Smith v The Queen

[1992] HCATrans 285

..

' "I

~ ' ,;-~;;\"

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 in

Mohan'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 applicant
had 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 page

115 at line G through to page 116 where Chan Wing-

Siu and Davies are also referred to at lines R to

T, and then at page 117.

In our submission, at the heart of this

present application lies an extension to what was

said in Johns v Reg which was peculiarly a case of

common purpose as it is traditionally understood;

that is to say, where the parties to an enterprise,

an unlawful enterprise, contemplate as part of

their design the commission of a further crime.

That is to say that really what one is dealing with

when one comes to the intentional element, as far

as Johns is concerned, is an intention to deal with

the contingency that might arise.	One could call
it conditional intent.	One could call it

contingent intent. It is, in our submission, at

all times, really a case of actual intent.

DAWSON J: Embracing the possibility.

MR JAMES:  It embraces the possibility because the

possibility is the possibility of the occurrence of

the events. The intent always exists. To

translate that circumstance to a circumstance where

there the parties are embarked on an unlawful

adventure and to insist on the individual

contemplation of a possibility is, in our

submission, to replace the intentional element of

murder - and I confine the submissions I put in

this case to murder - with a personal subjective

contemplation of a possibility, simply because the

accused is party to an unlawful enterprise.

TOOHEY J: When you say "an unlawful enterprise", that

rather underplays it a bit, does it not, Mr James?

MR JAMES:  On the question of principle, Your Honour, no.

On the question of the facts of this case, it may

be that I am stating it simply in terms of

principle at this point. Of course, there was a

case here to put the alternative basis and we do

not contend otherwise.

DAWSON J:	I am sorry, I do not follow that.
MR JAMES:	The alternative basis - the case is put two ways

and perhaps the best illustration I can give - - -

DAWSON J:	I thought both were put, in effect?
MR JAMES:	Both were put.

Smith 3 1/10/92

GAUDRON J: But with the proviso that the jury must be

satisfied that your client was himself engaged in

an assault with a knife upon the victim.

MR JAMES:  Yes, and if one left it at that, that he was

engaged himself -

GAUDRON J:  The jury must have found that he himself was

engaged in an assault with a knife, on the way it

was left.

MR JAMES:  But that is not the end of it for the purposes of

murder.

GAUDRON J: Very close to, would it not?

MR JAMES:  With respect, Your Honour, the Crown case was

that he did not cause the death. The question was

how to attribute to him the responsibility for the

actus of another, and to do that the way in which

the summing up was put and the way in which the

Court of Appeal reasoned, it was simply enough if

the jury had the view that he assaulting the

deceased with a knife while someone else was

assaulting the deceased with a knife - - -

GAUDRON J:	Was not aiding and abetting.
MR JAMES:	Aiding and abetting was never put, never put at

all. What was put was that he assaulting the

deceased with a knife while someone else was

assaulting the deceased with a knife had a

sufficient mens rea for murder if he foresaw the

possibility that the other man might intentionally

kill.

DAWSON J: That is dividing it up a bit. Correct me if I am

wrong, Mr James, I have always thought that common

purpose does nothing more than, in circumstances

where it is appropriate - and I am not suggesting

it was necessarily appropriate in this case -

provide the evidence of aiding and abetting.

MR JAMES:  Your Honour, if that were the position - and that

is the position that has been taken by numerous of

the judges in the New South Wales Supreme Court, in

particular the Chief Judge at Common Law, certain extent, Justice Matthews - if that were the

position, then what is being put is really the

traditional Johns/Mohan type of case; that is to

say, what I have referred to as conditional intent

or contingent intent, that is, that the common

purpose supplies the ambit of the design, as was

said in Johns, within that design was contemplated

not by the individual but by the plan itself, the

exigency - - -

Smith 4 1/10/92

DAWSON J: Actually, it was additionally employed - correct

me again if I am wrong - to overcome a rather rigid

view as to what constituted being present at the

scene.

MR JAMES: Yes, Your Honour. Indeed, we have extracted, for

that purpose, particularly as it was Your Honour

who had referred to it - the provision that

Your Honour had referred to in Giorgianni and in

Leslie Maurice King concerning the mode of charging

in an accessory case in New South Wales. That is,

of course, provided for by section 378 of the New

South Wales Crimes Act. The form heretofore

accustomed was that set out in M'Naghten's forms,

at that time approved by the judges of the supreme

court, though no longer in force.

DAWSON J:  I assume the indictment was not in that form in

this case, one can understand why, of course, in

this particular case.

MR JAMES:  Yes, and, indeed, the Court of Criminal Appeal,

at pages 117 to 118 of the appeal book said this,

at line R:

Bearing in mind the directions that

Mcinerney J gave to the jury as to the facts

they had to find before they could convict the

appellant (which may have been unduly

favourable to the appellant, but which were

based on the way in which the Crown put its

case) the facts of the present case are

similar to those in Mohan v The Queen (1967) 2

AC 187 except that in that case it was not known which of the two assailants delivered

the fatal blow to the deceased. Lord Pearson,

at 194 said:

"It is, however, clear from the evidence for

the defence, as well as from the evidence for

the prosecution, that at the material time

both the appellants were armed with cutlasses,
both were attacking Mootoo, and both struck

him. It is impossible on the facts of this

case to contend that the fatal blow was

outside the scope of the common intention.

The two appellants were attacking the same man

at the same time with similar weapons and with

the common intention that he should suffer

grievous bodily harm. Each of the appellants
was present, and aiding and abetting the other

of them in the wounding of Mootoo".

What was important in the present case

was, not that Mcinerney J should deliver to

the jury a lecture on the law relating to

criminal complicity, but that he should

Smith 1/10/92

sufficiently instruct them as to the matters

it was necessary for the Crown to establish in

order to prove the appellant guilty of murder
even though it was acknowledged that it was F

who struck the fatal blow. His Honour's
summing up did this.

It did, we concede, on that issue but that was not the only issue that was put. The other issue that

was put was that the appellant was liable to be

found guilty of murder if he did not have a common

intention, if he did not have an intention to kill

himself, if he did not have an intention himself to

inflict grievous bodily harm but, at bottom, that

it was sufficient that in a fight where two men are

contending against two men, it was sufficient if

the accused himself foresaw the possibility that

his co-accused would kill in circumstances

amounting to murder.

TOOHEY J:  How did the Court of Criminal Appeal deal with

that particular argument, Mr James?

MR JAMES:  Your Honours, the Court of Criminal Appeal, with

respect, dealt very shortly with that argument and

understated the submission, picking up on some

terms that were used in the discussion, commencing

at page 115 line G:

It was submitted on behalf of the appellant

that the "doctrine" of "common purpose" is

only to be applied in cases where there are

two relevant crimes, one "foundational" and

the other "incidental", and that a case such

as the present should be analysed and

explained to the jury in terms of principal

and accessorial liability, avoiding notions of

common purpose and joint enterprise. The vice

in explaining the case in terms of common

purpose is, so it is argued, that references

to which is in the contemplation of an accused

as a possibility impose too low a standard in

terms of subjective intention. These

submissions appear to me to be contrary to

what was decided in Johns v the Queen and R v

Mills.

Your Honours, in Johns and Mills, the Court does

not talk about what is in the individual personal

contemplation of one individual involved in the

joint enterprise. It talks about the scope of the

common intention involved in parties embarking on a

common unlawful design.

DAWSON J:  I am putting this to you as a proposition: it

boils down to this, that in both instances, whether

you put it in terms of common purpose or in terms

Smith 6 1/10/92

of ordinary aiding and abetting, the one, the aider

and abettor or the participant in the common

purpose, embraces the intention of the other in committing the crime in question, in this case,

murder; embraces an intent to kill on that other

person's part or intent to do grievous bodily harm.

So what is the difference?

MR JAMES:	The difference, Your Honour, is that in a joint enterprise case, which is sometimes referred to as
a common purpose case, the parties are intending
that, if necessary, they will kill or commit
murder.
DAWSON J:	The difference is that in one instance it is in

contemplation, in the other it is an actuality.

MR JAMES:  But the test that is put in this case does not

measure up to the Giorgianni test of accessoryship.

If it is not a common purpose/joint enterprise

case, that is to say the Mohan style of case where

they share that common intention, and it is sought

that it be put on an alternative basis, that is

present aiding and abetting and encouraging by his

conduct with knowledge of what is occurring and

intending by his conduct to encourage, then that is

a different thing and was never here put and is a

very different thing to merely present, himself

fighting and contemplating the possibility that his

co-accused might murder.

Your Honour, the distinction is very neatly

drawn in a case which was referred to on our list

of authorities and recently in the United Kingdom

Hui Chi-ming,
which is (1991) 3 All ER, a decision of what our courts had said in Johns and dealing
of the Judicial Committee, at page 897. There,
what Your Honour says is taken up in the speech of
Lord Lowry, at page 908 where, dealing with

with the earlier English decision of Wakely, at

point g on that page:

It has been pointed out by Professor Smith, in

his commentary on R v Wakely that in the

judgments in R v Slack and also in R v Wakely

itself, to both of which I was a party,

insufficient attention was paid by the court

to the distinction between on the one hand

tacit agreement by B that A should use

violence, and on the other hand a realisation

by B that A, the principal party, may use

violence despite B's refusal to authorise or

agree to its use.	Indeed in R v Wakely we
went so far as to say:	"The suggestion that a

more foresight of the real or definite

possibility of violence being used is

Smith 7 1/10/92

sufficient to constitute the mental element of

murder is prima facie, academically speaking

at least, not sufficient." On

reconsideration, that passage is not in

accordance with the principles set out by

Sir Robin Cooke -

in Chan Wing-Siu -

which we were endeavouring to follow and was

wrong, or at least misleading. If B realises

(without agreeing to such conduct being used)

that A may kill or intentionally inflict

serious injury, but nevertheless continues to

participate with A in the venture, that will

amount to a sufficient mental element for B to

be guilty of murder if A, with the requisite

intent, kills in the course of the venture.

As Professor Smith points out, B has in those

circumstances lent himself to the enterprise
and by so doing he has given assistance and

encouragement to A in carrying out an

enterprise which B realises may involve

murder. That being the case it seems to us

that the judge was correct when he directed

the jury in the terms of those passages of the

summing up which we have already quoted. It

may be that a simple direction on the basis of

R v Anderson and Morris would, in the

circumstances of this case, have been enough - Your Honours, it is that very dichotomy, if I could

put it that way, that does not reflect what our

Court had to say in Johns. It is our submission

that to put it in those terms would have led to the

jury being able to deal with the matter in those
terms and there was a real factual question in this

case, a factual question which not only involved

the accused participating in an assault in which

knives were used but, together, a very real

question as to whether the accused himself was

using a knife.

That factual question also founds the second

basis on which special leave is sought; that is to

say the evidence of Dr Hollinger and how the

missing evidence of Detectives Minkley and Paul

related to Dr Hollinger's acceptance that the

wounds were not inconsistent with only one knife

being used, although she would put it at

90 per cent or 80 per cent probable there were two

knives were used.

It was put in the case that Detectives Minkley and Paul had persuaded her to alter her views to

accept the two knife hypothesis as probable and had

persuaded the witness Millane to give evidence that

Smith 1/10/92

he had seen Smith himself engaged in the stabbing,

contrary to the evidence of all the other

witnesses.

TOOHEY J: Just putting that second argument to one side for

a moment, Mr James, the sort of distinctions that are canvassed in the passage you just read us can

readily become important when the venture is

something other than the killing - it is a robbery,

a bank robbery, a question of what might have been

foreseen by one of the participants - but, in

reality here, you have a situation in which it is

said - and subject to your second argument there

was evidence to support the proposition - that two

men were engaged in an assault, each armed with a

knife, each stabbing the victim, the present
applicant not being responsible for the fatal blow.

How important do those sort of distinctions

continue to be in this situation?

MR JAMES:  Your Honour, there are two answers to that: the

first answer is that we do not accept that on the

summing up, read properly, it was necessary for the

jury's verdict to find that Smith humself stabbed -

indeed, it really comes to the probability of Smith

himself having a knife. In fact, Millane does not

directly give evidence of any stabbing.	He gives
evidence of a punching motion.	The second answer

to that is that if the case had only been put on

that proper basis, that Mohan basis, and leave

aside the Johns design to commit another crime,
then the issue would have been squarely posed for

the jury; but it was not.

What was put to the jury was the much wider

principle which we submit is clearly in error and

on which the jury might well have found guilt.	If
so, foresight of possible consequences has
substituted for intention in New South Wales.	I

should point out that in the Code "common purpose"

is dealt with somewhat differently and we have

abstracted, for the purposes of seeing the Code
analysis, a portion of Carter and, in particular, section 8 of the Code which requires, firstly, as far as intention is concerned, an ambit to the:

common intention to prosecute an unlawful

purpose in conjunction with one another -

and secondly, that the consequence be "a probable

consequence". That adds in the Code States a

further element to what was put to the jury in this

case. Further the sort of illustration of the

distinction has recently been considered in South

Africa in a case that has been popularly referred

to as the Upington 25. That was a common purpose

case in which it was necessary to decide for the

Smith 9 1/10/92

purposes of an exercise whether members of a crowd
gathered to throw stones at a policeman's house

thereby became liable for the actions of a smaller

group who participated in a joint enterprise to
kill him when he came out.

The South African courts have made it plain that contemplation of the possibility does not

substitute for intent nor can one factually
necessarily link up the actions of various persons

engaged in such an event as a riot or a fight in order to say that they must have shared a common

mind contemplating the result. Might I hand those

also to Your Honours. I have handed the headnote

which is in English and the headnote only since

that is the only portion of the case which is in

English. The relevant passage can be found at

page 315G to just below Hand there is a similar

decision, considering Anderson and Morris in New

Zealand in Tomkins - - -

TOOHEY J: 

I am not clear. There seem to be two arguments

running: one is that there was a misapplication of
existing law on the part of the trial judge; the

other seems to be that the law is not as it has
hitherto been understood to be.

MR JAMES: 

No, the first is there is a misapplication of

existing law; and the second is if the view which

has finally prevailed in the United Kingdom, in

Hui Chi-ming is to be considered the law, then it

is at odds with Giorgianni and Johns in this Court.

DAWSON J: That is the interesting point and I would like to

test it, I am not sure that that is correct. What

is said here in this case does not appear to be

correct. I appreciate that I have not grasped the

full factual basis but it is said that:

the Court could not find any appellant guilty

unless it was proved beyond reasonable doubt

that that appellant had the intention to kill.

Neither in an aiding and abetting situation or a

common purpose or a joint enterprise situation does

the accused who did not do the actual killing have
to have himself an intention to kill. Taking the

aiding and abetting, he has to appreciate that the

person whom he is accused of aiding and abetting

may commit acts such as stabbing, in this case,

with an intention to kill and, having that

appreciation, to encourage him in doing so.

MR JAMES:  Yes, Your Honour.

DAWSON J: What is the essential difference between that and

joining in a common enterprise, a joint enterprise,

Smith 10 1/10/92

realizing that the other person may, as events turn

out, stab someone with an intention to kill and

encouraging that by joining in the common

enterprise? It does not have to be intention to

kill, of course, just intention to inflict serious

harm.

MR JAMES:  Or cause grievous bodily harm. Your Honour,

firstly, there is a number of questions in what

Your Honour has put to me. Dealing with the first

of those, in the South African case, there was a
recognition that in the joint enterprise type
cases, Mohan and those cases in which the parties

are committing the very crime that is their design,

their agreement which contemplates, which accepts

or authorizes the actions done by each of them in
furtherance of the common object - and Tripodi

brings the same rule in from the point of view of

common purpose evidence cases - that authorization

is an intent; it is an intent to meet the

contingency when it arises.

DAWSON J:  I am not sure about that. That authorization is

the encouragement of the commission of the crime by

the other person with the necessary intent.

MR JAMES: That is not how it was put in Johns, with

respect, Your Honour.

DAWSON J:	Maybe not.
MR JAMES:	And indeed, Johns envisages an entirely

different - - -

DAWSON J:  Can you point it out in Johns to us where that is

not said, or is said?

MR JAMES:  If I can take Your Honour to Johns, the relevant

passages. Johns, (1980) 143 CLR 108, and what it

dealt with was an agreement to rob in which the

participants knew that the co-accused carried a pistol and was:

quick-tempered and capable of being quite

violent -

and, further, had said that the victim was -

"always armed and wouldn't stand any mucking

around if it came to a showdown".

Johns deposited the principal and when the
principal and another man found that the victim was

carrying no jewellery there was a struggle and the principal shot dead the victim. Johns was outside

in the car.

Smith 11 1/10/92

The issue in Johns, which was put as an

accessory case involving the common purpose

doctrine in establishing accessoryship, as

Your Honour has put to me, can be seen at page 109

at point 5 where the relevant direction is set out

from point 5 to point 8.

In the judgments of the High Court, the

Justices were concerned with an argument that is

put on page 112, commencing at the bottom of that
page in the judgment of the Chief Justice, as to

whether in such circumstances the proper test was

probability or possibility. That is the only

aspect of the matter with which the Chief Justice

dealt on that point.

But in the judgment of Mr Justice Stephen,

which commences at 115, at the top of page 117, in

dealing with the lack of distinction nowadays

between accessory before the fact and principal in

the second degree, commences this passage:

Of course, parties to a crime may not share

precisely the same mens rea and, as well, to

one of them special considerations may apply,

as where diminished responsibility is raised -

and Russell and Glanville Williams are cited.

But, those cases apart, so long as what

is in question is within the scope of the

common purpose neither reason nor fairness

suggests that any such distinction as the

applicant urges should be drawn.

That is the distinction between probability and

possibility.

Each of the parties has complicity in the

crime: each has knowingly assisted, in

different ways, in its commission.

Then His Honour, reviewing the question of the

distinction between probability and possibility in

relation to accessories continues with an

examination of the history to see whether or not

there is any real remaining distinction. But at

page 118, in the fourth line:

The criminal responsibility here under

discussion is not that relating to the crime

which is the prime object of a criminal

venture. As to that crime, one who, while not

actually physically present and participating

in its commission, nevertheless knows what is

contemplated, and both approves of it and in

Smith 12 1/10/92

some way encourages it thereby becomes an

accessory before the fact.

Stopping there, Your Honours, that is a fairly good definition of "intent".

His knowledge, coupled with his actions,

involves him in complicity in that crime. 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.

If they agree, expressly or tacitly, that that

eventuality will be dealt with in that way, then

they intend to deal with it that way.

TOOHEY J: But again, that discussion is in the context of a

crime which is committed which, to use

Justice Stephen's language, is not the prime object

of the criminal venture.

MR JAMES: Precisely, Your Honour, and indeed - - -

TOOHEY J: 

How does that advance the applicant's case?

MR JAMES: 

Because the applicant is seeking to challenge not the Mohan joint enterprise, the situation that

Your Honour has adverted to where they are engaged

in seeking to achieve that crime, but the extension

of the doctrine whether the crime contemplated is

not the crime that they had originally intended to

commit to a circumstance as an alternative basis

for liability where, really, what one is talking
about is a situation in which either you have

people present aiding and abetting or that they are both in concert to do the very thing that was done.

DAWSON J: 

But does it matter? I mean, one can say quite

legitimately that if a simple aiding and abetting
direction will suffice, it is best to restrict

oneself to that. But that is just a matter of

simplification. But if a person, who actually does
in the event aid and abet by actively encouraging

at the scene of the crime the commission of the
crime, was previously, had that not occurred, an
accessory before the fact, it does not alter the

Smith 13 1/10/92

situation to point out that he would have been

liable on that basis as well as upon the basis that

as events turned out he was an aider and abettor

who was present. It does not matter, does it?

MR JAMES:  To be an aider and abettor, according to this

Court in Giorgianni, (1985) 156 CLR 473, it is

necessary that one know all the essential facts of
the crime and intentionally aid, abet, counsel or

procure the principal offender.

DAWSON J: That is what I was putting to you. I do not see

that these passage answer what I was putting to

you. In both cases, whether you are simply an

accessory before the fact or an aider and abettor,

you have to know that a crime might be committed.

You do not have to know it is a crime but you have

to know the circumstances which would constitute a

crime and, in both cases, you have to actively

encourage the commission of that crime. There is

no difference.

MR JAMES:  But Your Honour, with respect, the way in which

the directions were put in this case and the way in

which the Court of Criminal Appeal treated this

case and the way in which Johns treats the

exercise -

DAWSON J:  You were going to point out to us in Johns where

the Court puts the lie to what I just said, but you

have not reached that yet.

MR JAMES:  I am not going to accuse Your Honour of lying.

DAWSON J: Well, in a manner of speaking.

MR JAMES:	It was not to direct the jury that knowledge and an intention to assist was an element of the
offence but that a mere contemplation of the
possibility that the co-accused would commit
murder - - -

DAWSON J: But that involves knowledge, you see, the very

sort of knowledge that is involved in the

Giorgianni sense?

MR JAMES:  Your Honour, knowledge of a possibility extends

considerably - - -

DAWSON J: Forget about probabilities and possibilities. It

is knowledge of the particular crime which is, as

some people call it, the incidental crime or, even

for that matter, the foundational crime.

MR JAMES: That raises, very squarely, Your Honour, the

question of whether apprehension of a possibility -

and I am using that to avoid - I suppose it is not

Smith 14 1/10/92

much better to say "apprehension" than

"contemplation".

DAWSON J:  But we can put possibility and probability to one

side here; that is not the argument. In both

instances you have to appreciate that a particular

crime may be committed and encourage it. You may

encourage it by joining in the joint enterprise,

you may encourage it by being present and doing the

various things that constitute encouragement.

MR JAMES: But you also have to, in one, intend to encourage

it. The fact that you know that something is

happening does not necessarily mean that by your

actions you intend to encourage it. The classic

case is this sort of case, a fight, where you are

not able immediately to withdraw. Indeed, that

very distinction is made in Johns, that one of the

distinctions between accessory before the fact and, as it used to be called, accessory at the fact, or

principal in the second degree, is that the

accessory before the fact has time to withdraw.	In
the fight situation one does not have the opportunity to withdraw in that sense.

DAWSON J:  Why not, you can retreat?

TOOHEY J: That is a bit unreal, is it not? We have got two

mean armed with knives.

MR JAMES:  Two men striking, Your Honour, in a fight which

has, at that stage, progressed to a certain extent.

They may have the opportunity to withdraw in the

given geographical circumstances, they may not, but
what I am trying to put is one does not, in the
principal in the second degree circumstance, have

the option for necessarily saying, "He's got a

knife, I will no longer encourage him by

participating in this fight any further.". As a

practical possibility, to direct a jury on that

basis would render the circumstances grossly

artificial.

Really, that is what our submission here comes down to, just as was put by Mr Justice Hunt in

Stokes and Difford, and has subsequently been

followed in New South Wales in Cluff. If it is a

Mohan
type case, if it is, as the Court of Criminal present and both of them seeking to kill, then that

is what should be put.

DAWSON J:  I agree with that but does it necessarily do any

great harm, other than complicating the matter, to

put it on the other basis as well?

Smith 15 1/10/92

MR JAMES:  Yes, Your Honour, because what the jury hears is

language which suggests that if parties have

embarked on a joint enterprise they are responsible

for everything that is done in the carrying out of

that enterprise, provided that the individual on

trial in his own mind at the relevant time - which

is the time of the striking of the blow -

contemplated the possibility that that blow will be

struck with the requisite intention for the

principal crime.

DAWSON J: That is not wrong.

TOOHEY J:  Mr James, in the end, to get the argument off the

ground, do you not have to point in the judge's

direction to the jury to a passage or passages in

which the judge offered the jury an alternative

basis for conviction which he was not entitled to

offer them and the possibility of miscarriage of

justice could not be excluded?

MR JAMES:	Yes, Your Honour.
TOOHEY J:	Is there one passage to which you can point or

does it have to be distilled from a number?

MR JAMES:  No, Your Honour, there are a number where it is

the same passage again and again. But if I might

conclude with the passages to which I had taken

Justice Dawson. At page 125, in the joint judgment

of Justices Mason, Murphy and Wilson - - -

DAWSON J: At 135, is it?

MR JAMES:  125, Your Honour.

TOOHEY J: Something seems to have happened.

MR JAMES:  Yes, it has. Your Honours will see that there is

a misprint on the right-hand - at approximately

point 4, half-way through the second paragraph:	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
applies to an accessory before the fact.

The argument does not reveal any reason

why as a matter of legal principle or legal

conception there should be such a difference.

True it is that the common law distinguishes

Smith 16 1/10/92

for the purpose of classification between the
accessory before the fact and the principal in

the second degree, but this classification is

quite unrelated to the doctrine of common

purpose. 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 principles. 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

critical question.

MR JAMES:  Your Honours, that is a distinction which is

taken up at page 130 at the bottom of the page in
the citation from the Chief Justice

Sir Lawrence Street in the case on appeal and that

passage concludes at the top of page 131:

Such an act is one which falls within the

parties' own purpose and design precisely

because it is within their contemplation and

is foreseen as a possible incident of the

execution of their planned enterprise.

Now, Your Honours, when one turns to Hui Chi-ming

there is a direct discussion of Johns at page 907

at point c:

The appellant's basic proposition was then

repeated:

'The correct principle is expressed in

Johns v R ((1980) 143 CLR 108 at 130-131)

where the High Court of Australia approved the

statement by Chief Justice Street in the

Supreme Court of New South Wales.

And the written submissions concluded, in that

case, with the proposition:

'If reliance is to be placed simply on the

foresight of the secondary party, then the

learned judge ought in any event to direct the

Smith 17 1/10/92

jury to consider whether the risk as
recognised by the accused was sufficient to

make him a party to the crime committed by the

principal.

And the Johns examination was carried on again at

page 909 just below point d:

Counsel's submission, however, was based

on the passage already cited from Johns v R.

The issue in that case was whether an

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

constituting the offence charged if such act

was contemplated as a possible incident of the

common purpose, or whether it has to be

established as a likely or probable

consequence of the way in which the crime was

to be committed. The court unanimously

accepted the former alternative. But, in the

course of their judgment, Justices Mason,

Murphy and Wilson stated the law in the manner

already quoted, requiring the act to have been within the contemplation of both the principal

and the accessory as an act which might be

done in the the course of carrying out the

primary criminal intention. It is on the

basis of that passage that the appellant

contends that the secondary party cannot be

liable unless the relevant act was within the

contemplation of both the principal and the

secondary party.

Johns v Risa leading case on the law

relating to accessories. It was specifically

relied on by Sir Robin Cooke in Chan's case,

in which the same central issue fell to be

considered. It is, however, plain that, in

the passage upon which the appellant relies,

attention was being concentrated on those

cases in which the question is whether the act

of the principal falls within the common

purpose of the parties. This appears from the
immediately succeeding sentence -

which is the sentence to which I had taken

Your Honours to earlier.

In such a case the contemplation of both

parties will be relevant. But, as appears

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

(and as was recognised by Chief Justice Lord

Lane in R v Hyde departing in this respect

from some of the observations contained in the

earlier judgments in the Slack and Wakely

cases), the secondary party may be liable

simply by reason of his participating in the

Smith 18 1/10/92

joint enterprise with foresight that the

principal may commit the relevant act as part

of the joint enterprise. We therefore find

Sir Robin Cooke focusing upon the

contemplation of the secondary party alone -

DAWSON J: This case was one where the principle in the

first degree did not contemplate the crime, was it,

but the alleged accessory did?

MR JAMES:  In the sense, Your Honour, that what had happened

was there was an intention to intimidate or beat up

a person thought to be interfering with a romantic

relationship; a man who bore a resemblance to the

relevant person was beaten and died from his

injuries. The boyfriend and three others of the

group were indicted for murder; the boyfriend was

acquitted of murder, convicted of manslaughter and

two years later - leave aside the other persons

involved - the appellant was arrested and was

initially charged with manslaughter, but later

jointly indicted for murder and convicted.

DAWSON J: Yes, it is an unusual situation, is it not?

MR JAMES: Unfortunately, in New South Wales, it is not so;

there was another case. But, Your Honour, it

provided, as this case does, a vehicle to examine

the different ambit of joint enterprise, properly

so called, common purpose, in the sense of the

commission of another crime which was not the

primary object and accessoryship.

DAWSON J: Yes, I see what you say; you say, well, if this

other man had been the one who was, in this case,

said to have the common purpose had actually been

present at the scene, the most he could have aided
and abetted was the crime that was actually

committed by the principal in the first degree.

MR JAMES:

The principal offender did not go to trial - - -

DAWSON J: But it was said that he had a common purpose

which made him guilty of the more serious crime.

MR JAMES: Well, to put it another way, Your Honour, you

cannot have a common purpose unless it is in

common; that is to say, section 18 of the New South

Wales Crimes Act provides that you have got to have

certain intentional states for murder; that does

not include common purpose. Common purpose is

unknown to the New South Wales Crimes Act;

accessoryship certainly is known. If what we are

talking about is accessoryship, then the directions

would be appropriate or should appropriately be

given for accessoryship. If what we are talking

about is an intention, then we should be directing

Smith 19 1/10/92

in those terms, but what we have done is to produce

still a further calculus which, in effect, is an

extension of Johns, which is taking over the field,

which is not charged in the indictment and yet put as an alternative basis and we have equated intent

to individual or to personal subjective

contemplation of a possibility, and there is little

room left in that for ..... manslaughter as an

alternative.

One can see from the very directions of the

trial judge in this case how complex and confusing

the directions have to be to put the manslaughter

as an alternative, yet almost all the cases on the

issue, and the older English cases to which

reference is made in the citations in Hui Chi-ming

and in Chan Wing-Siu, are manslaughter cases.

Really, we put it at bottom as we put it in our

outline of argument, that if it was anything, it

was a classic case of principal and accessory and

should have been put to the jury as such. This is

at page 15 paragraph 2. If the case had been put

as an accessory, in our submission the true issues

would have been before the jury; as it was put,

certainly the Mohan issue was put, but so was the

other confusing issue and, in our submission, that

has led to a circumstance in which the way in which

the case was posed and the way in which the

directions were given, was to put before the jury a

mode of legal reasoning which, in the circumstances

of this case, if they adopted, would at the least

have been unsafe or, at the worst, an improper

legal basis for conviction. ·

That is what I propose to say, Your Honours, on that point, subject to the matter that

Your Honour Mr Justice Toohey raised with me.
Your Honour wanted me to go to those directions of

the summing up.

TOOHEY J: Well, not necessarily to read them, but just to

identify for us perhaps the passage of which you

most complain.

MR JAMES: Well, Your Honours will see that the various

passages are all set out in paragraph 1 of our

summary of argument - - -

DAWSON J: Which is at page?

MR JAMES:  At page 40 of the appeal book, page 21 of the

summing up. All the references in our summary of

argument are to the paginated summing up:

the accused was acting in concert with Flack
and that in the circumstances this death was a

consequence of their acting in concert and

Smith 20 1/10/92

death could possibly be contemplated as one of

the consequences. That means if two persons

are acting in concert and one person strikes

the blew, 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.

GAUDRON J: But even that puts it more favourably to the

accused than should have been put, does it not?

MR JAMES: Well, Your Honour, I am not going to seek to fine

tooth comb this, because when you look at all of

these passages it is put a whole lot of different

ways.

GAUDRON J: Well, true it is that it is put a whole lot of

different ways, but I would have thought your

problem is, was there a miscarriage of justice when

the matter was put in a way that was more than

favourable to the accused.

MR JAMES:	No, Your Honour, with respect, because on a number of occasions it was not put more than
favourable to the accused. At 23 to 24 it is put,
if the acts can be held fairly to fall within the
ambit of common purpose, as though that is almost
the end of it -

GAUDRON J: Sorry, 23 to 24?

MR JAMES:  I am sorry, at page 42 of the appeal book, the

last few lines:

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.

GAUDRON J:  But are you not really taking it out of the

particular factual setting where the evidence was,

and the Crown case was, and the direction was, that

they had to find that both men attacked the victim

with knives and, in that context, the complaints

you make really do not have the same force as they

might have in a different factual context.

MR JAMES: Well, I would expect that in that context our

complaint is even more pointed because the issue at

the case was whether Smith was engaged in stabbing,
himself; that is, that precise factual issue; did
they both attack the decreased with knives. Were

they acting in concert or were they acting

Smith 21 1/10/92

independently in what they did and was Smith

stabbing at all. Now, if the case had been left on the basis approved by the Court of Criminal Appeal,

in the passage to which I have taken Your Honours

earlier, put as a Mohan, put as a joint enterprise,

that square issue would have clearly been there, but to add to it all these directions concerning

contemplation as possible consequences, is to

distract from the intentional element that would

have been necessary to find against the accused on

the first branch.

DAWSON J: Well, now, that really is the point, is it not,

that either you succeed in getting special leave on

that point or not, do you not?	I think we have
grasped it, Mr James.

MR JAMES:	Your Honour, may I, without prolonging the matter, simply turn to the summary at page 50 to
page 51 of the directions at line S:

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 -

that is the Mohan direction -

or that he contemplated the possible

intentional infliction of grievous bodily harm

or the possible intention of killing the

deceased.

DAWSON J: Thank you, Mr James.

MR JAMES:  Now, the second matter to which the application

goes, Your Honour, I can deal with very shortly.
That is, the trial judge gave directions which, in
our submission, really set the directions

concerning common purpose in a highlight,

concerning this problem of who it was that was

lying, one witness Millane or another witness

Gately. The direction did not put the third

possibility, being what is referred to in ..... as

the grey area, what is referred to in Liberato, and
there are many cases on that question; it does not

of itself raise a question of general principle, we

accept that. However, it does directly pose the

evidentiary context in which the common purpose

directions had significance, and our submissions on

that are set out at pages 16 and 17 of the outline.

The complication was, as I had put to the

court, Dr Hollinger gave evidence of the

possibility that the wounds had been occasioned by

only one knife, but that she was 80 to 90 per cent

of the view that it was two knives and the defence

Smith 22 1/10/92

sought to argue that she had been prevailed on by

Detective Minkley in particular, or Detectives

Minkley and/or Paull, who were present at the post

mortem, to either form such a strong view or to

alter her previous view. And, for various reasons,

Detectives Minkley and Paull were not called. In

one case, one officer was suffering from a

depressive illness; the other had sustained a bad

car accident.

It was sought to put into evidence certain

material to suggest that Detectives Minkley and

Paull were not the upright police officers that the

description of police officer would normally

convey, and indeed were persons who were, by

reputation and character, such as to be capable of

doing the things that were put to Dr Hollinger.

These were rejected and indeed, rejected in a

context which, in effect, precluded the entire line

of cross-examination. The trial judge did put, in

the summing up, directions concerning that. Very

shortly, those directions really were to the effect

that, "They are not here; they were only concerned

with the record of interview; what does it matter?"

And, in our submission, that again went to this

very central question of what was - - -

GAUDRON J:  It went to the credit - you wanted to call

evidence as to the credit of Dr Hollinger.

MR JAMES:  Not as to the credit of Dr Hollinger

GAUDRON J: Well, you cross-examined her.

MR JAMES:  - - - evidence to show that Dr Hollinger was

biased in a material respect.

GAUDRON J: Well, is that not credit?

MR JAMES:  It is certainly credit, but it goes beyond the

prohibition which prohibits you from putting

forward evidence and both of those - - -

DAWSON J: But you put this merely as weight to your first

argument, do you not?

MR JAMES:  As highlighting the first argument to show it is

a real issue, yes, Your Honour.

DAWSON J: Thank you, Mr James. Mr Blanch.

MR BLANCH: May it please the Court. It is our submission

that the directions given were perfectly

appropriate. If I might point out to the Court

that the Court of Criminal Appeal noted as to this

on page 116 of the appeal book, when dealing with

these directions that were given, that no

Smith 23 1/10/92

application for a direction had been made at the

trial and, as the Chief Justice .noted, we do not

have the benefit of knowing what the trial counsel

might have submitted was a more appropriate way of

putting the issue to the jury. We might come back

to the page that - - -

DAWSON J: Well, then was leave given on this point to raise

this - - -?

MR BLANCH: In the Court of Criminal Appea~? Yes, I think

it was, was it not?

MR JAMES:  Your Honours, the Court of Criminal Appeal was of

the view that there was substance in the point for the purposes of leave, but full argument was heard

upon it and I think indeed what they had said was

that if they were of the view that it was correct,

leave would be given, but they were against the

point, but full argument was entertained on the

question.

MR BLANCH:  If I might go back to the direction that my

friend read out at page SO of the appeal book, and
this is the direction that His Honour gave to the

jury, and the direction at the bottom, as

Justice Gaudron pointed out about an earlier

direction that was far more favourable to the

accused than might have been expected, the judges

told the jury, at the bottom of page SO, that this

accused must have:

contemplated the possible intentional

infliction of grievous bodily harm or the

possible intention of killing the deceased.

Which has taken the direction far beyond the normal

common purpose direction which has been approved by this Court in Johns, and in fact gets it very close

to the direction that my friend is seeking to

suggest is an appropriate direction for a person

who is an aider and abetter or an accessory at the

fact. It is our submission that there is no

difference in the legal situation between an

accessory before the fact and an accessory at the

fact. Those matters have been dealt with in Johns.

There is no purpose to be served in talking about

foundation or incidental crimes, and that was a

matter that this Court looked at very briefly in

the matter of Mills when special leave was sought
to be brought here and in that case this Court said

that, in fact, to talk about that to juries was

more likely to be confusing than anything else.

It is our submission, in brief, Your Honour,

that the law is perfectly clearly covered in Johns;

that the directions given by the trial judge in

Smith 24 1/10/92

this case are entirely in accordance with that and,
in fact, if anything, were very favourable to the

accused. This is a factual situation where the

evidence was capable of establishing the fact that

what occurred in this case was two men, together,

attacking the victim with a knife, and the matters

that are raised by my friend - there is a certain

degree of unreality to discuss those nuances of

distinction between accessories at and before the

fact in the circumstances of a case such as this.

But, primarily, the directions that are given

by the trial judge from page 40 onward are

directions that are very much in accord with the

decisions of this Court.

DAWSON J:  It certainly would have been better had the trial

judge just approached the matter on the basis of an

aider and abetter, would it not?

MR BLANCH:	Your Honour, that can probably be said in every case rather than talking about that, but by the
same token it is not clear to me, Your Honour, that
that is not really what His Honour was saying; he
did not use those words, but if in summing up to the jury he was actually talking about that in the
terms of these two men being there together and
joining in a joint attack on the victim.

The fact that he did not use the words

"present, aiding and abetting" or that "he was an

accessory at the fact", I would submit he is not to

be criticized for that, although I accept what Your

Honour says, that it may be that in many cases it

is better for cases to be left to the juries on

that basis rather than talking about common purpose in a general sense. But at the end of the day what

is important is that the jury understand what their

function is and what the law is and, in our

submission, in this case, there is no question but

that the jury were left in that situation very

clearly.

TOOHEY J: But if the trial judge had not said what he did

say on page 50, and had confined himself to what he did say at page 40, which speaks of the possibility of the consequence rather than the possibility of

intentional infliction, would you still seek to

support the direction, or is the argument that,

whatever confusion had been introduced earlier on
was remedied by what was said at page 50 and there

was no further application for redirection?

MR BLANCH:  Yes, Your Honour.

DAWSON J: Thank you, Mr Blanch. Mr James.

Smith 25 1/10/92

MR JAMES:  Just shortly in reply. Your Honours, as to the

argument that what was said earlier on was cured by

the later direction, if Your Honours have regard to

what appears at appeal book page 43, all of which

is devoted to this question; page 44 S to W; the

illustrations and in particular the illustration at

page 45 M to O, that is:

There is no suggestion any violence is going

to 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 -

"likely" we submit is clearly wrong -

as distinct from the initial robbery. 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 -

"and" cumulatively -

if there was no agreement that the knife

should be used if necessary, then they would

not be legally responsible.

And His Honour goes on to say that he was present

and participated, in:

acting in concert for common purpose in

assaulting the deceased -

at the bottom of page 45; at page 46, just below C

to Mand also at page 50. Now, Your Honours, with

confronted with all of that material would not,	respect, it would be our submission that a jury	from one statement that may be more correct, distil
the precise and clear test equivalent to
accessoryship.

Your Honours, we should say that the way we

would put it in relation to accessoryship is, if

the accessory foresees the principal will murder,

if certain contingencies arise, then he is guilty;

but if the accessory foresees that the principal

might formulate an intent to murder, then he is

not, or not of murder; he would clearly be guilty

of manslaughter.

Smith 26 1/10/92

DAWSON J: Thank you, Mr James. The Court will give its

decision in this matter after the luncheon

adjournment.

AT 10.55 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.15 PM:

DAWSON J: There will be a grant of special leave in this

matter.

AT 2.16 PM THE MATTER WAS ADJOURNED SINE DIE

Smith 27 1/10/92