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IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No Sl53 of 1991 B e t w e e n -
ARTHUR STANLEY SMITH
Applicant
and
THE QUEEN
Respondent
Application for special leave
to appeal
DAWSON J TOOHEY J GAUDRON J
| Smith | 1 | 1/10/92 |
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON THURSDAY, 1 OCTOBER 1992, AT 9.46 AM
Copyright in the High Court of Australia
| MR G.R. JAMES, OC: | May it please the Court, I appear for |
the applicant 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 W.G. ROSER.
(instructed by S.E. O'Connor, Solicitor for Public
Prosecutions)
DAWSON J: Yes, Mr James.
| MR JAMES: | Your Honours have the benefit of a written |
summary of the applicant's argument which is to be
found at page 14 to page 17 of the appeal book.
The summary of argument for the respondent appears
at pages 19 to 20 of the appeal book. The short summary of the facts appears at page 10, paragraph
5 of the affidavit in support of the application.
There is a necessity to seek an extension of
time and that is referred to in the affidavit of
the applicant's solicitor, referred to in the
appeal book.
| DAWSON J: | If you would just proceed with the application |
proper.
| MR JAMES: | May it please the Court. | Your Honours, the |
essence of the matter in this case involves not the
question of a joint enterprise as was discussed inMohan's case in which, clearly enough, there is a necessity to prove the intent of the participants in engaging in a violent attack leading to a
murder.
The case against this present applicant was
put on that basis and also on another basis, and it is the second basis which attracts the application;
that is, that it was put in essence and in summary,
and I will take Your Honours to the various
extracts which set out the way in which that case was put, that it was enough if the applicant was engaged in an unlawful common purpose and he himself foresaw as a possibility, contemplated however one puts the formula, as a possibility that his co-accused would commit the murder, and that in
the context of a fight which arose somewhat
spontaneously after a night in which the applicanthad been drinking. The cases that are referred to in the
respondent's answering summary and that were
referred to by the Court of Criminal Appeal as to
the appropriateness of putting the case on such a
basis can be seen set out at page 19 paragraph 2 of
| Smith | 2 | 1/10/92 |
the respondent's summary, and in the Court of
Criminal Appeal at page 115. The reasoning of the
Court of Criminal Appeal appears commencing at page115 at line G through to page 116 where Chan Wing-
Siu and Davies are…
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- AGLC
- Smith v The Queen [1992] HCATrans 285
- Case
- [1992] HCATrans 285
- Decision Date
CaseChat Overview and Summary
The central legal issue before the High Court was whether the trial judge had erred in directing the jury that it was sufficient for the applicant to be found guilty of murder if he was engaged in an unlawful common purpose and foresaw as a possibility that his co-accused would commit the murder. The applicant argued that this direction amounted to an extension of established principles regarding joint enterprise and common purpose, particularly as articulated in cases like *Johns v Reg*.
The applicant contended that the direction effectively replaced the necessary intent for murder with a subjective contemplation of a possibility, simply by virtue of being a party to an unlawful enterprise. This, it was argued, was a departure from the traditional understanding of common purpose where parties contemplate the commission of a further crime as part of their design, or possess a conditional or contingent intent. The applicant submitted that the direction improperly lowered the threshold for proving the intent element of murder.
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Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Ratio Decidendi
Legal Principle Established
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