Sharah v The Queen - [1993] HCATrans 126

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S123 of 1992
B e t w e e n -
MICHAEL SHARAH

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

MASON CJ
DEANE J

DAWSON J

Sharah

20/5/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 20 MAY 1993, AT 11.07 AM

MR I.M. BARKER, OC: If the Court pleases, I appear with

MR S.J. ODGERS, for the applicant. (instructed by
Watsons)

MR R.O. BLANCH, OC:

May it please the Court, I appear with

my learned friend, MR F.D.L. HOLLES, for the Crown.
(instructed by S.E. O'Connor, Solicitor to Director
of Public Prosecutions (New South Wales))

MR BARKER:

Your Honour, the first question is this: what

is the law of New South Wales which governs the
criminal liability of an accessory before the fact
or a principal in the second degree, where the
principal offender commits a crime not planned. In
this case the Court of Criminal Appeal followed a
1991 decision of the Privy Council ignoring, it
seems, along the way, the leading authority in
Australia which is Reg v Johns.

MASON CJ:

Is there any difference between the two of them?

MR BARKER:

Yes.

The Privy Council found a second principle

upon which liability could found. Johns said that
the Act had to be within the contemplation of the
parties and a possible incident within the common
purpose. The Privy Council, in Hui Chi-ming,
Their Lordships, after considering Johns, found a
second principle and that was foresight, whether or
not part of the common purpose, and whether or not
in the contemplation of both parties. Now,
Your Honours, there is confusion. In South
Australia in 1988 - - -

MASON CJ: Presumably foresight of it is a possible incident

of the planned venture?

MR BARKER:

As a possible incident of the planned venture

but not necessarily within the scope of the common purpose, nor necessarily foresight by both parties

to it. It was clear enough for Johns when the
question was, "Was the act within the contemplation
of both parties, as an act contemplated as a
possible incident of a common purpose?" And
Their Honours in Johns case proved a direction to
that effect. That was in February, 1980. That
decision was approved again by a differently
constituted High Court in Miller, the Truro murders
case, and it was approved again in 1985 in
Sinfield and Mills in a short judgment dismissing a
special leave application.
Miller's was, I think, in 1986. In 1985 there

was a decision of the Privy Council in
Chan Wing-Siu, which may or may not have follows
Johns, it is not clear, but the confusion of

Sharah

20/5/93

principle can be seen in a case that I will take
Your Honours to, of Britten, in South Australia in
1988, where Mr Justice Millhouse, sitting as one of
three in the Court of Criminal Appeal, held that in
Mills' case

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 Sharah v The Queen

Details

AGLC: Sharah v The Queen [1993] HCATrans 126
Case: [1993] HCATrans 126
Decision Date

CaseChat Overview and Summary

This matter concerns an application for special leave to appeal to the High Court of Australia. The applicant, Sharah, sought to challenge a decision of the Court of Criminal Appeal of New South Wales. The Crown was the respondent. The core of the dispute revolved around the legal principles governing the criminal liability of an accessory before the fact or a principal in the second degree, particularly when the principal offender commits a crime that was not planned.

The central legal issue before the High Court was to determine the correct governing law in New South Wales for such criminal liability. Specifically, the applicant argued that the Court of Criminal Appeal had erred by following a 1991 Privy Council decision, *Hui Chi-ming*, which appeared to depart from established Australian High Court authority, namely *Reg v Johns*. The applicant contended that *Hui Chi-ming* introduced a principle of "foresight" as a basis for liability, irrespective of whether the act was part of the common purpose or contemplated by both parties, thereby creating confusion with the *Johns* principle.

The applicant's argument, as presented, highlighted a divergence between Australian High Court precedent and the Privy Council's approach. According to *Reg v Johns*, and subsequently affirmed in *Miller* and *Sinfield and Mills*, liability for an accessory or principal in the second degree requires that the principal offender's act be within the contemplation of both parties as a possible incident of their common purpose. In contrast, the Privy Council in *Hui Chi-ming* (following *Chan Wing-Siu*) appeared to establish a broader principle of liability based on foresight alone, even if the act was not necessarily within the scope of the common purpose or contemplated by both parties. This distinction, the applicant argued, had led to uncertainty and misapplication of the law by lower courts, including the Court of Criminal Appeal in the present case.

Orders