Shaw v Tasmania
[2022] TASCCA 2
•7 March 2022
[2022] TASCCA 2
| COURT: | SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL) |
| CITATION: | Shaw v Tasmania [2022] TASCCA 2 |
| PARTIES: | SHAW, David |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | CCA 3353/2019 |
| DELIVERED ON: | 7 March 2022 |
| DELIVERED AT: | Hobart |
| HEARING DATES: | 6, 7 October 2020 |
| JUDGMENT OF: | Blow CJ, Wood, Estcourt, Pearce and Brett JJ |
| CATCHWORDS: |
Criminal Law – General matters – Ancillary liability – Complicity – Common purpose – Generally – Criminal Code (Tas) – Common law doctrine of joint criminal enterprise not applicable.
Criminal Code (Tas), s 3(1)(a).
L v Western Australia [2016] WASCA 101, 49 WAR 545, followed.
R v Webb; ex parte Attorney-General [1990] 2 Qd R 275, not followed.
Clarke v Tasmania [2013] TASCCA 11, 24 Tas R 384; Edwards v Tasmania [2016] TASCCA 7; R v Wyles, ex
parte Attorney-General [1977] Qd R 169; R v Palmer [2005] QCA 2; R v Quagliata [2019] QCA 45; Warren v
The Queen [1987] WAR 314; Lacco v Western Australia [2006] WASCA 152; Campbell v Western Australia
[2016] WASCA 156, 50 WAR 331; R v Beardy 2016 MBCA 68, discussed.
Aust Dig Criminal Law [2130]
Criminal Law – General matters – Ancillary liability – Complicity – Common purpose – Probable consequence
– Criminal Code (Tas) – Crime within the scope of the unlawful common purpose.
Criminal Code (Tas), s 4.
Ahsin v The Queen [2014] NZSC 153, [2015] 1 NZLR 493, followed.
R v Simpson (1988) 23 BCLR (2d) 145, 38 CCC (3d) 482, not followed.
Clayton v The Queen [2006] HCA 58, 81 ALJR 439; R v Keenan [2009] HCA 1, 236 CLR 397; Brennan v The
King (1936) 55 CLR 253; Darkan v The Queen [2006] HCA 34, 227 CLR 373, referred to.
Aust Dig Criminal Law [2132]
Criminal Law – Appeal and new trial – Miscarriage of justice – Dismissal of appeal where no substantial
miscarriage of justice – Application of proviso to particular cases – Arson – Joint trial of two accused – Evidence left open possibility appellant did not participate when crime committed – Judge erroneously directed jury on basis that common law doctrine of joint criminal enterprise was applicable – Evidence sufficient for conviction on statutory common purpose basis – Adequate directions to jury.
Criminal Code (Tas), s 402(2).
Kalbasi v Western Australia [2018] HCA 7, 264 CLR 62, applied.
Aust Dig Criminal Law [3465]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence
manifestly excessive or inadequate – Arson and attempting to dishonestly acquire a financial advantage – Insurance fraud by house owner – Cost of repairs over $260,000 – Sentence of two years' imprisonment with non-parole period of one year not manifestly excessive.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: G Stevens Respondent: D G Coates SC, L A Mason SC
Solicitors:
Respondent: Director of Public Prosecutions
| Judgment Number: | [2022] TASCCA 2 |
| Number of paragraphs: | 218 |
Serial No 2/2022
File No CCA 3353/2019
DAVID SHAW v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL BLOW CJ WOOD J ESTCOURT J PEARCE J BRETT J 7 March 2022 |
| Order of the Court: | |
| Appeal dismissed. |
Serial No 2/2022
File No CCA 3353/2021
DAVID SHAW v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL BLOW CJ WOOD J PEARCE J BRETT J 7 March 2022 |
1 In June 2016 the appellant, David Shaw, owned a house in Clarendon Vale. On the evening of 27 June 2016 it caught fire and was badly damaged. It was insured. The appellant made a claim on his insurance policy. The insurance company conducted an investigation and rejected the claim. The appellant and a friend of his named Michael Wells were jointly charged with arson and with attempting to dishonestly acquire a financial advantage. They were tried together before Geason J and a jury, and both found guilty of both charges. His Honour convicted the appellant and sentenced him to two years' imprisonment with a non-parole period of one year. This is an appeal against his convictions and sentence.
2 The appellant's contentions can be summarised as follows:
• That the learned trial judge erred in law in directing the jury on the basis that the common law doctrine of joint criminal enterprise was applicable in Tasmania. • That his Honour failed to direct the jury as to the act or acts of the appellant that were capable in law of attracting criminal responsibility. • That the verdicts were unsafe and unsatisfactory, in the sense that the evidence lacked probative force to such an extent that he should be acquitted. • That his sentence was manifestly excessive. • That the trial judge failed to consider, or properly consider, parity of sentence. 3 This is the first time the Court has convened a bench of five judges to review the law since 1997. This step has been taken in light of the grounds of appeal concerning the treatment of the common law doctrine of joint criminal enterprise. Notwithstanding considerable debate regarding the precedential value of a decision of this Court in Clarke v Tasmania [2013] TASCCA 11, 24 Tas R 384, the reality is that Clarke has been treated as authority for the principle that a person incurred criminal responsibility under s 3(1)(a) of the Criminal Code by participating in a joint criminal enterprise, as understood under the common law. Since Clarke, joint criminal enterprise has been pressed by the Crown and left to juries, with directions given to juries about the elements of joint criminal enterprise reflecting the common law. The trial here was a stark example of this development because joint criminal enterprise was left to the jury as the sole basis of liability, without reliance on aiding or abetting in s 3(1)(b) or (c) or the "common purpose" provision in s 4 of the Code. The question that arises squarely on this appeal is a consideration of joint criminal enterprise under the Code in Tasmania and the role it plays.
Joint criminal enterprise
4 There was evidence at the trial that the house caught fire at about 6pm on the evening in question. There was evidence from fire investigators that the fire had been deliberately lit, that it had four areas of origin, and that a low volatility accelerant had been used. There was evidence that the
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appellant, Mr Wells, and another friend named Leanne Coleman had been at the house together for some hours before departing in cars at 5.58pm. Ms Coleman gave evidence to the effect that, shortly before their departure, she saw Mr Wells set fire to a towel by holding it over a burning candle. However there was no evidence upon which the jury could find or infer that the appellant had taken any active part in starting a fire or setting fire to the building. There was circumstantial evidence suggesting that he had both a motive and a plan to set fire to the building and make a fraudulent insurance claim, but no evidence that he participated in starting the fire.
5 The Crown sought a conviction on the arson charge solely on the basis that the appellant and Mr Wells were parties to a joint criminal enterprise. The learned trial judge gave the jury directions to the effect that they could find the appellant guilty of arson if they were satisfied beyond reasonable doubt that he and Mr Wells had reached an understanding to commit that crime, and that it was committed in accordance with that understanding, in which case each was responsible for what the other one did. The appellant contends that that amounted to a misdirection. He contends that the common law concept of joint criminal enterprise is not the law in Tasmania, and that it was not open to the jury to convict him on the basis of him being a party to an understanding or arrangement without being satisfied beyond reasonable doubt that he actively participated in the commission of the crime. The Crown contends that the jury was properly directed.
6 There has been a controversy as to what place, if any, the common law doctrine of joint criminal enterprise has in Australian jurisdictions with criminal codes. There are conflicting decisions of intermediate appellate courts. The decision of the Queensland Court of Criminal Appeal in R v Webb; ex parte Attorney-General [1990] 2 Qd R 275 is consistent with the Crown's contentions in this case. The decision of the Western Australian Court of Appeal in L v Western Australia [2016] WASCA 101, 49 WAR 545 is consistent with the appellant's contentions. The point was addressed in Clarke v Tasmania (above). The judgment of Porter J in that case is consistent with the Crown's contentions. The judgment of Wood J in that case is consistent with the appellant's contentions. The judgment of Estcourt J in that case is silent as to the situation when joint criminal enterprise is relied upon as the sole basis of criminal liability and there is no evidence as to the accused physically participating in the commission of the crime. For the reasons stated below, we agree with the views expressed by Wood J in Clarke, and by the Court of Appeal in L v Western Australia.
The trial judge's directions
7 At the end of the trial the learned trial judge provided the jury with two memoranda, one relating to each accused. The memorandum relating to the appellant began with the following:
"1 Joint Enterprise
1.1 If you are satisfied beyond reasonable doubt that the accused DAVID SHAW, and the other accused, Michael Wells, acted together pursuant to an understanding that they had reached to commit the crime, the accused DAVID SHAW is guilty of the crime, and it does not matter what part he and Michael Wells played in its commission."
8 In his summing-up, his Honour explained that paragraph to the jury as follows:
"So the memorandum starts with definitions, joint enterprise. If you are satisfied beyond reasonable doubt that the accused, Michael Wells, and the other accused, David Shaw, acted together pursuant to an understanding that they had reached to commit the crime the accused, Michael Wells, if you're looking at Wells' memo, is guilty of the crime, and it doesn't matter what part he and David Shaw played. And that's the essence, ladies and gentlemen, of this concept of joint enterprise, it doesn't matter. Ms Pennington [the prosecutor] said to you quite openly at the start of the trial we don't necessarily know who did what, what part each person played in the execution of the crime, but if two people or more are carrying out a joint criminal enterprise then each is responsible for what the other one does and it doesn't matter what aspect of that
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criminal enterprise one or other did, each is caught by the fact of the plan. And so you get the situation, don't you, where someone's a lookout, someone's the robber. So in this case the Crown says that you can infer, going back to what I said to you earlier, the existence of an agreement between Mr Shaw and Mr Wells to carry out a joint criminal enterprise which was to destroy by fire 131 Mockridge Road and claim against the insurance policy. Now you have to be satisfied of that beyond reasonable doubt of course and that's a matter for you based upon all of the evidence, and I told you the matters that the Crown asks you to look at for the purposes of inferring the existence of such a plan."
9 No directions were given to the jury in relation to the appellant as to criminal liability based on aiding, abetting or instigating the commission of the crime charged. The learned trial judge had proposed giving such directions. However the prosecutor made no reference to aiding, abetting or instigating in her closing speech. She closed only on the basis of a joint criminal enterprise. There followed a discussion between counsel and the learned trial judge. The prosecutor said that she was content that aiding, abetting and instigating not be left to the jury. The learned trial judge was proposing to cover those matters in his memorandum to the jury, but revised his memorandum by removing all material relating to those bases of liability.
Criminal liability under the Criminal Code
10 In Tasmania, there are various bases of criminal liability. They are dealt with in ss 3 and 4 of the Criminal Code. Those sections read as follows:
"3 Which parties to crimes to be deemed principals in the first degree (1) Where a crime is committed, each of the following persons is deemed to be a party to, and to be guilty of, the crime, and may be charged with actually committing it:
(a) every person who actually commits the crime; (b) every person who does any act or makes any omission for the purpose of enabling or aiding another person to commit the crime; (c) every person who abets another person in committing the crime; (d) every person who instigates any other person to commit the crime.
(2) Any person who instigates another to do any act or make any omission of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted a crime on his part, is guilty of the same crime as if he had himself done the act or made the omission; and may be charged with himself committing that crime.
4 Crimes committed in prosecution of common purpose
Where 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose a crime is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the crime."
11 The Crown contends that when a crime is committed by a party to a joint criminal enterprise, all parties to that joint criminal enterprise fall within the meaning of the words "every person who actually commits the crime" in s 3(1)(a), including a party who plays no active role in the commission of the crime. The critical question is whether those words are to be given a literal meaning, or are to be given an extended meaning on the basis that they were intended to reflect the common law as it has developed with respect to the criminal liability of principal offenders, involving participation in a joint criminal enterprise by presence.
12 Further, the Crown contends that s 4 of the Code imposes criminal liability for all crimes committed in the prosecution of an unlawful common purpose, including crimes within the scope of the unlawful common purpose and crimes incidental to the prosecution of that purpose. The appellant
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contends that s 4 does not apply to crimes within the scope of the common purpose, but only to crimes
incidental to the prosecution of that purpose.
Joint criminal enterprise at common law
13 The common law as to criminal liability based on a joint criminal enterprise was discussed by the High Court in McAuliffe v The Queen (1995) 183 CLR 108. That case concerned convictions for murder in New South Wales. The court said the following at 114:
"But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission." [Footnote omitted.]
14 The judgment in McAuliffe went on to note later developments in the common law and the principle of extended joint criminal enterprise, determined by reference to the possible consequences of the criminal venture which were subjectively within the contemplation of the parties to the understanding or arrangement.
15 The common law as referred to by the High Court in McAuliffe, before these developments, was no different when the Code was enacted in 1924. In Russell on Crimes and Misdemeanours (8th ed), 1923, the learned author stated at Vol 1, page 112:
"The general rule applies to offences by statute as well as at common law, viz, that all present at the time of committing an offence are principals, although one only acts, if they are confederates, and engaged in a common design, of which the offence is part." [Footnote omitted.]
Queensland cases
16 Section 7(1) of the Criminal Code 1899 (Qld) is in very similar terms to Tasmania's s 3(1). It
reads as follows:
"7 PRINCIPAL OFFENDERS
(1) When an offence is committed, each of the following persons is deemed to have
taken part in committing the offence and to be guilty of the offence, and may be chargedwith actually committing it, that is to say—
(a)
every person who actually does the act or makes the omission which constitutes the offence;
(b)
every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) every person who aids another person in committing the offence;
(d) any person who counsels or procures any other person to commit the offence."
17 This subsection does not contain an equivalent of our s 3(1)(c), which relates to abetting, nor does the equivalent provision in Western Australia. There is a substantial overlap between abetting and counselling or procuring the commission of an offence.
18 In our s 3(1)(c), "abets" means "encourages": Murray v the Queen [1962] Tas SR 170. It is possible for a person to abet the commission of an offence merely by being present at the place where
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it is committed: R v Coney (1882) 8 QBD 534; Smith v The Queen (unreported, Court of Criminal Appeal, 4/1979); Hutt v The Queen (1989) 14 Tas R 182 at [51]. Encouraging the commission of an offence in that way has been regarded in Queensland as aiding the commission of the offence: R v Beck [1990] 1 Qd R 30 per Macrossan CJ, with whom McPherson J agreed, at 38; and per Derrington J at 47.
R v Wyles, ex parte Attorney-General
19 An interesting question as to persons acting in concert was considered by the Queensland Court of Criminal Appeal in R v Wyles, ex parte Attorney-General [1977] Qd R 169. Two people had been jointly charged with breaking and entering a dwelling-house in the night-time with intent to commit a crime therein, contrary to s 419(1) of the Criminal Code (Qld). That section has since been amended. The crime was constituted by a breaking and an entering. A question arose at the trial as to whether either of the accused would be guilty of the crime if one broke open the front door without entering the house, and the other entered for the purpose of stealing. The accused were acquitted. The Attorney- General referred a question to the Court of Criminal Appeal as to whether an accused person had to be acquitted unless the Crown could prove beyond reasonable doubt that the same person had both broken and entered with the necessary intent.
20 The answer depended on whether a person who broke without entering, or entered with breaking, fell within the scope of s 7(a) of the Queensland Code – now s 7(1)(a) – which read, "Every person who actually does the act or makes the omission which constitutes the offence". Section 32(c) of the Acts Interpretation Act 1954-1971 (Qld) provided that, unless the contrary intention appeared, "Every word in the singular number shall be construed as including the plural number and every word in the plural number shall be construed as including the singular number". A similar provision was in force when the Queensland Code was enacted in 1899: Acts Shortening Act 1867 (Qld), s 11.
21 All members of the court held that it was not necessary for the Crown to establish beyond reasonable doubt that an accused person had personally both broken and entered. Lucas J held that s 7(a) was intended to restate the common law, but also relied on the provision in the Acts Interpretation Act. At 177 he said that s 7(a) should be read distributively, to mean, "All persons who actually do the act or one or more acts in the series which constitutes or constitute the offence".
22 Hoare J agreed with the reasoning of Lucas J, but advanced further reasoning, based on the common law, that led to the same conclusion. At 179-180 he said:
"It is clear that at the time the Code was enacted the criminal law had developed in a way which could sheet home criminal responsibility by a jury being able to look at the totality of the acts where it could be inferred that persons acted in concert, one doing the one thing and others other things, all leading to the completion of the incident which constituted the offence. In such cases each of the perpetrators was held to be liable as a principal. He was treated as if he had 'actually committed the offence'."
23 The third member of the court, Matthews J, agreed with both of his brethren.
24 In that case s 7(a) was given an extended meaning, but it was a meaning consistent with treating the singular as including the plural. The court did not hold that a person who had done nothing could be regarded as a "person who actually does the act". Treating the singular as including the plural requires the provision to be read as "All persons who actually do the acts which constitute the offence". When a crime is constituted by two separate acts, an interpretation that imposes criminal liability only when both acts are performed by the same person would be inconsistent with the purpose or object of the Criminal Code. [1]
[1] There is no reason why that case should not be followed in Tasmania in relation to crimes that are constituted by two or more acts. For example, the crime of robbery is constituted by (a) stealing and (b) using or threatening to use violence: Criminal Code, s 240(1). If two offenders together confront a person, one threatens to use violence with the necessary intention, and the other steals something from the person, they have between them committed the crime of robbery. It is significant that Tasmania also has a legislative provision that "words in the singular shall include the plural" in the absence of a contrary intention: Acts Interpretation Act 1931, s 24(d). A provision to that effect was in force when the Code was enacted in 1924: Acts Interpretation Act 1906, s 10(II). It should be noted that there is the additional factual scenario treated as falling within s 3(1)(a) of two or more offenders actively and directly carrying out together the act which constitutes the crime with a shared purpose, as in a joint attack with weapons: Lyons v The Queen (1992) 1 Tas R 193. While an extended meaning is given to s 3(1)(a) in this context, it is again consistent with treating the singular as including the plural ("person" includes persons) and consistent with the natural meaning of the text ("actually commits").
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R v Webb, ex parte Attorney-General
25 R v Wyles did not concern the criminal liability of a party to a joint criminal enterprise who takes no active part in the commission of an offence. However that situation was considered by the Queensland Court of Appeal in 1990 in R v Webb, ex parte Attorney-General (above). The facts in that case were similar to those in this case. Webb was charged with attempting to commit arson. The Crown case was that he and a companion entered a building, and that a towel was set alight, but there was no evidence as to which of the two men had started the fire. The jury acquitted Webb at the direction of the trial judge. The Attorney-General referred some questions to the Court of Criminal Appeal. The first question was:
"If two persons are together and are acting in concert to do an act which, if done, would amount to the commission of a criminal offence and that act is done, but the evidence does not reveal which one of them actually did the act, is each of them deemed to have taken part in committing the offence?"
26 Macrossan CJ, with whose reasons Lee J agreed, assumed that the common law applied, and took that to have been settled in R v Wyles. He said, at 283:
"Question No 1 in the reference raises no novel point. ... the question can be answered consistently with a number of decisions which have been pronounced in this area. In particular, in R v Wyles, ex parte Attorney-General [1977] Qd R 169 some apparent difficulties in the application of the words of s 7 of the Code were explored and resolved. It is now settled that s 7(a) can include cases where there are several persons acting in concert each doing some act so that the actions, in totality, would constitute all of the elements if the offence were committed by one person: see per Hoare J (with whom Matthews J agreed) at 182F of Wyles."
27 Thomas J agreed that the question should be answered "Yes", but relied on very different reasoning. He said, at 287:
"On the assumption that the question fairly arises, the question demands a 'Yes' answer. In many circumstances, especially when acts are done in combination, it is unnecessary to show which accused person personally performed the acts. ... If the evidence excluded the participation of any third person, and showed that either the accused lit the fire himself or that he aided his companion to light the fire (and plainly there was at least a case of sufficient encouragement in this respect) and that in lighting the rag (or aiding his companion to light it as the case may be) the accused had the necessary wilfulness in relation to the prospect of the house being burned, the case was adequate. In other words the mere fact that the Crown could not nominate which one of the two lit the rag was not of itself a sufficient reason to stop the case." [Case references omitted.]
28 Thomas J did not hold that a person who took no physical part in the lighting of the fire could be a "person who actually does the act" within the meaning of s 7(a). Macrossan CJ and Lee J took the view that that was the law, seemingly gaining support from Wyles, but Wyles did not relate to that question.
R v Palmer
29 The practice of using the language of joint criminal enterprise when directing juries as to criminal liability was criticised by Davies JA in R v Palmer [2005] QCA 2. That was an appeal against
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convictions on charges of torture and murder. The trial judge had directed the jury to the effect that "the Crown must prove beyond reasonable doubt both the existence of a joint criminal enterprise and of the appellant's participation in its implementation": per Davies JA at [28]. No question of the criminal liability of a non-participant arose. The court held that the jury had not been misdirected and dismissed the appeal. However Davies JA, with whose reasons Fryberg and Mullins JJ agreed, made the following observations at [17]-[19]:
"[17] It is submitted, correctly in my opinion, that the phrase 'joint criminal enterprise' is not used in the Criminal Code and adds nothing to the provisions which are there contained. If an accused's conduct comes within the operation of any of the subsections of s 7(1) or within s 8 then she is deemed to have committed the offence whether or not she was a party to a joint criminal enterprise. And if she was a party to a joint criminal enterprise, as defined by the learned trial judge, but her conduct does not come within any of the subsections of s 7(1) or within s 8 then she is not deemed to have committed the offence.
[18] Thomas JA and Jones J pointed out in R v Walton and Harman [2001] QCA 309 at [30] that the language of joint criminal enterprise is not usually helpful when discussing criminal liability under s 7(1)(b) or s 7(1)(c). To that I would add that it may lead to confusion. It may describe an agreement to carry out an offence, participation in which may constitute counselling or procuring within s 7(1)(d) but even here it is not helpful to so describe it. In all these cases, as already mentioned, the question is not whether the accused was a party to a joint criminal enterprise but whether she did something which brought herself within one of the paragraphs of s 7(1). The language of joint criminal enterprise may be more appropriate to s 8 because that section requires a common intention to prosecute an unlawful purpose in conjunction with one another. That is the sense in which that or a similar phrase appears to be used in common law cases. However, because of the risk, even with respect to s 8, that its use may lead to confusion, in my opinion the phrase should be avoided in directions with respect to s 8 as well as in directions with respect to s 7.
[19] That is not to say that where that phrase has been used in directions about
liability, whether under s 7 or s 8, there has been a misdirection which left open the
possibility that the verdict miscarried. [Some footnotes omitted.]
30 Fryberg J said at [35]:
"[35] I agree generally with the reasons for judgment delivered by Davies JA. I particularly agree with his Honour's comments relating to the notion of 'joint criminal enterprise'. Whatever those words convey at common law, they are at best unhelpful in explaining to a jury the effect of either s 7 or s 8 of the Criminal Code. At worst they are capable of misleading a jury. They might occasionally be helpful as a shorthand description of a particular complex of facts, but they do not describe the law in this State."
| R v Quagliata |
31 There was a different result in R v Quagliata [2019] QCA 45. That was an appeal against convictions on drug charges, including a trafficking charge. The trial judge had directed the jury by reference to the concept of a joint criminal enterprise. Bond J, with whom Sofronoff P and Henry J agreed, concluded, at [94], that the directions to the jury, taken as a whole had invited them to convict the appellant otherwise than by reference to s 7 of the Criminal Code (Qld). The conviction on the trafficking charge was quashed. At [17] and [93] Bond J referred with approval to comments made in R v Palmer (above) and L v Western Australia (above).
Western Australian cases
32 Section 7 of the Criminal Code (WA) is also in very similar terms to Tasmania's s 3, except for the absence of any express reference to abetting. The section reads as follows:
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"7 Principal offenders When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say —
(a) Every person who actually does the act or makes the omission which constitutes the offence; (b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; (c) Every person who aids another person in committing the offence; (d) Any person who counsels or procures any other person to commit the offence.
counselling or procuring its commission.
A conviction of counselling or procuring the commission of an offence entails the same
consequences in all respects as a conviction of committing the offence.In the fourth case he may be charged either with himself committing the offence or with he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission."
Warren v The Queen
33 At the hearing of this appeal, counsel made submissions about Warren v The Queen [1987] WAR 314, a decision of the Full Court of the Supreme Court of Western Australia. In that case two men were appealing against their convictions on charges of causing grievous bodily harm. They had attacked a police officer together. Burt CJ, Kennedy and Franklyn JJ delivered separate judgments. Only that of Franklyn J contains anything relevant to this appeal. At 327-329 his Honour discussed R v Wyles and decided that it should be followed in relation to the construction of s 7(a) of the Criminal Code (WA). His Honour concluded that for the purpose of a case in which two people had acted in concert, the words in question should be read as "all persons who actually do the act or one or more of the acts in the series which constitutes or constitute the offence". The case did not concern the criminal liability of a party to a joint criminal enterprise who did not physically participate in the commission of the intended crime.
Lacco v Western Australia
34 In Lacco v Western Australia [2006] WASCA 152, Buss JA made some obiter comments based on the reasoning of Macrossan CJ in R v Webb (above). That was an appeal to the Court of Appeal against a conviction for aggravated burglary. The appellant had been tried with two co-accused, both of whom were acquitted of the aggravated burglary charge. At [54] his Honour expressed a view to the effect that all three would have been guilty of aggravated burglary if all three had the common purpose of entering the house in question without the occupant's consent to commit the offence of stealing, if that common purpose existed when the appellant entered the house, and if the two co-accused were physically present when he entered but did not enter the house themselves.
L v Western Australia
L v Western Australia (above) was the first of two cases in that State's Court of Appeal in 2016 in which different views were expressed in relation to the common law doctrine of joint criminal enterprise. In that case two appellants appealed against convictions on a joint charge of possessing methylamphetamine with intent to sell or supply it to another. The trial judge had directed the jury as to criminal liability on the basis of participation in a joint criminal enterprise, leaving open the possibility of L being convicted solely on the basis of being a party to a joint criminal enterprise, without
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the jury being satisfied beyond reasonable doubt that she had ever had possession of any of the methylamphetamine or in any way participated in the joint enterprise. The court (Martin CJ, Mazza JA and Mitchell J) unanimously quashed the convictions.
36 In a joint judgment, their Honours rejected the proposition that a party to a joint criminal enterprise constituted a "person who actually does the act" when he or she had not done any act for the purposes of the enterprise. Their Honours said, at [32]-[33]:
"32 Section 7(a) of the Criminal Code identifies the criminal liability of '[e]very person who actually does the act or makes the omission which constitutes the offence'. For reasons explained by Franklyn J in Warren v The Queen, the reference to every person who actually does 'the act' includes all persons who do the act or one or more of the acts in a series of acts which constitutes or constitute the offence. In that manner, s 7(a) provides for criminal liability of several persons, acting in concert, each doing some act which, in aggregate, would constitute an offence if done by one person.
33 The operation of s 7(a) differs from the common law of joint criminal enterprise in that, under s 7(a) of the Code, it is necessary for the accused to have done at least one act in a series of acts which constitutes the offence. As the formulation in McAuliffe indicates, under the common law, all participating parties to the arrangement or understanding are liable even if only one does the relevant act. For this purpose, participation in a joint criminal enterprise at common law may be constituted by mere presence when the crime is committed pursuant to the arrangement or understanding." [Footnotes omitted.]
37 At [42] and [43], their Honours referred with approval to the comments of Davies JA in R v Palmer as to the use of the phrase "joint criminal enterprise". At [44], their Honours commented that the position in Queensland was "somewhat complicated" by the decision in R v Webb. At [51], they commented that, "the reasons given by Wood J for concluding that s 3 of the Criminal Code (Tas) does not incorporate the common law doctrine of joint criminal enterprise are compelling and are generally applicable to s 7 of the Criminal Code (WA)."
38 Their Honours' reasons for rejecting the proposition that the common law doctrine of joint criminal enterprise was incorporated in their State's Criminal Code were clearly stated at [52] and [53], as follows:
"52 In construing any statute it is of fundamental importance to give primacy to the statutory text. That is particularly important in construing a criminal code intended to replace the common law. The language of the Criminal Code should be construed according to its natural meaning and without any presumption that it was intended merely to restate the common law. While the common law may be considered, at least in resolving ambiguities or considering language which has acquired a technical meaning, the first duty of a court construing the Criminal Code is to look at the current text. Further, resort to the common law in construing s 7 - s 9 of the Criminal Code must recognise the significant developments in the common law, especially in the area of accessorial liability, since the terms of the Code were developed.
53 The language of s 7(a) of the Criminal Code is clear. It only attaches criminal liability to a person who 'actually does the act or makes the omission'. A person will only be taken to have committed an offence under s 7(a) if he or she has done an act (or one or more of a series of acts) or made an omission (or one or more of a series of omissions) which constitutes the offence. Otherwise deliberate assistance or encouragement of the kind referred to in s 7(b) - s 7(d) is required. Participation in a joint criminal enterprise will not render an accused criminally liable under s 7 of the Criminal Code unless he or she either:
1 does at least one act or makes at least one omission which, alone or in combination with the acts or omissions of another person (at least where they are acting in concert), constitutes the offence; or
2 deliberately aids another person to commit the offence, or does or omits to do any act for that purpose; or
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3 deliberately counsels or procures another person to commit the offence."
[Footnotes omitted.]
Campbell v Western Australia
39 Eight days after the publication of their Honours' reasons in L, the Western Australian Court of Appeal, differently constituted, heard the case of Campbell v Western Australia [2016] WASCA 156, 50 WAR 331. Each of the judges in Campbell (McLure P, Buss JA and Corboy J) made detailed comments about the reasoning and conclusions of the court in L. Mazza JA, Mitchell JA and Hall J subsequently commented in Sheriff v Western Australia [2017] WASCA 185 at [67] that the issue discussed by the court in Campbell did not appear to have been the subject of submissions by the parties to that appeal.
40 Mr Campbell and four other people had been charged with murder. He had made an unsuccessful application for an order that he be tried separately from the other accused. The court was dealing with an appeal against the refusal of that application. All of the comments about joint criminal enterprise were obiter. McLure P made the following comments at [21]-[22]:
"21 A number of important points seem to be lost in the modern discussion of whether the common law doctrine of joint criminal enterprise in law has any application to s 7 of the WA Code or its equivalents. First, as a basis of liability, the sole focus is on direct liability under s 7(a), not derivative liability under s 7(c) or other categories of accessorial liability under the WA Code. Second, it has been authoritatively determined that s 7(a) has picked up the common law of joint criminal enterprise in law, in its various interchangeable formulations, in the circumstances in Wyles and Warren & Ireland [Warren v The Queen (above)]. Indeed, on a close reading of the reasons in Clarke v Tasmania, Wood J accepted that some common law principles had been picked up, the real issue being which parts of the common law had not been picked up under the direct liability provision in s 3 of the Tasmanian Code. Third, it is clear from the reasoning in Wyles and Warren & Ireland that the circumstances in those cases are just examples of the application of the principle underlying the common law doctrine of joint criminal enterprise in law. When there is a joint criminal enterprise in law (or its interchangeable equivalent) an actual s 7(a) act done by one or more parties to a joint criminal enterprise is also the act of other parties to, and participants in, the same joint criminal enterprise. The analogy is with the common law of agency, whereby a person may act by himself or by his authorised agent(s). 'Authority' in this context extends to adoption or ratification of the s 7(a) acts of others in the joint criminal exercise. That is, a party to a joint criminal enterprise in law becomes directly responsible for the s 7(a) acts of another party thereto.
22 In summary, s 7(a) applies when the s 7(a) acts of another become, at common law, the acts of the accused; the s 7(a) acts are joint acts; and the parties to, and participants in, the joint criminal enterprise are jointly liable under s 7(a). Section 7(a), on its proper construction, means:
Every person who actually does the act or makes the omission [by himself or by another party for whose acts or omissions he is liable at common law] which constitutes the offence."
41 Corboy J gave detailed consideration to the common law authorities as to joint criminal enterprise and acting in concert, the authorities relating to the interpretation of criminal codes, the history of the drafting of the Western Australian Code, that Code's provisions as to criminal liability, and the authorities relating to criminal liability. His Honour's concluding comments included the following, at [304]-[305]:
"304 As I have emphasised, the views expressed in these reasons are tentative. However, my preliminary view is that s 7 of the Code was intended to be, and is to be, interpreted by reference to common law principles of criminal complicity. The principles were deeply embedded in the common law by the time Sir Samuel Griffiths prepared his draft of the Queensland Code. They were capable of being shortly stated by language that was settled and which had acquired particular legal meanings. My
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preliminary view is that this approach to the interpretation of s 7 extended beyond the language employed in s 7(b) – s 7(d) to the wording of s 7(a). The expression 'the person who does the act ... which constitutes the offence' captured settled legal meanings and concepts in the same way as the words 'aids', 'counsels' and 'procures' conveyed an established legal meaning. In particular, the wording of s 7(a) was intended to give effect to common law concepts of joint criminal enterprise, the attribution principle and acting in concert – concepts exemplified by both Hurse and Bingley (to the extent the decisions in those cases might be explained by different principles). In particular, I consider that s 7(a), properly construed, embodies what I have referred to as the attribution principle.
305 At least two significant problems arise if s 7(a) is interpreted to exclude the application of that principle. First, there may be some cases in which it is impossible to identify and determine the criminal liability of an accused person according to the requirements of s 7 – to establish the knowledge and intention of the accused for the purpose of s 7(b) – s 7(d). That is the problem that the common law addressed by the concept of a joint criminal enterprise. Second, it may not be possible to rely on the co- conspirator's rule of evidence if it is not possible to allege that the accused were participants in a joint enterprise for the purpose of determining their criminal liability."
42 Buss JA however expressed the view, at [168], that the doctrine of joint criminal enterprise was not embodied in s 7(a) of his State's Code, and was not a basis for criminal responsibility under that provision. However his Honour opined, at [165], that s 7(a) had a more extensive operation than the Court of Appeal held it to have in L v Western Australia. He gave two examples:
"(a) Where two or more persons make or enter into an agreement or plan to commit a specific offence and, during the subsistence of the agreement or plan, one of them performs all of the acts or makes all of the omissions which constitute that offence with the authority of and therefore on behalf of all of the persons to the subsisting agreement or plan, each of them will have actually done the relevant acts or actually made the relevant omissions, as the case may be, and each of them will be deemed by s 7(a) to have committed the specific offence.
(b) Where two or more persons make or enter into an overarching agreement or plan to carry on a business involving ongoing criminal conduct for a definite or indefinite period (for example, the carrying on of a drug dealing business) and, during the subsistence of the overarching agreement or plan, one of them performs all of the acts or makes all of the omissions which constitute a specific offence pursuant to or in implementation of the overarching agreement or plan and with the authority of and therefore on behalf of all of the persons to the subsisting overarching agreement or plan, each of them will have actually done the relevant acts or actually made the relevant omissions, as the case may be, and each of them will be deemed by s 7(a) to have committed the offence."
The Tasmanian cases
Clarke v Tasmania
43 Clarke v Tasmania (above) was another appeal against a conviction for arson. The Crown's case at trial was that Clarke and a man named Apted had entered a house with some diesel fuel that was then spread around and ignited in at least four rooms. The Crown contended that Clarke was criminally responsible for the arson either (a) by actually setting fire to the building, or (b) by aiding and abetting Apted in setting fire to the building, or (c) being a party to a joint criminal enterprise involving an agreement that the house be burnt down, and his presence when the fires were lit. Both Clarke and Apted gave evidence at the trial. Amongst other possibilities, it was open to the jury to be satisfied beyond reasonable doubt that the two men made an agreement to set fire to the house, and that Clarke was present when the fire was started, without being satisfied beyond reasonable doubt that Clarke physically participated in the starting of any fire.
44 Clarke was found guilty, and appealed against his conviction, asserting that the jury had been misdirected. However his counsel explicitly accepted that a participant in a joint criminal enterprise is
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a "person who actually commits the crime" within the meaning of s 3(1)(a) of the Code. As Estcourt J observed at [110], the one and only ground of appeal asserted that the jury should have been directed that, in order for Clarke to be guilty on the basis of a joint criminal enterprise, he must "either commit the agreed crime itself or, whilst present at the time the crime is committed and with knowledge that the crime is to be or is being committed intentionally assist or encourage another participant in the joint criminal enterprise". [Our emphasis.]
45 At [21], Porter J rejected the proposition that the concept of joint criminal enterprise does not fall within the ambit of s 3(1)(a) after considering R v Wyles, R v Webb, the judgment of Franklyn J in Warren v The Queen, and the judgment of Buss JA in Lacco v Western Australia. He went on to review the leading common law authorities as to the scope of the doctrine of joint criminal enterprise, and to reject the argument that the jury should have been directed as suggested in the ground of appeal.
46 Wood J concluded at [101] that the common law concept of joint criminal enterprise was not the law in Tasmania; that it was contrary to the correct approach to be taken with respect to construction of the Code; and that resort to the common law was without justification. She reached those conclusions after reviewing various Queensland cases, as well as the judgment of Franklyn J in Warren v The Queen. At [89], she made observations to the effect that R v Webb had significantly expanded the principle in R v Wyles and that this had been done with a lack of analysis. She concluded that the decision in Webb did not follow from the reasoning in Wyles. However she joined in the order dismissing the appeal because she concluded that there was no possibility of a miscarriage of justice, and that the proviso contained in s 402(2) of the Code therefore applied. She took the view that, if properly directed, the jury would inevitably have concluded that Clarke was guilty either as the person who started the fire or as an abettor.
47 Estcourt J concluded, at [149], that he could find no error in the trial judge's summing-up. He did not express a view as to the proper interpretation of s 3(1)(a), but said at [144] that there was no misdirection or error in the trial judge's references to "joint enterprise" in her summing-up or her memorandum to the jury. He said the following as to the criminal liability of a non-participating party to a joint criminal enterprise at [135]:
"135 It is impossible to my mind to envisage a situation where an understanding or arrangement between two people to commit a crime is still on foot, and has not been called off, and they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, but yet are not in a situation where they were 'intentionally assisting and encouraging each other'. The former necessarily includes the latter."
48 A person who intentionally assists the offender who actually commits a crime would be guilty of that crime under s 3(1)(b) of the Code as a "person who does any act or makes any omission for the purpose of enabling or aiding another person to commit the crime". A person who intentionally encourages an offender to actually commit a crime can be guilty by virtue of s 3(1)(c) as a "person who abets another person in committing the crime". The reasoning of Estcourt J was similar to that of Thomas J in R v Webb.
Edwards v Tasmania
49 The concept of joint criminal enterprise was subsequently referred to in Edwards v Tasmania [2016] TASCCA 7, 26 Tas R 423. That was an application for leave to appeal against convictions on charges of causing grievous bodily harm and taking part in an affray. The applicant contended that the verdicts were unreasonable and could not be supported by the evidence. The trial judge had directed the jury that it was open to them to find the applicant guilty either as an abettor, or as a participant in a joint criminal enterprise, or on the basis of the prosecution of an unlawful common purpose (on the basis of s 4). There was no challenge to his Honour's directions. Blow CJ held that the evidence supporting a
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verdict based on s 4 was so forceful that the verdict should be regarded as unimpeachable. Pearce J
agreed with his reasons at [82].50 Edwards was not a case about criminal liability based on mere presence. The evidence was that a fight had started, and that the applicant joined in some time after it started, joining two other assailants in attacking another man. Consistently with the judgments of Porter J and Estcourt J in Clarke, Blow CJ accepted that participation in a joint criminal enterprise could be a basis of criminal liability. At [15], he said the following:
"[15] And I think the Crown must bear the burden of establishing an intention to cause grievous bodily harm in order for a person to be criminally responsible for grievous bodily harm as a participant in a joint criminal enterprise. If two or more people reach an understanding or arrangement that together they will commit a crime, and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the proposed crime, and one of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the intended crime, then each is guilty of that crime, regardless of what part each plays in its commission: Clarke v Tasmania [2013] TASCCA 11. If one or more of the applicant's companions caused grievous bodily harm to Mr Bannister while the applicant was involved with them in a joint attack on that man, he could be guilty of causing grievous bodily harm only if he intended such a consequence. If he foresaw such a consequence and was recklessly indifferent to that possibility, it could not be said that he had reached an understanding with anybody else that they would commit the crime of causing grievous bodily harm. Such an understanding or arrangement necessarily involves the forming of an intention to cause grievous bodily harm."
51 Because that was not a case about mere presence, it does not support the argument that s 3(1)(a) should be given an extended meaning as now asserted by the Crown.
| Canada | |
| 52 | Section 21(1) of the Criminal Code (Can) provides as follows: "21 (1) Parties to offence — Every one is a party to an offence who |
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it;
or
(c) abets any person in committing it."
53 There do not appear to be any reported cases in Canada in which it has been held or argued that a non-participating party to a joint criminal enterprise can be a party who "actually commits" an offence. Our attention has been drawn to a case in the Manitoba Court of Appeal concerning the criminal liability of an inactive party to a criminal enterprise: R v Beardy 2016 MBCA 68. That case concerned an armed robbery. Four young men were getting into a vehicle when a van pulled up in front of them, four men got out of the van, and they were robbed. The men who got out of the van included the driver, a man carrying an imitation firearm with his face covered, a third man who took property from the victims, and a fourth man who may well have done nothing. Four men, including Mr Beardy, were charged in relation to the robbery, but Mr Beardy was tried alone, without a jury. He was found guilty. On appeal, one of his contentions was that the evidence showed no more than his mere presence and passive acquiescence at the scene of the crime, and that the verdict was therefore unreasonable. That argument was rejected by leMaistre JA, with whom Steel and Beard JJA agreed, who recited the essential facts and said, at [41]:
"On these facts, it was open to the trial judge to find that the accused had knowledge of the offence taking place and, at a minimum, encouraged the offence by his presence, which created strength in numbers equal to that of the number of complainants and, if
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he did not provide direct aid, he was ready to assist. His presence was therefore consistent with culpable involvement rather than merely being an innocent bystander."
54 It is significant that that analysis concerns abetting, and presence for the purpose of aiding, rather than criminal liability as a person who actually committed an offence. The common law doctrine of joint criminal enterprise appears not to have been mentioned in that case.
New Zealand
| 55 | Section 66 of the Crimes Act 1961 (NZ) provides as follows: "66 Parties to offences |
(1) Every one is a party to and guilty of an offence who—
(a) actually commits the offence; or
(b)
does or omits an act for the purpose of aiding any person to commit the offence; or
(c) abets any person in the commission of the offence; or
(d) incites, counsels, or procures any person to commit the offence.
(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose."
56 In New Zealand as well as Canada, there do not appear to be any reported cases in which it has been held or argued that a non-participating party to a joint criminal enterprise can be a party who "actually commits" an offence. That could be because those countries do not include jurisdictions where the common law doctrine of joint criminal enterprise still applies.
57 In Ahsin v The Queen [2014] NZSC 153, [2015] 1 NZLR 493, reference was made to two common law cases concerning the doctrine of joint criminal enterprise: R v Anderson [1966] 2 QB 110; Chan Wing-Siu v The Queen [1985] AC 168. Ahsin was another case about the criminal liability of accessories and parties prosecuting an unlawful common purpose. There was no suggestion that a person who took no active part in the commission of an offence could be guilty under s 66(1)(a) as a person who "actually commits the offence". However it was held unanimously that s 66(2), the equivalent of our s 4, applied both to the commission of an offence that was intended to be committed and to other offences whose commission was a probable consequence of the prosecution of the common purpose: by McGrath, Glazebrook and Tipping JJ at [90]-[102], with whom Elias CJ agreed at [28] and William Young J agreed at [239]-[240].
Extrinsic material
58 A draft criminal code for Tasmania was prepared by Ewing J and presented to the Tasmanian Attorney-General in 1917. It was based on the Queensland Code, but contained significant innovations. The Ewing code was revised by a parliamentary committee which produced the Code that was enacted in 1924. See Petrow, Modernising the Law: Norman Kirkwood Ewing (1870-1928) and the Tasmanian Criminal Code 1924 (1995) 18 (2) University of Queensland Law Journal 287.
59 The second reading speech for the Criminal Code Bill, delivered by the Attorney-General, the Hon A G Ogilvie, on 28 February 1924 was published in the Mercury the following day. By way of an overview, the Attorney-General said the following:
"In the framing of the Code, while the draft prepared some years ago by Mr Justice Ewing, and the Queensland Code, have been followed to a great extent, the draftsmen
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have drawn freely upon the Draft Code of 1879 prepared by the Criminal Code Commissioners appointed in England for the purpose and upon legislation recently passed in England to simplify and consolidate portions of the criminal law.
One of the principal objects that have been kept in view in this work has been to make the law of this State the same as that of England wherever it could be done consistently with the policy adopted in, and the circumstances of, the particular case. The result of this will be that as far as possible the authoritative decisions of the English Courts will be applicable in similar cases here – an incalculable advantage to both Bench and Bar, and to the public."
60 It seems clear however that s 3 was substantially based on s 7 of the Queensland Code. The Attorney-General said the following about s 3 in the second reading speech:
"Another innovation has been made in dealing with parties to crimes. Section 3 provides that any person actively concerned in any crime shall be a party to it and may be charged with committing it. This does away with any necessity for the employment of the term 'accessory before the fact' and simplifies the statement of the law."
61 It would appear that s 3 was intended to simplify, rather than restate, the law as it previously stood in relation to the criminal liability of parties to offences.
Interpretation of Criminal Code provisions
62 In Bank of England v Vagliano Brothers [1891] AC 107, the House of Lords considered the proper interpretation of a provision in the Bills of Exchange Act 1882, which was intended to operate as a code relating to negotiable instruments. Lord Herschell said the following as to the proper approach to the interpretation of a code provision at 144-145:
"I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.
If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions, dependent upon a knowledge of the exact effect even of an obsolete proceeding such as a demurrer to evidence. I am of course far from asserting that resort may never be had to the previous state of the law for the purpose of aiding in the construction of the provisions of the code. If, for example, a provision be of doubtful import, such resort would be perfectly legitimate. Or, again, if in a code of the law of negotiable technical instruments words be found which have previously acquired a technical meaning, or been used in a sense other than their ordinary one, in relation to such instruments, the same interpretation might well be put upon them in the code. I give these as examples merely; they, of course, do not exhaust the category. What, however, I am venturing to insist upon is, that the first step taken should be to interpret the language of the statute, and that an appeal to earlier decisions can only be justified on some special ground."
63 In Brennan v The King (1936) 55 CLR 253, which concerned the interpretation of s 8 of the
Criminal Code (WA), Dixon and Evatt JJ said, at 263:
"But it forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will
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bear an interpretation which will leave the law unaltered (Cf, per Lord Herschell, Bank
of England v Vagliano Brothers)." [Footnote omitted.]
64 Vallance v The Queen (1961) 108 CLR 56 concerned the mental element of the crime of wounding and the interpretation of ss 13(1) and 172 of the Criminal Code (Tas). In that case Windeyer J said the following as to the proper approach to the interpretation of provisions in the Code, at 75-76:
"The Code is to be read without any preconception that any particular provision has or has not altered the law. It is to be read as an enactment of the Tasmanian Parliament. And, interesting though it is to compare it with other codes, such as that of Queensland from which it is derived, or with projected codes such as Stephen's Code, they cannot govern its interpretation. But it was enacted when it could be said of the criminal law that it was 'governed by established principles of criminal responsibility'. And for that reason we cannot interpret its general provisions concerning such basic principles as if they were written on a tabula rasa, with all that used to be there removed and forgotten. Rather is ch iv of the Code written on a palimpsest, with the old writing still discernible behind."[2]
[2] "Tabula rasa" is Latin for "scraped tablet", denoting a tablet with the writing erased. The Macquarie Dictionary gives two meanings for the term: "1 the mind at birth, regarded as having no innate conceptions 2 an opportunity to make a clean break or a fresh start". It defines "palimpsest" as "a manuscript written over a partly erased older manuscript in such way that the old words can be read beneath the new".
65 Stuart v The Queen (1974) 134 CLR 426 concerned the interpretation of provisions in the Criminal Code (Qld). The principal judgment was given by Gibbs J (as he then was), with whose reasons Menzies J and Mason J (as he then was) agreed. At 437, Gibbs J quoted the passage that we have quoted above from Brennan v The King, and continued:
"This passage does not mean that it is never necessary to resort to the common law for the purpose of aiding in the construction of the Code - it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground ... If the Code is to be thought of as 'written on a palimpsest, with the old writing still discernible behind' (to use the expressive metaphor of Windeyer J in Vallance v The Queen), it should be remembered that the first duty of the interpreter of its provisions is to look at the current text rather than at the old writing which has been erased; if the former is clear, the latter is of no relevance." [Some cases references omitted.]
66 The passages we have quoted from these four cases set out the principles to be applied in interpreting the provisions of the Criminal Code. They are the principles that were applied in L v Western Australia and by Wood J in Clarke.
Proper construction of s 3(1)(a) of the Criminal Code
67 There is nothing ambiguous or unclear about the words "every person who actually commits the crime" in s 3(1)(a). A person who desires a particular crime to be committed, enters into some sort of arrangement that he or she will participate in its commission, and is present at its commission, but without participating in its commission, would not be understood to actually commit the crime, in the ordinary sense of those words.
68 The words "person who actually commits the crime" have never acquired a technical legal
meaning.
69 A person who, at common law, would be regarded as a party to a joint criminal enterprise, but who does not actively take part in that enterprise, might incur criminal liability as an abettor pursuant to s 3(1)(c). A person who is merely present at the scene of a crime will incur criminal liability as an abettor if he or she intends, by mere presence, to encourage the offender and if the offender is in fact encouraged by that person's mere presence: Hutt v The Queen (above) at [51] per Underwood J (as he
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then was), with whom Cox and Crawford JJ (as they then were) agreed. In Tasmania, by virtue of s 3(1), such an abettor is "deemed to be a party to, and to be guilty of, the crime". In the words of the heading to s 3, such an abettor is deemed to be a "principal in the first degree". At common law, that person would be deemed to be guilty of the crime as a party to (though not a participant in) a joint criminal enterprise.
70 There is one situation in which a person who intentionally offers encouragement to another person to commit a crime might not be guilty as an abettor. If the person who actually commits the crime is so intent upon committing it that he or she derives no encouragement from the person offering encouragement, then the person offering encouragement will not be deemed guilty as an abettor. Even if the two individuals have reached an understanding that the crime is to be committed, and both are present when it is committed, the person who does nothing but offer unnecessary encouragement will not incur criminal liability pursuant to s 3(1)(c).
71 There are other bases upon which criminal liability might be incurred by a person who, at common law, would be a non-participating party to a joint criminal enterprise. That person might incur criminal liability under s 3(1)(b) by going to the scene of the crime for the purpose of enabling or aiding the principal offender to commit the crime if that person needed assistance; or under s 3(1)(d) as an instigator. By becoming a party to the joint criminal enterprise, a person might commit the crime of conspiracy, contrary to s 297(1) of the Code. That crime is committed whenever one person conspires with another to commit any crime. In the light of those provisions, it cannot be said that s 3(1)(a) needs to be given an extended meaning in order to bring to justice individuals who, having taken no active part in the commission of a crime, would be criminally liable at common law as parties to a joint criminal enterprise.
72 In Campbell v Western Australia (above) Corboy J suggested at [305] that if that State's s 7(a) was interpreted to exclude the application of the joint criminal enterprise principle, "there may be some cases in which it is impossible to identify and determine the criminal liability of an accused person according to the requirements of s 7 – to establish the knowledge and intention of the accused for the purpose of s 7(b) to (d)". Those paragraphs deal with aiding, counselling and procuring. His Honour said, "That is the problem that the common law addressed by the concept of joint criminal enterprise." We disagree. There will certainly be cases when two or more individuals with criminal intent are present at the scene of a crime, and the evidence does not establish which of them did or did not participate in its commission. In such situations, the appropriate course is for the jury to be directed as to the various possible bases of criminal liability, and directed that, if satisfied beyond reasonable doubt that a particular accused must have either actually committed the crime or been criminally responsible for it on some other basis, then they should find that accused guilty, even though they cannot make a finding as to which basis of criminal liability is applicable.
73 In Campbell v Western Australia, McLure P noted at [15] that in R v Wyles, Lucas J observed at 176 that the Queensland Code had been construed consistently with the common law for nearly three quarters of a century. At [17], her Honour observed, "Reliance on joint criminal enterprise as a basis of liability under s 7(a) of the WA Code has been a feature of criminal trials in this State for many decades." However, the issue does not appear to have been directly considered as a matter of principle prior to L v Western Australia and Campbell.
74 In Campbell at [305], Corboy J also suggested that a literal interpretation of s 7(a) might prevent the Crown from relying on the rule of evidence known as the co-conspirators rule. We see no reason why any question as to the scope of that rule should make any difference to the interpretation of s 3(1)(a) or any similar provision. That rule was stated and explained by the High Court in Ahern v The Queen (1988) 165 CLR 87 in the following terms, at 94-95:
"... when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is
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admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others. ... Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. ... The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business."
75 If s 3(1)(a) is held not to have an extended meaning that reflects the common law as to joint criminal enterprises, then anything said or done by one co-conspirator in furtherance of the common purpose would be admissible as evidence against a totally inactive co-conspirator. However the inactive co-conspirator might not be guilty of a crime, except perhaps the crime of conspiracy.
76 The various arguments advanced in Campbell do not warrant resorting to the common law doctrine of joint criminal enterprise. In our view it is clear that the words "every person who actually commits the crime" in s 3(1)(a) must be given their ordinary literal meaning, and must not be interpreted as including every person present when a crime is committed who has reached an understanding or arrangement with a person who actually commits the crime that it will be committed. In other words, s 3(1)(a) is not to be interpreted as somehow restating the common law as to the criminal liability of parties to joint criminal enterprises. The Crown's contentions as to the scope of s 3(1)(a) must be rejected. The learned trial judge directed the jury on an erroneous basis.
Proper construction of s 4 of the Criminal Code
77 Although the learned trial judge erred in relation to s 3(1)(a), it does not necessarily follow that the conviction on the arson charge should be quashed. It is necessary to consider the scope of s 4 of the Code.
78 During the hearing of the appeal, counsel for the appellant submitted that s 4 applies only to crimes that are not within the scope of the common unlawful purpose, but the Director of Public Prosecutions argued that the section also applies to crimes that are within the scope of the common unlawful purpose. We will refer to the Crown's contention as to the scope of s 4 as "the wider interpretation" and the appellant's contention as "the restricted interpretation".
79 In Clarke, the judgments of Porter J and Estcourt J made observations regarding this question of the ambit of s 4. While s 4 was not left to the jury in that case, it was raised incidentally in the Crown's arguments on appeal. Porter J noted that it was expressly asserted by the Crown that there can be a common purpose liability under s 4 where the unlawful purpose and the completed crime are one and the same. Porter J agreed with Estcourt J that the assertion was wrong. His Honour began with an observation that the "accepted approach in this State is that if two or more persons form a common purpose to commit crime X, and crime Y is committed, the liability of each is to be first assessed under s 3, with resort had to s 4 if necessary". Noting the subjective basis for liability under s 3 compared with liability under s 4 on the objectively assessed basis, his Honour further observed that "Where the common purpose is to commit crime X and crime X is committed, there is no need to go beyond s 3." After referring to a passage in R v Barlow (1997) 188 CLR 1 at 9, in which it was said that s 8 of the Queensland Code complements s 7 and "extends the net of criminal liability", his Honour said that that passage strongly suggests that s 4 has no operation in a situation covered by s 3. At [57] Porter J relied upon a statement of Kiefel J (as she then was) in R v Keenan [2009] HCA 1, 236 CLR 397 at [102] as putting the point "beyond argument".
80 His Honour referred to a Canadian authority of R v Simpson (1988) 23 BCLR (2d) 145, 38 CCC (3d) 481, in which a five member bench of the Supreme Court of Canada unanimously decided the point. His Honour concluded that the statement from Keenan and what was held in the Canadian case represents the law in relation to s 4. That is, s 4 only applies where the crime committed is different from the unlawful purpose.
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81 Estcourt J regarded any doubt about the question as resolved by reference to the judgment of Kiefel J in R v Keenan and the same passage at [102], which he set out, with emphasis added:
"The purpose of s 8 is to extend the criminal responsibility of the parties to a common purpose
to an offence other than that which was intended to be committed".
82 Before considering authorities bearing on this question, including those referred to by Porter J and Estcourt J in Clarke, it is necessary to begin with a consideration of the text. The starting point in the interpretation of s 4, as with s 3, is that the provision should be construed according to its plain and natural meaning. Interpreted in this way, criminal responsibility will arise when:
(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and (b) a crime is committed in the prosecution of such unlawful purpose, and (c) the crime committed is of such a nature that its commission is a probable consequence of the prosecution of the unlawful purpose. 83 Provided the requisite connection is established between the unlawful purpose and the crime, there is nothing in the text of the provision which suggests that its operation should be limited by excluding crimes which are included within the intended scope of the unlawful purpose. Obviously, the provision extends the ambit of responsibility beyond this, by applying an objective test of probable consequence. However, this prescribes the outer reach of the provision. It does not expressly or impliedly exclude intended crimes. Self-evidently, a crime which is intended will meet the objective test of "probable consequence".
84 Further, an interpretation which accords with the plain and natural meaning of the text is consistent with the role of the provision within the wider context of the legislative scheme by which the Code deals generally with criminal complicity. The scheme in question is contained in Chapter II, ss 3 to 6 inclusive. It is clear that these provisions are intended to codify the attribution of criminal responsibility where the commission of a crime involves more than one person. Although not intended to restate the common law, it is apparent that these provisions are modelled on the overall approach to criminal complicity developed by the common law. This is not surprising. The common law approach reflects the complexity of human relationships and the wide range of ways in which a person might contribute to criminal activity. Hence, the common law recognised criminal culpability arising from actual contribution to the commission of a crime (accessorial liability) as well as from participation in the execution of a joint plan or common intention to commit a crime. The latter is often described as joint criminal enterprise liability. The relationship between these separate bases of liability was recognised and explained by the majority of the High Court in Clayton v The Queen [2006] HCA 58, 81 ALJR 439, 168 A Crim R 174 as follows at [20]:
The history of the distinction between joint enterprise liability and secondary liability as an aider, abettor, counsellor or procurer of an offence has recently been traced by Professor Simester. As that author demonstrates, liability as an aider and abettor is grounded in the secondary party's contribution to another's crime. By contrast, in joint enterprise cases, the wrong lies in the mutual embarkation on a crime, and the participants are liable for what they foresee as the possible results of that venture. In some cases, the accused may be guilty both as an aider and abettor, and as participant in a joint criminal enterprise. That factual intersection of the two different sets of principles does not deny their separate utility. [Footnotes omitted.]
(b) Where two or more persons make or enter into an overarching agreement or plan to carry on a business involving ongoing criminal conduct for a definite or indefinite period (for example, the carrying on of a drug dealing business) and, during the subsistence of the overarching agreement or plan, one of them performs all of the acts
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or makes all of the omissions which constitute a specific offence pursuant to or in implementation of the overarching agreement or plan and with the authority of and therefore on behalf of all of the persons to the subsisting overarching agreement or plan, each of them will have actually done the relevant acts or actually made the relevant omissions, as the case may be, and each of them will be deemed by s 7(a) to have committed the offence."
194 At [166]-[167] Buss JA observed:
"166 Those examples of the scope of s 7(a) reflect the application of the statutory text of s 7(a) to the relevant facts and circumstances, including:
(a) the terms of the agreement or plan; (b) the relationship between the two or more persons created by, pursuant to or in the course of implementing the agreement or plan; and (c) the authority of one or more of the persons to act or speak in furtherance of the agreement or plan on behalf of the other or others. 167 The operation of s 7(a), which I have described, dovetails comfortably with the
operation of s 8."
195 In that way, by introducing the notion of "authority" Buss JA was able to fix the non-actor who was party to the agreement to commit the crime with direct and not derivative liability and, as will be seen, accommodate one of the concerns of McLure P, namely the raison d'etre of s 8 if the doctrine of joint criminal enterprise was not embodied in s 7(a).
196 Returning to the judgment of McLure P, her Honour's analysis is set out at [13]-[24] of her
reasons as follows:
"13 The general principles governing the relationship between the common law and the WA Code (and other statutory codes) are well known. See in particular, Brennan v The King (1936) 55 CLR 253, 263; Vallance v The Queen (1961) 108 CLR 56, 74-75; and Stuart v The Queen (1974) 134 CLR 426, 437.
14 The starting point is always the statutory text, context and purpose. However, the influence and adoption of common law principles and doctrines in the construction and application of the WA Code is in fact widespread. It is reflected in many provisions, including s 8 (R v Barlow (1997) 188 CLR 1, 9, 11 12); s 22 and s 24 (He Kaw Teh v The Queen (1985) 157 CLR 523, 559 and Sgarlata v The State of Western Australia [2015] WASCA 215 [37]-[45]); s 280(1) (Callaghan v The Queen (1952) 87 CLR 115, 124); former s 31 (Smith v The State of Western Australia [2010] WASCA 205 [9]); and s 409(1) (Bolitho v The State of Western Australia [2007] WASCA 102 [152]).
15 It is significant that Sir Samuel Griffith's note to s 8 in his draft Queensland Code, which became s 7 of the Queensland Code (and which is in materially the same terms as s 7 of the WA Code), reads simply 'common law'. As Lucas J noted in R v Wyles; Ex parte Attorney-General [1977] Qd R 169, s 7(a) of the Queensland Code had been construed consistently with the common law for nearly three quarters of a century (176).
16 At issue in Wyles, was the proper construction of s 7(a) of the Queensland Code. Two co accused were charged with the same offence (breaking and entering) which had two 'acts' constituting the offence for the purpose of s 7(a), with one accused doing only one act (breaking) and the other doing only the other act (entering). Relying on the common law, the court held that where several persons, acting in concert, each do some act so that the actions in totality will cover all of the acts (and omissions) required for the offence, each person would be liable as a principal offender under s 7(a) of the Code. Hoare J said:
'[W]hen The Criminal Code refers to a person "who actually does the act … " it should be construed in the light of the very clear [common] law which then applied. It seems to me reasonably clear that … the Code should not be construed in a restrictive way so as to exclude persons who participated in the offence in such a way that the law at the time the Code was enacted treated them as principals
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because of actual participation in events which, as it were, constituted part of the
events which together made up the completed offence (182).'
17 Reliance on joint criminal enterprise as a basis of liability under s 7(a) of the WA Code has been a feature of criminal trials in this State for many decades. To my knowledge, it was never challenged until the matter was raised by the court in L. Not infrequently, the State relies on joint criminal enterprise as the basis of liability under s 7(a), with a fall back alternative of accessorial liability under s 7(c).
18 As Porter J correctly observed in Clarke v Tasmania, the doctrine of joint criminal enterprise in law was applied in this State in Warren & Ireland v The Queen [1987] WAR 314 and Lacco v The State of Western Australia [2006] WASCA 152 and was accepted as applying in Santos v The State of Western Australia [No 2] [2013] WASCA 39, Michaels v The State of Western Australia [2009] WASCA 174 and Heaton v The State of Western Australia [2008] WASCA 32. In Santos and Michaels, as well as in Punevski v The Queen [2000] WASCA 71, the issue was whether there was a sufficient evidentiary foundation of a joint criminal enterprise in law to enliven the application of the so called 'co conspirators rule' by which evidence in the form of acts done or words said, outside an accused's presence, by a person alleged to be a party to the joint criminal enterprise is admissible to prove the participation of the accused.
19 The facts in Lacco raised the same issue as in Wyles. In Lacco there was more than one act or omission constituting the offence for the purposes of s 7(a) (s 7(a) act) and different parties did different s 7(a) acts which together covered all acts required for the offence. In Warren & Ireland, two accused were charged with causing grievous bodily harm to a victim in circumstances where both accused participated in inflicting injuries on the victim but the State was unable to prove which of the two inflicted the blow (or blows) that caused the grievous bodily harm. The Full Court held that the co accused were 'joint perpetrators', having in effect acted in concert, and each was directly responsible under s 7(a) of the Code, there being no question of derivative responsibility under s 7(c). There could be no derivative liability under s 7(c) because that requires proof that someone other than the 'aider' committed the offence in question (grievous bodily harm).
20 It is well accepted that the concept of joint criminal enterprise is interchangeable with the concepts of 'common purpose', 'common design' and 'in concert': McAuliffe v The Queen (1995) 183 CLR 108, 114; Likiardopoulos v The Queen (2012) 247 CLR 265 [19].
21 A number of important points seem to be lost in the modern discussion of whether the common law doctrine of joint criminal enterprise in law has any application to s 7 of the WA Code or its equivalents. First, as a basis of liability, the sole focus is on direct liability under s 7(a), not derivative liability under s 7(c) or other categories of accessorial liability under the WA Code. Second, it has been authoritatively determined that s 7(a) has picked up the common law of joint criminal enterprise in law, in its various interchangeable formulations, in the circumstances in Wyles and Warren & Ireland. Indeed, on a close reading of the reasons in Clarke v Tasmania, Wood J accepted that some common law principles had been picked up, the real issue being which parts of the common law had not been picked up under the direct liability provision in s 3 of the Tasmanian Code. Third, it is clear from the reasoning in Wyles and Warren & Ireland that the circumstances in those cases are just examples of the application of the principle underlying the common law doctrine of joint criminal enterprise in law. When there is a joint criminal enterprise in law (or its interchangeable equivalent) an actual s 7(a) act done by one or more parties to a joint criminal enterprise is also the act of other parties to, and participants in, the same joint criminal enterprise. The analogy is with the common law of agency, whereby a person may act by himself or by his authorised agent(s). 'Authority' in this context extends to adoption or ratification of the s 7(a) acts of others in the joint criminal exercise. That is, a party to a joint criminal enterprise in law becomes directly responsible for the s 7(a) acts of another party thereto.
22 In summary, s 7(a) applies when the s 7(a) acts of another become, at common law, the acts of the accused; the s 7(a) acts are joint acts; and the parties to, and participants in, the joint criminal enterprise are jointly liable under s 7(a). Section 7(a), on its proper construction, means: Every person who actually does the act or makes the
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omission [by himself or by another party for whose acts or omissions he is liable at
common law] which constitutes the offence.23 Accordingly, joint criminal enterprise liability for the acts of others is a sufficient, but not essential, basis of liability under s 7(a) of the WA Code. Further, the evidentiary rule is not, and cannot be, separate and independent from the liability rule that underpins it. The evidence in question is only admissible if there is a sufficient evidentiary foundation for a finding that the accused's liability under s 7(a) is sourced in the acts or omissions of others in accordance with the doctrine of joint criminal enterprise in law and its equivalents.
24 This construction of s 7(a) is consistent with s 8 of the WA Code, which incorporates an extended version of the common purpose or joint criminal enterprise liability. Involvement in a joint criminal enterprise under s 7(a) involves an agreement, arrangement or understanding to commit a particular offence, which agreement is performed according to its terms. All the parties to the joint criminal enterprise must intend that the particular offence be committed. To establish liability under s 8, there must be a common purpose to commit a particular offence, during the performance of which common purpose a different, but objectively probable offence, was committed. It would be odd indeed for the legislature to include the extended version of joint criminal enterprise but exclude the core doctrine from the scope of s 7(a) of the WA Code." [Emphasis added.]
197 Corboy J commenced his reasons for judgment (expressed as tentative because of the lack of argument on appeal as to the correctness of L), by providing a summary of the matters he thereafter went on to discuss in detail. At [221]-[227], his Honour said:
"Summary
221 It will assist if I commence by summarising the effect of the matters discussed below. It is clear that, at common law:
(a) The acts and statements of one party to an agreement to commit a crime or to prosecute an unlawful purpose (a joint criminal enterprise) may be attributed to the other participants in the enterprise. I shall refer to that principle as the 'attribution principle'.
(b) The criminal liability of an accused person can be established by the application of that principle. The principle does not attribute every act done by a participant in a joint criminal enterprise to every other participant. Rather, the principle attributes the act or acts that constituted the offence charged - the actus reus - to all who participated in the joint criminal enterprise. Accordingly, each participant in the joint enterprise is a principal in the first degree - a person who did the act or acts (a person who committed 'the fact' (sic)): Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [75], [81] (McHugh J) and see Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434 [37] (the Court) and Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282 [4] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
(c) Criminal liability pursuant to a joint criminal enterprise arises from the making of the agreement and the offender's participation in its execution: Huynh [37]. Although, the High Court in McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 did not limit the circumstances in which a joint criminal enterprise could be alleged, it has often been said that the prosecution should only rely on the allegation in circumstances where it is not possible to prove criminal liability by the 'ordinary' principles of principal and accessory: see, for example, the comments of Hunt CJ at CL in R v Tangye (1997) 92 A Crim R 545, 556. However, there are cases in which, at common law, it is necessary to allege a joint criminal enterprise to determine the liability of all of those who were apparently implicated in the commission of an offence.
(d) The attribution principle may make the acts and statements of one participant in a joint criminal enterprise admissible as evidence against the other participants provided that the acts and statements were done or made as part of the enterprise: Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1. It is convenient to refer to this application of the attribution principle as the co
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conspirator's rule of evidence, although the reference is a misnomer in the sense that the rule is not limited to conspiracy cases: see the comment of plurality in Handlen [4].
222 However, there are some points of uncertainty or contention about these matters. First, the accepted view is that, for the purpose of attributing criminal liability, a person participates in a joint criminal enterprise by being present when a crime is committed pursuant to the agreed enterprise: Osland [73] (McHugh J, citing Tangye). However, Gaudron and Gummow JJ queried in Osland whether presence was required [27] (one answer may be that other forms of participation would be sufficient to establish criminal liability according to the common law principles of principal and accessory).
223 A second area of uncertainty concerns a long established line of authority that recognises that two or more persons may combine to do the act that constitutes an offence so that each person is liable as a principal in the first degree. R v Bingley (1821) R & R 446; (1821) 168 ER 890 is an example. The act that constituted the offence in that case was the production of a forged document. Four persons were involved, each performing a different step that resulted in the production of the document. The steps were performed independently so that not all of the offenders were present at each step or when the act of forgery was completed. However, each offender was regarded as being a principal in the first degree - that is, as a person who had committed the act that constituted the offence. The offenders' liability as principals could not be determined according to the doctrine of joint criminal enterprise if participation in the enterprise could only be established by presence. Further, it is not clear whether their liability as principals was explained by the attribution principle.
224 Third, there may be an issue as to whether the existence of the co conspirator's rule can be divorced from the attribution of criminal liability by participation in a joint criminal enterprise; that is, whether it is possible to have one without the other. There appears to have been a difference between the plurality and Heydon J on that issue in Handlen.
225 The words 'aids', 'abets', 'counsels' and 'procures', when used in statutes concerning criminal liability, have always been interpreted and applied according to common law principles. Consistent with that approach, s 7(b) and s 7(c) of the Criminal Code (WA) and Criminal Code (Qld) have been interpreted according to the common law requirements for accessorial liability. Further, it has been common for courts to have recourse to common law principles to resolve issues concerning the application of the Code to particular circumstances.
226 In this State, and in Queensland, common law principles and cases have been referred to and adopted to hold two or more persons criminally liable for an offence pursuant to s 7(a). However, the basis on which the courts have proceeded is not entirely clear. In particular, it was suggested in L that the application of the doctrine of joint criminal enterprise to Western Australian statutory offences has been assumed rather than authoritatively determined. This apparent uncertainty over the proper construction of s 7(a) of the Code (read with s 7(b) (d) and s 8) raises a number of questions, including: to what extent, if at all, does s 7 embody the common law; if only parts of the common law relating to criminal complicity are incorporated, what is the principle of construction by which those parts have been delineated; if the doctrine of joint criminal liability does not apply, are there possible 'gaps' in the application of s 7 to determine the criminal liability of multiple accused; and what is the status of the co conspirator's rule if the doctrine of joint criminal enterprise does not apply to offences created by Western Australian statutes?
227 As I have indicated, the purpose of what follows is not to express a concluded
view on those questions. Rather, it is to explain why I consider that those questions
may arise on a review of L and the judgments to be delivered in this appeal."
198 As to Corboy J's point about whether the existence of the co-conspirators rule can be divorced from the attribution of criminal liability by participation in a joint criminal enterprise, his Honour further explained at [273] of his reasons as follows:
"273 It has been generally accepted that the co conspirator's rule may be applied in such cases to determine the evidence that is admissible against the accused (but see
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below). However, the acts and statements of one accused admitted against another merely form part of the circumstances relied on by the prosecution to establish the guilt of the second accused; that is, the acts and statements of one accused will only have an evidentiary or factual significance in the case against another or other accused. The agreement or joint enterprise between the accused will provide the foundation for evidence to be admitted pursuant to the co conspirator's rule but the attribution principle is not otherwise engaged to determine the criminal liability of the accused. That is, the criminal liability of the accused is determined by what they actually did and not by attributing the act or acts of one accused to another accused."(Emphasis added.)"
199 Then, at [304]-[306] his Honour expressed his preliminary view in the following terms:
"304 As I have emphasised, the views expressed in these reasons are tentative. However, my preliminary view is that s 7 of the Code was intended to be, and is to be, interpreted by reference to common law principles of criminal complicity. The principles were deeply embedded in the common law by the time Sir Samuel Griffiths prepared his draft of the Queensland Code. They were capable of being shortly stated by language that was settled and which had acquired particular legal meanings. My preliminary view is that this approach to the interpretation of s 7 extended beyond the language employed in s 7(b) s 7(d) to the wording of s 7(a). The expression 'the person who does the act … which constitutes the offence' captured settled legal meanings and concepts in the same way as the words 'aids', 'counsels' and 'procures' conveyed an established legal meaning. In particular, the wording of s 7(a) was intended to give effect to common law concepts of joint criminal enterprise, the attribution principle and acting in concert - concepts exemplified by both Hurse and Bingley (to the extent the decisions in those cases might be explained by different principles). In particular, I consider that s 7(a), properly construed, embodies what I have referred to as the attribution principle.
305 At least two significant problems arise if s 7(a) is interpreted to exclude the application of that principle. First, there may be some cases in which it is impossible to identify and determine the criminal liability of an accused person according to the requirements of s 7 - to establish the knowledge and intention of the accused for the purpose of s 7(b) s 7(d). That is the problem that the common law addressed by the concept of a joint criminal enterprise. Second, it may not be possible to rely on the co conspirator's rule of evidence if it is not possible to allege that the accused were participants in a joint enterprise for the purpose of determining their criminal liability.
306 Finally, I note two further matters that may be relevant. First, it was held in R v Webb [1995] 1 Qd R 680 that the final paragraph in s 7 of the Queensland Code provided for the circumstance of an offence committed by an innocent agent. Second, the question of participation may require further consideration if the doctrine of joint criminal enterprise does apply to s 7. That is not only for the reason adumbrated by Gaudron and Gummow JJ in Osland but also because aiding has not been interpreted as requiring presence under s 7 of the Code and the Queensland Code: see Gilles P, The Law of Criminal Complicity (1980) 29."
200 His Honour then concluded at [308] as follows:
"308 My preliminary view is that, as Buss JA has stated, s 7(a) has a more extended operation than the court suggested in L and that, in particular, s 7(a) would apply in the way that his Honour identified in the above examples [given by Buss JA at [165] and set out by me above] . However, it will be apparent that I have formed that view on a different analysis of the meaning of s 7(a) to that adopted by his Honour. In particular, my preliminary view is that s 7(a), properly construed, incorporates what I have referred to as the attribution principle."
Discussion as to Clarke
201 Although it does not arise for determination on this appeal I pose, for my own general consideration, the question of whether the views expressed in Clarke (above), by me and by Porter J, should be revisited as a result of the resolution of the issue that does arise for determination of this
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Court. I think not. Those views were to the effect that the only purpose of s 4 of the Code is to extend the criminal responsibility of the parties to a common purpose to an offence other than that which was originally intended to be committed.
202 In that regard it is useful to recall the statement of Kiefel J (as she then was) as to that proposition in R v Keenan [2009] HCA 1, 236 CLR 397 at 428 [102] (Hayne, Heydon and Crennan JJ agreeing). Her Honour there said of the Criminal Code (Qld), s 8, which is, for practical purposes, identical with the Code, s 4:
"The purpose of s 8 is to extend the criminal responsibility of the parties to a common purpose to an offence other than that which was intended to be committed." [Emphasis added.]
203 That case concerned in essence, whether the trial judge was correctly of the view that, properly interpreted, s 8 of the Code required the jury to decide whether an offence committed by the respondent to inflict a serious assault on the victim, was sufficient, although the respondent was a secondary offender, to render him liable for the offence of attempted murder committed by his co-accused.
204 The case is authority for the proposition that s 8 does not require the connection, between the offence actually committed and the common purpose to be prosecuted, to be established at the point when the common purpose is determined as a fact. It provides for the requisite connection to be determined by the application of the test, "whether the offence was the probable consequence of the common purpose, after that purpose has been ascertained", (Kiefel J at [117]).
205 Stephen's Draft Code of 1879 which covered every offence which was a probable consequence of the prosecution of a common purpose is in the following terms:
"Every one is a party to and guilty of an indictable offence who -
(a) actually commits the offence or does or omits any act the doing or omission of which forms part of the offence (b) aids or abets any person in the actual commission of the offence, or in any such act or omission as aforesaid; or (c) directly or indirectly counsels or procures any person to commit the offence, or to do or omit any such act as aforesaid. If several persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of such common purpose, the commission of which offence was or ought to have been known to be a probable consequence of the prosecution of such common purpose."
206 There is no reason to suppose that the drafters of the Griffiths code or the Ewing code intended to alter the effect of that compendious statement in the Stephen draft. Indeed, having retained the words "every person who actually commits the crime" in s 3(1)(a) of the Tasmanian Code, that section and s 4 complement each other if s 3(1)(a) is confined to cases where two or more persons actually commit the crime, either literally, in the sense of severally doing all things necessary to satisfy each of the elements of the offence, or jointly by doing or omitting to do any act, the doing or omission of which forms part of the offence. Section 4 then picks up cases where two or more persons form a common intention to prosecute an unlawful purpose and in the prosecution of that purpose a different crime is committed, which crime was a probable consequence of the prosecution of the purpose.
207 The principal question in this appeal is whether Wood J was correct in holding in Clarke that that the common law concept of joint criminal enterprise is not the law in Tasmania. On careful reflection, notwithstanding what I regard as the persuasive obiter statements on this issue by McLure P in Campbell, I am of the view that the conclusion of Wood J in Clarke is correct and should be adopted by this Court.
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208 I have had the very considerable advantage of reading the joint judgment of the plurality in draft form and I respectfully agree with their Honours' conclusion, to the same effect as Wood J in Clarke, namely, that the words "every person who actually commits the crime" in s 3(1)(a) of the Code must be given their ordinary literal meaning, and must not be interpreted as including every person present when a crime is committed, who has reached an understanding or arrangement with a person who actually commits the crime, that it will be committed. In other words, I agree with their Honours to the extent that the joint judgment holds that s 3(1)(a) is not to be interpreted as restating the common law as to the criminal liability of parties to joint criminal enterprises.
209 It follows that ground 1 of the notice of appeal is made out.
Unsafe and unsatisfactory – attempt to obtain a financial advantage
210 My conclusion in relation to the crime of arson does not dispose of the second charge against the appellant at trial, namely, that of attempting to dishonestly acquire a financial advantage. The Crown case was that the appellant actually committed that crime by making a series of false representations for the purpose of acquiring a payment from his insurance company and thus it is necessary to consider the question of whether the appellant's conviction for that crime was unsafe and unsatisfactory.
211 The relevant principles are well understood.
212 In Tatnell v Tasmania [2020] TASCCA 13, which was decided after the decision of the High Court in Pell v The Queen [2020] HCA 12, 94 ALJR 394, Brett J, with whom Blow CJ and Pearce J agreed, stated the relevant principles in appeals involving the appellant's Ground 3, at [24]-[25] as follows:
"[24] The imprecision of a ground of appeal which alleges that the verdict is unsafe and unsatisfactory was recently discussed by Porter AJ, with whom Blow CJ and I agreed, in Anderson v Tasmania [2020] TASCCA 11 at [124]-[125]. Although, as his Honour noted, such a ground can encapsulate and conflate various bases of this Court's jurisdiction to interfere with the verdict under s 402 of the Criminal Code, in this case it is clear enough that the sole basis of the appeal is that the verdict is 'unreasonable, or cannot be supported having regard to the evidence.'
[25] The question for this Court in respect of such a ground has been restated in a number of recent decisions, for example Paite v Tasmania [2019] TASCCA 5, 30 Tas R 73; Finnegan v Tasmania [2020] TASCCA 5; Anderson v Tasmania (above). There is no need to repeat those principles in detail. The essential question for this Court is whether, after making its own independent assessment of the evidence, 'it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty': M v The Queen (1994) 181 CLR 487. This is a question of fact."
213 In Tringrove v Tasmania [2014] TASCCA 7 at [5]-[6], Blow CJ and Pearce J, with whom Wood J agreed, set out the relevant legal principles as follows:
"Unsafe and unsatisfactory
[5] Each of the appellants has appealed in respect of every verdict, asserting that the verdicts were 'unsafe and unsatisfactory' or 'unsafe and unreasonable'. The test ordinarily to be applied by an appellate court when considering whether a verdict is 'unsafe or unsatisfactory' was explained by Mason CJ in Chidiac v The Queen (1991) 171 CLR 432 at 442–443 as follows:
'It is now well settled that a verdict may be set aside as unsafe or unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted ... In deciding whether a verdict should be set aside as unsafe or unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused ...'.
57 No 2/2022
[6] In M v The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said at 494–495:
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618 – 619; Chidiac v The Queen (1991) 171 CLR 432 at 443 – 444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (supra) at 443, 451, 458, 461 – 462)'." (Emphasis added.)
214 Again I note that I have had the considerable advantage of reading the draft reasons of plurality on this question. I gratefully adopt their Honours' comprehensive analysis of the relevant evidence. For the reasons they give I agree, having regard in particular to the evidence as to the four points of ignition of the fire and the movements of the appellant and Mr Wells in the minutes leading up to their departure from the house, that the appellant must have known that Mr Wells started the fire. It was thus reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant dishonestly pretended that he knew nothing of the fire being deliberately lit, in order to attempt to deceive his insurer, and that in so doing he was dishonestly attempting to obtain a financial advantage.
215 It follows that ground 3 of the notice of appeal fails.
| The proviso |
216 For those same reasons, I respectfully agree with plurality that the outcome of the case has not been affected by the legal error arising from the misdirection asserted in ground 1 of the notice of appeal. Accordingly, there has not been a substantial miscarriage of justice and I too would not uphold the appeal on the basis of ground 1. The conviction on the arson charge should stand.
Manifest excess and parity
217 On these grounds, grounds 4 and 5 of the notice of appeal, I again respectfully agree with the plurality that there was no reasonable disparity between the appellant's sentence and that of Mr Wells and that "having regard to the relevant factors, particularly the need for general deterrence, the size of the insurance claim, and the impact on the mortgagee … the appellant's sentence was a reasonable one". It was not manifestly excessive.
Disposition
218 The appeal should be dismissed.
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