Smith v The Queen - [1993] HCATrans 144

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl30 of 1992
B e t w e e n -
ARTHUR STANLEY SMITH

Appellant

and
THE QUEEN

Respondent

f

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

Smith(2)

8/6/93

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 8 JUNE 1993, AT 10.17 AM

MR G.R. JAMES, QC:

May it please the Court, in that matter

I appear for the appellant, with my learned friend,

MR S.J. ODGERS. (instructed by Coode Scott &
Corry)

MR R.O. BLANCH, QC:

May it please the Court, I appear for

the Crown, with my learned friend,
MR A.M. BLACKMORE. (instructed by S.E. O'Connor,
Solicitor for Public Prosecutions (New South
Wales)·)

MASON CJ: Yes, Mr James?

MR JAMES:	Your Honours, I understand that the outline for the appellant has been circulated. Might I hand
three copies to the Court.
MASON CJ:	Yes. What is the reference to the decision in

this Court after Johns which said there was no
difference between the English test and the
Australian test?

MR JAMES:	Your Honour, with respect it did not go quite that far, but that is the special leave application
in Mills. Mills, Your Honour, can be found
at -
MASON CJ:	61 ALJR 59.

f

MR JAMES: Yes, Your Honour, and also in 68 ALR 455. In

fact, Your Honours, that was a decision on a

special leave application. The short facts
involved in that were that Mills and two brothers named Sinfield, having been ejected from a party,
went back to that party armed with an automatic
rifle and an iron bar and proceeded, as it were, to
shoot up the party and to beat people.

The led to an application for special leave in

which the Chan Wing-siu test is referred to in the
second.paragraph, after Johns has been cited in the

first paragraph. The Court, comprising the
Chief Justice Sir H~rry Gibbs, Your Honour
Mr Justice Mason, Mr Justice Wilson, and
Your Honour Mr Justice Dawson, together with
Mr Justice Deane, delivered a very short series of remarks on the special leave application.
Commencing that judgment:
What I am about to say represents the judgment
of my brother Mason, my brother Wilson, my
brother Dawson and myself. Counsel for the
applicants asked us to reconsider
Johns (TS) v R (1980) 143 CLR 108; 28 ALR 155
but the statement in that case of the law
governing criminal liability for acts done in

Smith(2)

8/6/93

the course of carrying out a common criminal
purpose has been accepted as correct in other
jurisdictions and we see no reason to review
it.
The law as there stated is·not complex and should not give rise to the difficulties
and complexities suggested in argument. In
many cases it will be sufficient to direct the
jury by adapting to the circumstances the
simple formula mentioned by Sir…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Smith v The Queen

Details

AGLC: Smith v The Queen [1993] HCATrans 144
Case: [1993] HCATrans 144
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia concerning an appeal by Smith against a decision of the Crown. The core of the dispute revolved around the legal principles governing criminal liability for acts committed in furtherance of a common criminal purpose.

The central legal issue before the Court was whether the test for criminal liability in such circumstances, as established in *Johns v R*, required that the possibility of a more serious or incidental crime being committed needed to be contemplated by all parties to the common purpose, or if contemplation by only one party was sufficient. This question arose in the context of a special leave application in *Mills*, where the Court had previously made remarks regarding the application of the *Chan Wing-Siu* test.

The Court, in its remarks on the special leave application in *Mills*, indicated that the law as stated in *Johns v R* was not complex and did not require review. It suggested that in many cases, it would be sufficient to direct a jury by adapting the formula from *Chan Wing-Siu v R*, which focused on whether an accused contemplated that a partner in the enterprise might use a weapon with the intention of causing really serious bodily harm. The Court expressed the view that directions distinguishing between "foundational" and "incidental" crimes were likely to be confusing. Mr Justice Deane, while agreeing with the general approach, noted specific concerns regarding the application to Adrian Mills, suggesting the jury's directions on common purpose and joint intention were particularly significant in his case. The appellant's counsel argued that the remarks in *Mills* were intended to indicate that a direction on the *Chan Wing-Siu* test would be appropriate in *some* cases, depending on the evidence, rather than establishing a universal rule.

Orders