The State of Western Australia v Dick
[2006] WASC 81
THE STATE OF WESTERN AUSTRALIA -v- DICK [2006] WASC 81
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 81 | |
| Case No: | INS:107/2005 | 1-3 MAY 2006 | |
| Coram: | JOHNSON J | 3/05/06 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed Circumstance of aggravation withdrawn from the jury | ||
| A | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA MARIA MONA DICK |
Catchwords: | In company Aggravated circumstance |
Legislation: | Criminal Code (WA) |
Case References: | Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 R v Brougham (1986) 43 SASR 187 R v Button; R v Griffen (2002) 129 A Crim R 342 R v Cooper, Jones & Harris (1978) 17 SASR 472 R v Crozier, unreported; CCA SCt of NSW; Library No 60258 of 1995; 8 March 1996 R v Galey [1985] 1 NZLR 230 R v Joyce [1968] NZLR 1070 R v Leoni [1999] NSWCCA 14 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecutor
AND
MARIA MONA DICK
Accused
Catchwords:
In company Aggravated circumstance
Legislation:
Criminal Code (WA)
Result:
Application allowed
Circumstance of aggravation withdrawn from the jury
(Page 2)
Category: A
Representation:
Counsel:
Prosecutor : Mr E J Myers
Accused : Mr G R Smith
Solicitors:
Prosecutor : State Director of Public Prosecutions
Accused : Greg Smith
Case(s) referred to in judgment(s):
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
R v Brougham (1986) 43 SASR 187
R v Button; R v Griffen (2002) 129 A Crim R 342
R v Cooper, Jones & Harris (1978) 17 SASR 472
R v Crozier, unreported; CCA SCt of NSW; Library No 60258 of 1995; 8 March 1996
R v Galey [1985] 1 NZLR 230
R v Joyce [1968] NZLR 1070
R v Leoni [1999] NSWCCA 14
Case(s) also cited:
Nil
(Page 3)
1 JOHNSON J: At the conclusion of the State's case, counsel for the accused, Maria Mona Dick, made a submission, with respect to each count in the indictment, that there was no case to answer as to the circumstance of aggravation that the accused was in company with another.
2 The test to be applied on an application of this type is whether the evidence adduced by the prosecution "taken at its highest" would be capable of establishing the charge beyond reasonable doubt: Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 (at 489) (per Malcolm CJ with whom Kennedy and Ipp JJ agreed).
3 The test to be applied in determining whether an offence is committed "in company with another" when the co-offender is present in the vicinity but does not participate in the unlawful act committed by the principal offender, is not so well settled.
4 In R v Button; R v Griffen (2002) 129 A Crim R 342, the New South Wales Court of Criminal Appeal was called on to identify, and apply in the particular circumstances of that case, the test for physical presence sufficient for an alleged crime to be committed in company. As part of that exercise, Kirby J, with whom Heydon and Greg James JJ agreed, considered the state of the authorities in New Zealand, South Australia and New South Wales with respect to relevantly identical statutory provisions. In identifying the test to be applied in this case, it is useful to consider those authorities and the propositions that may be distilled from them.
5 In R v Joyce [1968] NZLR 1070 the accused was in the general vicinity, but not present at the time of the hold-up of a service station owner at gunpoint. The Court of Appeal concluded (at 1075):
"… in our opinion, the Crown must establish that at least two persons were physically present at the time the robbery was committed or the assault occurred. We reach this conclusion for the reasons that we are of the opinion that the legislature … intended to provide for cases where the victim was confronted by two or more persons acting in concert."
6 On that basis, in order to establish that an offence was committed in company, the presence or proximity of the second offender must be such as to be seen by the victim. The rationale underlying the test identified in Joyce appears to be the impact on the victim of being confronted with more than one offender. The adverse consequences to a victim in such a
(Page 4)
- situation are readily identifiable and would justify the view that an offence committed in those circumstances is more serious and deserving of a higher penalty.
7 However, because of the particular facts in Joyce, the Court of Appeal was not called on to address the situation where two offenders are physically present and capable of being seen by the victim but, for reasons related to the commission of the offence or to the victim, the one who is present but not physically participating in the offence is not seen or heard by the victim. It would, in my view, be an unsatisfactory situation if the law considered that, in the case of two offences committed in identical circumstances, one was less serious than the other because the victim was unable, for whatever reason, to see or hear one of the offenders. Minor, technical distinctions such as that have the tendency to attract criticism and bring the law into disrepute.
8 The issue was again considered by the New Zealand Court of Appeal in R v Galey [1985] 1 NZLR 230. The circumstances of that case were that the two accused men concocted a plan to rob another man. They followed him at a distance, walking separately. One of the accused attacked the man. The other accused was not far behind but was not seen by the victim nor was the victim otherwise conscious of his presence. The circumstance of aggravation in the relevant legislation was described as "being together with another person or persons". I consider there to be no difference in meaning between that expression and the one found in s 3391(a)(i) of the Criminal Code which is "in company with another person or persons". Indeed the former expression is commonly referred to by Judges when explaining to juries the meaning of the latter expression. In Galey the Court held (at 233 - 4) that the relevant expression "should be construed as intended to apply only in situations where the presence together is proved of two or more persons having the common intention to use their combined force, either in any event or as circumstances might require, directly in the perpetration of the crime". The Court considered (at 232) that it was open to the jury to treat the appellant as being physically present at the robbery, not just as a bystander giving encouragement to the principal offender, but for the purpose of giving physical assistance if required. The case of Joyce was referred to (at 234) as strengthening the Court's view that the relevant expression was intended to apply only to cases where the forces of two or more persons, acting in concert, are deployed against the victim in the actual commission of the offence. The Court also observed (at 234) that the judgment in Joyce demonstrates how a lack of physical proximity may negative the statutory requirement of being together.
(Page 5)
9 It would seem that the position in New Zealand is that there must be a common intention, not only to commit the offence and play their respective roles in the commission of that offence, but also for both offenders to directly participate in the act constituting the offence if circumstances require it. For that to occur there must be a sufficient degree of proximity to the offence to allow physical participation in it if necessary. If I am correct in that interpretation, then the test to be applied would not require the co-offender to be sufficiently close for the victim to see him or to be aware of his presence, simply close enough to assist.
10 In South Australia, the position was initially somewhat different. In R v Cooper, Jones & Harris (1978) 17 SASR 472 at (477 – 478) Walters J concluded that actual physical participation in the commission of the offence was essential. He further observed (at 477 - 478):
"… the participation by one party in the common unlawful purpose … merely by giving assistance or encouragement, such as is afforded by keeping watch to prevent the discovery of the other [committing the offence] or by being near enough to give physical assistance if it be required, would not be enough to support a charge under s 158(b) of the Act … "
11 The Full Court of South Australia reached a different conclusion. In R v Brougham (1986) 43 SASR 187, the Full Court considered the offence of robbery in company. In that case one offender struck the victim and demanded money. The other offender assisted in various ways but did not physically strike the victim. King CJ (with whom the other members of the Court agreed) concluded (at 191):
"A person commits a robbery, or an assault with intent, in company where that person participates in the robbery or assault together with another or others in the sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons are deployed against the victim. It is not necessary that more than one participant actually strike or rob the victim; it is sufficient that the accused and one or more other participants be physically present for the common purpose of robbing, or assaulting with intent, and of physically participating if required." (Emphasis added).
12 With respect to the decision in Cooper, King CJ made the following comments (at 191):
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- "His Honour was stressing in that passage that participating in the common purpose at a distance or by mere encouragement or keeping a lookout was not sufficient. I do not think that his Honour was suggesting that presence at the scene with the intention of physically participating if required was insufficient."
13 The first sentence of King CJ's comments reinforces the view that, at least in South Australia, the participation of the second offender by acting as lookout or offering encouragement, without more, does not support a finding that the offence is committed in company. However, in my view, that conclusion must be considered in the context of the test identified by the Court. In Brougham, an essential part of the finding that the two offenders were in company, was that it was part of the common purpose that the second offender would physically participate in the offence, if required. In that case it is difficult to see why the second offender needs to be physically present unless it is to create the situation where the victim is confronted by more than one offender. However, the Court in Brougham made it clear that, in those circumstances, the second offender need not participate or intend to participate. Providing that the second offender who is acting as lookout is participating in the common purpose which includes assisting the principal offender if required, and provided that he is in sufficient proximity to do so, it seems to me that there is no logical basis upon which it should not be concluded that the offence is being committed in company. On that basis, it would not be in every case that an offence committed by one offender with a second offender acting as lookout would not be found to have been committed in company. It would depend on the nature of the common purpose of the two offenders.
14 With respect to the second sentence of Bray CJ's comments, I believe his Honour was being unduly kind in view of the fact that Walter J expressly stated that "actual physical participation in the assault is essential" (Emphasis added).
15 Based on the statement of Bray CJ cited above, an offence can be said to have been committed in company (excluding the situation where both offenders physically participate in the offence) where more than one offender physically confronts the victim. In that event, in my view it matters not whether that offender is present to assist if necessary, simply to watch (provided he is acting in concert with the other offender), to keep a look out or to perform some other function, because the effect of direct physical presence is such that the victim is confronted with the combined force and strength of more than one offender.
(Page 7)
16 However, the requirement for physical presence, even where there is a common intention for the second offender to physically participate if required, is in my view too limiting an interpretation. It would not include the situation where a second offender is not in a position to be seen by the victim but, pursuant to the common purpose, is present in the vicinity of the offence so as to physically participate, if necessary. The presence of the second offender in that situation serves to bolster the resolve of the principal offender, thereby increasing the likelihood of the commission of the offence.
17 In Button, the Court of Criminal Appeal considered two authorities from New South Wales. The first was R v Crozier, unreported; CCA SCt of NSW; Library No 60258 of 1995; 8 March 1996 dealing with an offence of aggravated sexual assault in company. In that case, the victim was offered a lift in a vehicle in which there were two men. One of the men moved into the back seat and sexually penetrated the victim without her consent. The second man remained in the front of the vehicle. On appeal, Grove J (with whom Cole JA and Ireland J agreed) held that the evidence could not sustain the circumstance of aggravation that the offence was committed in company. In reaching the decision, Grove J concluded (at 10) that mere presence of a person is not sufficient. Having referred to the passage in King CJ's judgment in Brougham, to which I have referred, he said (at 11):
"The evidence does not show that Fitzgerald was other than entirely passive during the action of the appellant when he returned from his stated intention of urinating and got into the back of the car with the complainant. There was no evidence that Fitzgerald was encouraging the appellant by word or action … "
18 If the circumstances were that there was no evidence of a common purpose to assist if required or no evidence from which that inference could be drawn, the decision is consistent with the statement of principle in Brougham. However, if a common purpose could be established then the decision in Crozier confines the concept of being in company to requiring participation, which is inconsistent with the conclusion of the Supreme Court of South Australia in Brougham. I would not be prepared to follow the decision in Crozier because I consider the concept should apply where a victim is confronted by the combined force or strength of two or more offenders, irrespective of whether the second offender physically participates or is prepared to physically participate in the act constituting the offence, providing he is part of the common purpose. On
(Page 8)
- that basis, an innocent bystander would not be put at risk of involvement in an offence.
19 In R vLeoni [1999] NSWCCA 14, the New South Wales Court of Appeal again considered the offence of robbery in company. The case involved a home invasion where the evidence was that one of the three persons involved in the offence did not participate in the demand for money or the threats of violence. However, the victim was aware that this third person had entered her house and at one point she caught a glimpse of him.
20 Having considered the statement in Brougham to which I have referred, Adams J (with whom Abadee and Barr JJ agreed) stated (at [17]):
"It seems to be that the essence of this offence is not that the accused intended that the victim should be overborne by the presence of more than one robber or that he should intend to come to the assistance of the other if necessary. In my opinion, the only relevant intent is that the offender placed himself in the position in which he knew or expected that the victim would know of his presence and ability to assist in the robbery if called on to do so."
21 One interpretation of this statement is that the only relevant issue in determining whether an offence is committed in company is the impact on the victim, which would only apply if the victim was aware of the presence of the second offender. That interpretation would require either actual physical presence of the second offender, or for the second offender to act in a manner which would cause the victim to be aware of his or her presence, otherwise there would be no impact on the victim. However, that interpretation would require no intention to assist if necessary and would not require actual physical presence, providing the second offender was sufficiently proximate to make the victim aware that more than one offender was involved in the offence.
22 However, at a later point in the judgment in Leoni, Adams J elaborated on his earlier comment on what is required to establish that an offence is committed in company. He said (at [20]):
"In my opinion, presence at the scene with the intention of physically participating, if required, is sufficient to satisfy the section, even if that presence is unknown to the victim. However, if the offender makes his presence known to the
(Page 9)
- victim so that, to use the words of the Chief Justice in Brougham 'the victim is confronted by the combined force or strength of two, or more persons' that will be sufficient to satisfy the section even if the offender did not, as it happened, intend to physically participate."
23 It would seem then that the conclusion reached by the Court of Criminal Appeal in Leoni is that, where two or more offenders agree to commit an offence, that offence will be committed in company in the following circumstances:
(1) Where at least two offenders physically participate;
(2) Where at least two offenders confront the victim, irrespective of whether the second offender intends to physically participate in the offence;
(3) Where the second offender is present at the scene with the intention of physically participating if required but is not or cannot be seen by the victim.
24 It can be seen that the decision in Leoni still does not include the situation where a second offender cannot be seen by the victim and does not intend to physically participate in the acts constituting the offence but is performing his part in the offence (such as acting as lookout or as driver). In many cases such conduct may operate to embolden or reassure the main offender and thus encourage the commission of the offence. However, it may well be difficult to prove beyond a reasonable doubt that the conduct of the second offender did indeed have that effect. Although emboldening the main offender to commit an offence he may otherwise not have committed is highly undesirable, it is also necessary to consider whether those circumstances make the commission of the offence itself more serious. I will return to that issue after considering the position in the New South Wales.
25 In Button, having reviewed the authorities, the Court of Criminal Appeal of New South Wales (per Kirby J, with whom Greg James J and Heydon JA agreed) identified a number of propositions with respect to the circumstances in which an offence may be committed in company (at 273). For convenience I have numbered those propositions:
"(1) The statutory definition … requires that the offender be 'in the company of another person or persons'.
(Page 10)
- (2) … the accused and such person, or persons, must share a common purpose (either to rob, or as here, sexually assault).
(3) … the cases appear to assume that each participant is physically present.
(4) … participation in the common purpose without being physically present (for example, as a look out or as an accessory before the fact) is not enough.
(5) … the perspective of the victim (being confronted by the combined force or strength of two or more persons) is relevant, although not determinative. If two or more persons are present, and share the same purpose, they will be 'in company', even if the victim was unaware of the other person."
26 Kirby CJ went on to consider the meaning of physical presence and concluded that it was an elastic concept best explained by example: (at 273). However, his Honour observed that there had to be limits on the meaning and the point must be reached where the separation between the offender and one or more accomplices is such that the offence can no longer be characterised as being in the presence of another. In determining whether that point has been reached, the test to be applied was described by Kirby J as being "the coercive effect of the group": (at 274). He said (at 284):
"There must be such proximity as would enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission."
27 That statement of principle would cover all but one of the circumstances to which I have referred in these reasons.
28 In agreeing with the reasons given by Heydon JA and Kirby J, Greg James J took the opportunity to add some further observations to what was said by Kirby J concerning the construction of the aggravating circumstance. I consider that those observations serve to further define the conclusion of Kirby J. Greg James J expressed the view that the degree of proximity to others which could amount to physical presence, as required by the case law, such as to satisfy that element in the requirement
(Page 11)
- of being "in the company of another person or persons", is not fixed in absolute terms.
29 The following example was given:
"A lookout around the corner or at a location physically detached or remote from the scene of the principal's activities would not lend encouragement or reassurance to that principal by reason of being at the scene and able to influence the events occurring."
30 A further example encapsulates the purposive element of the test (at 265):
"The analogy one could propose of a robbery performed by one person physically taking property from the person of a victim who is directly threatened by an accomplice sniper armed with a rifle, a long distance away, is such that it would be difficult in logic and morality to conceive of any reason why the offence should not be that of robbery in company. The purpose is shared, the requirement of presence is satisfied by the influence of the sniper on the criminal conduct constituting the offence. There is a sufficient effective proximity. I do not consider that the law should so little reflect the considerations of logic and morality when it comes to construing either an element of such an offence as this or such an aggravating circumstance as artificially to limit the ambit of words which after all are common English expressions."
31 His Honour went on to conclude that the concept of presence is to be related to the influence or potential influence of the other person or person with whom an accused is alleged to be in company having regard to where the person is located. He also added that the purpose and nature of the criminal acts may cause the relevant physical distance to be more or less, having regard to the ability to influence. In that way, the concept does not merely relate to physical distance or geographical connection, but rather to the connection in purpose: (at 265).
32 If the ability to influence the commission of the offence is the significant factor, it is difficult to see why the example of the second offender acting as a "lookout around the corner" was used to indicate a situation where the offence would not be committed in company. In many circumstances a lookout "around a corner" would be able to render assistance if called upon and thus would have the necessary ability to
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- influence the commission of the offence if called upon, if it was his intention to do so. It would seem that the example of a lookout around the corner was intended to be confined by the following expression "at a location physically detached or remote from the scene". In that way, the example would be valid as being in contradistinction to the situation where the second offender was able to influence the criminal conduct constituting the offence.
33 However, in view of Greg James J's agreement with the reasons of Kirby J, it would seem that the concept of emboldening or reassuring the offender in committing the crime must be, at least in Greg James J's view, by way of being prepared and able to physically intervene. In that way, even if the main offender was emboldened or reassured by the presence nearby but out of sight of a co-offender acting as lookout or as a "get-away" driver, who had no intention of intervening in the actual physical commission of the offence, the offence would not be committed in company.
34 The test determined by the New South Wales Court of Criminal Appeal is consistent, in part, with that determined by the Full Court of South Australia in Brougham (at 191). However, in Brougham the Full Court makes it clear that in order to embolden or reassure the offender in committing the crime, it must be part of the common purpose that the second offender is physically present and prepared to assist if necessary.
35 Although I am not bound by the decision of the New South Wales Court of Criminal Appeal, or by the decision of the Full Court of South Australia, both provide persuasive authority. As I have indicated, the only circumstance involving a common intention by two offenders to commit an offence which would not meet the aggravating circumstance of being "in company" as determined in Button, is where the second offender is out of sight but nearby, thereby strengthening the resolve of the offender or providing the support without which the offender would not commit the offence. Examples of that situation could apply to a lookout or a "get-away driver".
36 Although it is in the community's interest to take all reasonable steps to deter people from committing offences, it does not follow that the appropriate way to do so is to describe the offence as being committed "in company", thereby identifying it as more serious than an offence committed by a lone offender and ascribing to it a higher penalty. In my view, the circumstances to which I have referred are already adequately dealt with by the provisions of s 7 which provide that a person in the
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- circumstances of the second offender in the example I have given is deemed to have committed the offence itself. That, in itself, I would suggest is sufficient deterrent to those who act as lookouts and drivers but who do not intend participating in the acts constituting the offence.
37 For these reasons I consider the scope of the expression "in company" to be confined to offences committed by two or more offenders where, pursuant to the common purpose, the second offender is either present at the scene confronting the victim, irrespective of whether he intends to participate in the actual commission of the offence, or in sufficient proximity to embolden and reassure the main offender by being prepared to assist and participate, if necessary.
38 In the circumstances of this case, where the vehicle and the accused was not in a position to be seen by the victims when the offences were being committed and was not seen by them, the only remaining issues are whether there was indeed a common purpose and the presence of a driver to take the principal offender away from the scene can be said to "embolden or reassure the offender in committing the crime". However, as I have indicated, I consider that the second part of the test requires not only that the second offender is in a position to embolden or reassure the offender in committing the crime, it must be part of the common purpose that this aim is achieved by the second offender being, to the knowledge of the principal offender, in sufficient proximity to physically assist if necessary and being prepared to do so.
39 Whether the facts of this case meet the test is, of course, a matter for the jury to determine either from direct evidence, inferences drawn from facts determined or a combination of both. However, if it is the case that the state of the evidence is such that no reasonable jury, properly instructed, could find that the relevant criteria were met, then it is my obligation to withdraw the circumstance of aggravation from the jury.
40 On behalf of the State it is said that it is necessary to look at the length to which the accused was prepared to go to assist her son in evading the police. I believe it is open on the evidence, if that evidence is indeed accepted by the jury, for the jury to conclude that there was a common purpose that, on identifying an appropriate victim, the son would rob that person, that he would use the machete to facilitate that offence and that the accused would drive him from the scene. If the test included emboldening and reassuring the main offender by being sufficiently proximate and ready and willing to drive him from the scene, then the matter should properly be left to the jury.
(Page 14)
41 However, as I have indicated, the test requires the jury to be satisfied that the common purpose involved the accused being prepared to physically assist in the offence itself if that should be necessary. In my view, there is no evidence that such was the accused's intention, nor any evidence from which an inference might be drawn that the accused's intention was to physically intervene if circumstances required it. Nor do I consider it could be said that an adult male carrying a machete would be emboldened or reassured in the commission of offences of this type by the knowledge that his mother might come to his aid.
42 For these reasons, with respect to each of the offences on the indictment I propose to remove from the consideration of the jury the circumstance of aggravation that the accused was in company.
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