

presiding judge's analysis be right, namely, a

Sailor 12 13/2/92

contemplation of possibility and a continuance in

the enterprise amounts to or is equivalent to an

intention to cause grievous bodily harm. That is,

with the greatest of respect, the only analysis
which permits in New South Wales an accused to be

guilty of murder in these circumstances.

BRENNAN J:  Mr Adams, if I might say so, looking again at

the passages at page 112 and 113 of Markby in the

judgment of the Acting Chief Justice, it seems to

me that that is the way in which it is looked at.

The manslaughter hypotheses which are dealt with

there are cases where, to take the phrase from

Reid's case, for example, "albeit nothing more than causing fright" was in contemplation.

McHUGH J:  Or nothing at all.

BRENNAN J: Yes, or nothing at all, exactly. In other

words, where, to take another phrase from page 112:

there had not been a departure from the common

purpose -

and the common purpose extended to the doing of

serious harm, then the intention is made out.

MR ADAMS:	With respect, that interpretation of the language cannot survive a consideration of the circumstances
in which His Honour says there would be no
liability at all.

BRENNAN J: Where is that?

MR ADAMS: That is at the bottom of page 112. That is where

the person:

"has used a weapon and acted in a way which no

party to that common design could suspect" -

and the three - - -

BRENNAN J: That really raises a defence of accident almost,

does it not? Here is something that has happened

which is a surprise?

MR ADAMS:	Yes, or one goes with someone not knowing that there is a weapon and to everyone's surprise a
weapon is - - -

BRENNAN J: That is where it is outside the common design.

MR ADAMS: Quite, but in some circumstances it is

merely -

BRENNAN J:  I do not wish to interrupt you but let me bring

it down to a practical situation: here are a

Sailor 13 13/2/92

number of men who are involved in an exercise to

rob somebody and there is an agreement - let it be assumed that it is spelt out - which says, "We may

have to hit him and hit him hard" - does not say

that it is likely or probable, but the possibility

is, "We may have to hit him and hit him hard", if

so, so be it.	Now, that is the relevant intention,
is it not?

MR ADAMS:  Is Your Honour putting that as the circumstances

in this case or putting it as a hypothetical

question?

BRENNAN J: Hypothetical to test the question of a common

intention where the infliction of serious harm

intentionally is no more than a possibility.

MR ADAMS: 

Your Honour, if it is fair to say that they

agreed, shall we say, explicitly, that they would
cause really serious injury if it were necessary to
overcome the victim, shall we say, there is no
question they are guilty of murder if that happens.

But that, with respect, is not, we submit, this case. That is a case of actual intent. That is a

case which comes squarely within the common design.
It is not an unexpected incident. His Honour the

Chief Justice makes the distinction between

something which is not suspected at all, ie, "The
possibility didn't occur to me", and something

necessarily in which, "The possibility occurred to

me but I did not expect it to occur" or, to use the

language in Reid, "a likelihood".

TOOHEY J: Then does the criticism of direction focus upon

the word "possible"?

MR ADAMS:  No, Your Honour, it does not focus on the - well,

I am sorry, in a sense it does.

BRENNAN J:  It must. To put your argument in any substance,

it must.

MR ADAMS:  Yes, Your Honour.

BRENNAN J: Because you are concerned with the mental state

and not with the physical act.

MR ADAMS:  Quite. I am concerned with the mental state of

the accessory.

BRENNAN J: Yes.

MR ADAMS:  And the distinction that I make, however, between

this and Johns is that one looks at the possibility

to identify the acts for which the accused may be

responsible and the probability to look at - his

actual intent or the probability of the act

Sailor 14 13/2/92

occurring to look at his intention for the purposes

of section 18. That is the way in which I use

"probability" and that is why we do not have a

quarrel, in one sense, with Johns. But I would be

less than frank if I did not say that there are

expressions in Johns which stand against what I am

putting to the Court in the sense that the Court
says, for example, if I can take the Court to a

passage - take the judgment of Mr Justice Stephen

at page 118 at about point 3. There is a reference

to Russel on Crime, and then His Honour says:

But if, in carrying out that contemplated

crime, another crime is committed there arises

the question of the complicity of those not

directly engaged in its commission. The

concept of common purpose provides the measure
of complicity, the scope of that common

purpose determining whether the accessory

before the fact to the original crime -

and one need not trouble about the distinction of

"the accessory before the fact" or this accessory -

is also to share in complicity in the other

crime. If the scope of the purpose -

is common to both of them

the accessory will be fixed with criminal

responsibility for it. In determining scope,

it may either be restricted to what the

accessory regarded as probable ..... or may be
extended to include what he regarded as

possibly involved -

and after a discussion His Honour determines it

should be what is possible.

BRENNAN J: Well, the discussion is important for the

present purposes, is it not, because it deals

specifically with possible responses by the victim?

MR ADAMS:  Your Honour, I concede possibility is the test

for determining the act.

McHUGH J:	And that is the way, to my knowledge, juries have been directed in New South Wales, at least, since
the late 1960s or 1970s.
MR ADAMS:	I have heard them directed in terms of Markby and

I have heard them directed in terms of Johns and,

subject to that observation, Your Honour is

perfectly right. But I suppose our submission

really is that the matter, with the greatest
respect, has not been adequately analysed, having

regard to the actual terms of section 18 - - -

Sailor 15 13/2/92

McHUGH J: But also you have got to take into account, is it

345 and 346 of the Crimes Act, every accessory

before the fact and every principal in the second

degree are to be punished and treated as the

principal in the first degree?

MR ADAMS:  Yes, but you have to first find that they

committed the same crime, with respect.

McHUGH J:  But you have got to find out whether they are an

accessory and, if so - I mean, in Johns case he was

an accessory before the fact.

MR ADAMS: Well, that is true.

McHUGH J:  I appeared for Johns in the Court of Criminal

Appeal in this case and that argument was put

to - - -

MR ADAMS:  I did not realize I was being quite so courageous

when I made the submission.

Your Honours, but taking up that point of

possibility, the possibility that there may be a

fight, for example - I might add in this case there

was no resistance, it was just a brutal and

terrible attack. But may I take Your Honours to

page 119 of the judgment of Mr Justice Stephen in Johns, the middle of the page, where he discusses

the objection to the suggestion criterion of

probability, the very first full paragraph. That

it:

lies in the standard of blameworthiness and

responsibility which it presupposes. If

applied, it would mean that an accessory
before the fact to, say, armed robbery, who

well knows that the robber is armed with a

deadly weapon and is ready to use it on his

victim if the need arises, will bear no

criminal responsibility for the killing which

in fact ensures so long as his state of mind

was that, on balance, he thought it rather

less likely than not that the occasion for the

killing would arise. Yet his complicity seem

clear enough; the killing was within the

contemplation of the parties, who contemplated

"a substantial risk" that the killing would

occur.

I might add, I think that it is fair to say that

"possibility" is all that His Honour refers to but

the matter never having been agitated, we do not

raise it here.

But may I take the Court, for example, with

respect, to the reference to Vandine?

Sailor 16 13/2/92

TOOHEY J: Just before you leave that passage, Mr Adams.

The principle does not alter according to whether

the participants or one of the participants is

armed or not.

MR ADAMS:	No, Your Honour.
TOOHEY J:	And that seems to me, perhaps unfairly, to be

your submission or getting fairly close to what you

are saying, is that because in this case the
participants did not set out armed, then somehow

the principle to be applied is different.

MR ADAMS:  Well, they did not set out armed and there is no

real evidence upon which the jury concluded that

they set out with the intention to cause - that it

was part of their arrangement that they would cause

really serious bodily injury.

TOOHEY J: But that only goes to what is in contemplation.

MR ADAMS: Quite, Your Honour, but we say that is important.

Your Honour, what I am really saying about the presence of the lethal weapon is that the existence

of the legal weapon cuts the argument short. That

is why I seek to make the point, that Johns is a

case - that the English authorities, Anderson and

Morris, Chan's case which was the one referred to

and adopted by Mills in this Court, were all cases

of lethal weapons and the analysis of what the true

intent seems to have cut short because one says, as

Mr Justice Stephen did, "Look, when you've got a

weapon you know that it is going to be used or

might well be used."

TOOHEY J: But if you accept that possibility is the

touchstone, I am still at a loss to see what it is

in the direction on page 104 that is inconsistent

with any of the authority to which you have taken

us.

MR ADAMS:  Your Honour, possibility is a touchstone only for

identifying the act. It does not identify the

intention, we submit, and we submit that that is

the necessary consequence of Crabbe.

McHUGH J: Well, I have already put to you that they are

really dealing with two separate areas of

discourse, that we are really dealing with agency

here.	Crabbe is dealing with a person's own state
of mind.

MR ADAMS:  Your Honour, when it boils down to it, we say,

you must deal with the state of mind of the

accused. We submit, with respect, the only

reference to agency is that if he intends the agent

to do whatever the agent does, then it is fair to

Sailor 17 13/2/92

say that he intends those things that the agent

actually does do. But one is essentially not

changing the area of discourse, one is simply

saying, "Well, what is he making himself liable

for?" We come back fundamentally to his intention.

And there is no fundamental distinction unless this

Court were to say that adverting to possibilities

is tantamount to intention. As the learned

presiding judge put to me at the first, "If that

proposition be correct, then this applicant cannot

succeed and this analysis is fundamentally wrong."

It must ultimately, with the greatest respect,

depend upon that question, for a start, if it is to

come within section 18.

So that all I can do in answering possibility

is to say this Court considered the question of
possibility and intention in Crabbe; that the

criminal law ought to be coherent; that, in

substance, it is ultimately what the individual

does or makes himself responsible for, whether

himself or by an agent; and that although it is

true that in Crabbe one was not concerned with the possible advertence to a deliberate or intentional

causing of grievous bodily harm or death, when it

is the act of the individual who sets out

deliberately to do what he does and adverts to the

possibility of death or grievous bodily harm if

that be sufficient to fix an accomplice or

accessory with intent, then the analysis in Crabbe

is wrong.

BRENNAN J: Well now, I think you have given us the benefit

of your views on that, Mr Adams.

MR ADAMS:  I have said as much as I can say, yes,

Your Honour, I accept that.

BRENNAN J: There is, however, the question of whether this

argument surfaced in any relevant sense in the

Court of Criminal Appeal or at the trial.	Now, at
the trial you have told us that there was a

reference to Markby.

MR ADAMS:	Yes.
BRENNAN J:	Is there anything else at the trial which might

indicate that this argument was propounded in

something that might bear a tolerable similarity to

the argument that you have now been putting?

MR ADAMS:  Aside from urging that His Honour should direct

in accordance with Markby, no. My junior may

assist me on this, if I might? My learned friend

reminds me the jury asked a number of questions

which raised it as an issue but Your Honour is

Sailor 18 13/2/92

asking a different question.	And this argument was
not put in this way - - -

McHUGH J:  Well, the trial judge redirected them at

page 126 in very much the same terms.

MR ADAMS:  Yes, he did. Yes, Your Honour, and this argument

was not put in the way in which I now seek to put

it in the Court of Criminal Appeal. I regret my

enthusiasm has led to saying more than I need to.

BRENNAN J:  You have taken us as far as you need, Mr Adams.

MR ADAMS:  I appreciate that. There is the ground of appeal

that deals with the admissibility of the record of

interview and that section. May I just say that I

could not possibly hope to put the argument more

strongly than Mr Justice Priestley did and if the

Court permits me, I will not attempt to do so.

BRENNAN J:	The difficulty is that history is against both yourself and Mr Justice Priestley, is that not the
situation?
MR ADAMS:	That must be so, although history has also led to

reconsiderations of cases. But that is so.

Ultimately, I suppose, it is a policy decision on a

possibly ambiguous section as to the way in which

it has hitherto been interpreted by the courts and

I really can say no more on that argument than, if

I may say so with the greatest of respect to him,

Mr Justice Priestley.

BRENNAN J: Yes.

MR ADAMS:  I think I referred to it but I should do it,

although I am anticipating Your Honours' judgments

on this perhaps, that Miller in this Court is

against me in relation to my interpretation of

Johns. That was the astonishing case of the man

that went out murdering a succession of women whom

of it and this Court there stated that if he was	he picked up and there was a man with him who knew	aware that it was possible that the person who he
was with could on one or more of these occasions
murder the woman that he was with, then that made
him guilty of murder. It is not on our list but I
should expose that to the Court. I can complete it
by the reference: it is (1981) 55 ALJR 23.

BRENNAN J:  Thank you, Mr Adams. We need not trouble you,

Mr Blanch.

The applicant was convicted on one count of

murder, another of assault with intent to rob in

company and a third of robbing in company. The

charges arose out of attacks by the applicant and

Sailor 19 13/2/92

two others on a number of derelict men in
Darlinghurst and Woolloomooloo.

The grounds of challenge to the judgment of the Court of Criminal Appeal dismissing his appeal

against the conviction are twofold:

"(l) The Court erred in upholding the trial

judge's directions to the jury as to common

purpose and the application of the directions

in Johns, 143 CLR 108, and Mills, (1986)

61 ALJR 59. (2) The Court erred in upholding

the trial judge's construction of s.410 Crimes

Act (NSW) and in following the majority

judgments in Connors 48 A Crim R 260."

The applicant does not seek to challenge the decision in Johns but seeks to distinguish Johns,

limiting the "possibility" referred to in that case

to the external acts of the offence and not to the

intention requisite to establish the crime of

murder. There is no trace of this argument in the

Court of Criminal Appeal nor any express raising of

the argument at the trial. In those circumstances,

even if the argument had substantial merit, and we

are not satisfied that it has, this case would not

be a suitable vehicle for the grant of special

leave.

The second ground arises because the officer

in charge of the police investigation made

statements to the applicant which (in the words of

the trial judge) when the statements are strictly

examined, "could not be regarded as having been

objectively true".

In accordance with New South Wales authority,

the Court of Criminal Appeal held that the relevant
part of section 410 of the Crimes Act 1900 (NSW)
only operated upon a representation that was untrue
to the knowledge of the person making it. This has

long been the construction placed on the words

"untrue representation" in the context of section

410 or its equivalent. This has been the view

held, at least since Davidson, (1895) 16 LR(NSW)

149 and it was recently affirmed in Connors, (1990)

48 A Crim R 260 by Chief Justice Gleeson and Mr

Justice Sharpe, with Mr Justice Priestley dissenting.

In Connors, Chief Justice Gleeson drew

attention to the relevant legislative history from

which it may be inferred that the Parliament of New
South Wales "understood and approved the decision

in Davidson". That is at page 270. In view of the

long-standing authority of Davidson in New South

Wales and the extent to which it has been acted on

Sailor 20 13/2/92

by the courts in that State and its apparent
adoption by the legislature, it would be

inappropriate to grant special leave to appeal for the purpose of reviewing the decision of the Court of Criminal Appeal as to the operation of

section 410.

Accordingly, special leave is refused.

AT 11.27 AM THE MATTER WAS ADJOURNED SINE DIE

Sailor 21 13/2/92