Smith v The Queen

[1993] HCATrans 144

..

.

• ~

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) 1 8/6/93

TRANSCRIPT OF PROCEEDINGS

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

Copyright in the High Court of Australia

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 Robin Cooke in

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

instance, did the particular accused

contemplate that in carrying out a common

unlawful purpose one of his partners in the

enterprise might use a knife or a loaded gun

with the intention of causing really serious
bodily harm?"

It should never be necessary to give the jury a direction as to the distinction between

foundational crime and incidental crime and

such a direction is more likely to be

confusing than useful.

Mr Justice Deane agreed except in relation to the application by Adrian Mills and pointed out

that:

~tis reasonable to assume that the jury would

have concluded that he was not one of the two

persons who entered the premises at the time

when the shootings occurred. The learned

trial judge's directions about common purpose

and joint intention appear to me to have been

particularly significant in his case and I am

not, at this stage, prepared to join in the

decision of the other members of the court

that his application for special leave should

be refused.

DAWSON J: 

Doea .that amount to an acceptance of the

proposition that the possibility need only be
contemplated by one of the parties to the joint

enterprise?  ·

MR JAMES: In our submission, no, Your Honour. All that was

intended by those remarks on failing special leave

application was to indicate that in some cases such

a direction would be appropriate, bearing in mind

the evidence in that case. In our submission, it

was never intended in those remarks to suggest

and the contemplation or advertence by one party to

thereby that the liability for complicity - the

accessorial liability should now be comprehended in

that illegal enterprise to a possible exigency

Smith(2) 3 8/6/93

should be sufficient to fix that party with
liability should that exigency occur.

Johns, in our submission, is a case in which one clearly enough has a species of intent or

agreement, if it is read as we say it should be

read. That is, that where parties to a common

criminal enterprise include in their design the
happening of a contingency for which they cater in
their design, that is, they advert to the fact that
the contingency might occur and they, in their

design, cater for that contingency, then their

liability includes liability for that contingency

should it occur.

BRENNAN J:  What do you mean by "cater"?

MR JAMES: Taking the traditional example, Your Honour, from

eg Vandine. Where parties go forth on an

enterprise with a lethal weapon, knowing of the

lethal weapon and knowing of an intention to use

it, albeit not necessarily not in a lethal fashion,

and expect that the exigency might occur whereby

the weapon might be used in a lethal fashion, then they cater for that exigency in their plan itself.

McHUGH J: But your proposition departs altogether from the

language in Johns, does it not? The trial judge

directed the jury in Johns in terms of "must have"

had i~ in contemplation, and my recollection is

that Mr Justice Stephen in particular accepted the

correctness of that direction and, indeed, it was

in the Court of Criminal Appeal accepted as not

involving error, and again in this Court.

MR JAMES:  Your Honour, a direction as to "must have"

frequently involves a direction both as to the
significance of the evidence or the significance of

the conclusion as well as a finding of fact that

would be necessary to support that conclusion. Pre

Woolmington with homicide - - -

McHUGH J: Before you get to that, what is the matter with

what Sir Garfield aarwick said - if my recollection

is right, there is a passage at page 113 of Johns

at about point 5 on the page, "The participants in

a common design" et cetera.

MR JAMES:	The learned trial judge's summing up, of which I have quoted relevant parts, did correctly
express the common law.  The participants in a
common design are liable for all acts done by
any of them in the execution of the design -

and we would emphasize those words "the execution

of the design" -

Smith(2) 4 8/6/93

which can be held fairly to fall within the

ambit of the common design. In deciding upon

the extent of that ambit, all those

contingencies which can be held to have been

in the contemplation of the participants, or

which in the circumstances ought necessarily

to have been in such contemplation, will fall

within the scope of the common design. Is that the passage to which Your Honour was

referring?

McHUGH J: Yes.

MR JAMES:  That involves a number of concepts. One of the

concepts is that contained in the Queensland

Criminal Code, section 8, which exemplifies, as it

were, the position prior to Woolmington and prior

to Stapleton, Parker and Smyth in this Court.

McHUGH J: Before you take us to that, Mr James, do you say

that does not represent the common law?

MR JAMES: In its entirety, in our submission, that passage

does not represent the common law post-Woolmington

and post-Parker. I will take Your Honours, if I

might, to the phrases with which we would disagree.

The participants in a common design are liable

~or all acts done by any of them in the

execution -

Firstly, we emphasize the words "in the execution

of the design" -

which can be held fairly to fall within the

ambit of the common design.

which introduces an objective element.

In deciding upon the extent of that ambit -

and it is the ambit of the common design that as it

were sets the parameters for the contingencies -

all those contingencies which can be held to

have been in the contemplation of the

participants -

now, we do not disagree with that -

or which in the circumstances ought

necessarily to have been in such

contemplation.

We do disagree with that, and in our submission, the majority judgment in Johns and the judgment of

Smith(2) 8/6/93

Mr Justice Stephen did not accept the proposition

that there is an objective criterion that there is,

as it were, some basis of recklessness.

McHUGH J: But they must have, must they not, because the

trial judge in terms, in his directions set out at

been aware 11 • page 116 - directed the jury in terms "must have

MR JAMES:  Yes, but Your Honour, the - - -

McHUGH J: The precise decision approved that direction.

MR JAMES: That is what I mean, Your Honour, when I said

that the language of "must have" may bespeak an

evidentiary conclusion or it may bespeak the actual

liability at law. Johns was a felony murder case.

McHUGH J:  I know. I argued Johns in the Court of Criminal

Appeal in New South Wales.

MR JAMES:  I appreciate that. And the question that arose

in Johns in particular concerned the sentence and

whether an accessory before the fact was liable to

the life sentence. Now, putting aside that

question, section 18 of the New South Wales Crimes

Act, introduced in order to avoid - introduced

originally as section 9 of the Criminal Law

Consolidation Act - much of the ambit of

const;uctive malice as it had stood at common law,

provides specifically for certain intentional
states for those liable for murder and, in

particular, firstly:

done or omitted wLth reckless indifference to

human life, or with intent to kill or inflict

grievous bodily harm -

and then the second portion of section 18(l)(a)

deals with the replacement of a murder felony, by -

done in an attempt to commit, or during or

i:rcµnediately after the commission, by the

accused, or some accomplice with him, of a
crime punishable by penal servitude for life

or for 25 years.

And the real question that brought Johns forward
was whether or not he was an accomplice to the

killing of his co-offender.

Now, that question of accomplice was decided according to the principles of complicity in the

context of a felony murder case.

McHUGH J:  No, in Johns he was an accessory before the fact

and it was argued, both in the Court of Criminal

Appeal and in this Court, that the test for an

Smith(2} 6 8/6/93

accessory before the fact was a different test to that of a principal in the second degree and that

you did not use the common purpose test.	Now, this
Court rejected that proposition.

MR JAMES: 

Yes and, Your Honour, we have no quarrel with the

proposition that an accessory before the fact and
an accessory at the fact, the principal in the

second degree as it is sometimes referred to, can

be caught by common doctrines so that there is

complicity - - -

DAWSON J: 

What lies behind the two things is different, is

it not?

MR JAMES:	Yes.
DAWSON J:	What lies behind common purpose is principles of

agency translated into the criminal law.

Mr JAMES: Yes, Your Honour.

DAWSON J:  And when you talk about the common design you are

talking about the scope of the authority that one

gives the other.

MR JAMES: Yes, Your Honour indeed - - -

DAWSON J: In that sense it is subjective or can be - - -

MR JAMES: The'evidence cases, in particular Tripodi which,

after all, was a common purpose case and Ahern	·
parallel the same proposition, which is that the
liability for the acts or utterances of the other
is decided by the ambit of the authority
conferred - - -

DAWSON J:  When you get to principals in second degree what

-- you have is merely encouragement, assistance - - -

MR JAMES:  Yes.

DAWSON J: There may be no meeting of minds there - - -

MR JAMES: Yes, Your Honour;·r agree, but you can have a

principal in the second degree who has also agreed.

DAWSON J: Well that is true, you can have both common

purpose and principal in the second degree - - -

MR JAMES: That is why I accepted

DAWSON J: But not necessarily - - -

MR JAMES: That is why I accepted the proposition that they

can be caught by the same doctrines.

Smith(2)	8/6/93
McHUGH J:	And the big difference - in practice the only

real difference between the accessory before and a
principal in the second degree is that the scope of
the agency in the case of the accessory before is
fixed at a particular point of time, whereas in the

case of the principal the agency may develop.

MR JAMES: Well no, Your Honour, with respect. That was, of

course, what was referred to by
Chief Justice Street in the Court of Criminal

Appeal in Johns, but as Mr Justice Dawson has

pointed out, whilst the scope of the authority

conferred by the accessory before the fact is

limited, the principal in the second degree may

develop in terms of conferring greater authority,

or he may simply, independently, encourage with the

requisite mental status set down by this Court in

Giorgianni.

Now, the real ambit of this appeal from the

appellant's viewpoint is that common purpose, when

attributed to what is a traditional accessory at

the fact, a principal in the second degree, unless

it is a case bespeaking a prior agreement with

authorization, will tend to overshadow and remove

the traditional accessorial liability, and what one

is left with, instead of an act of intentional

encouragement with knowledge of what is occurring,

will be instead the having joined in a common

crimiaal purpose of whatever nature it may be, and

a mere advertence to the possibility that the co-

accused may commit some further criminal act, or

may commit some further crime.

BRENNAN J:  You run those two things together, and that is

what I am having difficulty with in reading this

passage from Johns, at page 113. The Chief Justice

referred to section 8 of the Western Australian

Code and 21(2) of the Canadian Criminal Code, which

speaks about a person who is liable for the

commission of an offence. But then when he comes

to exp~ess his own view of the common law he speaks

in terms not of "offence", but of "acts". So that

there is a referenqe there to the actus reus but

none to the mens rea.

MR JAMES: Yes, I follow what Your Honour is saying but, in

fact, when His Honour speaks of that he speaks in

this way - - -

BRENNAN J:  Your concern in this case is the mens rea, is it

not?

MR JAMES:	Yes.
BRENNAN J:	So that you accept - - -
Smith(2)	8/6/93

MR JAMES:  But not alone, Your Honour. we are also

concerned with ttact''. In fact, what I had hoped to

do was to take Your Honours very quickly to the

seminal passages of the evidence of Mr Millane and

Miss Gately, as to the way in which it was said

there was a foundation for a common purpose between Flack and Smith in this particular case. To put it

in very short form, Millane says he sees Smith

stabbing the deceased, by implication; he turned

Smith around and Smith has the knife and the knife

has blood on it and Smith threatens him with the

knife.

At no stage does Millane see Flack involved.

Gately, on the other hand, sees Smith knocked to

the ground by the deceased; sees Flack come over

and stab, on three occasions, the deceased; sees

Smith get up and participate - start punching, and

she does not see Flack otherwise involved. Now,

Your Honours, from that was built the proposition

that there was a common purpose to assault and a

contemplation by Smith of the possibility that Flack would stab; stab with intent to occasion grievous bodily harm; stab with intent to kill.

Now, there are varying formulations that have

been put of the appropriate test for common purpose

in common law States. Adverting to the act,

adverting to the act coupled with the necessary

inten\ and some discrimination seems to be

necessary in order to preserve the position of

manslaughter; having knowledge of what is occurring

and encouraging; being part of a common criminal
purpose and adverting to the possibility of any of

those things.

In this case, what we have done in the outline

is an attempt to set out really by way of index to

- the summing up various passages in which the trial

judge gave directions to the jury concerning ways

in which·this common purpose concept erected on

that ey.identiary basis could lead to liability.

But one can be forgiven for saying very early in the piece, looking at the evidence in that form,

that really it seemed as though there was a case of

principal in the first degree murder against Smith

if Millane was accepted beyond reasonable doubt;

alternatively, principal in the first degree murder

against Flack if Gately was accepted beyond

reasonable doubt.

But the complicating factor was that there

were four wounds and there was some difference in

the expert evidence concerning whether the wounds

were made with one knife or two. The evidence of

one of the medical witnesses was that it was

Smith(2) 9 8/6/93

consistent with one knife but 90 per cent likely to

have been two; and the evidence of the other

medical witness was that it was quite consistent

with one knife.

So the complication faced by the Crown in

those circumstances with the evidence in that
fashion was to ensure that there was a liability in

the accused for all the knife wounds. When the

witnesses Gately and Millane had given evidence as

they had, it was necessary to resort to some
doctrine which would affix to Smith the liability

for Flack's acts.

The Crown chose at trial to put the trial

forward without adverting to any concept of

principal in the first degree against Smith at all,

chose to accept the proposition that it was Flack

who dealt the death-dealing blow, but that Smith's

liability for it arose because of either a joint

enterprise - that is, that they had both attacked

with knives with intent to kill or cause GBH - or,

alternatively, that they had engaged in a common

purpose to assault in which Smith adverted to the

possibility that Flack would stab, stab with intent

to kill, stab with intent to do grievous bodily

harm.

Now, within that short compass, a very

diffiqult question, in our submission, is posed.

Leave aside the arguments that we might put in

terms of the basis for a common purpose, that is to

say, that on Millane's evidence and Gately's

evidence, neither gives a real basis for common

purpose in the stabbing. The Crown accepted, and

the trial judge directed the jury that for the

Crown to succeed what was necessary was a

combination of Gately's and Millane's evidence to

- yield the proposition that there was a common	purpose to assault and a contemplation of the
possibility of the use of the knife by Flack.
But there was no direction given as to the timing of that contemplation. Classically, if they
had planned to do an armed robbery and taken with them lethal weapons which were obvious, which might
well be used in a lethal fashion, and the parties turned their minds to that use, their design catered for, as I have used the word, that
contingency, then, as is pointed out in
Hui Chi-ming, Professor Smith supports the
proposition that by the very act of joining in such
an agreement, the actus reus for accessorial
liability is satisfied, and the knowledge, or
intent, is there because of the very fact that the parties have, in their design, planned for that
contingency.

Smith(2) 10 8/6/93

Now, when Sir Garfield Barwick, at this

passage at page 113, is speaking, he uses also the

objective language which pre-dated Woolmington and

pre-dated Parker and Stapleton and Smyth when he

says:

are liable for all acts done by any of them in

the execution of the -

common -

design which can be held fairly to fall within

the ambit of the common design.

Now those words, Your Honours, with respect,

are ambiguous.	It may mean "which the parties
included within	their common design" or it may mean
"which you, the	jury, think they ought to have
contemplated".	But His Honour goes on further and
say:

In deciding upon the extent of that ambit, all

those contingencies which can be held to have

been in the contemplation of the

participants -

that is, actual agreement -

or which in the circumstances ought

~ecessarily to have been in such

contemplation, will fall within the scope of

the common design.

So the scope of the common design in that passage moves from being what.the parties actually did agree, to what the Court holds the design is, bearing in mind the contingencies they ought to

have expected.

TOOHEY J:  What do you make of the words "which can be held

to have been in the contemplation of the

participants", Mr James?

MR JAMES:  Your Honour, it ~sour submission that if those

words are to be read as meaning that the jury can

hold that things ought to have been in the common design although they were not, and thus liability is affixed to the accused, then they exceed the

bounds of the law.

TOOHEY J: Well, that would add nothing to the next passage,

would it?

MR JAMES:  I do not think it does, Your Honour, really. I

think the next passage really says the same thing. If I could take Your Honours to what the majority

said in Johns. At page 122, the bottom of the

Smith(2) 11 8/6/93

page, the judgment of the majority commences and

then, after dealing with the facts, at page 125 -

perhaps I should return to 124, to the Crown's

contention in the second last paragraph:

It was the Crown case that Watson was the

principal in the first degree, that Dodge was a principal in the second degree and that the

applicant was an accessory before the fact.

None the less the applicant was charged in the

t~rrns appropriate to a principal offender in

accordance with the provisions of s 346 of the

Crimes Act.

Your Honour Justice Dawson has raised, in

Giorgianni and then subsequently in Leslie Maurice

King, that section 346 of the New South Wales

Crimes Act provides for the indictment to

stipulate, in the cases of accessories, the fact

that they are being charged as such. I am sorry,

that 346 defines the ambit of the offence, but the
pleading provisions of the Crimes Act define the

necessity to charge in the manner hereinbefore

accustomed. And we have abstracted for

Your Honours, should that be necessary, specimens

of the form of charge that were settled by the

judges of the supreme court for accessory cases in

which the fact that somebody is an accessory before

the fact, or a principal in the second degree, is

specifically charged, though they have not, in New

South'Wales - as Your Honour pointed out in

Giorgianni and in Leslie Maurice King, those forms

of charges have not been used for a very lengthy

period of time. Your Honours continued:

The Crown relied upon the doctrine of

common purpose or common design in order to

involve Dodge with complicity as a principal

in the second degree and the applicant as an

accessory before the fact. It thus became

necessary for the trial judge to direct the
j~ry on the meaning and effect of that
doctrine in its application to the facts as

the jury might find them. The judge directed

the jury that·a principal in the second degree may be held liable pursuant to the doctrine of common purpose if the act constituting the

offence committed was one which the jury might
regard as being within the contemplation of
the parties as an act done in the course of
carrying out the particular venture upon which

they had embarked. The judge gave this

direction and applied it not only to Dodge as
a principal in the second degree but also to

the applicant as an accessory before the fact. summing-up that the trial judge did not

Smith(2) 12 8/6/93

distinguish between Dodge and the applicant in
expressing the meaning and effect of the

doctrine of common purpose.

It is to this aspect of the summing-up

that the applicant takes exception. The

applicant's case is that the jury should have

been instructed that as the applicant was an

accessory before the fact, it was necessary, in order to find him guilty, for the jury to

conclude that it was a likely or probable
consequence of the way in which the crime was

to be committed, that is, of the common

purpose, that the gun would be discharged so

as to kill the deceased. The applicant

concedes that the doctrine of common purpose

as applied to a principal in the second degree

will involve him in complicity if the act
constituting the offence charged was

contemplated as a possibility by the parties

in arriving at their common purpose or design,

or if it was incidental to the execution of

that purpose or design, but says that the

doctrine differs when it is applied to an

accessory before the fact.

That was the concession that was made in the High

Court, that is to say, that if the parties agreed

on a design which included this event, they having

agreed to that event, then that is a sufficient

basis'for affixing complicity.

Your Honours then turned to the traditional distinction at common law between accessories

before the fact and accessories at the fact, and

moving to the third sentence of the next paragraph:

The object of the doctrine is to fix with

complicity for the crime committed by the

perpetrator those persons who encouraged, aided or assisted him, whether they be	accessories or principals. Broadly speaking,
the doctrine looks to the scope of the common purpose or design as the gravamen of complicity and·criminal liability. There is nothing in this to suggest that the criterion
of complicity and liability should differ as
between accessory and principal in the second
degree. If they are both parties to the same purpose or design and that purpose or design
is the only basis of complicity relied upon against each of them, there is no evident
reason why one should be held liable and the
other not. In each case liability must depend
on the scope of the common purpose. Did it
extend to the commission of the act
constituting the offence charged? This is the

Smith(2) 13 8/6/93

critical question. It would make nonsense to

say that the common purpose included the

commission of the act in the case of the

principal in the second degree but that the

same common purpose did not include the

commission of the same act in the case of the

accessory before the fact.

Your Honours, on page 126, in the first

paragraph commencing on that page at about point 4,

say as follows:

The problem here is one of expressing the

degree of connexion between the common purpose

and the act constituting the offence charged

which is required to involve the accessory and

the principal in the second degree in

complicity.

Then there was discussion about ''probable" and

"possible". Your Honours go on to refer to the

second comment, just below point 5:

The second comment is that the observations in

the two cases on which the applicant

principally relies relate, not to the common

law, but to the interpretation of one only of two relevant provisions in statutory criminal

codes. It should be noted, as will be

mentioned later, that there is support for the

1iew that the relevant code provisions reflect

the common law.

Your Honours, they did at one stage. Taking the

Criminal Code provision from the Queensland

Criminal Code, the Code contains two relevant

provisions, the first, section 7, which deals with

principal offenders and, in addition:

(b) Every person who does or omits to do any

act for the purpose of enabling or aiding
a~other 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.

Using the traditional language of accessoryship.

Then section 8 provides:

When two or more persons form a common

intention to prosecute an unlawful purpose in

conjunction with one another, and in the

prosecution of such purpose an offence is

committed of such a nature that its commission

Smith(2) 14 8/6/93

was a probable consequence of the prosecution

of such purpose, each of them is deemed to

have committed the offence.

The necessity for the deeming provision is because of the introduction of the objective element going

beyond the Giorgianni criteria for aiding and

abetting. Your Honours then turned to Brennan,

which was a Code case, and then in due course to

the passage from Brennan - - -

BRENNAN J:  Can I just take you back to your reference to

section 8. Where is the object of - - -

MR JAMES:  Can be held to be "a probable consequence",

Your Honour.

BRENNAN J:	Where does that appear?
MR JAMES:	"that its commission was a probable consequence

of the prosecution of such purpose". It is not

necessary, in our submission, under that provision

that the accused in their design should have

contemplated it as a probable consequence. If it

simply was a probable consequence, then they are

liable.

BRENNAN J:  Where do you say there is a disparity between

that and the common law?

MR JAMES: BecJuse, in our submission, as the common law

presently stands as to accessoryship in Australia

after Giorgianni, it is necessary that you do an

act of encouragement with at least knowledge or

belief of what is happening. Indeed, as I am

reminded, I am taking Your Honours to the passages

in which we say Johns says that.

BRENNAN, J:	You are making no distinction again between the actus reus and the mens rea.
MR JAMES:	Your	.. Honour, it is not a matter of not making a

distinction again. There are various ways one can

look at it. One can say, "You are liable for all

acts that your co-accused does in the prosecution

of the common purpose, provided you know he is

doing that act." You can say, "You're liable for

all acts done in the prosecution of the common

purpose which are accompanied by the intent

comprehended by the common purpose or to which you

advert or to which the common purpose has
adverted", but the mens rea of your co-accused is a
question of fact and, in one sense, it is part of
the act.

I do not want to get into, Your Honour, the discussions where the Codes draw the rigid

Smith(2) 15 8/6/93

distinction between act and accompanying mental

stage and act and the event, and so forth, and I have used the language of "event" and "act", and

certainly in Johns the Court was not embarking on

such a distinction as there is no such rigid

distinction in some circumstances reflected in the

common law, and that was because the old law of

homicide penalized primarily acts, unless you could

exculpate yourself by referring to a justification

or excuse which often enough might go to a mental

state.

The act carried with it the mental state.

That is to say, one could presume that a person

intended the natural and probable consequences of

their act. But at least since Stapleton, Parker

and Smyth what we have at common law is a necessity

to prove rather than presume the relevant mental element. And that, Your Honours, must apply not

only to the accused but also to that other whose

combination of act and mental state constitutes the principal crime for which the accused is being made

liable.

DAWSON J: But the intent in the common purpose cases is an

intent to carry out the common purpose. That is

all that is necessary, and then you have got to say

what is the common purpose, and that involves

deciding the scope.

MR JAMES: Youl Honour, another way we would put it is that:

that the whole purpose of the common purpose is it

is common to the two of them, or more. If it is

within that which they have agreed or authorized,

then they are liable. ·If it is outside that which

is agreed or authorized, they are not liable. The

only way - - -

DAWSON_J: There are certain things which are implicit in

what is agreed or authorized.

MR JAMES:	It m~y be a tacit agreement; it may be an express agreement, but the only way, in our submission, one
becomes liable if it is not within the common
purpose is if one falls within straightforward
accessoryship, and the straightforward accessoryship would involve, on the Giorgianni
test, and it does not matter whether it is
accessory before the fact or at the fact, agreement
in the sense that - I will withdraw that - does not
necessarily involve agreement, but it could involve agreement, or it could involve an act of
encouragement coupled with a knowledge, realization
of what is occurring.  And really when one boils
that down that ends up as an act of encouragement
done with intent that the object will be achieved.

Smith(2) 16 8/6/93

McHUGH J: But let us get down to concrete facts of this

case. This academic discussion is very

interesting, but the simple facts of the case are

these, are they not: that the Honda car is parked;
your client gets out of the passenger side; goes to
the passenger side of the tow truck, according to

Mrs Gately, uses abusive language to the deceased; according to Millane, the other person, F, does the

same thing to him; a fight ensues, both have got

knives, both are used to stab the deceased. Why
could a jury not think that there was a common
purpose between the two of them to stab or use some

violence on the deceased?

MR JAMES:  But that was not, Your Honour, the way the case

was left.	The case was left on two alternative
bases.

McHUGH J:  What about the passage at page 179, which is not

set out in your submissions?

MR JAMES:  Your Honour, the case was left on two alternative

bases. If the case had been run on the basis that

Smith was a principal in the first degree or, alternatively, part of a joint design with Flack to

stab the man to death or inflict really serious

bodily injury and it was left at that, then one

could not quarrel with such a summing up from the
legal viewpoint, although one can from the

evide~tiary viewpoint when you look at Millane and

Gateley's evidence. But it was not left at that ..

What was put in addition to that was the common

purpose proposition, and for all we know the jury

found the verdict on the basis of that common

purpose proposition, and if they did, in our

submission, they found it on a wrongful direction

of law.

McHUGR-.J: But the common purpose is put at page 179.
MR JAMES:	Your Honour, it is put in a number of places.

McHUGH J: Well, I know

MR JAMES:	And I go to page 179.
McHUGH J:	You refer to line 25 on page 179, but surely the

critical passage is what appears from line 3

downwards.

MR JAMES: That is one of the passages, Your Honour:

However, if you the jury are satisfied beyond

a reasonable doubt that the accused was

present and participating with Flack in the

common purpose of assaulting the deceased on

that night -

Smith(2) 17 8/6/93

it seems to talk about the ambit of the common

purpose -

has the Crown satisfied you beyond reasonable

doubt that Flack stabbed the deceased and that

stabbing caused the death of the deceased, and

when Flack stabbed him he intended at the time

that he had so acted to kill or inflict

grievous bodily harm upon the deceased. If

the answer is yes, has the Crown satisfied you

beyond reasonable doubt that the accused had

the same common intention of killing or

inflicting grievous bodily harm upon the

deceased -

and we cannot have any quarrel with that as a legal

direction -

or that he at the time contemplated the
possible intentional infliction of grievous

bodily harm or the possible intentional

killing of the deceased?

If we take that second portion, Your Honour, and we

have a situation where two men are engaged in a

fight with a third which is not what happened here;

there seemed to be two separate altercations which

shifted. But if we take that second sentence, then

if one man, whilst engaged in a fight, watches his
co-ac)used stabbing and contemplates at the time
that is occurring "the possible intentional

infliction of grievous bodily harm or the possible

intentional killing of the deceased", he is liable.

In our submission, that direction taken on its

own is not a proper basis for conviction of murder.

McHUGH J: This is in a context where they both get out of

the car and they both go to the respective
passenger side.	Would it not be open to the jury

to say, "These two people probably made an express

agree~ent between themselves, 'Lets get out and

give these two fellows a real hiding for flashing

these lights at us', and they have both got knives,

and both used them:"

MR JAMES:  No, Your Honour. They have both used knives, and

therefore, the jury says, because they agreed to

assault these two blokes and because they both used

knives, then they are both guilty of whatever

happened. Now, if that is put, Your Honour, as a

Mohan proposition, or a joint enterprise

proposition, then that might be one thing. But

that was not all that was put, and what is open to
the jury was also put as including that there was a

common purpose to assault; Flack used a knife;

Smith, if he adverted to that possibility, is

Smith(2) 18 8/6/93

guilty of murder. That is the short summary in the

same way in which Your Honour has put it.

Now, it is that second basis that is the

foundation for this appeal. Really, in those

circumstances, there was no room for manslaughter,

and the difficulty His Honour had directing the

jury in relation to manslaughter reflects that and,

really, in those circumstances, once you are in a

common illegal purpose and your co-accused does

something, then it becomes nigh on impossible to

say that you are not liable if the jury objectively

think that you should have adverted to the

additional act as a possibility or, alternatively,
that you did advert to that additional act as a

possibility. And if it is happening under your

nose, it is a little hard to see how you do not

advert to it.

McHUGH J: But the trial judge told the jury not only that

Smith had to have the common intention of killing

but he at the time contemplated the possible

intention of infliction of grievous bodily harm.

MR JAMES:  No, Your Honour, they are put as alternative

bases. The joint attack of knives with intent is

put as an alternative basis to:

or that he at the time contemplated the
~ossible intentional infliction of grievous

bodily harm or the possible intentional

killing of the deceased.

MCHUGH J: Yes.

MR JAMES:  Now, His Honour puts that basis that Your Honour

has referred to at the bottom of page 179, reading

from the last sentence:

The Crown would say to you when you look at

the evidence and appreciate it they both

&ttacked this man, both knives. Both stabbed

him and therefore, clearly they were acting in

concert.

McHUGH J: Yes.

MR JAMES:  Now, that is one basis on which the case could be

put, but it was not the only basis. It was just

about the only basis on which the Court of Criminal

Appeal decided. And when one looks at this summing

up, not just at this passage - - -

DAWSON J:  I am not sure what you are complaining about,

Mr James. You are saying you are not complaining

about that basis on which the - - -

Smith(2) 19 8/6/93

MR JAMES:  Your Honour, we are not complaining about the

joint enterprise. If the jury was satisfied beyond

reasonable doubt that the two had a joint

enterprise to stab the man, occasioning him

grievous bodily harm or kill him, then that was an

adequate basis in law, in our submission, for the

verdict to be brought in.

DAWSON J:  And alternatively, although I am not sure the

judge put it clearly, it would have been adequate

if he had charged the jury about aiding and

abetting.

MR JAMES:	Yes, certainly; there would be no problem.
DAWSON J:	Even admitting he seems to have couched it all in

terms of common purpose, but so what?

MR JAMES:  Because the way in which His Honour put common

purpose was not a common purpose. That is to say,

common purpose to assault he did put and an

advertence to a possibility in passing, without any

aiding and abetting, but that there was originally

a common purpose to assault in that· the two of them

assaulted and that there was a killing during that

assault. If he adverted to the possibility that

that killing occurred, which he could hardly have

missed if it was happening under his nose, then he

is liable for murder. What that does in effect is

to remove any question of intent from complicity in

Smith'and to remove any question of relevant

knowledge in the sense that the common - - -

DAWSON J:  I do not understand that. If you put it on that

basis, the intent was, as Justice McHugh put it, in

the car. They were annoyed by the flash of lights, they said to one another something like, "Let's get out and get it." At that time, if it was within

~ the contemplation of the accused that a knife would

be used, that is that grievous bodily harm would be

inflicted - and that is what ensued - then he is

guilty of murder. ; .

MR JAMES:  Yes, Your Honour, but that was not the evidence, nor as the case was put.

DAWSON J: That was open on the evidence surely.

MR JAMES:  Open on the evidence for the jury to infer from

the actions of the parties if they could - - -

DAWSON J:	The presence of the knives and so on, yes.
MR JAMES:	- - - combine Gately and Millane. The big evidentiary problem there is a matter of
combination of Gately and Millane rather than as seeing them as talking about the stabbing in such a

Smith(2) 20 8/6/93

way as to negate each other's evidence, but all

that is for the jury.

DAWSON J: Assuming it was open on the evidence, what is

wrong with that?

MR JAMES:	Your Honour, if there was a common purpose to assault in which it was agreed that they would stab
with knives, then we cannot complain about that
direction in the light of Johns.
DAWSON J:	No, there was a common purpose to assault and as

part of that common purpose, it was a possibility

that a knife would be used to inflict grievous

bodily harm. You would not complain about that?

MR JAMES:	No, because we say that is agreement to stab with knives if necessary, but it is not part of the
common purpose.

BRENNAN J: No, not "if necessary". That was not what was

put to you.

MR JAMES:  I am sorry, Your Honour?

BRENNAN J: It was not put to you "if necessary".

MR JAMES: It does not matter about "if necessary",

Your Honour; I will delete it. It could be either

the p~imary or secondary object, but I am going so

far as to say that it does not even have to be the

primary object. The first test put was a primary

object one; the second test was a common purpose

adverting to a possible secondary object.

BRENNAN J:  It might not be an object at all. What was put

there at page 179 is that Smith contemplates the

possibility that the other man will use a knife in

the course of the assault.	Do you say that that is
sufficient or not?

MR JAMES:  No, .that is insufficient, Your Honour, because

Mr Justice Dawson has been talking about the

contemplation of the common design, not the

contemplation of simply one party in passing. It

is a different thing because, as we point out, a

common purpose really has to be common.

BRENNAN J: There is a common purpose, is there not, of an

assault in which a knife may be used?

MR JAMES:	Yes, but that - - -
BRENNAN J:	Then the question is: is that sufficient or not?
MR JAMES:	No, Your Honour, because what His Honour is

talking about here is a common purpose simply to

Smith(2) 21 8/6/93

assault and a contemplation in one party only of it

of a possibility that a knife may be used.

DAWSON J: Well what you are saying he is put in the English

position, that is this Robin Cooke position, and

you say that is not the law in Australia - - -

MR JAMES:  Yes.

DAWSON J: Both parties had to contemplate it, in the sense

it has. to be part of the common desire.

MR JAMES: For common purpose.

DAWSON J: Yes. Is that your complaint?

MR JAMES: That is our complaint on that direction, yes

Your Honour.

DAWSON J: Yet you say Sir Robin Cooke and the Privy Counsel

are wrong and that Johns did not say what they say

MR JAMES: That is right. It is consistent with Giorgianni

in this Court.

DAWSON J: Well, I understand that.

MR JAMES:  And indeed, Your Honour, it probably cannot be

expre~sed better than to say Johns said what

Hui Chi-ming said Johns said, where they

specifically differed from Johns, relying on Mills,

which is the case to which Your Honour the

Chief Justice took me.

DAWSON J:  I am not sure that Johns did say that and you have gone a long way. Were you going to comment on

the passage you read to us?

MR JAMES:  I am going to, Your Honour.

DAWSON J: Bec~use what was happening in Johns, it was the

probability/possibility conflict and they were

saying well it cannot be one thing in the case of a

person who is really an accessory and another in

the case of a person who is a principal in the

second degree. That was the problem that was being

concentrated on. Not one reading would suggest

that there is no difference between a principal in
the secondary degree and an accessory before the

fact to be brought in by a common purpose. There

is a difference but they were not adverting to that

in that passage.

MR JAMES: Well, they were not directly adverting to that

Your Honour. If the scope of the common design

decides the complicity of the parties and within

Smith(2) 22 8/6/93

the common design you have the primary object or

secondary object, however you want to categorise

it, a range of objects, a range of incidental

things that might have to be done to achieve the

primary object, then the question of whether one

categorises it as a possibility or a probability in

a sense does not really matter because you have

turned your mind to it and, as I have put it, your
plan caters for it, your agreement authorizes

action if necessary, or authorizes action.

If, however, you have not catered for it in

your common design, you have not authorized it.
You do not authorize simply by adverting in your

own mind without encouragement at the time that you

had the requisite knowledge, in Giorgianni terms.

Now, in Johns - - -

DAWSON J:  Of course that is right, no one is arguing about

that. I mean I agree with you to commit an unarmed

robbery but I know that there is a possibility that

somewhere tucked away in your house you have got a

pistol and it is possible that you might stick it

in your pocket, unbeknown to me, and take it to the

robbery. I mean that is all a possibility but it

is no part of the agreement to commit an unarmed

robbery.

MR JAMES: Yes, and in that case Your Honour, we say that

your complicity can only be fixed by traditional,

acces~orial criteria.

DAWSON J: Yes.

MR JAMES:  However, Hui Chi-ming goes a lot further than

that. Hui Chi-ming and Chan Wing-siu go to the

point of saying that if you are part of a common,

illegal purpose and you individually contemplate

that in the carrying out of that purpose those

party to the purpose with you may commit other	illegal acts, you are liable for those other
illegal acts, subject only to a principle of
remoteness which has not been developed in the
cases.

DAWSON J: Well, that is not what is being said. But, if

you agree to an armed robbery but the agreement is

that the gun will not be used or even will not be

loaded but you advert to the possibility that it

might be and might be used, even though it is no

part of the expressed design, you may be held

liable. There is that possibility.

MR JAMES: Certainly, certainly.

DAWSON:  Because it is within the scope of the enterprise.

Smith(2) 23 8/6/93

MR JAMES:  Precisely. But introducing this criterion that

it turns not on what is agreed to but what is in

the mind of one of the parties only, subject to a

principle of remoteness, gets so far away from

traditional accessorial principles, as defined by

this Court in Giorgianni that, very simply, you

could have, for instance, a brothel keeper who, in

combination with the prostitutes, decides to carry

on a brothel. He adverts to the possibility that

one of the prostitutes may rob or stab a customer,

and is liable unless there is some principle of

remoteness to take that extreme example out of the

case which would involve developing a new criterion

for how much.

Now, the common law looked at it a different

way, and that is referred to in that very passage

from Brennan, which is being cited by the majority

at page 127 at the bottom of that page, referring

to section 8 of the Criminal Code:

The section appears to be based in some respects upon the often cited statement of

Sir Michael Foster in reference to accessories

before the fact, viz: 'So where the principal

goeth beyond the terms of the solicitation, if

in the event the felony committed was a

probable consequence of what was ordered or

advised, the person giving such orders or

advice will be accessory to that felony'. f

And refers to Foster and Halsbury:

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.

Their Honours go on to look at the Brennan

discussion of complicity under the Code, pointing
out that:

Section 8' provided an alternative basis for fixing an accessory with complicity.

Now, if I might stop there, Your Honours. The sort

of tests that are adopted on occasions in this

summing up, and they are very differing tests,

would seem to embrace what might fairly be said to

fall within the common design, which is, in effect,

a paraphrase of section 8. It would seem to

embrace individual contemplation, seem to embrace

part of the plan, the authority given, and seem to

embrace, in addition, the joint enterprise

proposition.

Smith(2) 24 8/6/93

DEANE J:  Mr James, could I just divert you for a moment,

and take you to page 259 of the appeal book.

MR JAMES:  Yes, Your Honour.

DEANE J: Is what the Chief Justice said, in the first seven

lines on that page, accurate?

MR JAMES:  No, Your Honour, and indeed one of the ways the

Crown put its case was:

that both F and the appellant attacked the

deceased with knives.

Not necessarily together, but the Crown did not

assume that burden for all the bases on which

liability was put in the summing up.

DEANE J:	And is what His Honour said about the trial
judge's instructions to the jury, inaccurate? He
says:

the learned trial judge instructed the jury
that they should acqriit the appellant unless
they were satisfied that he attacked the

deceased with a knife, at or about the same

time.

MR JAMES:  Now, Your Honour, that does relate to one passage

in th~ summing up, which relates to that joint

enterprise attack, that is to say, both of them are

attacking with knives.

DEANE J: Well, are you going to deal with that because, I

mean, we start with the Chief Justice's judgment, and reading that passage it, quite frankly, seems

to me that this is all a waste of time.

MR JAMES: Yes, Your Honour. It makes life very difficult

for me.

MASON CJ: Impossible.

DEANE J: Well, as I say, it just seems to be a complete

waste of time.

MR JAMES:  No, with respect, Your Honour, because His Honour

directed the jury as to a number of ways in which

the accused could be found liable.

McHUGH J: 

I must say, having read the summing up, I have

formed the same view as Chief Justice Gleeson. If
I am wrong, and if the Chief Justice is wrong, then

I would like to be shown -

MR JAMES: 

Your Honour, I have been dealing with the matters

on the presentation of this argument as they have

Smith(2) 25 8/6/93

arisen from the Bench rather than in the order that

I had myself initially intended. I can leave Johns

at this point and go to the summing up - - -

MASON CJ:	I think that might be useful because there is not much point in developing the Johns argument further
if the foundation is eroded.

MR JAMES: Yes, if Your Honour pleases. Might I take

Your Honours then to the summing up. Your Honours,

in the appeal book at page 172, His Honour turns to
the first of the directions concerning the nature

of the Crown case, and that is at line 14:

The Crown puts its case on the charge of

murder in that both the accused and this

gentleman Flack acted in a common purpose in

assaulting the deceased that night and as a

result of acting in concert, the act of Flack

in effect is the act of the accused. That is

just shortly put.

And His Honour gives the definition of murder for the principal in the first degree and then, at

page 173, line 11:

One of the issues you have to determine here

is, were the fatal wounds on the deceased

inflicted by Flack with the intention to kill

9r inflict grievous bodily harm. I have to

direct you on the question of common purpose

because there is no evidence before you, as I

understand it, that the wounds inflicted on

the deceased brou~ht about his death.

Really what that means, Your Honours, "wounds inflicted on the deceased by Smith brought about

his death".

I do not think the Crown suggests to the

contrary. It was Flack who delivered the

iatal blow or blows -

and His Honour refers to -

The other wounds may have ultimately caused

death but they did not. So there is no

evidence before you that any wounding by the

accused of the deceased caused the death, but

the Crown says, look, that makes no difference

to our case because we say that in the

circumstances of this case, the accused was

acting in concert with Flack and that in the

circumstances this death was a consequence of

their acting in concert and death could

possibly be contemplated as one of the

consequences. That means if two persons are

Smith(2) 26 8/6/93

acting in concert and one person strikes the

blow, and if death was a possible consequence

that was contemplated by the other party, they

have acted in concert or common purpose and

then the person who did not strike the blow is
just as responsible for the death as the

person who struck the fatal blow.

And His Honour then, at line 15 on page 174, points

out it is necessary to establish the crime in the

principal in the first degree and then, at

page 175, gives the legal direction, line 6:

If you accept that it was Flack that did it

and it was with intent to kill or inflict
serious bodily injury, the Crown submits that

on the evidence here the act of Flack is the

act of the accused. I give you this legal

direction - if two persons act in concert in

respect to a criminal offence, they are both
liable for all acts done by each of them in
the execution of those acts if those acts can

be held fairly to fall within the ambit of

common purpose.

At page 176:

Here, as the Crown puts to you, you would not

conclude that the acts of the accused caused

~he death, but if you were to conclude that

Flack's acts caused the death, and if you were

satisfied beyond a reasonable doubt that the

act of Flack was brought about when the

accused and Flack were involved in the same

joint criminal enterprise, that is to assault

the deceased, each of them is legally liable

for everything done by the other in

furtherance of that joint enterprise. This is

important and extends to anything which was

contemplated as a possible consequence of the

course upon which they jointly embarked.

What the Crown has to prove here was that

they were eacn. acting in concert in attacking

the deceased, and when so acting the accused

contemplated as a possible consequence of his
so acting in concert with Flack, that the

deceased could suffer serious or grievous

bodily harm. In other words, there is a

contract, an unlawful contract. If you were

satisfied that that is so, and I will come to

some other matters later. If there was an

unlawful attack upon the deceased by both of

them, acting in concert, the Crown has to

establish that it was in the contemplation of

the accused that a possible consequence of

their so acting was that the deceased could be

Smith(2) 27 8/6/93

killed or suffer grievous bodily harm, which

could cause or bring about his death. The

contemplation of the possibility still applies
even if the precise way in which such grievous

bodily harm or killing was not contemplated,
provided there is contemplation of the
possibility that the person being assaulted

may be killed or suffer grievous bodily harm

and die. It does not mean that they have to be assisting each other, providing they were

doing the same thing together. But I must

warn you that liability to the accused does

not extend to any act of Flack which was
foreign to and not involved in this acting in
concert or in the joint enterprise. The scope

of the enterprise and the manner in which they

acted is entirely a matter for you. You have

to determine just what the situation was there
that night, and I will come to the way the

Crown factually puts the matter later.

McHUGH J:  Now, have you any criticisms of the summing up to

this stage?

MR JAMES: Yes, Your Honour. Firstly, commencing at 172,

His Honour introduces the topic by putting it on

the basis that, if there was a common purpose in

assault:

as a result of acting in concert, the act of

Plack -

can become the act of the accused. Now, we

appreciate that is merely introducing the concept.

But His Honour then goes on to say that, as to common purpose, in the event that:

the accused was acting in concert with Flack -

McHUGH J: Where is this?

MR JAMES: At page 173, line 25, and apparently that is in

the assault:

and that in the circumstances this death was a

consequence of their acting in concert -

again, apparently the assault -

and death could possibly be contemplated as

one of the consequences.

That formulation goes even beyond the common law,

the Code and the passage from

Sir Garfield Barwick's judgment:

Smith(2) 28 8/6/93

That means if two persons are acting in

concert and one person strikes the blow, and

if death was a possible consequence that was

contemplated by the other party, they have

acted in concert or common purpose -

That is a very confused direction at that point,

but what it seems to embrace is the proposition

that if people are acting together and one strikes

a fatal blow and the other adverts to the

consequence of that blow as being death, then they

have acted in concert or common purpose at the time
of the infliction of that lethal blow; and then
the person who did not strike the blow is just as

responsible for the death as the person who struck

the fatal blow. Then His Honour at page 175

expresses it as a legal direction.

McHUGH J: 

I appreciate that the passage is not well put,

but I certainly did not read it the way you seek to
read it, and it has to be read in the context of

what appears at 173 line 11:

One of the issues you have to determine here

is, were the fatal wounds on the deceased

inflicted by Flack with the intention ..... !

have to direct you on the question -

et cetera.

f

MR JAMES: Yes, Your Honour, we are accepting that at

passages through the summing up His Honour does

refer to not just the act and not just the

consequence, but on occasions also as to intention

in the principal. I have not gone to those

passages which deal with the liability of the
principal for murder and, in particular, His Honour

does not put reckless indifference. His Honour

confines the directions to an actual intentional

state. At page 175 line 9 His Honour gives that

direction which we say introduces the objective

eleme~t:

I give you this legal direction - if two

persons act in concert in respect to a

criminal offence, they are both liable for all
acts done by each of them in the execution of

those acts if those acts can be held fairly to

fall within the ambit of common purpose.

Again, it is a very confusing direction. However,

what it seems to say is that if A and B act in

concert in a common criminal offence, they are both liable for everything the other does if the acts of the others can be held fairly to fall within the

ambit of common purpose.

Smith(2) 29 8/6/93

The ambit of the common purpose is looked at

at page 176:

if you were satisfied beyond a reasonable

doubt that the act of Flack was brought about

when the accused and Flack were involved in

the same joint criminal enterprise, that is to

assault the deceased, each of them is legally

liable for everything done by the other in

furtherance of that joint enterprise. This is

important and extends to anything which was
contemplated as a possible consequence of the

course upon which they jointly embarked.

Again, a confusing direction, in our submission,

but what His Honour seems to be saying is if they
are involved in a joint assault, each of them is

liable for everything done by the other in carrying

out that assault, and that liability extends to

anything which was contemplated by you, the jury,

in the light of what His Honour had said

immediately preceding about "can be held fairly to
fall within the ambit of common purpose",

contemplated by their common plan or contemplated

by an individual party to that plan. His Honour

goes on to say:

What the Crown has to prove here was that

they were each acting in concert in attacking \he deceased, and when so acting the acccused

contemplated as a possible consequence of his
so acting in concert with Flack, that the

deceased could suffer serious or grievous

bodily harm.

On the face of that, what His Honour seems to be saying is if they were engaged in an assault and the accused contemplated that the deceased might be

seriously hurt, then that is enough. In other

words, there is a contract, an unlawful contract,

ie, the joining in the common assault gave the

authority to Flack to, as it were, kill and kill

intentionally.

In other words·, there is a contract, an

unlawful contract. If you were satisfied that

that is so, and I will come to some other

matters later. If there was an unlawful

attack upon the deceased by both of them,

acting in concert, the Crown has to establish

that it was in the contemplation of the

accused that a possible consequence of their

so acting was that the deceased could be

killed -

And the "accused" there is presumably singular.

Smith(2) 30 8/6/93

could be killed or suffer grievous bodily

harm, which could cause or bring about his

death. The contemplation of the possibility

still applies even if the precise way in which

such grievous bodily harm or killing was not

contemplated -

and that would seem to suggest it does not matter

whether the death or serious injury is brought

about by knife, boot, hand, or whatever.

provided there is contemplation of the
possibility that the person being assaulted

may be killed or suffer grievous bodily harm

and die.

The "and die" there is presumably otiose.

It does not mean that they have to be

assisting each other -

So, Your Honours, we are dealing now with a concert, a common purpose, a joint enterprise, in

which apparently they were not necessarily

assisting each other -

providing they were doing the same thing

together. But I must warn you that liability

to the accused does not extend to any act of

,lack which was foreign to and not involved in

this acting in concert or in the joint

enterprise.

Then I came to the passage where His Honour

directed the jury that the scope of the enterprise

and the manner in which they acted is entirely a

matter for you. Then His Honour turns to some

examples, and in particular turns to a planning

situation. Apropos of what Your Honour

Mr Justice Dawson put to me concerning the

proposition that they had planned it in the car,

His H9nour actually directs the jury, as the Crown

quite correctly says at line 9:

people do not sit down just before they get

out of the car and say we will assault this

man and do this and that -

Apparently the Crown discounted the sort of

Johns, that when the brawl occurred outside the car the parties who had got out of the Honda were acting

scheme or plan that was involved in in

together, or at least were engaged in assaulting,

even though not necessarily assisting each other.

Smith(2) 31 8/6/93

That is not the way crimes are committed.	You
know that as well as I do.	But in this

example, suppose three persons agree they will

participate in an armed robbery of a bank.

I need not take Your Honours to that in detail

because that is a traditional example of the Johns

style common purpose planned enterprise.

His Honour at line 25 summarizes the legal

position:

if the shooting was found to have been

contemplated as a possible consequence of a
joint enterprise upon which the three had

embarked -

which seems to involve an ambiguity in favour of

the objective criterion -

or if it were found that the joint enterprise entailed a tacit agreement to the use of that

weapon in that way, if it became necessary in

the course of the robbery.

which is the acceptance of the full subjective

criteria, then they would be liable. Then

His Honour refers to matters that the jury could

conclude by way of inference, for instance,

knowledge of the weapon, knowledge that the weapon

was l9aded, properly drawn an inference as to what

the understanding of those two were of what would

be done with the weapon, if necessary. Then ·

His Honour goes on to deal with a purse snatching example and that is a purse snatching where there

is no suggestion any violence would be used.

Each of those does his agreed job and then,

unknown to Band C, A - the one holding the

victim's arm - has a knife in his pocket, and

after the robbery takes place, and before he

leaves, he produces a knife and stabs the

victim. You might think in those

circumstances it is likely that Band C would
not be held responsible for the wounding, as

distinct from· the initial robbery.

One can cavil at the proposition that the jury are not firmly directed that they would not be liable -

the language of likelihood. His Honour goes on to

say:

If they, indeed, had no knowledge that A had

the knife with him, if the use of the knife
was not contemplated as a possible step in the
events upon which they agreed to embark, and

if there was no agreement that the knife

Smith(2) 32 8/6/93

should be used if necessary, then they would
not be legally responsible.

Well, Your Honours, on one view what His Honour is suggesting is, if the facts satisfy

the three criteria - no knowledge of the knife, no

contemplation of the use of the knife, and no

agreement for the use of the knife - then they

would not be legally liable; or alternatively any one of those is absent they would not be

legally liable. But His Honour finishes with the

directions - and, of course, they are very limited

in their significance and their applicability,

those examples, to the present case; both of them

involve exactly the prior planning that the Crown

disclaimed in the present case. Then, at line 25,

His Honour concludes his formal directions:

I will just finish off this by putting this to

you. This direction depends upon you, the

jury, being satisfied beyond reasonable doubt

that the accused, Arthur Stanley Smith, was

present and participated with one Glen Flack

in acting in concert for common purpose in

assaulting the deceased -

Now, in our submissi~n, again it is a somewhat

confusing use of terminology from a jury's

viewpoint. If it was an accessoryship case, a

simpl~ accessory direction could have been given at

that stage. His Honour then goes on to say, at

page 179:

However, if you the jury are satisfied beyond

a reasonable doubt that the accused was

present and participating with Flack in the

common purpose of assaulting the deceased on

that night, then - has the Crown satisfied you

beyond reasonable doubt that Flack stabbed the	deceased and that stabbing caused the death of	the deceased, and when Flack stabbed him he
intended at the time that he had so acted to
kill or inflict grievous bodily harm upon the deceased. If, the answer is yes, has the Crown
satisfied you beyond reasonable doubt that the
accused had the same common intention of
killing or inflicting grievous bodily harm
upon the deceased -

one basis for liability -

or that he at the time contemplated the
possible intentional infliction of grievous

bodily harm or the possible intentional

killing of the deceased?

Smith(2) 33 8/6/93

McHUGH J: But "at the time" is referring to the time the

common purpose was formed, is it not?

MR JAMES: Well, he does not say so, Your Honour, and indeed

the whole of the gravamen of this summing up has

been the acting in concert, that is the time at

which the assaulting is going on.

McHUGH J:  No, but when you read the summing up, this is a

classic illustration of a trial judge dealing with

a fairly difficult subject. He goes over and over

it again, trying to impr· · s on the jury. No

objection is taken to the summing up, he is not

asked to withdraw any passage. You can take

passages out of context and say, "He should not

have said this" or "He should not have said that",

but surely the substance of it is clear. At the

end it is as Chief Justice Gleeson said in the
Court of Criminal Appeal. That is how I understand

it, and I am sure the jury would have understood it

in the end like that.

MR JAMES:  Your Honour, objection was taken at page 2 of the

transcript to any reliance on common purpose at

all, apparently on the basis that the defence was
taken by surprise, and in the summing up there was

objection taken in relation to common purpose at -

I will just turn up the relevant passage if I

might, Your Honour. At page 153 there was

objec~ion taken to the case being put to the jury

as a case of common purpose, at the conclusion of

the defence case, but I have to accept,

Your Honour, that there was no passage in which the

defence counsel specifically raised individual
passages in the summing up.

The Crown, however, did, in relation to the question of the relevance of intoxication to the

formation of a common purpose, at pages 239 to 240,

and there was also, from the Crown, at page 222 to
dotti~g of the i's and crossing of the t 1 s in	page 224, what the Crown referred to as a little
relation to accident and self-defence in particular, as to how they could relate to the
common purpose, although that is never really
amplified.

That is as far as I could take the proposition

that the defence raised any specific matter.

Your Honours, what I am not seeking to do - - -

BRENNAN J:  Mr James, before you go on to tell us what you

are not seeking to do, could I just ask you whether

you are seeking to do this. Are you seeking to

attack the summing up if the summing up is

construed as follows: that there must be a common

purpose between Flack and Smith that they will

Smith(2) 34 8/6/93

assault Flavell and that in that assault it is

possible that Flack will stab Flavell to death?

MR JAMES: Yes, Your Honour.

BRENNAN J:  What is wrong with that?

MR JAMES: Objective. If, however, Your Honour, it is

rephrased that - - -

BRENNAN J:  I am putting it that the common purpose extends

to the possibility that Flack will stab Flavell to

death.

MR JAMES: Yes, I appreciate that, Your Honour. If one adds

into that that it was a possibility - and using the

language of Johns - contemplated by the common
purpose, that is agreed to or authorized by the
common purpose, I could not quarrel with that. If

it is that although it may not have been expressly

agreed to, you the jury think that they ought to

have realized that it might lead to that or that it

might reasonably have led to that, then we would

quarrel with it or, if it is the proposition that

Smith adverted to that during the assault as a

possibility, then we would quarrel with that.

BRENNAN J:  No, I was not putting either of those last

propositions to you.

f

MR JAMES:  I am putting all the ones we quarrel with,

Your Honour.

BRENNAN J:  The one that I was putting to you is one which

has the common purpose·as containing a

contemplation of the possibility that Flack may

stab Flavell to death.

MR JAME-6:  My answer to that would be as long as Johns is

law in this Court and in Australia, Your Honour, we
are bound by Johns on that topic.	But we would add

in, in.the light of Giorgianni, the word

"intentionally".

MASON CJ: Add in the word - - -?

MR JAMES:  "Intentionally", because if it happens without

intent on Flack's part - and I take it Your Honour

is referring now to murder, not to manslaughter?

BRENNAN J: Yes.

MR JAMES:  Yes, "intentionally".

BRENNAN J: If one looks at the passage on page 179

including the words to which you take exception, is

Smith(2) 35 8/6/93

it not reasonably open to construe the direction there in precisely the terms which I put to you?

MR JAMES:  Yes. Your Honour is now referring to the

proposition that firstly he was present and
participating in the common purpose of assault,

Flack intentionally stabbed to death:

that the accused had the same common intention

of killing or inflicting grievous bodily harm

upon the deceased -

We have no quarrel with that portion -

or that he at the time contemplated the

possible intentional infliction -

and that is the difference between the proposition

Your Honour has put and our proposition.

BRENNAN J: Leaving the question of time aside for the

moment and assuming the time there refers, as

Justice McHugh put to you, to the time of the

formation of the common purpose, assuming that, and

that he, at the time that the common purpose was

formed, contemplated the possible intentional

infliction of grievous bodily harm by Flack.

MR JAMES: Yes, Your Honour, we are quarrelling with that.

BRENNAN J:  Why?

MR JAMES: Because it is not part of the common purpose. If

it were accurately to be put, the distinction is

that the common purpose, that is, the parties to

the common purpose, not simply that one of the

parties adverted to a thing which he merely

regarded as a possibility, and we see that as the

reason why Johns decided "possibility".

BRENNAN J:  Do you mean that the bank robber with the gun

has tQ.agree with the bank robber who does not have

the gun, that it is possible that he, the former,

will use it?

MR JAMES: Well, he does, Your Honour, because he agrees to

participate in the bank robbery with the gun, and

it is plain that the gun is going to be used in the

robbery.

BRENNAN J: Well, here there is an agreement to participate

in the assault with a knife.

MR JAMES:  Your Honour, that is if you know. Now, take

Vandine, or take Johns: if you are	driving off to
do the relevant robbery, and in the	car the parties
are looking at their lethal weapons	and checking

Smith(2) 8/6/93

them over beforehand, or if, in their express

agreement, they say, "Well, we have got guns, but

we will not use them'', they are adverting to a

particular contingency.

In one case, they are authorizing the use of the guns, in the other they are not. Now,

Your Honour has pointed out why not possibility for

one if possibility for all? The criterion of

participating in something in concert and adverting

to a possibility will replace entirely being

present doing active encouragement, knowing what is

happening.

DAWSON J: Well, you can put an easy example here. I mean,

the accused in this case might know that his

companion in the car was a pretty terrible

character, that on previous occasions he had used

knives and, I suppose, there was a possibility that

he had one on this occasion; there was a

possibility if he got out he might use it. It

formed no part of their agreement at all, but it

was a possibility which was present to his mind,

but it was not part of the common purpose.

MR JAMES: Yes, that is right, but, Your Honour

Mr Justice Brennan's example, when you put that to

me as a possibility: let us take a principal in

the first degree who does not have an intentional

state,to kill. He is liable if he causes death by

an act voluntary done, adverting to the probability

that he will cause the death.

This Court in Crabbe and in Annakin has upheld

that. Why then should a person who is present and

who contemplates the possibilities be held liable

as an accessory if he did not authorize, or agree,

and it was not part of his plan?

DEANE J: But, Mr James, this is all seems to me to be so

far away from the point when, having read the

surnrni~g up, it is quite apparent that the trial

judge instructed the jury that unless they were

satisfied that your client participated in the

attack with a knife, they must acquit in so far as

common purpose is concerned, and I would refer you

to pages 216, 220 to 226 and 228 to 229.

MR JAMES: 

Your Honour, with respect, I have not been

allowed to get that far yet, and I have been trying
to get to that precise matter since Your Honour
raised it with me, but I have been taking that
in - - -

DEANE J: Well, I have read through the whole of the summing

up now and my impression is precisely the same as

Justice McHugh's.

Smith(2)	8/6/93
MR JAMES: Well, maybe, Your Honour, but I have not my

chance to put my argument on that yet, and I am

coming to that as fast as I can.

DEANE J: Well, why do you not come to page 216?

MR JAMES: Because, Your Honour, there is something more

material at page 178 on that very question. I

would have to deal with it in context, Your Honour.

The Crown would say to you, when you look at the

evidence and appreciate it, they both attacked this

man, both with knives, both stabbed him, and

therefore, clearly, they were acting in concert.

The proposition is put that if both stab, then that

shows the concert, and therefore, on that basis of

liability, which is a joint attack with knives, the

Crown succeeds.

I can then turn to the portion I have not mentioned to Your Honours yet. At 181 His Honour

and the Crown prosecutor deal with the question of

intoxication and Mr O'Loughlin for the accused, at

page 182, raises this precise question. At

line 12:

I think Your Honour has also covered this, but
on the common purpose, you are going to put

the Crown case on the basis that they both

have knives.

VIS HONOUR: I think I will say to them, I will

make it clear to them - if they go up there

and suddenly Mr Flack produces a knife,
unbeknown to your client, it would be very

hard to put him in for common purpose.

DEANE J: But what is the relevance of that when His Honour

does do exactly what Mr O'Loughlin asked him to do,

and that is, he put the Crown case on the basis

that they both had knives?

MR JAMES: But, Your Honour, His Honour has already put the

Crown case on another basis and he does not disclaim it, with respect. Indeed, at page 183:

if you are satisfied beyond reasonable doubt

that the accused was present participating

with Flack in the common purpose of assaulting

the deceased that night with knives, then (1)

has the Crown satisfied you beyond reasonable
doubt that Flack stabbed the deceased and

caused the death of the deceased and intended

at the time he so acted to kill or inflict

grievous bodily harm upon the deceased? That

is the first question - what was Flack's

intention? ..... if the answer to that is

"yes" -

Smith(2) 38 8/6/93

line 30 -

has the Crown then satisfied you beyond
reasonable doubt that the accused had the same

common intention of killing or inflicting

grievous bodily harm upon the deceased or that

he contemplated the possible intentional

infliction of grievous bodily harm or the

possible intention of killing the deceased.

Now this is again put on the basis on an attack

with knives, but it does not crystallize to the

point where it is said, at this stage in the

summing up - - -

DEANE J: But what is the point of this when you go to 216,

which follows all this through and spells out

common purpose?

MR JAMES: His Honour gives different directions at

different points of time, Your Honour - talks about

different common purposes. At places he talks

about common purpose to assault, at other places he

talks about concert and on some occasions

His Honour does give particular evidentiary

propositions, but does not make it clear that it is

to qualify all the bases of liability he has set

out beforehand. If - - -

DEANE J: Well, if I could just spell out what I am really

suggesting to you, and that is, your client got the

precise summing up that his counsel sought on

common purpose. That summing up, read as a whole

at the end was, on one approach, unduly favourable

to your client, and no request at all was made for

any redirection in that regard, and not

surprisingly so.

MR JAMES: Well, it is hard to deal with, in argument, the

question Your Honour has just put to me.

DEANE J: But y0u see, it has to be put because that is the

basis on which Chief Justice Gleeson dealt with the

case in the Court of Criminal Appeal.

MR JAMES: Yes, but Your Honour, with respect, that was not

the entire basis on which the case was put to the

Court of Criminal Appeal by those making submissions, and as can be seen, there was a basis
for the Crown to run a case of a joint enterprise

of both stabbing with intent to kill or do GBH, and

we have never quarrelled with that. What we are

quarrelling about is the additional concept of

liability in the event that the accused was part of

a common purpose to assault and adverted to the

possibility that his co-accused might murder.

Smith(2) 39 8/6/93

Now, if that simple advertence on his part was

enough for the jury verdict and it was left to the

jury, in our submission, as enough, as one of the

number of bases, then what has happened has been

that the simple - and he may well have been

convicted - he may well not have been - the simple

test appropriate to accessoryship, appropriate to a

situation where persons are present at the time of
commission of a crime, to define their liability

for the acts of another, is now superceded by a

test which was originally adopted in order to

inculpate accessories before the fact in a

circumstance where there was a common design

involving authorization.

The point we make is, yes, he might well have

been convicted on the basis that His Honour the

Chief Justice put up and enunciated in his

judgment, that Your Honours put to me, but he might
well have been convicted on this summing up on the
much lesser basis; and although his counsel had

objected to common purpose at the commencement of the trial and objected to common purpose prior to the summing up and was effectively bound by the

judge's ruling at that point in time, and

His Honour raised with him at 182 that question,

what he seems to have been discussing and what

there seems to have been a general confusion about,

at least in the defence camp and, in our

submission, in His Honour's mind also, was the

distiAction between this proposition of a plan to

assault with knives, to attack with knives on the

one hand, and a concerted assault in which there

was advertence to possibility by one of the

participants on the other. The very terminology as

it shifts, and the very directions as they shift in

the summing up, in our submission, leads to the

proposition that the jury would have got that lower

bases as one of the bases on which they might

properly find a verdict.

!~deed, the way in which the examples are put

is almost to suggest that they would properly find

a verdict unless they were of the view that Flack

had suddenly and untowardly produced a knife

unknown to Smith and killed. The very effect of

the examples in giving such precise illustrations

of when it will be murder and the extremes as to

when it will not be leave this very prospect open

to the jury.	Your Honour takes me to page 216
line 15:

The Crown, as I understand it, so there

can be no misunderstanding about it, on the

matter of common purpose, puts the case on this basis: the Crown case here on common

purpose depends on you accepting the evidence

Smith(2) 40 8/6/93

of Mr Millane co-jointly with the evidence of

Miss Gately.

Now, Your Honours, in short submission it is very,

very difficult to put the evidence of Millane and

Gately co-jointly because they both seem to be

describing different incidents.

DEANE J: His Honour makes clear that the evidence of

Mr Millane he is referring to is that he saw your client with a knife in his hand having attacked the deceased and the knife was bloodstained, because he

sets it out verbatim.

MR JAMES:  Yes, but what His Honour refers to there is -

at or about the same time that he had been

attacked by Flack with a knife.

Albeit this whole enterprise, this whole brawl took

place within a very narrow compass as to time,

Gately is describing something that may have been

before or after, but certainly is not at the same

time. Millane is describing something that was

before or after, but certainly was not at the same

time. And he puts this as a matter of Crown

submissions and Crown case rather than as

directions of law:

the Crown case here on common purpose depends

bn you accepting the evidence of Mr Millane

co-jointly with the evidence of Miss Gately.

The Crown submits to you that you would accept

the evidence of Mr Millane and from that

evidence deduce that the accused attacked the

deceased with a knife at or about the same

time that he had been attacked by Flack with a

knife.

The common purpose that is being talked about here,	Your Honour, is the first class common purpose, the
joint.~nterprise to attack.

If you were not satisfied that Mr Millane saw

that or that he is telling lies or you are in

doubt about it, you will acquit the accused
because there is no evidence other than from

Millane that the accused attacked the deceased

with a knife and that goes for all matters

with which he is being charged.

That makes very good sense in the sense that it is

necessary to get the knife into Smith's hand on

that joint enterprise proposition, but it does not

make good sense as consistent with the directions

relating to the assault common purpose and the

contemplation of the use of a knife by the

Smith(2) 41 8/6/93

co-accused. His Honour apparently now moves on to

a second evidentiary - - -

McHUGH J: Well, it does, does it not, because that is the

evidentiary linchpin which goes back and proves the

original common purpose. These directions were
extremely favourable to your client, to put it

mildly. Just take that very statement at line 21:

If you were not satisfied that Mr Millane

saw -

what he saw, that is the end of the case. That

alone.

MR JAMES: Yes, Your Honour, if one is dealing with a common

purpose to attack with knives there is no problem,
because if one of the parties did not have a knife

then you cannot derive a common purpose to attack

with knives from it, and you certainly cannot
derive principal in the first degree, although that

was never put, if he did not have the knife. Then

all you have got is him participating in an assault

in concert with contemplation that the other party

would use a knife. Now, the fact that he had a

knife may be evidence of an agreement to use
knives, but if that were the position, if this were

the end of it, then what was the necessity to give

all those earlier complicated directions and leave

to the jury the prospect that, as a matter of law,

the atcused might be liable if he contemplated the

possibility of his co-accused using a knife and·

merely participated in an assault.

Now, if that were to be the case, and we would

not quarrel with that being put as a case, if the

trial judge was to say, ''If they were part of a

common design to assault the deceased with knives

or, alternatively that Smith was present at the

time of the death-dealing wound inflicted by Flack,

encouraging him, knowing what he was doing", then

that is a sufficient basis for murder. If that had

been the summing up it would have been a simple

clear summing up and easy to understand, easy for

the jury to apply,·but it was not the summing up

here. The summing up here left in this

contemplation of possibilities by the individual

and left in, in addition, the idea that his actus

was sufficiently performed by being in concert with

in an assault.

McHUGH J: But the reason the judge left that in, is it not,

was because one view of it might have been that

they were just going to go and physically belt

these up with their fists - - -

MR JAMES: Yes, precisely.

Smith(2) 42 8/6/93

McHUGH J: 

- - - but it was a contemplation that they might

use the knives, and the fact that they both had
knives and both used them supported that.

MR JAMES: With respect, we do not actually know that both

had knives and both used them.

McHUGH J: Well, we do know - the jury could take that view.

I mean, Millane said your client had one and it had blood on it, and there was expert evidence which

said that the deceased had been stabbed by more

than one knife, and that the small knife that your

client was alleged to have had could not have

caused the - - -

MR JAMES:  No, Your Honour, neither of them said that.

Neither of them said that the small knife could not

have caused - both said that the wounds were
consistent with one knife, though Dr Hollinger went

to the extent of saying she was 90 per cent sure there were two knives. Dr Oettle disagreed with her view as to the serrations around the wound and

the compression factor. But putting that aside,

why I say that that proposition may not have been

the case, we do not have any evidence to suggest

the sighting of two knives. We have two pieces of

evidence, in each of which only one knife was

sighted. Now, that does not necessarily mean the

two men armed with two knives are simultaneously

attacking, which is what His Honour is referring to

when he talks about "at or about the same time".

McHUGH J: You are talking about a fist fight. It is all

over in a few seconds, is it not?

MR JAMES: Yes, but that is the point. If it is a fist

fight and he contemplated - - -

McHUGil"J: Well, you are talking about a fist fight, knives,

it is a brawl. It did not last for too long.

MR JAMES: Yes;·and it is, in our submission, exactly the

classic situation for the traditional directions on

accessory, not artificially dividing up what is

going on into a common purpose to assault coupled

with a contemplation of possibilities in the middle

of a fracas.

McHUGH J:  I must say if ever there was a case for a common

purpose direction, I would have thought this was

it. What form it might have taken may be a

different matter, but it certainly seems to me to

be a - - -

MR JAMES: Again, Your Honour, it is hard to deal with that

as a question.

Smith(2)	8/6/93
DEANE J:	We are just trying to encourage you, Mr James.

MASON CJ: Could I encourage you further, Mr James, by

suggesting to you that when you look at the summing

up in context, it really ended in a way that was

very favourable to your client, because what the

trial judge seems to have done was to have taken up

what Mr O'Loughlin put to him and then built the

last part of his directions about the suggestion

put by Mr O'Loughlin. It ends up at the foot of
page 228 and the top of 229 by highlighting the

importance of the evidence given by Millane and

saying in effect, "Well, unless you accept

Millane's evidence, that's the end of it."

MR JAMES:  Yes. Your Honour, there is no doubt that

Millane's evidence was crucial to any basis of

liability. Mr O'Loughlin as a trial counsel seized

upon what was quite clearly an evidentiary problem

in the Crown case, that is to say, the Crown having taken the view that it was Flack's act which caused the death, then when one looks at Gately's

evidence, at the time at which Flack is performing

the killing, Smith has been knocked flat on his

back and does not appear to be doing anything to

assist Flack at all. So the only way the Crown

could, on any of the hypotheses, joint attack or
common purpose in any of its manifestations as an

evidentiary proposition, succeed was by getting the

jury to believe Millane.	f
But on the face of Millane, let us assume that

the jury did accept Millane completely, the point

we seek to make here is that that was not the end

of the matter. It was the end of the matter as far

as Smith is concerned if you took the proposition

that Smith was stabbing the deceased and Flack

stabbed the deceased to death while Smith was

stabbing the deceased, and that was a classic joint

attack exercise.

~9wever, how does one get it to a common

purpose with a contemplation of the possibility of

put the two passages in the evidence from

infliction of a death-dealing or serious wound by you

the person engaged'with you in the common purpose?

Millane - and I will just give Your Honours the
references. At pages 4 to 9 of the appeal book is
the relevant passage in the evidence in-chief of
Millane and pages 59 to 65 in the evidence of

Gately. If you put those passages together, they

not only do not fit as being at the same time or

even near to it, they have the various parties at

different places and removed - Flack at one stage

is walking off back to the car.

Smith(2) 44 8/6/93

Concert is a somewhat difficult concept to

apply to events such as affrays, brawls or riots.

Indeed, one can have independent subsets or

independent actions within such a situation. The

reliance on the fact that people in a brawl are all

fighting for the proposition that they are acting

in concert to achieve the result has to be looked

at fairly carefully. It is another thing, however,

of course, if you get the Mohan, with two people

from either end of the street running in with

cutlasses and slashing at the deceased.

What Your Honour the Chief Justice has put to

me is right, that from the point of view of the

evidentiary argument at the end of the summing up,

His Honour's directions seem to be all directed

towards this proposition of the joint enterprise to

stab with knives and that without Millane's

evidence that proposition simply could not have
succeeded.

But the way in which the case was put to the jury as formal legal directions included the

proposition that if you accept Miss Gately that

Smith and Flack were engaged in an assault, and

Flack stabbed the deceased to death and Smith contemplated that that might have happened, without

that having to be put that there had to be some

pre-concert - which, of course, was the old

terminology that was used - then that of itself was

a sufficient basis to make him liable for the act

of Flack.

Now, I can appreciate counsel wanting to take

on the Crown case at its best point, but that does

not mean that the summing up was e .- ther correct

legally or over all gave to the jury the true test

of liability.

Now, there has been complaint from time to

time about the use of common purpose in situations

for which it does not appear to be adequately

adapted. Mills was not such a case, but on our

list of authorities Your Honours will find
reference to Stokes, v Difford and to Clough, cases
in New South Wales, in both of which the Court of

Criminal Appeal has deprecated the use of common purpose to apply to situations other than the

pre-concert, the design situation. To subdivide a

brawl into primary purpose and contemplated

consequence or incident is, in our submission, to

introduce an artificiality of calculus to the

situation which would substitute - and I think I

have said this before - for the true accessorial

basis. And indeed the only time that the

traditional language of accessories is used in this

summing up is when His Honour says that they do not

Smith(2) 45 8/6/93

have to be assisting each other in order for there

to be liability.

I was taking Your Honours through the summing

up and simply giving Your Honours references. At

page 184, His Honour turns to the alternative

verdict of manslaughter and directs again in

relation to the common purpose, and the distinction

really is that if:

the accused contemplated the possible

infliction of some physical harm by an

unlawful and dangerous act -

of harm less than grievous bodily harm or -

not done with the intention of inflicting

grievous bodily harm or killing the deceased.

None the less, the language again throughout this

whole passage of legal directions, both as to

murder and as to manslaughter, relates solely to

the individual contemplation or, alternatively,

moves to the objective contemplation.

Your Honours, the only other passages to which

we would refer Your Honours - I would leave the

reference to the malicious wounding. I do not

think there is any other matter that I need to take

Your ~onours to in terms of the passages in the

summing up. They are the passages to which we

would wish to take Your Honours on the summing up.

The evidentiary summary is to be found, as

Your Honour the Chief Justice has pointed out, in

dealing with the evidence of Mr Millane, at 216 and

Miss Gately at page 218. The other eyewitnesses

are at page 219 and the evidentiary significance of

the Crown case at page 220.

Your Honours, it is my intention to turn to

the case law to support the propositions set out in

our o~tline, and in particular the legal

propositions. To a very great extent I have

covered already the general effect of those

propositions in argument. The very distinctions

that we have referred to occasioned the dissent of
the Chief Justice of South Australia in Britten v

Eger, (1988) 36 A Crim R 48. That was a case which

involved murder at common law. It was again a case

rather reminiscent of Mills in which, reading from
the headnote:

Band E agreed that, while armed with loaded weapons, they would go to a house and

threaten the occupants with those weapons. In the course of doing this B shot a dog. B went

into an occupied room and fired two shots at a

Smith(2) 46 8/6/93

wall.	E went into another room and murdered
the occupant of it.	E was convicted of that
murder.	B was also convicted of murder as a

party to a joint enterprise.

His Honour the Chief Justice sets out at page 49

the instructions to the jury from the learned trial

judge. His Honour points out when introducing

those instructions:

The case against Britten depended upon his

being a party to a common purpose or design

which included the possible use of a firearm

to kill or cause grievous bodily harm.

The instructions were:

"What if Britten was not present in the room

when Cashel was shot -

stopping there, that is to deal with the

distinction between the accessory before the fact

and the principal in the second degree.

The answer to this will depend upon Britten's

state of mind when he and Eger planned their

raid on the house. Even if the murder of

Cashel was not part of the actual plan, and
even if Britten did not intend that Eger
should murder anyone, Britten will still be
~uilty of murder if he foresaw that someone,

in Cashel's position, being murdered by Eger was a possible consequence of their going to the house - that something might well happen,

once they were inside, to lead Eger to go

beyond the strict letter of the agreement and

to shoot someone unlawfully with the intention

of at least causing him really serious harm.

If Britten foresaw that as a possibility, in

the sense of its being a substantial risk, and

if it transpired that Cashel was shot by Eger

i~ circumstances amounting to murder, then

Britten was also guilty of murder.

The principle of the law here is that a man cannot knowingly take part in a joint

activity and disclaim responsibility when he

can see from the outset that there is a

substantial risk that it will result in the

death or infliction of really serious harm on

someone else.

The criticism that was put was on the basis: that it made Britten's liability for murder

depend upon what was within his own

contemplation as distinct from the joint

Smith(2)	8/6/93 contemplation of the parties. In Mr Jennings' submission Britten could be guilty of murder
only if the prior agreement of Britten and
Eger embraced, at least tacitly, murder as a
possible incident of their common enterprise.
His Honour goes on to refer to Johns, and that

reminds me that I have taken Your Honours part of

the way through the judgment of the majority but

have not yet come to the conclusion of that

judgment, nor Mr Justice Stephen. If I might go

back to that a little later. His Honour refers to

the passage from Mr Justice Stephen in Johns at

page 118:

"But if, in carrying out that

contemplated crime, another crime is committed

there arises the question of the complicity of

those not directly engaged in its commission.

The concept of common purpose provides the

measure of complicity, the scope of that

common purpose determining whether the

accessory before the fact to the original

crime is also to share in complicity in the

other crime. If the scope of the purpose
common both to the principal offender and to

the accessory is found to include the other

crime, the accessory will be fixed with

criminal responsibility for it."

His H~nour goes on to add that:

criminal liability should be made to depend

upon the jury's assessment of whether or not the accessory before the fact must have been

aware of the possibility that responses by the

victim or by third parties would produce the reaction by the principal offender which led

to the other crime."

I digress here for one moment, Your Honours,

to poi~t out that of course advertence by the

accused to the possibility that the event will

occur is not immaterial. It may be very strong

evidence from which· one can infer authority, that

is that he did agree to a common purpose which

embraced that possibility. It may be that one can

derive from that sufficient, by way of an

evidentiary link, sufficient knowledge to satisfy

the Giorgianni criteria. But really, in this

context, as was remarked in cases such as Kural and

Saade and Pereira, one should not be substituting

the evidentiary fact for the legal liability,

similarly as one cannot substitute knowledge for

intention. One does not become liable for murder

as an accessory by recklessness, at least after

Giorgianni, and the mere advertence to a

Smith(2) 48 8/6/93

possibility in the individual himself, without

agreement to it, in our submission is not what His

Honour Justice Stephen is talking about at this

point.

The basic principle was stated in the joint

judgment of Mason J, Murphy J and Wilson J

(at 125) as follows:

"The applicant concedes that the doctrine of

common purpose as applied to a principal in

the second degree will involve him in

complicity if the act constituting the offence

charged was contemplated as a possibility by

the parties in arriving at their common

purpose or design, or if it was incidental to the execution of that purpose or design .... "

His Honour Mr Justice King continues:

Both the judgment of Stephen J and the joint judgment approved a statement of the principle

by Street CJ in the Supreme Court (NSW) as

follows:

" ... an accessory before the fact bears, as

does a principal in the second degree, a

criminal liability for an act which was within

the contemplation of both himself and the

principal in the first degree as an act which

might be done in the course of carrying out

the primary criminal intention - an act

contemplated as a possible incident of the

originally planned particular venture."

His Honour then refers to Chan Wing-Siu and

refers in particular to the Chan Wing-Siu

discussion of Johns and says:

The judgment gives no indication of any

intention to break new legal ground or to

extend the grounds upon which criminal

liability arises in such cases. It formulated

a simple test which would be sufficient in

"some cases" in the following passage:

"In some cases in his field it is enough to

direct the jury by adapting to the

circumstances the simple formula common in a

number of jurisdictions. For instance, did

the particular accused contemplate that in

carrying out a common unlawful purpose one of
his partners in the enterprise might use a
knife or a loaded gun with the intention of

causing really serious bodily harm? The

present was such a case."

Smith(2) 49 8/6/93

In Mills the High Court also said that: "in many cases it will be sufficient to direct the jury by adapting to the circumstances the

simple formula mentioned by Sir Robin Cooke."

The High Court made that observation in the

course of affirming the principles in Johns.

I do not take the Privy Council in Chang

Wing-Siu or the High Court in Mills to be abandoning the established principles upon which the criminal liability of participants

in a joint enterprise for crimes actually

perpetrated by other participants, is based.

The fundamental notion is that by

participating in the enterprise, each
participant impliedly authorises all criminal

acts which are in his contemplation as being

part of the common design or as being a

substantial risk associated with its

implementation. The concept of authorisation

is endorsed by the Privy Council in Chan

Wing-Siu at 175 and the expression

"substantial risk" is taken from the judgment

of Stephen Jin Johns' case at 117. That

fundamental notion is sufficiently explained

to the jury in many cases by some adaptation

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

mistake, however, in my opinion, to treat the

use of that formula, as was done in argument

9n this appeal, as involving a new legal test
differing from the established principles of

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

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

Mills were cases of persons going to premises

armed with lethal weapons -

and we interpolate, so is Johns -

In other cases different directions may be

necessary.

His Honour refers to a political demonstration.

I think that if such offences were committed

and peaceful participants were charged, the

proper basis of criminal liability in such
circumstances would not be adequately

Chan Wing-Siu enterprise to rob in which there was an

explained by use of the formula.

express or tacit understanding that weapons

would not be used. I doubt whether mere

contemplation of a substantial risk that one

of the participants might act in contravention

of the common agreement would of itself be a

Smith(2) 50 8/6/93

sufficient basis of criminal liability. One

must not lose sight of the fundamental ground

of liability which is the implied

authorisation of what is contemplated as part

of, or incidental to the implementation of,

the common purpose. To do so would be to

court the risk of substituting a formula which

is a valuable tool for the explanation to the
jury of the fundamental legal principle, for

the principle itself, and of applying the

formula indiscriminately to cases to which it

is not appropriate. The result might be a

distortion of the true principles underlying

the criminal liability of participants in a
joint enterprise for crimes of which they are
not the actual perpetrators, and in the unjust

conviction of persons of crimes of which they

could not be said, in any true sense, to be

guilty.

His Honour goes on to say that in this case there was viewed objectively clearly a substantial

risk and whatever might have been the dangers in

other cases, where two persons go into premises, in

effect, to shoot them up, there is no such problem

in this case.

Mr Justice Millhouse, whose judgment commences

at page 56, turns to these questions at page 58,

about,point 5:

The real point therefore is whether the

ratio of the Privy Council decision in Chan

Wing-Siu is good_law in Australia.

Mr Jennings argued that it certainly used

not to be. He relied on Johns and Miller for

what he contended was the correct test -

whether or not the killing had been in the

joint contemplation of the two accused.

And His Honour sets out the passage from

Sir Garfield Barwick at, in Johns' case, page 112,

and Mr Justice Stephen at page 117, and 118, and

then again at 119, and refers to passages to the

same effect in the joint judgment - refers also to

Miller's case and says, at page 59:

On the test in those cases the passage in

the summing up would be defective. However

since 1980 when the High Court gave judgment

in Johns' case and in Miller the Privy Council

has given its advice in Chan Wing-Siu -

His Honour sets out the facts of Chan Wing-Siu, and

the argument on appeal in Chan Wing-Siu was again a

Smith(2) 51 8/6/93

possible probable argument, and the passage from

Sir Robin Cooke, at page 175 of that judgment:

" ... a person acting in concert with the

primary offender may become a party to the

crime, whether or not present at the time of

its commission, by activities variously

described as aiding, abetting, counselling,

inciting or procuring it .... [This] case must

depend rather on the wider principle whereby a

secondary party is criminally liable for acts

by the primary offender of a type which the

former foresees but does not necessarily

intend.

His Honour is pointing out there that really
Sir Robin Cooke was intending to lay down a wider

principle:

That there is such a principle is not in

doubt. It turns on contemplation or, putting

the same idea in other words, authorisation,

which may be express but is more usually

implied. It meets the case of a crime

foreseen as a possible incident of the common

unlawful enterprise. The criminal culpability

lies in participating in the venture with that

foresight."

, Having noted that Johns' case and Miller

and a New Zealand case to the same effect were

cited to the Court of Appeal (Hong Kong) -

and I interolate, Your Honours, that in Chan Wing-

Siu Johns was accepted as imposing the correct

test. Sir Robin continued at 177:

"Where a man lends himself to a criminal

enterprise knowing that potentially murderous

weapons are to be carried, and in the event

they are in fact used by his partner with an
intent sufficient for murder, he should not

escape the consequences by reliance on a

nuance of prior assessment, only too likely to

have been optimistic."

And, of course, that is not the point in the present appeal, and His Honour sets out the mens

rea:

" ... if it was not even contemplated by the

particular accused that serious bodily harm

would be intentionally inflicted, he is not a

party to murder ....

Smith(2) 52 8/6/93

The test of mens rea here is subjective.

It is what the individual accused in fact

contemplated that matters ....

And our submission to Your Honours is, that if it

is what the individual accused contemplated is what

matters, then no lower standard should be set than

recklessness. If it is what is contemplated by

their plan, or agreed to, then of course one can

accept that they agreed to those steps to meet the
possibilities they had envisaged, but if the
standard is individual - if what we are dealing
with is individual liability, then probability
would be the very least in the light of section 18

of the New South Wales Crimes Act for the state of

mind.

His Honour then refers to Sir Robin Cooke's

enunciation of the possible limitation on liability

by reason of the doctrine of remoteness that I
mentioned to the Court previously in the

submissions.

The directions on joint enterprise given

in this summing up conform with what is said

in Chan Wing-Siu. Was is correct for the

learned trial judge to so instruct the jury?

Has the law in Australia changed from that

expressed in Johns' case and Miller? With a

+ittle hesitation I conclude that it has.

I refer to the judgment of the High Court

in Mills -

and His Honour refers to the passages that I have

read to the Court earlier.	Mr Justice Millhouse
says:

There are two reasons for my hesitation.

First, I find it puzzling that the majority in

the High Court endorse without qualification

Johns' case - - -

MASON CJ: I.think we have probably read this while you have

been going through' it, Mr James. I am not sure

that it really pays a great deal of close

attention.

MR JAMES:	Your Honour, the point of that is there is very squarely at issue in that case the two differing
viewpoints.  Mr Justice Moore also deals with that
question. Without taking the Court to the detail of the judgments, in Georgianni this Court adverted to the test necessary for an accessory, and the
test suggested as derived from Chan Wing-Siu and
for the present, after Professor Smith's criticisms
and some vacillating in the Court of Appeal in

Smith(2) 53 8/6/93

England that has been adopted in Hui Chi-Ming, is

simply a test of individual contemplation of

possibility.

In our submission, that does not sit at all

well with Johns, Georgianni, the common law as it

has been understood in Australia hitherto, at least

post-Stapleton, Parker and Smyth. It does not even

reach the point at which the Code defines liability

by assessing probable consequences. There is not

even a limiting factor involved except the

vagueness of a principle of remoteness that so far

has not been defined, and that leaves these

directions in this case so that the accused may be

made liable on a basis in addition to the joint

enterprise, which was what the Court of Criminal enterprise that the Crown had put forward as one of

the bases of its case:  by simply engaging in the

assault and turning his mind to the possibility the

accused might kill.

Unless Your Honours would wish me to go in details with the cases which are set out in our

written submissions, or to turn again to

Johns -

MASON CJ: There is no occasion to do that.

MR JAMES:  The¥ are the submissions we put on ground 1.

Really there is nothing further that we can say on

grounds 2 and 3 that we can add to the written

submissions that we have in the outline. In those

circumstances, we would seek merely to put forward

what is there contained.

We point out that in the context of a case in

which there is alleged to be a common criminal

purpose and a party adverting to a possibility, the

occasion in this summing up, whether his statement	necessity to avoid such expressions as were used on
raise~.reasonable doubts or casts doubts upon the Crown case, is exemplified, particularly where the
Crown case itself involves two passages of evidence being combined which, in our respectful submission,
are antithetical.

Unless I can assist the Court any further,

they are the submissions on behalf of the

appellant.

MASON CJ:  Mr Blanch, can you provide us with your outline

of argument?

MR BLANCH: Yes, I can, Your Honour. There are also copies

of the record of interview, Your Honour, which has not been included in the appeal book and it may be

Smith(2) 54 8/6/93

of some marginal significance in the overall

assessment of the case.

MASON CJ:  Mr Blanch, do you want to say anything about

grounds two and three? The Court will consider

ground one over the adjournment. If we wish to

hear from you on that ground we will give you the

opportunity of addressing us after the adjournment.

MR BLANCH:  Yes, thank you, Your Honour. Your Honour, as to

ground two being the complaint about the direction

beyond reasonable doubt, I understand my friend's

complaint to be that a perfectly ordinary direction

about beyond reasonable doubt was not reproduced at

various stages throughout the course of the summing

up. All I can say as to that ground is that an

appropriate direction was given and there was no

special reason that occurred in the context of this

case for there to be any further directions or
better directions or clarification of the
direction, particularly in the circumstances of

this case where the situation was that the trial

judge had confined the factual issue in accordance

with the Crown case to a very narrow point where

the charge as left to the jury relied entirely on

the fact that both Flack and the appellant had

knives and were engaged with an attack on the

victim and where - and this was the reason that I
handed to the Court the record of interview - in

the siatement that the applicant made to the jury,

which appears at page 238, a very brief statement

made to the jury by the appellant in which he said

he had no knowledge of a knife having been used,
where he said he did n9t see a knife on that night
and had no part in the event.

The Court will note from the record of interview that, in question 3 at the bottom of the

first page, what he said to the police when he was

interviewed was he: 

g0t out of the car and went to help Glen.

And, over the page,. that he noticed something in

the man's hand, it was dropped, there was a

struggle for it, and then in question 7, he says he

did not know whether he did or did not stab the

victim, and question 11 he was asked about whether

he saw a knife and he said that he saw something
smaller, but he saw something. Question 12, he
said he thought he got hold of it and he described
it as partly black and partly silver and then he

said he thought he dropped it in the street, and

then in question 33 he said he was sorry that

Mr Flavell was killed and:

Smith(2) 55 8/6/93

if I did it it was unintentional, but the
people in the tow truck started hassling us.

There was no attack made on that record of interview at all. It was the record of interview

made in the presence of the appellant's solicitor

and there was no suggestion at the trial that it

was incorrect. There was a colour of a defence of

intoxication raised during the course of the trial,

but I would make all these observations to the Court simply on the basis of indicating in the context of this ground that no special reason arose

during the course of this trial to do anything

other than is normally done in the context of

directions on the onus and burden of proof.

Ground 3 that is raised is in relation to

Minkley and Paull, the two police officers, who

were not called. The suggestion so far as they

were concerned was, as I understand the attack made

on them, that they had suggested to one of the

doctors that there were two wounds and somehow

influenced her in the evidence that she gave. It

was also suggested that in so far as the witness

Millane was concerned who, as the Court has seen,

was the key Crown witness, that these two police
officers had influenced him in some way.

In that respect, if I might just draw the Court,s attention very briefly to something that

occurred on page 41 of the appeal book where, at

line 21, it was put to Mr Millane that he did not

get out of the truck until the scuffle was over:

I suggest to you that you did not ever get out of the truck and go near your friend, Flavell,

until after you found him on the steps at the

fish shop?

It is clear what the suggestion in the line of

cross-examination was in the context of that.

There ~as some re-examination at page 55 of the

appeal book and Mr Millane was re-examined on the

matters he had been cross-examined about in the

committal proceedings where, apparently, in brief

he had been cross-examined at the·committal

proceedings and it was put to him that he had been

out of the car punching and involved in the fight.

I just simply draw the Court's attention to that on the simple basis that it was always open

for an attack to be made on the witness Millane and

on the doctor in the context of what was suggested

the police had done. It is a little unclear in

what way the defence were seeking some special

direction as to this, but the mere raising of the

Blackburn affair was hardly enough to call for some

Smith(2) 56 8/6/93

special direction by the trial judge simply because

of the name of the incident itself.

DEANE J:  Where is the evidence of what was said about the

Blackburn affair?

MR BLANCH:  I am sorry, Your Honour, I do not -

McHUGH J: Page 208, line 46, it is mentioned. That is the

direction.

MR BLANCH:  Yes, that is the bit that my friend refers to in his submissions, Your Honour. I am just looking at

page 112, Your Honour. In the middle of page 112,

at line 15, Detective Mathes was asked:

You were involved in the Blackburn

investigation -

Q. With Sgt Minkley?

Q. With Det Paul?

Q. Is it a fact that when you filled in the

crime report in relation to the break-in at

Randwick, that you referred to the fact that

your notebook, or your duty, book, Minley's

duty book and Paul's duty book, were taken?

A. Yes.

Q. And you were the only police officers who

claim that any of your duty books, or other
personal books, were removed in that break-in?

He was asked questions about the removal of some of his books. I am sorry Your Honour, that is simply

mentioned, as it does not seem to take that matter

any further.

TOOHEY J:  I am not sure what you mean, Mr Blanch, in your

written answer - precis under ground 3. You say

this was not a matter raised at trial by the

defence.

MR BLANCH: Well, at the end of the summing up, Your Honour,

I do not think there was anything sought in respect of that.

TOOHEY J:  The trial judge had directed the jury, at

page 208, to simply put it out of their mind.	Is
the point that the trial judge should then have
been asked at the end of the summing up, to
redirect?

MR BLANCH:  Yes. I am sorry, Your Honour, my friend may be

able to assist with that, but I cannot see where

that occurs in the appeal book.

Smith(2) 57 8/6/93

MASON CJ:  What is the point here, Mr James?

MR JAMES: Counsel was relying, Your Honour, upon the

findings of Mr Justice Lee sitting as a Royal

Commissioner in the Blackburn affair and the

evidence that had come out before him. He did not

have tendered or marked the passages to which he

had referred. What happened in this - and

Your Honours will see in the transcript at

page 113:

Argument ensued as to relevance of

questioning.

And at various portions throughout the transcript

there is reference to that argument. His Honour

simply excluded reference to the Blackburn affair, as it were, more or less entirely, not having any

possible basis on which it would be either relevant

or relevant to credit.

MASON CJ: Well, there is nothing in the material before us

that would suggest it had any relevance at all.

MR JAMES:  I appreciate what Your Honour has put to me.

That is as far as I can take it because counsel did

not - and we were confronted with that at the time of the appeal. Counsel had never had the portions

that he wanted marked.

MASON CJ: Well, is that the beginning and end of ground 3?

MR JAMES:  I think that is the third time, Your Honour, I

will have to say that is a difficult question to

answer.

MR BLANCH:  I have nothing further to put, Your Honour,

unless the Court wishes to hear from me on the

other ground.

MASON CJ: Yes, Mr Blanch, thank you. We will adjourn now

and resume at 2.15 or shortly thereafter.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.32 PM:

MASON CJ:	Mr James, do you wish to say anything in reply?
MR JAMES:	Not if Your Honours please, no.

Smith(2) 58 8/6/93

MASON CJ: This is an appeal against the appellant's

conviction for the murder of Ronald James Flavell.

The circumstances in which Flavell was killed may

be stated briefly.	The deceased was a passenger in
a tow truck driven by Mr Millane.	The progress of

the tow truck was impeded by a car which was double

parked.	The occupants of the car were F, the
driver, and the appellant.	An altercation ensued
between the occupants of the vehicles.	The

appellant and F got out of the car and walked

towards the tow truck. There was an exchange of

blows.	The appellant went to the passenger side of
the tow truck where the deceased was seated.	A
fight developed between them. F, who had been

fighting with Millane, joined the appellant in
fighting the deceased. One witness deposed to F

stabbing the deceased in the chest with a knife.

Millane stated that he saw the appellant with a

blood-stained knife in his hand.	The deceased died
shortly afterwards.

There was evidence from which the jury was

entitled to conclude, first, that the deceased

sustained at least four stab wounds and, secondly,

that two different knives were involved. The Crown

case at the trial, supported by expert evidence,

was that the death of the deceased occurred as the

result of a stab wound inflicted by F. However, it

was also part of the Crown case that the appellant

stabbed the deceased and Millane's evidence

supported that element of the Crown case.	The
Crown put its case on two alternative grounds.	The
first was that both F and the appellant jointly

attacked the deceased with knives and both had the

common intention of killing the deceased or

inflicting grievous bodily harm upon him. The

second was that both F and the appellant had a

common purpose of assaulting the deceased and that

there was contemplated, as a possible incident of

the execution of that common purpose, the stabbing

of the deceased by F with intent to kill or inflict

grievous bodily harm upon him.

The principal ground of appeal is that the

directions given by the trial judge departed from

the observations made by a majority of this Court

in Johns v The Queen where, in speaking of common

purpose, reference was made to establishing that

what occurred was within the contemplation of both
the principal in the first degree and the principal
in the second degree as a possible incident in the

execution of their common design. Instead, it is

argued, the trial judge gave directions which more

closely accorded with the decisions of the Privy

Council in Chan Wing-Siu v. The Queen and Hui

Chi-Ming v. The Queen, where reference is made to

whether what occurred was within the contemplation

Smith(2) 59 8/,6/93

of the principal in the second degree as a possible

incident of the execution of their common design.

In our view, the judgment of Gleeson C.J. in

the Court of Criminal Appeal contains a compelling

answer to this submission. His Honour said:

"Although it may not have been necessary for it to have done so, the Crown assumed a

burden of proving that both F and the appellant

attacked the deceased with knives.

Consistently with this manner of putting the

Crown case, the learned trial judge instructed

the jury that they should acquit the appellant
unless they were satisfied that he attacked the

deceased with a knife, at or about the same

time as the deceased had been attacked by F

with a knife. At an early stage of the summing

up his Honour identified as a central issue of

fact in the case the question 'whether there is

evidence to support the use of both knives'.

There was a good deal of detailed evidence as

to the nature and extent of the stab wounds

found on the body of the deceased, there was

expert opinion to the effect that those wounds

appeared to have been caused by two different

knives, and although there was not tendered in

evidence any knife alleged to have been that

used by the appellant, there was reference to,

and description of, a knife that was alleged by

the Crown to have been the second knife."

Counsel for the appellant challenges the

accuracy of that account of the summing up and also

submits that it describes only that part of the

trial judge's directions that relate to the first way in which the Crown put its case at the trial. We do not agree with these submissions. When the trial judge's directions are read in their

entirety, it is plain that the jury were instructed

that they should acquit unless they were satisfied
that the appellant attacked the deceased with a
knife at or about the same time that F attacked him

with a knife.

In this respect it will be sufficient if we

refer to certain passages in the directions given

to the jury. After his Honour had directed the

jury on common purpose and acting in concert,

counsel for the appellant, Mr O'Loughlin, requested

the judge to put the Crown case to the jury on the

basis that both the appellant and F had knives when

the assault on the deceased took place. In

accordance with that request, his Honour instructed

the jury in these terms:

Smith(2) 60 S./6/93

"The Crown, as I understand it, so there

can be no misunderstanding about it, on the

matter of common purpose, puts the case on this basis: the Crown case here on common

purpose depends on you[r] accepting the

evidence of Mr Millane co-jointly with the

evidence of Miss Gately. The Crown submits to

you that you would accept the evidence of
Mr Millane and from that evidence deduce that

the [appellant) attacked the deceased with a

knife at or about the same time that he had

been attacked by [F] with a knife. If you

were not satisfied that Mr Millane saw that or

that he is telling lies or you are in doubt

about it you will acquit the [appellant)
because there is no evidence other than from

Millane that the [appellant] attacked the

deceased with a knife and that goes for all

matters with which he is being charged."

Subsequently, the trial judge said:

"What Mr O'Loughlin highlighted in his

submissions to you is that the Crown

case - and it is true to say this - rests on

whether Millane was telling the truth as to
what he saw that night. If you were not

satisfied or you disbelieved Millane that is

the end of the Crown case."

Counsel for the appellant submits that,

despite these specific instructions, the earlier

general directions of the trial judge on common

purpose left it open to the jury to return a

verdict of guilty on an erroneous basis. True it

is that the directions given to the jury on common

purpose were prolix leading to the use of language

that was not altogether consistent. Moreover, the
trial judge referred to complex illustrations which

were by no means germane to the simple case which

he ultimately put to the jury in the passages which
we have quoted.	However, on reading the summing

up, we have no doubt that the jury would have
understood the summing up in the sense explained by

Gleeson C.J. Understood in that sense, the directions given to the jury might be regarded as

having been unduly favourable to the appellant. We

would add that no objection was taken at the trial

relevant to the first ground of appeal.

Accordingly, we reject it.

The second ground of appeal is that the trial

judge failed specifically to instruct the jury on

the onus and standard of proof when dealing with

particular issues of fact. The short answer to

this argument is that the jury were instructed

early in the summing up in acceptable terms as to

Smith(2) 61 8/6/93

the onus and standard of proof and there is nothing

to suggest that the jury would have approached particular issues of fact without bearing that

instruction in mind. We would add that counsel for

the appellant did not seek redirections on this

matter at the trial.

The third ground of appeal challenges a

direction by the trial judge that the jury should

disregard as irrelevant a statement by
Detective Mathes that, with Sergeant Minkley and

Detective Paull, he was involved in the Blackburn

investigation. Evidence relating to the Blackburn

investigation was not admitted in evidence. On

that footing, there is nothing in this ground of

appeal. We understand that counsel for the

appellant-acknowledges that this must be so.

The appeal is dismissed. The Court will now

adjourn until 10.15 am tomorrow.

AT 2.40 PM THE MATTER WAS ADJOURNED SINE DIE

Smith(2) 62 8/6/93