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

Sailor

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sailor v The Queen

Details

AGLC: Sailor v The Queen [1992] HCATrans 46
Case: [1992] HCATrans 46
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Sailor, sought to challenge a decision of the Crown. The core of the dispute concerned the proper application of the principles established in the High Court's previous decision in *R v Johns* to directions given to a jury regarding common purpose.

The legal issues before the Court involved determining the scope and applicability of the *Johns* decision, particularly in relation to common purpose directions. The applicant contended that *Johns* should be confined to specific circumstances, namely cases involving the taking of a lethal weapon to a crime and the debate surrounding the probability versus possibility of foresight of consequences in relation to the intentional infliction of death or grievous bodily harm. The applicant sought to distinguish their case from the direct agitation of the correctness of *Johns* itself, instead arguing for a narrower interpretation of its principles.

The applicant's argument, as presented, was that *Johns* was primarily concerned with imputed or constructive intention arising from knowledge of a lethal weapon's presence. They sought to limit the application of *Johns* to such "lethal weapon cases." The applicant argued that while *Johns* contained general statements, its principal concern was the probability versus possibility debate regarding foresight. They submitted that the proper rule, supported by language in *Johns*, is that the possibility of an event identifies the act for which an accused might be criminally responsible, but the extent of that responsibility must then be assessed by reference to their actual intent. The applicant's submission was that the direction given in their case conflicted with this principle by potentially imputing criminal responsibility based on contemplation of possibility without sufficient regard to actual intent, particularly outside the context of lethal weapons.

Orders