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 1 20/5/93

TRANSCRIPT OF PROCEEDINGS

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

Copyright in the High Court of Australia

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 2 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 the High Court had decided that the

Privy Council in Chan's case was correct and that

Johns' case was no longer good law. He was not in

the majority, but since the 1991 case it appears to

be the view of the Court of Criminal Appeal,

certainly in the present case, that Johns and

Miller are not the law which should be followed -

do not represent good authority - but, rather, the

Privy Council in Chan's case in 1985, as expanded

upon in 1991.

DAWSON J: What is the crucial difference said to be?

MR BARKER:  The crucial difference is this, Your Honour,

that the law of Australia, as articulated by this

Court, is that the act has to be one which was in the contemplation of both parties, to the common

purpose, as a possible incident of the common
purpose; the important matters being that there is

a contemplation of both parties and it is an

incident within the scope of the common purpose,

whether part of it -

DAWSON J:  As a possibility.

MR BARKER:  As a possibility, or otherwise. Now, of course,

Johns went to this Court on the point whether it should be possible or probably and we do not - - -

MASON CJ:  You do not raise that.

MR BARKER:  We do not suggest that is relevant here. But in

the process of considering it, this Court held that

what we are talking about is something within the

scope of the common purpose and something within

the contemplation of both parties, and that was

very clearly approved again in Miller and very

firmly approved in Mills. But what happened in

Mills case - I am talking very generally, I will

take Your Honours to cases - was that whilst

approving Johns, the majority held that a direction

considered in Chan's case in the Privy Council may

be adapted to the circumstances consistently with

Australian law.

DAWSON J:  You have not yet told me, you say, how Chan

differs from Johns.

MR BARKER: In Chan, firstly - the opinions of the Privy

Council were expressed, or delivered, by

Sir Robin Cooke and, in Chan's case, he firstly

appeared to follow Johns but he then focused on the

individual accused and not the scope of the common

Sharah 3 20/5/93

purpose and - perhaps I could take Your Honours to

that case, (1985) 1 AC 168. At page 176C, Johns v

Reg was considered:

In England it appears not to have been

found necessary hitherto to analyse more

elaborately the test which the jury have to

apply. But, in association with the modern

emphasis on subjective tests of criminal

guilt, the matter has been examined by

appellate courts in Australia and New Zealand.

In Johns v The Queen (1980) 143 CLR 108 the

High Court of Australia rejected an argument

that at common law an accessory before the fact is not liable for the crime, although

contemplated by him as an act which might be

done in the course of the venture, unless it

was more probable than not -

They approved the following statement by

Chief Justice Street:

"an accessory before the fact bears, as does a
principle in the second degree, a criminal
liability for an act which was within the

contemplation of both himself and the

principle in the first degree as an act which

might be done in the course of carrying out

the primary criminal intention - an act

contemplated as a possible incident of the

originally planned particular venture."

The joint judgment added that such an act is

one which falls within the parties' own

purpose and design precisely because it is

within their contemplation and is foreseen as a possible incident of the execution of their

planned enterprise.

Now, taking Your Honours to page 177H,

His Lordship said:

The test of mens rea here is subjective.

It is what the individual accused in fact

contemplated that matters. As in other cases

where the state of a person's mind has to be

ascertained, this may be inferred from his

conduct and any other evidence throwing light

on what he foresaw at the material time,

including of course any explanation that he

gives in evidence or in a statement put in

evidence by the prosecution. It is no less
elementary that all questions of weight are

for the jury. The prosecution must prove the

necessary contemplation beyond reasonable

doubt -

Sharah 4 20/5/93

Going to line B:

In some cases in this field it is enough

to direct the jury by adapting to the

circumstances the simply formula common in a

number of jurisdictions. For instance, did

the particular accused contemplate that in

carrying out a common unlawful purpose one of

his partners in the enterprise might use a

knife or a loaded gun with the intention of

causing really serious bodily harm?

Now, the view to be taken of that is that it

is a direction which might be suitable, in some

circumstances, and there was no intention to depart

from what was laid down by this Court in Johns.

But, depart the courts have and the first departure, not by the Court, but by a judge in

South Australia, was in Britten's case. But let me

take Your Honours briefly to Mills, (1986} 68 ALR

455, which came not long after Chan Wing-Siu, and

Their Honours in that case said that:

Counsel for the applicants asked us to

reconsider Johns, but the statement in that

case governing criminal liability for acts

done in the course of carrying out a common

criminal purpose has been accepted as correct

in other jurisdictions, and we see no reason

to review it.

The law as there stated is not complex

and should not give rise to the difficulties
and complexities suggested in argument. In

many cases it will be sufficient to direct the

jury by adapting to the circumstances the

simple formula mentioned by Sir Robin Cooke in

Chan Wing-Siu v R ( 1985) AC 168 at 178: "For

instance, did the particular accused

contemplated in carrying out the common

unlawful purpose one of his partners in

with the intention of causing really serious enterprise might use a knife or a loaded gun bodily harm?"

MASON CJ: It is clear enough, is it not, from that that the

participants in that judgment did not see any

inconsistency between Johns and Chan Wing-Siu?

DAWSON J: For my part, as a participant, I still do not.

MR BARKER: Well, Your Honour is right, but the Privy

Council has seen Chan as exposing an entirely new

principle, that is, liability founded on foresight

by one of the participants, not both, and not
necessarily within the scope of the common purpose.

But Their Honours in Mills unequivocally said, "We

Sharah 5 20/5/93

are not going to look at Johns. Johns is the law".

But yet when it got to South Australia in Britten,

(1988) 36 A Crim R 48, just briefly to indicate to

Your Honours the sort of confusion that has arisen,

at page 60, near the bottom of the page, His Honour

Mr Justice Millhouse said:

in this summing up - The directions on joint enterprise given

that is, Britten's summing up -

conform with what is said in Chan Wing-Siu.

Was it correct for the learned trial judge so

to instruct the jury? Has the law in

Australia changed from that expressed in

Johns' case and Miller? with a little

hesitation I conclude that it has.

I refer to the judgment of the High Court

in Mills. this again was an application for

leave to appeal. Gibbs CJ in a few paragraphs

gave the reasons of the majority (himself and

Mason, Wilson and Dawson JJ). Having said

that the court saw no reason to review Johns'

case he went on:

"The law as there (in Johns' case) -

and I have just read that to Your Honours.

Then he said:

There are two reasons for my hesitation.

First, I find it puzzling that the majority in the High Court endorse without qualification

Johns' case when it seems to me in some

respects contrary to Chan Wing-Siu. Secondly

the High Court gave the decision on an

application for leave to appeal. One may

assume from that (as well as from the

shortness of the reasons) that the argument

was brief, not in detail. Yet, on the other

hand, the majority cited with approval the

passage from Chan Wing-Siu crucial in this

appeal. I have come to the conclusion, with

respect, that this must have been deliberate

and conscious and that we should follow the

Privy Council decision, endorsed in Mills, unless and until the High Court revises the majority view expressed in the latter.

That judgment is of little consequence in the

scheme of things, but it really foreshadowed what

followed in the present case, but before I come to

the present case could I take Your Honours to the

judgment of Chief Justice King in Britten, at

page 50, point 8, because we would invite the Court

Sharah 6 20/5/93

to accept this as a correct statement of the law in

the light of the cases after Johns and Miller:

I do not take the Privy Council in

Chan Wing-Siu or the High Court in Mills to be

abandoning the established principles upon

which the criminal liability of participants

in a joint enterprise for crimes actually

perpetrated by other participants, is based.

The fundamental notion is that by

participating in the enterprise, each
participant impliedly authorises all criminal
acts which are in his contemplation as being
part of the common design or as being a

substantial risk associated with its

implementation. The concept of authorisation

is endorsed by the Privy Council in Chan

Wing-Siu at 175 and the expression

"substantial risk" is take.n from the judgment

of Stephen Jin Johns' case at 117. That

fundamental notion is sufficiently explained to the jury in many cases by some adaptation

of the Chan Wing-Siu formula. It would be a

mistake, however, in my opinion, to treat the

use of that formula, as was done in argument

on this appeal, as involving a new legal test

differing from the established principles of

the law of joint enterprise. Those principles
are unaffected and there may be many cases in

which they would not be sufficiently explained by use of the formula. Both Chan Wing-Siu and

Mills were cases of persons going to premises

armed with lethal weapons. In other cases

different directions may be necessary. I take

the example of a mass political demonstration,

perhaps in a highly charged atmosphere, in

which all participants might contemplate that
there was a substantial risk that some

hotheads might commit violent offences quite

outside the common peaceful purpose of the

demonstration. I think that if such offences

were committed and peaceful participants were

charged, the proper basis of criminal

liability in such circumstances would not be

adequately explained by use of the Chan

Wing-Siu formula. The same might be said of a

case of a joint exercise to rob in which there
was an express or tacit understanding that

weapons would not be used. I doubt whether

mere contemplation of a substantial risk that
one of the participants might act in

contravention of the common agreement would of

itself be a sufficient basis of criminal

liability. One must not lose sight of the

fundamental ground of liability which is the

implied authorisation of what is contemplated

as part of, or incidental to the

Sharah 7 20/5/93

implementation of, the common purpose. To do so would be to court the risk of substituting

a formula which is a valuable tool for the

explanation to the jury of the fundamental

legal principle, for the principle itself, and

of applying the formula indiscriminately to

cases to which it is not appropriate. The

result might be a distortion of the true

principles underlying the criminal liability

of participants in a joint enterprise for

crimes of which they are not the actual

perpetrators, and the unjust conviction of
persons of crimes of which they could not be

said, in any true sense, to be guilty.

Now, Your Honours, it is significant that Britten

was a case where two men, armed, went to a house

for the purpose of, to put it mildly, roughing-up

someone who had offended them in a hotel the night

before, and one of them shot a dog on the way in

and killed someone in the process, and there was no

question that they were going there to do violence.

In Chan's case, which went on appeal from the Court

of Appeal of Hong Kong, three men burst into a

house. They were armed with knives, and they

attacked both the man of the house and his wife and

killed the man. They went there armed and quite

obviously each ready to do violence.

The present case is not that sort of case. It

was a robbery. The other man, Attard, had a

shotgun. The shotgun was loaded. He shot

somebody. Before that he hit somebody with the

barrel. He was found with shells in his pocket.

The only evidence, apart from what might be deduced

by his presence at the scene, as to the accused's

state of mind was that he told the police no one

was to get hurt. The accused, Sharah, denied being

at the scene and the whole defence to the trial was

that there was a case of mistaken identification.

Now, the directions which we say should have

been given were not sought, and no doubt the reason

for that is that Sharah, pleading that he was not

there, needed to distance himself from the facts

entirely, but that did not, in my submission, take
away from the trial judge the necessity to put

matters of substantial importance, such as was the

case in Pemble where counsel invited the jury to

convict of manslaughter and this Court said,

notwithstanding that, the trial judge should have

directed that it was open to them to acquit on the

ground of accident.

But apart from the consequence to the present

applicant, and had the proper direction been given,

it could conceivably have resulted in a different

Sharah 8 20/5/93

verdict. It is a case of considerable importance to the administration of the criminal law in this

country.

MASON CJ:  Why do you say, "If a different direction had

been given it could conceivably have resulted in a

different verdict"?

MR BARKER:  Because, Your Honours, there was no evidence

that Sharah knew the gun was loaded. There was no

evidence that Sharah knew anyone was going to be

killed, and there was no evidence - - -

MASON CJ: But if a direction had been given focusing on

what was within the contemplation of both parties

as a possible incident of execution of the planned

venture, what reason is there for thinking a

different view might be taken?

MR BARKER:  Because it would have focused the jury's

attention on to what the plan was: what was it

these two had in mind? What was it they a·greed to

do, either expressly or tacitly when they came to

the view that they should commit a robbery? But

telling the jury, as they were told in this case,

that what they were looking at was -Sharah's state

of mind and whether the act was a possible incident within his contemplation, was not following the law

as laid down in Johns.

MASON CJ:  I know that is what you say, but I am interested

in knowing why it is that a different view might be

taken by it.

MR BARKER: Well, you see, as the Chief Justice in

South Australia said, basic to the law is authorization, and he there postulated a case where

a gun might be carried and there was express

agreement not to use it. Merely because one saw

the possibility that it might be used outside the

agreement would not be sufficient to be doubted to

found criminal liability.

Now, this jury were not invited to consider

whether what happened was a possible incident of
what was planned. There was just no evidence of

the plan beyond what might be inferred from the

facts of the robbery. So they were left with this,

that the gun went off - indeed, there was some

evidence it was pointed at the man and was fired

deliberately. Sharah was present - this was during

the struggle - and all they are asked to consider

in the end was whether what happened was a killing

within the contemplation of Sharah.

Sharah 9 20/5/93

DAWSON J: That is not right, Mr Barker. It was whether it

was a possible incident of the crime to which they

agreed.

MR BARKER:	As seen by Sharah.
DAWSON J:	No, no, the crime to which they agreed.
MR BARKER:	Yes, but at no stage, Your Honour, was any

direction given as to the necessity for it to have

been in the contemplation of both parties.

DAWSON J: But that is implicit in the agreement. I mean,

you agree to this crime, and if it is a possible

incident of that crime, well then, it is a possible

incident. It is within the common purpose. The

passage is set out at page 105, and twice in that

passage, when he refers to "possible incidents", it

is not just possible incidents in the abstract, it

is possible incidents of the crime to which they

agreed, which gives you the element of commonality.

MR BARKER:  Your Honour, what we say about that is· that when

His Honour said, "The fundamental question to be

addressed is were either of these happenings

contemplated as a possibility by the accused?", it

directs attention only to the mind of the accused.

"Did this accused - - -

DAWSON J:  I would have thought agreement directs attention to the meeting of two minds.

MR BARKER: But, Your Honour, the passage starts at page 105

with these words, at line 0:

"The principle as it is applied is this: that

a party to a common purpose to commit a crime

bears the criminal responsibility for every

act by his colleague, which he contemplated as

being a possible incident of the crime to

which they agreed - - -

DAWSON J:	"Which they agreed" .
MR BARKER:	Yes, but there is an agreement and there is a

contemplation of an incident -

DAWSON J: Anything is possible in this life, but he would

say, "That is simply outside the agreement. I

agree that, as a matter of possibility, that could occur, but that is not an incident to the crime to

which we agreed" .

MR BARKER:  Your Honour, he is distinguishing between the

agreement and the possible incident.

Sharah 10 20/5/93

DAWSON J: This is becoming very artificial, is it not?

That is the way it happens in practice. He say, "I

knew he had a gun, but I did not agree to him

firing it. I did not think it was loaded". So

that it is not a possible incident for crime to

which they have agreed. Or it might be a ..... "We

agreed we would just use the gun to frighten them".

That is the evidence from these cases.

MR BARKER:  Yes, Your Honour, but the direction, if given

according to Johns, ought to be, "Was it within the

contemplation of both parties?".

MASON CJ: But ·it is a highly artificial distinction, is it

not? Because if the jury is of opinion that it is

within the possible contemplation of the accused

who is not, as it were, directly responsible for
what occurred, it is most unlikely that the jury

would conclude that it was not within the

contemplation of the person who carried out the

crime. It is just nonsense really.

MR BARKER: With respect, Your Honour, there is arr onus of

proving these matters beyond reasonable doubt.

Now, the question is, without a proper direction,

were the jury in a position to consider beyond

reasonable doubt that there was a plan whereby this

gun was to be used, or that it was accepted by both

parties that it might be used to kill somebody.

Must we assume that Sharah knew that it was loaded?

The evidence is just silent about this, and it is

not without significance that the first time it was

used, it was used not a gun, but as a club.

MASON CJ: But that is straying on to a different point, is

it not?

MR BARKER:  It goes to what might have been within the

contemplation of both parties. Now, this is why it

is important, Your Honour, and the Court of

Criminal Appeal says, "The Privy Council is right.

There is a second independent basis of liability

where you do not even have to consider what was

within the scope of the common purpose. All you

look at is foresight in the mind of one of the

assailants, one of the persons caught up in it."

DAWSON J: But you see, even in Sir Robin Cooke's statement

it is not, "Did one party contemplate it?", but

"Did one party contemplate, as part of the common

purpose?"

MR BARKER:  Your Honour, this Court said that that direction

might sometimes be appropriate.

DAWSON J: Yes, it might.

Sharah	20/5/93
MR BARKER:	But can I take Your Honour to the last Privy

Council case because Your Honour will see the

difference.

MASON CJ: This is the one the Court of Criminal Appeal drew

to your attention?

MR BARKER:  Yes, which now appears to be the law of New

South Wales, at least so the Court of Criminal

Appeal would say. I am instructed this case was

cited by the appellant in argument, although the

judgment suggested it was not. It is (1991)

3 All ER 897. I will try and shorten this,

Your Honours. At page 907C, Their Lordships set

out part of the agreement:

The appellant's basic proposition was then

repeated:

'The correct principle is expressed in

Johns v R, where the High Court of Australia

approved the statement by Street CJ ..... an

accessory before the facts bears, as does a
principal in the second degree, a criminal
liability for an act which was within the

contemplation of both himself and the

principal in the first degree as an act which

might be done in the course of carrying out

the primary criminal intention - an act

contemplated as a possible incident of the

originally planned particular venture." The

crux of that dictum is that the act must be

within the contemplation of both parties. For

the Crown to establish murder against a

secondary party on the basis that he

contemplated, or authorised, an attack with

murderous intent, it is necessary to prove

that the primary party himself so

contemplated ... '

Now, if we go to page 909, having considered Chan

again, and referring to Hyde, what they said was -

we will go to the bottom of 908, just below line H,

talking about Wakely:

On reconsideration, that passage is not in accordance with the principles set out by

Sir Robin Cooke which we were endeavouring to follow and was wrong, or at least misleading.

If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but

nevertheless continues to participate with A

in the venture, that will amount to a

sufficient mental element for B to be guilty

of murder if A, with the requisite intent,

kills in the course of the venture. As

Sharah 12 20/5/93

Professor Smith points out, B has in those

circumstances lent himself to the enterprise

and by so doing he has given assistance and

encouragement to A in carrying out an

enterprise which B realises may involve

murder.

Below line D:

Counsel's submission, however, was based

on the passage already cited from Johns v R.

The issue in that case was whether an

accessory before the fact is, like a principal
in the second degree, responsible for an act

constituting the offence charged if such act

was contemplated as a possible incident of the

common purpose, or whether it has to be

established as a likely or probable

consequence ..... The court unanimously accepted

the former alternative. But, in the course of

their judgment, Mason, Murphy and Wilson JJ

stated the law in the manner already quoted,

requiring the act to have been within the

contemplation of both the principal and the

accessory as an act which might be done in the

course of carrying out the primary criminal

intention. It is on the basis of that passage

that the appellant contends that the secondary

party cannot be liable unless the relevant act

was within the contemplation of both the

principal and the secondary party.

Johns v Risa leading case on the law

relating to accessories. It was specifically
relied on by Sir Robin Cooke in Chan's case,

in which the same central issue fell to be

considered. It is, however, plain that, in

the passage upon which the appellant relies,
attention was being concentrated on those
cases in which the question is whether the act

of the principal falls within the common

purpose of the parties. This appears from the

immediately succeeding sentence in the

judgment of Mason, Murphy and Wilson JJ .....

'Such an act is one which falls within the

parties' own purpose and design precisely

because it is within their contemplation and

is foreseen as a possible incident of the

execution of their planned enterprise.'

In such a case the contemplation of both

parties will be relevant. But, as appears

from Sir Robin Cooke's judgment in Chan's case

(and as was recognised by Lord Lane CJ in R v

Hyde ••• departing in this respect from some of the observations contained in the earlier

Sharah 13 20/5/93

judgments in the Slack and Wakely cases), the

secondary party may be liable simply by reason

of his participating in the joint enterprise with foresight that the principal may commit the relevant act as part of the joint

enterprise. We therefore find Sir Robin Cooke

focusing upon the contemplation of the

secondary party alone -

And at the next page, line B:

In practice, of course, in most cases the

contemplation of both the primary and the

secondary party is likely to be the same; if

there is an alleged difference, it will arise

where the secondary party asserts in his

defence that he did not have in contemplation

the act which was in the contemplation of the

principal. But their Lordships are unable to

accept that in every case the relevant act

must be shown to have been in the

contemplation of both parties before the

secondary party can be proved guilty.

Now, Your Honours, that is not the law according to

Johns, but it is the law according to Reg v Sharah

in the Court of Criminal Appeal in New South Wales,

because it is - at page 103 of the application

book, at the bottom of the page, His Honour

Mr Justice Carruthers, whose judgment was accepted

by His Honour the Chief Justice and

Mr Justice Smart, said that he would:

presume to set out what I believe to be

(consistent with the most recent authorities)

the elements which it was necessary -

and, page 104:

As to common purpose murder .....

(i) that there was a common purpose ..... to rob

John whilst Attard was, to the knowledge of

the appellant, armed with an offensive

weapon .....

(ii) that during the course of the armed

robbery Attard discharged the gun intending to

kill or cause serious bodily harm to Nick;

(iii) that the appellant contemplated that in

the carrying out of the common unlawful

purpose of armed robbery, Attard might use the

gun with the intention of causing really

serious bodily harm.

Sharah 14 20/5/93

Now that, we submit, is wrong because it does not

direct the jury's attention to the scope of the

common purpose.

DEANE J:  But you can vary your common purpose and in that

example, at the time of the offence, the necessary

common purpose on any approach existed. You had the

man doing the shooting doing it with the intention

to kill. You have your client party to a joint

enterprise in which he was contemplating.

MR BARKER:  Your Honour, the case was not put like that.

DEANE J: It does not have to be; it is just plain common

sense.

MR BARKER:  Your Honour, it was never put to the jury that

because he happened to be there he was

encouraging - - -

DEANE J:  No, what I am suggesting to you is if you take

what Justice Carruthers says, at the time of the

offence there was a common purpose in the strictest

sense that can be taken from Johns, because you had

the common purpose of your client, as found by the

jury, that this was within the joint· enterprise;

you have the purpose of the primary offender that

he would do this in the course of the joint

enterprise. You have complete ad idem.

MR BARKER: Well, no, with respect.

DEANE J:	Why not?
MR BARKER:	Because nowhere is the jury's attention drawn to the proposition that this act had to be within the
scope of the common purpose. All that he has said
is that he is there.
DEANE J:	But they are told it had to be within the common

purpose, as seen by your client, or that it had to

be within your client's contemplation of what might

be done.

MR BARKER:  It had to be within my client's contemplation

but whether or not it be within the scope of the

common purpose was left silent.

DEANE J: But just say, for example, on what

Justice Carruthers says, at the moment of shooting

the officious bystander had come in and said, the

primary offender, "Well now, what are you going to

do in the course of this joint escapade?" He would

have said, "I am going to shoot the fellow". If

the same officious bystander said to your client,

"What is in your contemplation of what might be

Sharah 15 20/5/93

done in the course of this joint enterprise?", his

answer would be, "He might shoot the fellow".

MR BARKER:  It may not have been. Your Honour is making the

same assumption, with respect, that the Court of

Criminal Appeal made, that he knew the gun was

loaded, and it was within the scope of - - -

DEANE J:  No, I am not making that assumption. I am

prepared to say he might have answered, "The gun

might be loaded and he might shoot the fellow".

MR BARKER:  He might have answered, "As far as I know the

gun is not loaded. I am not authorizing this."

There is no, you see, authority within the scope of

the plan.	It comes back to whether he authorized
the act.

DEANE J:  We are talking about, in what I am asking you,

what he contemplated.

MR BARKER:  We do not know, Your Honour.

DEANE J: But the jury has found.

MR BARKER:	But the jury may have found so because of the direction. They were not asked to focus on the
common purpose. They were not asked to focus upon
the question whether, in the end, the act might be
seen to have been authorized by Sharah. That, we
respectfully submit, is the defect.
DEANE J:	I follow what you say. I do not read the direction

on page 105 as supporting what you say.

MR BARKER:  I suppose it comes out of this, Your Honour,

that what they are really being told is that, did

he foresee it? Did he, it being within his

contemplation, foresee it? They were not asked to consider did he foresee it and did the other party foresee it as being something which might happen in

the course of the plan?

In my respectful submission, it is just wrong, and if this judgment stands, this will be the

direction. That is why, we respectfully submit, it

is an important special leave point and it cannot

be reasonably said, with respect, that had a proper

direction been given he would necessarily have been

convicted.

MASON CJ: Well, I hear that submission, but I must say I

find it very difficult to comprehend that that

could be so, Mr Barker. Mr Barker, can I take you

back to that direction and direct you to the

culmination of it which is, as I follow it, the

last sentence in the second paragraph on page 106?

Sharah 16 20/5/93

MR BARKER:  Yes, Your Honour.

MASON CJ: Well now, projecting things to immediately before

the use of the gun, we know that at that time the

primary offender had the necessary intent. We

know, on the jury's finding, that your client had

the contemplation referred to in that sentence.

Well now, what was lacking, on your submission,

from a common intent at that time?

MR BARKER:  His authorization of the act deriving from the

common purpose, as contemplated by both.

MASON CJ:  You are saying the contemplation of Attard was

lacking at that time?

MR BARKER:  No. I am saying that the jury should have been

asked to consider what the plan was and whether

this was going to be a possible incident of it

within the contemplation of both of them.

MASON CJ: But they were.

MR BARKER:  How were the jury to know that, or find beyond

reasonable doubt, if I might put it this way, that

Sharah knew the gun was loaded.

DAWSON J: But you see, Mr Barker, what you are saying is,

"Look, the jury might have taken this direction to

be saying that, 'Well, as long as he contemplated

it as a possibility, and after all a possibility

that the co-accused might have gone out on a frolic

of his own and done all sorts of things', on that

direction, if that was so, that was enough to make

your client responsible." But that was not what

was said. It was not was said here. It was not

what was said by Sir Robin Cooke.	It was not what
was said in Mills.	It is not anything that is

within the contemplation of the co-accused.

It is anything that is within his

contemplation as part of the common purpose; as an

incident of the common purpose and that

necessitates the jury determining what is within

the common purpose; necessitates them going to the

agreement, and it is in those terms that the judge

instructed the jury. Note the last part of the

passage to which Justice Deane referred you.	It is
not a question of saying, "Any possibility is
enough because it is within the contemplation",
that is not what the passage says.

MR BARKER:  It does not tell them that it has to be

something arising within the contemplation of both

parties as part of a common purpose.

Sharah 17 20/5/93

DAWSON J: Well, there cannot be a common purpose unless

something is within the contemplation of both

parties. It will not be common then.

MR BARKER:  Your Honour, I cannot put this any clearer, I

think, than, with respect, the Chief Justice of

South Australia put it, that there may be an

agreement not to use a weapon; a weapon is taken

along, it is used simply because one of the parties

foresaw the possibility that it would be used

contrary to agreement, is not sufficient - - -

DAWSON J:  And that is not a possibility which is foreseen

as part of the common purpose. It is a possibility

which is foreseen as lying outside the common

purpose - - -

MR BARKER:	Yes, and -
DAWSON J:	- - - and that is not what any of these passages

are referring to.

MR BARKER: Well, with respect, the jury could have -

because His Honour did not - - -

DAWSON J: 

I do not see that when they say, "It would occur

as an incident of the crime upon which they
agreed". That is not referring to a possible

instant outside the scope of their agreement.

MR BARKER: 

It could be either, Your Honour.

DAWSON J: 

No, it could not.

MR BARKER:  It could be within or without. Had they been

given the direction which was given by the

Chief Justice in Johns'· case, approved by this

case, well then, of course, he may have been

acquitted - - -

DAWSON J: But that only makes explicit what is implicit in

that passage.

MR BARKER:  Your Honour, it is too difficult a position for

a jury to be in to have to infer what the law is. It should be given to them clearly, with respect.

They should have been asked, "Was it within the

contemplation of the two as part of the common

purpose, or as an incident possibly arising within

the scope of the common purpose?". We have, in

this country, an agreed formula of words which

would have been appropriate to these circumstances.

DAWSON J:  I am not sure that it has not become too

contemplated all round; after all, the question is
only, "Was this part of the purpose which was

common to them both?", and in considering what

Sharah 18 20/5/93

purpose was common to them both, you can take into

account what was implicit as well as what was

explicit. That is all it is.

MR BARKER:  It comes back, Your Honour, to the question, we

submit, of authority - authorization, but

Your Honours have the argument. May I go to the

second point which is the direction as to a felony

murder; the question being, "What is it that the

applicant needed to have in contemplation to make

him guilty of a felony, murder committed by

Attard?" and, in our respectful submission, it was

not enough to direct the jury that he could be

convicted of the shooting by Attard if he had in

contemplation that there might be a killing or the

infliction of serious bodily injury.

On this evidence, we respectfully submit, they

should have been asked to consider whether or not Sharah knew the weapon was loaded; whether he had

agreed with Attard, either tacitly or expressly,

that that gun would be fired and there would be a

death. Did he agree with Attard that the weapon

would be used to strike somebody? You see, it is

the striking of the first man which caused the

wounding which founds the conviction for armed

robbery with wounding, which attracts 25 years, and

upon that basis the question of felony murder

arose.

But, more importantly, did he foresee a

shooting which would cause death and not merely the
infliction of bodily harm? None of these things

were put to the jury. Section 18 of the Crimes Act

requires proof that the act causing death was done

during the commission of the felony. The question

is, the act being the pulling of the trigger,

presumably, can it be said that this accused, on

this evidence, knew that there was going to be a

death? was that within his contemplation as part

of the common purpose or a possible incident to

it? The jury should have been directed to

consider, not whether he thought somebody was going
to be injured but whether he thought someone was

going to be killed, because murder necessarily

involves a death. If Your Honours please.

MASON CJ: The Court need not trouble you, Mr Blanch.

In the circumstances of this case, we consider

that the decision of the Court of Criminal Appeal

was correct. The application for special leave is

therefore refused.

AT 11.59 AM THE MATTER WAS ADJOURNED SINE DIE

Sharah 19 20/5/93