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This paper was written by Peter Zahra SC
On appeal these two issues were raised for consideration as furnishing special reasons for the grant of leave.:
J and W agreed that J would drive W to Kings Cross where W was to change cars and thereafter, in the company of another person, to rob M who W had told J carried large amounts of money and jewellery with him. W had said that he was going 'to hold him up, tie him up and take the money and stuff'. To J's knowledge W always carried a pistol. After the robbery W was to return to J's car, give him the stolen property and make his getaway. J knew W was quick tempered and capable of violence. On the way W told J he would not stand for any nonsense and that M was 'always armed and would not stand any mucking around if it came to a showdown. During the robbery a struggle occurred during which M was shot dead.
[judgment at page 111]
(per Barwick C.J.)'The learned trial judge instructed the jury on the footing that the applicant could be found guilty of the murder of Morriss as an accessory before the fact if 'the parties (i.e. the applicant, Watson and Dodge) must have had in mind the contingency that for the purposes of carrying' their joint enterprise 'out or attempting to carry it out the firearm'(i.e., that carried by Watson) 'might be discharged and kill somebody'. He told them that if a party to the enterprise 'must have been aware of such a possibility or contingency, then he is responsible for the death' whether or not he was present at the time of the killing. His Honour also said that 'the use of the pistol must of necessity be by the party carrying it and a jury would be entitled to hold that all must be taken to have had in mind such a possibility'(i.e., of its lethal use) 'when they assented to and encouraged this joint enterprise of robbery with arms'.
The applicant's counsel submitted that these directions were fundamentally erroneous in their use of the words 'contingency' and 'possibility' He further submitted that the killing must have been probable consequence of carrying out the agreed plan before the applicant could be convicted on the basis of a common design or the execution of the common purpose. Reliance was placed in support of this submission on three cases of which only two need to be discussed. The first of these was Brennan v The King and the second, Reg v Guay.
As a separate submission, it was said that in any case an accessory before the fact could not be convicted merely on the basis of his participation in a joint enterprise or common design. In my opinion, these submissions are clearly unacceptable. In the first place, there is no reason in principle why the participant in common design or joint enterprise cannot be held as responsible as other participants simply because he remains an accessory before the fact and does not actively participate in the execution of the enterprise to which he has agreed or encouraged. Nor was any authority produced, whether in text book or reported decision, to support the proposition. In my opinion, the participant in a joint enterprise or common design is liable for all that occurs in the course of its execution which is of a kind which fairly falls within the ambit of the enterprise or design, though he is not present at its execution and is only sought to be made liable as an accessory before the fact. The responsibility for acts done within the ambit of the enterprise or design cannot be confined to those who actively participate in or are present at the performance of those acts.
[at page 113]
'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 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.
[at page 125]
(per Mason, Murphy and Wilson JJ.) '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 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. Yet this is precisely what the applicant's submission does say. A telling answer to it is the example given by Street CJ in his judgment in this case, where he speaks of the three men who set out to carry out an armed robbery on a bank, two intending to enter the bank with loaded firearms whilst the third remains outside to drive the getaway car. In the course of the robbery a bank officer is shot and killed. The driver of the getaway car would be held liable as a principal in the second degree for the killing. If, however, the plan had involved the driver merely dropping the two armed men outside the bank and then driving off, the car driver would be an accessory before the fact. There would, as his Honour says, be no logical or legal justification for distinguishing between the complicity and liability of the driver whether he be a principal in the second degree or an accessory before the fact.
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.
[at page 130]
In our opinion these decisions support the conclusion reached by Street C.J., namely, 'that 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'. 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'.
A and B gatecrashed a party where B became involved in a fight and received injuries. A,B and C discussed the fight and later they went variously armed, C with a rifle and B and C with iron bars back to the party. There C fired several shots killing two persons and wounding 8 others. The evidence revealed A and B knew C had the rifle and that it would be used at the very least in order to exert some form of tactical superiority over the physical superiority of those at the party and that each of them contemplated the possibility of injury to someone by the rifle being used.
[judgment page 417]
(per Street C.J.) 'Ground 6 propounds a series of errors in connection with the trial judge's directions on the significance in point of law of the joint nature of the venture upon which the three men embarked on this night. Submissions were made on behalf of all appellants analysing what is known as the doctrine of common purpose and seeking to establish that his Honour had either erred or confused the jury by what he said in this regard. It is, perhaps, as well at the outset to attempt to dispel some of the uncertainties that can at times arise when considering the relevance and scope of that doctrine.
In Johns (1980) 143 CLR 108 at 128) the joint judgment of Mason, Murphy and Wilson JJ quoted an article from Stephen's Digest as correctly reflecting the common law:
Article 38. Common Purpose.
When several persons take part in the execution of a common criminal purpose, each is a principal in the second degree, in respect of every crime committed by any one of them in the execution of that purpose.
If any of the offenders commits a crime foreign to the common criminal purpose, the others are neither principals in the second degree, nor accessories unless they actually instigate or assist in its commission'.
It is plain from Article 38 that the words 'common purpose' are entirely appropriate to be used in the context of two or more persons embarking on a specific criminal act: it is every way correct to describe the committing of that act as their common purpose. What is technically known to lawyers as the doctrine of common purpose operates to extend the criminal liability of each participant in the common purpose to include.
'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'. Such an act is one which falls within the party's 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' (Johns at 130-131.)
The scope of the common criminal purpose encompassed by this 'doctrine' does not represent a new development in the criminal law. It has always been entirely permissible and meaningful for a trial judge, when summing up in the case of a specific joint criminal venture to use the phrase 'common purpose' in his summing up as descriptive of that venture. The fact that, to a lawyer, there is a 'doctrine' bearing this name that extends criminal liability to possible incidentals, need not inhibit a trial judge from using that phrase to describe a specific criminal venture. In a case where the actual offence committed was within the description of an act contemplated as a possible incident of the originally planned particular venture, it seems to me both permissible and meaningful for a trial judge, if he so chooses, to use the phrase 'common purpose' as describing in the first place the particular venture and then to explain to the jury that the common purpose will extend to an act done in the course of carrying it out and which was contemplated as a possible incident of the originally planned venture. Expressed alternatively, there is no necessity for trial judges to confine the use of the words 'common purpose' to situations in which criminal liability for the actual offence charged only arises by virtue of the 'doctrine'.
It is, of course, plain that, where two or more persons are charged with an offence committed by one as a principal in the first degree, careful attention will have to be directed to what it was that they agreed to do. If it was the very crime that was in fact committed then all will be guilty of it, even if there be doubt as to which of those present was the principal in the first degree and which in the second degree. If the crime committed was not that specifically agreed upon it will be important to identify their planned common criminal purpose. It may be that, although two or more persons may each be planning to do something criminal and to do it in company with each other, there will be no common criminal purpose making each liable for the crime of another.
[at page 420]
In the present case it was open to the jury to conclude that the three co-accused had embarked on the particular adventure, or common purpose, of killing or inflicting grievous bodily harm on some of those at the party. If that conclusion were reached then the 'doctrine' would not be called into operation. Equally, although perhaps less probably, the jury might have regarded the three men as having set out with the intention of merely engaging in what might be described as a 'punch-up' with some of those at the party. I say 'merely' to contrast with a murderous purpose; a common intention to commit a common assault would adequately meet the description of a common criminal purpose. In that event, the three men having gone knowingly equipped with iron bars and a rifle, the circumstance that the rifle was discharged killing or wounding some of those present would plainly require consideration of the extension of criminal liability authorised by the 'doctrine'.
It has been argued in the challenge to conviction on behalf of Adrian Mills, both in the written submissions filed on his behalf and orally at the appeal, that his Honour erred by leaving it open to the jury to conclude that the firing of the rifle was incidental to some other, unspecified criminal purpose. Underlying that challenge is the proposition that the doctrine of criminal purpose can only be called into play when the Crown has proved a specific intent to commit an identified 'foundational crime'. Although this can, in some cases, be a valid proposition, it is by no means of general application. As I have sought to indicate the doctrine of common purpose does not open up a separate and independent field of criminal liability; rather it widens the boundary of the field encompassed within the original common criminal purpose. There are many possibilities of extension of a planned criminal venture some of which may and some of which may not import liability as a principal in the second degree by a joint venturer. The degree of precision that a trial judge must observe when directing a jury in this regard will likewise vary according to the particular circumstances of the case in hand. Where there is room for doubt or dispute upon whether the original purpose was a common criminal purpose, then careful and precise instructions would be necessary as was pointed out in McLean (1981) 5 A Crim R 36.
[at page 422]
It is plain enough that the issue proffered by Mills in his defence was an absence on his part of any such intent as would have committed him to liability for the offences charged against him. In what he said in his statement, he had agreed to go along with the trip to the party for the purpose 'to try and find the guys who beat Derek up'. He agreed to the iron bars being taken but not the rifle. He sought to place the rifle expressly beyond any contemplation on his part. In his record of interview he gave an answer which involved him in acquiescence with the rifle and the bullets being taken by Peter Sinfield on their joint venture.
It was open to the jury to conclude that Mills had agreed to participate in some rather imprecisely formulated, but nevertheless, criminally violent, act of retribution against those who had earlier been involved in the fight with Derek Sinfield. That would plainly enough have been common criminal purpose without it being necessary to ask the jury to identify and find an agreement on a particular 'foundational' crime. In that context it appears to me to be perfectly justifiable for the trial judge to have left aside a precise formulation of the particular character of the criminal violence that Mills intended to join in perpetrating and to put to the jury the wider scope of criminal liability that flows by virtue of the 'doctrine' of common purpose. It would, in my view, involve an unnecessarily analytical approach to require the judge to examine with the jury the various alternative crimes of criminal violence (common assault, assault occasioning actual bodily harm) before opening it up to the jury to consider what Mills may have had in contemplation as a possible incident of the joint venture involving a common criminal purpose upon which they had embarked. If, of course, it could be said that the venture upon which they jointly embarked, that is to say their common purpose, did not involve a criminal activity then there is nothing which could be extended by the 'doctrine' of common purpose. (Cf the example I have suggested above of the visit to a coffee shop.) The facts of the present case, however, literally shriek of a common purpose of criminal violence. It was properly a matter for the jury to consider the extent of the field of that common purpose including, as it did, criminal liability for an act.
'done in the course of carrying out primary criminal intention - an act contemplated as a possible incident of the originally planned particular venture' (Johns (1980) 143 CLR 108 at 130-131.)
The law in this connection does not involve the identification of two separate fields of criminal liability, one comprising the originally planned venture and the other comprising an act caught by the 'doctrine', the law contemplates a single field with its boundaries capable of being extended, where the particular facts and circumstances so require, to include contemplated possible incidents.
(see Howard's Criminal Law (5th Edition Brent Fisse pp330 and following)
This case arose from an incident in which five people were killed and another seriously injured when a truck, heavily laden with coal and equipped with defective brakes, ran out of control into several passing cars. D, the owner of the truck, was charged with complicity in offences of culpable driving occasioning death or grievous bodily harm, which offences had allegedly been committed by the driver of the truck. the trial judge directed the jury that a negligent failure to be aware of the unsafe condition of the truck was sufficient for the mental element of complicity in culpable driving occasioning death or GBH and D was convicted.
The convictions were overturned by the High Court. Wilson, Deane and Dawson JJ. (at p. 505-507) held that liability for complicity requires knowledge of all the essential facts constituting the principal offence; recklessness, wilful blindness, or negligence is insufficient.
Gibbs CJ and Mason J (at p 482 and 495) took the same position except that they were prepared to equate wilful blindness with knowledge. All but one member of the court referred to the need for intentional assistance or encouragement.
(see pp482 , 500) in the words of Wilson, Deane and Dawson JJ., [D] must have intentionally participated in the principal offences and so must have had knowledge of the essential matters which went to make up the offences of culpable driving on the occasion in question'.
[judgment page 6]
(per Gleeson C.J.) 'It was submitted on behalf of the appellant that the 'doctrine' of 'common purpose' was 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 what 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 (1979) 143 CLR 108 and R v Mills (1985) 17 A Crim R 411. A good deal of the argument advanced on behalf of the appellant seems to have its inspiration in the dissenting judgment of Roden J in the latter case. However, it is to be noted that the High Court refused special leave to appeal. Moreover, Roden J did not, as I read his Honour's judgment, deny the appropriateness of talking in terms of common purpose in relation to cases other than those involving foundational and incidental crimes; rather, his Honour thought that in the particular case it resulted in inappropriate confusion.
Since no application for redirection was made at the trial, we do not have the benefit of knowing what trial counsel might have submitted was a more appropriate way of putting the issues to the jury. Senior counsel for the appellant, on this appeal, when invited to frame what he submitted was the appropriate direction, produced one which, in my view, was not materially different from, and certainly was not more favourable to the appellant than, that given by the trial judge.
In explaining what he meant by 'common purpose' or 'joint enterprise' the learned judge gave to the jury a number of examples which made it perfectly clear that he was intending to exclude from that concept a case where, for example, two people are involved in a fight with a third party and one of them, without the other knowing that he was carrying a knife, suddenly produces it and stabs the third party. His Honour gave something similar to that as an illustration of a case where the second person would not be criminally responsible for the stabbing. That was put as the obverse of what the Crown was saying occurred in the present case.
In Chan Wing-Sui v The Queen [1985] 1 AC 168 at 177 the Privy Council quoted a passage in the speech of Lord Simonds LC in Davies v Director of Public Prosecutions [1954] AC 378 at 401 which takes a similar example and talks in terms of contemplation of possibilities. His Lordship said:
'I can see no reason why, if half a dozen boys fight another crowd, and one of them produces a knife and stabs one of the opponents to death, all the rest of his group should be treated as accomplices in the use of a knife and the infliction of mortal injury by that means, unless there is evidence that the rest intended or concerted or at least contemplated an attack with a knife by one of their number, as opposed to a common assault. If all that was designed or envisaged was in fact a common assault, and there was no evidence that Lawson, a party to that common assault, knew that any of his companions had a knife, then Lawson was not an accomplice in the crime consisting in its felonious use'
What McInerney J put to the jury in the present case was consistent with that approach. Both when talking of the joint attack with knives, and the concerted plan of common assault contemplating as a possibility that grievous bodily harm would be inflicted upon the deceased, McInerney J, both in what he said positively, and in what he set out to exclude by the examples that he gave, made it sufficiently clear that the jury should not find the appellant guilty if, for example, all that he ever intended or contemplated was a fist fight and the stabbing of the deceased by F, or the inflicting of grievous bodily harm, was outside the purview of their joint action.
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 know 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 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. I do not consider that this ground of appeal has been made out.
Directing The Jury
The appellant agreed with D2 to commit an armed robbery. During the robbery D2 wounded V1, and during the course of the robbery or immediately after its commission, D2 discharged a gun causing the death of V2. Only D2 was armed with a gun.
[judgment page 365]
(per Carruthers J.) 'With regard to the first count, the Crown case (unnecessarily in my view) was put on alternative bases. The first basis was that the appellant was guilty of the murder of Nick, because such murder was a foreseeable incident of a common design with Attard, in company, whilst armed, to rob John. I shall, for the sake of convenience, refer to this alternative as common purpose murder. The second basis was felony-murder. In this regard the Crown primarily relied upon the offence alleged under the second count (robbery in company with arms and wounding) as the foundational offence. The Crown (also unnecessarily in my view) relied alternatively upon robbery with striking and wounding (s 96) as the foundational offence'...
...'Before I turn to those parts of the summing up which were impugned by counsel for the appellant, may I presume to set our what I believe to be (consistent with the most recent authorities) the elements which it was necessary for the Crown to prove in relation to both limbs of the first count. I acknowledge that there is no rigidity as to the terminology by which the elements may be expressed.
As to common purpose murder, it was incumbent upon the Crown to prove beyond reasonable doubt:
(i) that there was a common purpose between the appellant and Attard in company to rob John whilst Attard was, to the knowledge of the appellant, armed with an offensive weapon, namely, a sawn-off double-barrelled shotgun;
(ii) that during the course of the armed robbery Attard discharged the gun intending to kill or cause serious bodily harm to Nick;
(iii) that the appellant contemplated that in the carrying out of the common unlawful purpose of armed robbery, Attard might use the gun with the intention of causing really serious bodily harm;
As to felony murder (upon the assumption that the foundational crime was the offence under s 98) it was incumbent upon the Crown to prove beyond reasonable doubt:
(i) that there was a common purpose between the appellant and Attard in company to rob John whilst Attard was, to the knowledge of the appellant, armed with an offensive weapon, namely, a sawn-off double-barrelled shotgun;
(ii) that during the course of the armed robbery Attard wounded John and during the course of such armed robbery with wounding or immediately thereafter, Attard discharged the gun causing the death of Nick;
(iii) that the discharge of the gun by Attard during or immediately after the armed robbery with wounding of John, was a contingency which the appellant had in mind, whether or not the gun was fired intentionally and whether or not in furtherance of the common unlawful purpose.
As to the final element, see especially the judgement of this Court in Johns [1978] 1 NSWLR 282, particularly at 294-295, where Begg J quotes with approval the directions of the trial judge.
In relation to the s 98 count, it was incumbent upon the Crown to prove beyond reasonable doubt:
(i) that there was a common purpose between the appellant and Attard in company to rob John whilst Attard was, to the knowledge of the appellant, armed with an offensive weapon, namely, a sawn-off double-barrelled shotgun;
(ii) that during the course of the armed robbery Attard wounded John;
(iii) that the appellant contemplated that in the carrying out of the common unlawful purpose of armed robbery such wounding might occur'...
[at page 370]
"...As his fundamental submission Mr Odgers of counsel for the appellant submitted in relation to both limbs of the first count that his Honour should have specifically directed the jury that it was necessary for the Crown to prove that the appellant knew, or alternatively contemplated as a possibility, that the gun was loaded and actually authorised its use if necessary.
It is well established that there are two classes of common purpose murder. The first class is where the Crown proves that the accused was present and that the deceased was killed in accordance with an understanding or arrangement to which the accused was a party and that that understanding or arrangement included the intent charged, that is, either to kill or cause grievous bodily harm. The second class of case is where the accused lends himself to a criminal enterprise knowing that a potentially lethal weapon was being carried by one of his companions and in the event that it is in fact used by one of his partners with an intent sufficient for murder, then the accused too will be guilty of that offence of murder if the Crown establishes beyond reasonable doubt that the accused contemplated that in the carrying out of the common unlawful purpose, one of his partners might use a lethal weapon with the intention of at least causing serious bodily harm. In the recent case of Hui Chi-ming [1991] 3 WLR 495; [1991] 3 All ER 897 (a case to which I regret to say, the Court was not referred by either party) the Privy Council were concerned with a case of the second class. The present case is also within the second class.
Counsel for the appellant in Hui Chi-ming referred the Board to the observations of Sir Robin Cooke in Chan Wing-siu [1985] AC 168 at 175; (1984) 80 Cr App R 117 at 121:
'It turns on contemplation or, putting the same idea in other words, authorisation which may be expressed 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 foresight.'
Counsel argued that Sir Robin Cooke's 'equation in Chan's case of contemplation with authorisation meant that an accomplice who merely foresees the further and additional act of the principal is not thereby rendered liable for that act'.
In dealing with this submission Lord Lowry, who delivered the judgement of the Board said (at 506-507; 908-909):
'The principle enunciated in Chan's case has since been clearly stated by Lord Lane CJ in the Court of Appeal, Criminal Division, in Ward (1987) 85 Cr App R 71 and Slack [1989] QB 775; (1989) 89 Cr App R 252, in both of which Chan's case was expressly approved and applied, and most recently in Hyde [1991] 1 QB 134; (1991) 92 Cr App R 1312, which also applied Chan's case. Having referred to Slack Lord Lane CJ said in Hyde at 138-139; 135-136:
'There are, broadly speaking, two main types of joint enterprise cases where death results to the victim. The first is where the primary object of the participants is to do some kind of physical injury to the victim. The second is where the primary object is not to cause physical injury to any victim, but, for example, to commit burglary. The victim is assaulted and killed as a (possibly unwelcome) incident of the burglary. The latter type of case may pose more complicated questions that the former, but the principle in each is the same. A must be proved to have intended to kill or to do serious bodily harm at the time he killed. As we pointed out in Slack at 781, 257, B, to be guilty, must be proved to have lent himself to a criminal enterprise involving the infliction of serious harm or death, or to have an express or tacit understanding with A that such harm or death should, if necessary, be inflicted. We were then endeavouring, respectfully, to follow the principles enunciated by Sir Robin Cooke in Chan Wing-siu at 175, 121: 'The 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. 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 foresight'.'...
[at page 372 ]
...'Thus authority establishes that in the instant case, it was sufficient for the Crown to prove common purpose murder if the appellant participated in the unlawful common purpose realising (without agreeing to such conduct being used) that Attard may kill or inflict serious injury with the loaded gun.
The appellant's submission that the Crown must prove that the appellant actually authorised the use of the gun if necessary cannot stand with this authority and must be rejected.
The question whether the appellant knew, or had in contemplation that the gun was loaded fell to be considered by the jury with regard to the more general question of what the appellant contemplated regarding the possible consequences of the unlawful common purpose'.
Common purpose to assault victim - death occurs-
Direction that jury might convict if satisfied accused contemplated that intentional infliction of grievous bodily harm possible incident of joint enterprise.
Three youths decided to go to a park to bash someone. One went with a hammer and another with a stick. Two of the youths were experienced in kick boxing. At the park two of them attacked a man who was standing near the top of a high cliff. They kicked him and beat him with a stick. The other youth then kicked the man in the chest which caused him to fall into a puddle in rocks 3-5 metres from the edge of the cliff.
[judgment page 112]
'The prosecution case was that the common purpose of all three youths was to rob or roll someone. It was, so the prosecution contended, expressly or tacitly part of that common purpose that the victim or victims would be attacked by one or more of the group with an intention to inflict grievous bodily harm, that is to say, serious bodily injury. Alternatively, the prosecution contended that each of the youths contemplated the intentional infliction of grievous bodily harm as a possible incident in carrying out a common purpose to assault someone. The prosecution further contended that the common purpose was carried out and none of the three youths withdrew from it until after the victims had sustained injuries which the youths directly inflicted upon them. It was not disputed by the defence that the three youths had a common intention to assault their victim or victims. However, it was the defence case that the intention, at least of the McAuliffe brothers, did not extend to the infliction of grievous bodily harm. Hence, it was said they were not guilty of murder.112 Section 18 of the Crimes Act 1900 (NSW) states '(1)(a) Murder shall be taken to have been committed where the act of the accused, or the thing by omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of a crime punishable by penal servitude for life or 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (2)(a) No act or omission which was not malicious, or for which the accused had a lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only, or in his own defence 2.
The trial judge separately directed the jury in relation to common purpose in the case of each of the McAuliffe brothers. In the case of Sean McAuliffe he instructed them that to succeed the prosecution had to establish a common criminal enterprise on the part of the three youths to roll or rob someone. He directed the jury that the prosecution also had to establish that an act on the part of one or other of the youths which caused death was done with the intention of inflicting grievous bodily harm on the deceased. And, he said
'Next, you must be satisfied beyond reasonable doubt that the accused [ie Sean McAuliffe] either shared that common intention of inflicting grievous bodily harm upon him or contemplated the intentional infliction of grievous bodily harm by one or other of them upon him was a possible incident in the common criminal enterprise.'
In the case of David McAuliffe he made similar references to a common criminal enterprise and an intention to inflict grievous bodily harm and said:
'Then you must be satisfied that this accused, that is, David, either shared that common intention of inflicting grievous bodily harm on the deceased or contemplated that the intentional infliction of grievous bodily harm was a possible incident of the common criminal enterprise to belt whoever was in the area.'
In the context, those directions conveyed to the jury that, even if the common purpose of the three youths did not embrace the intentional infliction of grievous bodily harm, there was a sufficient intent on the part of either appellant for the purposes of murder if he contemplated the intentional infliction of grievous bodily harm by one of the other participants as a possible incident in the carrying out of their joint enterprise and continued to participate in that enterprise.
The appellants contend that the trial judge was wrong in giving those directions. They submit that in a case such as the present the doctrine of common purpose requires that the intentional infliction of grievous bodily harm be part of the common purpose - that is, that it be agreed expressly or tacitly between the parties as at least a possible incident - before one party can be liable for murder arising out of the act of another committed in the course of executing the common design. In other words, the appellants contend that the realisation by one of the parties to a common design that the intentional infliction of grievous bodily harm by another party is a possible incident of the joint enterprise is not sufficient to render that party liable for a murder committed by that other party in the course of executing the common design unless that possibility was within the contemplation of all parties so as to form part of the common purpose. In our view that contention must be rejected.
The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party; in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission.113 See Giorgianni v The Queen (1985) 156 CLR 4733 But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.114 cf R v Lowery and King [No.2] [1972] VR 560 at 560, per Smith J.4 Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture.115 Mansell and Herbert's Case (1556) 2 Dyer 128b [73 ER 279]; Ashton's Case (1698) 12 Mod 256 [88 ER 1304]; R v Radalyski (1899) 24 VLR 687; R v Kalinowski (1930) 31 SR (NSW) 377. See generally Smith, A Modern Treatise on the Law of Criminal Complicity (1991), pp.209-214.5 However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose.116 See R v Johns [1978] 1 NSWLR 282 at 287-290, per Street CJ.6.
Two questions arose in Johns (T S) v The Queen (1980) 143 CLR 1087 concerning the doctrine of common purpose. The first was whether the doctrine extended to an accessory before the fact. The Court held that it did and so held that it was not necessary for a party to be present at the scene of a crime to be acting in pursuit of a common purpose with others who were present.118 cf R v Lowery and King [No.2] [1972] VR 560 at 560-561, where Smith J appears to have held a contrary view.8.
The second question was whether the scope of the common purpose was confined to the probable consequences of the joint criminal enterprise or whether it extended to the possible consequences. The Court held that the scope of the common purpose did extend to the possible consequences of the criminal venture, but, accepting that the test was a subjective one, held that the possible consequences which could be taken into account were those which were within the contemplation of the parties to the understanding or arrangement. Thus Mason, Murphy and Wilson JJ, after referring to a number of authorities, said119 Johns (1980) 143 CLR 108 at 130-131.9:
'In our opinion these decisions support the conclusion reached by Street CJ, [in the court below] namely, 'that 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'. 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'....
[ at page 117]
'...In Johns this Court was concerned with the common purpose of a joint criminal enterprise. In particular, it was concerned with whether the scope of the common purpose extended to possible as well as probable incidents of the venture. The scope of the common purpose is no different from the scope of the understanding or arrangement which constitutes the joint enterprise; they are merely different ways of referring to the same thing. Whatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement. That is why the majority in Johns in the passage which we have cited above spoke in terms of an act which was in the contemplation of the both the secondary offender and the principal offender. There was no occasion for the Court to turn its attention to the situation where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture. However, the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose. Of course, in that situation the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind. But there is no other relevant distinction. As Sir Robin Cooke observed, the criminal culpability lies in the participation in the joint enterprise with the necessary foresight and that is whether the foresight is that of an individual party or is shared by all parties. That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it.
For these reasons, the trial judge was not in error in directing the jury that if the appellants were engaged in a joint criminal enterprise with Davis, a shared common intention - that is, a common purpose - to inflict grievous bodily harm or an individual contemplation of the intentional infliction of grievous bodily harm as a possible incident of the venture would be a sufficient intention on the part of either of them for the purpose of murder.
[judgment page 36]
(per Hunt J. ) 'It is (at the very least) unnecessary for a case based on common purpose to be put to the jury where the crime in fact committed is the very crime for the purpose of which both or all accused are alleged to have combined. To do so is simply to add an additional and an unnecessary element to what must be proved by the Crown in any event. A common purpose case does not relieve the Crown from the need to prove that each of the accused was himself guilty of the crime for the purpose of which they are all alleged to have combined - either as principal offender or as having aided and abetted that principal offender. Apart from making some evidence admissible against all of the accused which would otherwise have been admissible against only one of them (in accordance with Tripodi and Ahern), that additional and unnecessary element which must be proved by the Crown is also both inappropriate (unless the crime actually committed was only incidental to the one originally planned) and undesirable (because of the confusion which it is very likely to produce)'.
The Crown alleged that the appellant and another bound a security guard. The security guard was found badly injured and his pistol was missing. He later died of injuries to his head which were consistent with a number of applications to the head by a blunt instrument consistent with the pistol.
[judgment page 453]
(per Hunt CJ at CL )'The Crown case on the face of it was a simple one. It was open to the jury to conclude from the evidence that:
(1) both the appellant and Sellers were involved in the assault upon the victim;
(2) one or other of them had the victim's pistol and had used it in order to inflict the blow or blows about his head which led directly to his death; and
(3) in such a joint assault, the one who was not using the pistol must have been aware that the other was using it but nevertheless continued to assist or to encourage him by continuing himself to beat the victim with his fists or hands until he had fallen to the ground.
In those circumstances, it did not matter which of the two men was using the pistol to hit the victim, and it was unnecessary for the Crown to establish which one it was. The accused was guilty of murder if the Crown also proved either:
(4) that both men had an intention at least to inflict grievous bodily harm,
or
(5) (a) that the one who used the pistol (whichever he may be) had such an intention,
and
(b) that the other man was aware:
(i) not only that the man with the pistol was using it to hit the victim about his
head, but also
(ii) that he was doing so with such an intention to inflict grievous bodily harm, and
(c) that, with that knowledge, he intentionally assisted or encouraged the man using the pistol by continuing himself to beat the victim with his fists or hands until he had fallen to the ground.
The authorities for those propositions are Mohan [1967] 2 AC 187 at 195 and Giorgianni (1985) 156 CLR 473 at 487-488, 494, 500, 504-505, 506-507; 16 A Crim R 163 at 173-174, 178, 182-183, 185-186, 187-188; see also Yorke v Lucas (1985) 158 CLR 661 at 667. Those authorities were discussed by this Court in Stokes and Difford (1990) 51 A Crim R 25 at 35-39. As it was said in that case (at 35), the ratio in Mohan (in which the Crown was unable to establish which of the two accused had inflicted the fatal blow) does not depend upon the fact that each of the accused in that particular case was physically attacking the victim. It would equally be applicable where the finding of aiding and abetting is available from other conduct'....
[at page 455]
…“- the Crown case was considerably ( and unnecessarily) complicated by the introduction of the concept of common purpose. This was a classic case of principal offender and accessory, even though (let it be assumed) the Crown was unable to identify which of the two men had the pistol and had inflicted the fatal blow or blows. Mohan’s case makes it clear that proof of a pre-arranged plan is unnecessary. Crown Prosecutors should not rely upon common purpose unless it is necessary to do so. This Court has said so on many occasions: see, eg, Stokes and Difford (at 35-37). Common purpose is usually necessary only where the accused against whom such a case is sought to be made was not an accessory (that is, present and assisting) at the time when the crime in question is committed and where the crime committed was merely incidental to that which had been the prime object of the common criminal venture.”
Common Purpose- Joint Criminal Enterprise - separate doctrines
Obligation on the Crown to identify common purpose.
[judgment page 556]
(per Hunt CJ at CL ) “The obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the trial judge and counsel for the accused, more so than the jury. It is essential that any doubt about the nature of the Crown case, conceptually, be removed at that early stage. If it is not done at that stage, or if there had been some change in its nature since the case was opened, it is vital that it be identified with some precision, in the absence of the jury, before counsel commence their final addresses. It becomes very difficult for the judge sensibly to make alterations to directions already given once it is learnt that the issues are different to those which had been assumed to exist.
The summing up in the present case has suffered substantially from the judge’s failure to ascertain what the Crown case was in relation to the first count until after the original directions had been given. I will refer presently to the problems which arose. Before doing so, it will be seen from the passages quoted that the judge has referred - apparently interchangeably - to a joint criminal enterprise and to the so-called doctrine of common purpose which extends the concept of a joint criminal enterprise. Where - as here - no such extended concept was relied upon, it was both unnecessary and confusing to refer to it.
The Crown needs to rely upon a straightforward joint criminal enterprise only where - as in the present case - it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose, only where the offence charged is not the same as the enterprise agreed. This Court has been making that point for years, 13 See, for example: Stokes (1990) 51 A Crim R 25 at 35-37; Clough (1992) 28 NSWLR 396 at 400, 64 A Crim R 451 at 455. and it is a pity that in many trials no heed is taken of what has been said.
So far as a straightforward joint criminal enterprise is concerned, the jury should be directed along these lines:
(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
(2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.
(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.
(4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission. See, generally, McAuliffe (1995) 183 CLR 108 at 113-116; 79 A Crim R 229 at 233-236.
It is advisable to give an example of facts right away from the facts of the particular case after the definition in the second of those directions in order to assist the jury’s understanding or what is meant. The bank robbery example is usually suitable where there has been some degree of planning involved in the joint criminal enterprise. It is not of much assistance where, as here, the evidence is fairly silent as to how the agreement was reached. Particularly is that so where - contrary to the way in which the present case appears to have been left to the jury - the agreement by the appellant to participate in the joint criminal enterprise appears to have been (at most) coincidental with joining his friends in the fight. A better example of such a spontaneous type of joint criminal enterprise, based upon that given in Lowery (No 2) [1972] VR 560 at 560-561., is one where the crime involved is that of break enter and steal:
“Three men are driving and they see a house with a lot of newspapers and milk bottles at the gate. One says to the others ‘Let’s go and have a look at this one’. The car pulls up, two of the men get out and one of them stays in the car behind the driving wheel with the engine running, while the other two go to the front door. One of them breaks the glass panel on the outside of the door, puts his hand through and unlatches the door and throws it open. The third man goes inside and collects the valuable and comes out, while the man who opened the door goes back to the car and never enters the house at all.
Only one of the men broke into the house, the man who broke the glass panel and put his hand inside, and only one of them entered the house and stole something, the one who picked up the valuables, and one of them did neither of those three things. But the law provides that, if the jury is satisfied by their actions (rather than merely by their words) that all three men had reached an understanding or arrangement which amounted to an agreement between them to commit the crime of break enter and steal, each of the three is criminally responsible for the acts of the others. All three are guilty of break enter and steal.”
It should only be after the directions of law have been given that the judge should refer to the facts of the particular case upon which the Crown relies, and that the application of the law to those facts should be explained.
See also R v Vester Fernando & Anor [1999] NSWCCA 66; R v Helene [1999] NSWCCA 203.
(per Abadee J at pp.191 - 193)
“It was submitted by the appellants that because the case was one where it was alleged that all the accused with one possible exception were present when the stabbing took place, where there was a specific intent alleged, namely an intent to inflict grievous bodily harm, that in the circumstances the jury should have been directed in terms of joint enterprise rather than common purpose and that it was inappropriate to refer to the doctrine of common purpose at all. It was also submitted that because of the way the Crown had opened the case against the accused, the Crown was in effect locked into solely a joint enterprise case. It was then submitted that even if the direction was a correct direction to the jury, the alleged multiplicity of directions given to the jury (four, it was said) would inevitably have confused the jury.
For the Crown it was submitted that because of the unusual factual circumstances, the direction concerning complicity was one not easy of formulation in the first place. The Crown pointed to the fact that it had not been asserted by the defence that the introduction of an element of common purpose had caused the accused prejudice. It argued that the concepts of ‘joint enterprise’ and ‘common purpose’ were not ‘two hermetically sealed compartments’ and that the Crown, having in its opening referred to joint enterprise, had not made some form of irrevocable election which excluded it from relying upon common purpose, irrespective of the reality of the matter.
In my view the Crown was correct in its submission that there is no strict separation between joint enterprise and common purpose.
In McAuliffe (1995) 183 CLR 108; 79 A Crim R 229, the High Court said as follows (at 113-114; 232-233):
‘The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party; in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.’
Accordingly, in practice, it is not necessary to give the term ‘joint enterprise’ a meaning exclusive of and distinct from the doctrine of common purpose. Therefore, the appellants’ submission that the Crown was precluded from relying on a common purpose case because it opened in terms of joint enterprise does not amount to a legitimate complaint.
In respect of the appropriateness of introducing the common purpose concept, Clough (1992) 28 NSWLR 396; 64 A Crim R 451, urges restraint in introducing the doctrine of common purpose. In that case, Hunt CJ at CL states that the Crown case may be unnecessarily complicated by the concept and it is usually necessary only where the accused was not present and assisting at the commission of the crime and where the crime committed was only incidental to the prime object of the common criminal venture. This accords with his Honour’s view in Stokes v Difford (1990) 51 A Crim R 25 at 36 that ‘[i]t is (at the very least) unnecessary for a case based on common purpose to be put to the jury where the crime in fact committed is the very crime for the purpose of which both or all accused are alleged to have combined.’
In the Court of Criminal Appeal decision in McAuliffe (1993) 70 A Crim R 303 the Chief Justice said (as 308):
‘The decision of this Court in Mills and Sinfield (1985) 17 A Crim R 411, from which the High Court refused leave to appeal (Mills (1986) 61 ALJR 59) establishes that the doctrine of common purpose may be used as an appropriate concept for establishing and explaining criminal complicity in cases where the offence committed was that agreed upon between co-offenders; its usefulness is not limited to cases involving foundational crimes and incidental crimes.’ (emphasis mine)
Analysis of these cases leads to the conclusion that, in the instant case, it was not inappropriate for her Honour’s final direction to be in terms of common purpose. It was an appropriate way of putting the Crown case. Introduction of the common purpose concept did not cause unnecessary complication.
10 December 1998 - BC9806597
Criminal liability of persons acting in concert
Extract Butterworths
Criminal Law News
Vol.6 No.1 1999
O and her son, D, were jointly tried for the murder of F (O’s husband and D’s father). O was convicted of murder but the jury were unable to reach agreement in respect of D. Subsequently, D was re-tried and acquitted. The Crown case was that D and O planned the murder of F but it was D alone who struck the blows that killed F. As part of the plan, O put sleeping tablets into F’s food to make him sleepy. D later struck F with a pipe after F retired to bed. Both D and O buried the deceased. At the trial they both relied upon self-defence and provocation based upon the violent behaviour of F over many years.
O was convicted but the jury failed to agree on a verdict in respect of D. D was later acquitted on retrial before another jury. O appealed on various grounds, including the inconsistency in the various verdicts of the juries.
Held, per McHugh, Kirby and Callinan JJ, Gaudron and Gummow JJ dissenting (dismissing the appeal): There was no inconsistency between the conviction of O and the jury failing to agree on a verdict for D, notwithstanding that it was the Crown’s case that they were acting in concert.
Per McHugh J, with whom Kirby J and Callinan agreed on this point: A person involved in a joint criminal enterprise with another is liable for the acts committed by that other person but the criminal liability of each will depend upon the respective mens rea and any defences which may be available.
It was accepted at the trial that the death of F was a result of O and D acting in concert to kill him - notwithstanding that one or both of them may have been acting in self-defence or under provocation. That being so it was correctly accepted that O, who was present at the killing, was equally responsible for the act or acts of D that brought about F’s death and, therefore, her criminal responsibility was not dependent upon D being convicted.
His Honour summarised the principles of criminal liability of co-offenders at [10]-[72] as follows:
At common law, a person who commits the acts which form the whole or part of the actus reus of the crime is known as a “principal in the first degree”. There can be more than one principal in the first degree. However, a person may incur criminal liability not only for his or her own acts that constitute the whole or part of the actus reus of a crime but also for the acts of others that do so. The liability may be primary or derivative. In earlier times, when it was alleged that a person should be held criminally liable for the acts of another, it mattered whether the crime was a felony or a misdemeanour …
Those who aided the commission of a crime but were not present at the scene of the crime were regarded as accessories before the fact or principals in the third degree. Their liability was purely derivative and was dependent upon the guilt of the person who had been aided and abetted in committing the crime. Those who were merely present, encouraging but not participating physically, or whose acts were not a substantial cause of death, were regarded as principals in the second degree. They could only be convicted of the crime of which the principal offender was found guilty. If that person was not guilty, the principal in the second degree could not be guilty. Their liability was, accordingly, also derivative.
However, there is a third category where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime. In that category, the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concert is equally responsible for the acts of the other or others.
So far as is presently relevant, these principles were accurately and more fully stated by the New South Wales Court of Criminal Appeal in R v Tangye (1997) 92 A Crim R 545.
It is the acts, and not the crime, of the actual perpetrator which are attributed to the person acting in concert. If the latter person has the relevant mens rea, he or she is guilty of the principal offence because the actus reus is attributed to him or her by reason of the agreement and presence at the scene. It is irrelevant that the actual perpetrator cannot be convicted of that crime because he or she has a defence such as lack of mens rea, self-defence, provocation, duress or insanity: Hui Chi-Ming v R [1992] 1 AC 34 applied. The principle operates to make a person guilty of the principal crime, even though the actual perpetrator is acquitted completely. Thus, the person who did the act may be legally insane. Yet as long as that person had sufficient mental capacity to enter into the arrangement or common understanding, the other participant present at the scene will be guilty of committing the principal crime if he or she has the relevant mens rea.
His Honour said at [93]:
Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime.
Statements in R v Demirian [1989] VR 97 at 123-4 to the contrary should not be followed.
The present case was not one of technical or legal inconsistency in the verdicts. Thus the conviction can only be set aside where the inconsistency in the verdicts demonstrates that no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts, that is the conviction is set aside because it is unsafe or unsatisfactory. In such a case consideration must be given to the way the matter was left to the jury. In the present case the jury, correctly, were never told that before they could convict O they had to convict D - ie, that the Crown had to negative the defences upon which D relied. The jury’s conviction of O was consistent with the trial judge’s directions that they could convict O even though they acquitted D.
[judgment page 471]
(per Wood J.) “As was pointed out in Stokes and Difford (1990) 51 A Crim R 25, it is unnecessary to put a case based on common purpose to the jury when the crime in fact committed is the very crime for the purpose of which all accused are alleged to have combined. Unless a case based upon common purpose is necessary because the crime in fact committed was only within the contemplation of the accused as a possible incident of the execution of the planned enterprise, or because it makes some evidence admissible against all of the accused which would otherwise have been admissible only against one of them, it is not only unnecessary, but also undesirable to do so.
There seems to have been some degree of confusion between these notions because at the end of the summing up, counsel for Mr Dixon sought a further direction to the effect that, in order for an accused to be made liable under the doctrine of “common purpose”, where he had refrained from any actual assault, he had to be present encouraging, aiding or assisting the actual perpetrator. This of course was more appropriate to a case where there was no preconcert established: Lowery and King (No 2) [1972] VR 560. Over the objection of the Crown Prosecutor, a redirection was given in these terms. The net effect was to compound the problems caused by the fact of a joint trial, and the failure to keep the cases concerning the two accused clearly distinct.
I am of the view that there was in the result, a real risk that the trial miscarried, and that the conviction of Smith, on the count of manslaughter, should be quashed and a new trial ordered.
Admissibility of Evidence of a previous representation made by A in furtherance of a common purpose with B
Once there is reasonable evidence of the participation of an accused in an unlawful purpose the words as well as actions of the co-accused are admissible as evidence against the accused providing the words and actions are in furtherance of the common purpose.
Evidence Act 1995
Section 87
87.(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:
...
(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.
The ALRC noted that a previous representation by A, allegedly acting in furtherance of a common purpose by B, will not be hearsay where it is relevant as a verbal act to establish the existence of the common purpose:
“Evidence of statements made by an alleged conspirator A and tendered as evidence of acts done pursuant to the alleged conspiracy will continue to be admissible against alleged conspirator B. The evidence is not tendered for a hearsay purpose and is not caught by the hearsay proposal. Such evidence raises a problem of conditional or provisional relevance - the relevance of the act of A to the case against B will depend upon a prima facie finding that there was a common purpose between A and B. this issue is covered by the proposal on provisional relevance and can be handled in practice as at present.”
See also Section 60. Exception to the hearsay rule: evidence relevant for a non-hearsay purpose.
See also Lee v The Queen (Unreported) [1998] HCA 60, 30 September 1998.
(at para 40. “It is clear that s 60 was intended to work a considerable change to the common law. But there is no basis, whether in the considerations which we have mentioned as having influenced the Commission or otherwise, for concluding that s 60 was intended to provide a gateway for the proof of any form of hearsay, however remote. As has been indicated earlier in these reasons, that that was not intended is made plain by the terms of s 59 to which s 60 is an exception.”
See also Tripodi v The Queen (1961)104 CLR 1; Ahern v The Queen (1988) 165 CLR 87;
R v Chan Kam Wah Unreported CCA (NSW) 13 April 1995 (at p 6); R v Velardi Unreported CCA (NSW) 24 May 1996.
[judgment page 3 ]
(Per Smart J.) [The appellant gave the following evidence] “…while we waited in the car [near the house], Between Sua and Lucas there was a disagreement. Sua said he didn’t want to do it. Lucas said he had to do it. Lucas said, ‘John’ (Untan) ‘what do you want to do?’ I said to Lucas, ‘we are not going to do it’. We drove back to Claymore. I said to Sua, ‘we will do it in a couple of weeks time.’ He said, ‘okay, just give me a call when you want to do it.’ I left him at Claymore and went back … with Lucas.”
There was evidence that while the appellant had been involved in the criminal enterprise to the extent of being an accessory before the fact by encouraging it by his presence, he had withdrawn or countermanded it, at least so far as 9 May 1997 was concerned. The statement of Untan afforded, at face value, reasonable grounds for the appellant to believe that Untan and Diamantis were not going to break into the house at Ambarvale that day but in a couple of weeks. The position was left rather vague.
The Judge told the jury the elements of the offence of accessory before the fact to break enter and steal being armed with a dangerous weapon, namely a shotgun. The Judge correctly told the jury that the Crown had to prove that the appellant had not withdrawn. From the terms of the summing-up the Judge had in mind the decision of this Court in The Queen v Tietie (1988) 34 A Crim R 438 at 446. The Judge directed the jury, inter alia,:
“So to effectively withdraw from his position of an accessory before the fact the alleged accessory before the fact must not only withdraw completely and in time, to be severed properly from the actual commission of the crime itself, he must in addition do two things really. He must make it known to the others hat he is withdrawing and he must also by such act and words as may be appropriate do what he reasonably can to dissuade the others from continuing with the unlawful purpose. He must take whatever further reasonable steps are appropriate in the particular case to prevent the others from continuing to go on with the intended crime.”
“…you might think that the accused did not effectively withdraw because he did not try to dissuade the others from going on with the crime and he did not notify the police when he himself withdrew. That is a matter for you to decide…”
“In respect of effective withdrawal from being an accessory before the fact the Crown has to negative effective withdrawal and abandonment of involvement by the accused. In the present case the Crown submits that it has done that because there is no evidence that the accused ever tried to persuade Diamantis and Untan from going on with the robbery themselves and did not notify the police in an attempt to prevent the crime from being carried out by others.
It is the law that an accessory before the fact remains liable notwithstanding his communicated withdrawal unless he takes steps to avert the danger which he himself had helped to create. Whether such steps were taken is a matter for you as to matter of fact”.
The jury asked the Judge this question: “If he withdraws and is unaware that they are going back to commit the crime that day, is he still an accessory after the fact?” The Judge gave his answer:
“Well the answer which I give you to the question is yes unless he does two things. One, tries to dissuade the others from committing the offence themselves and (2) takes reasonable steps to prevent the crime from being committed, by, for example, informing the police. If he does those two things and they nevertheless commit the crime that day then he is not liable as an accessory before the fact. He’s done all he can to try and rectify the matter. So the answer to the question, ‘If he withdraws and is unaware they are going back to commit a crime that day is he still an accessory before the fact?’ is yes, unless he does two things. One, tries to dissuade the others from committing it themselves and , two, takes reasonable steps to prevent the others from committing the crime, for example, by informing the police. If he does those two things and they nevertheless commit the crime that day he is not liable as an accessory before the fact.
Now remember the onus of proof situation. The Crown bears the onus of proof throughout, the accused doesn’t have to prove anything. So that means that for him to be liable as an accessory before the fact you have to be satisfied beyond reasonable doubt that he did not do those two things or either of them. That is, one, try to dissuade the others from committing it themselves and, two, take reasonable steps to prevent the crime from being committed by the others, for example, by informing the police.”
The jury returned with a further question: “Is he deemed to have a legal withdrawal and not be liable if believes no further crime is going to be committed once he went home?” The Judge gave this answer:
“The answer to that question is that not unless he previously - 1. Tried to dissuade the others from committing the crime themselves and 2. He has taken reasonable steps to prevent the crime from being committed, for example, by informing the police.
If he did those two things and the others nevertheless committed the crime, he is not liable as an accessory before the fact. For him to be liable as an accessory before the fact, you have to be satisfied beyond reasonable doubt that he did not do either or both of those two things. Would you like me to repeat that? I’ll repeat it.
The question is ‘Is he deemed to have a legal withdrawal and not be liable if believes no further crime is going to be committed once he went home?’ And my answer to you is not unless he has previously 1. Tried to dissuade the others from committing the crime themselves, and 2. He has taken reasonable steps to prevent the crime from being committed, for example by informing the police. If he did those two things and the others nevertheless committed the crime, he is not liable as an accessory before the fact. For him to be liable as an accessory before the fact, you have to be satisfied beyond reasonable doubt that he did not do either or both of those two things.’
In the cases cited in Tietie, and especially Whitehouse (1941) DLR 683 at 685, it was pointed out that it was unwise to attempt to define too closely what must be done in criminal matters involving common unlawful purpose to break the chain of joint responsibility. That must depend on the circumstances of each case. The circumstances of the present case were a little unusual and the directions requires were not just the ones that are usually given.
In this case, the jury should have been told generally to the effect: That the appellant could not be convicted unless the Crown established, beyond reasonable doubt, that the appellant did not honestly believe that Untan and Diamantis were not going to break and enter the house at Ambarvale and steal on 9 May 1997 or in the next few days. In the explanation, the jury should have been told that if there was a reasonable possibility that the appellant honestly held that belief, he was required to do no more. In such a case, there was no present threat of the offence taking place in the immediate future, to the belief of the appellant, and there was no further obligation on the appellant. This was the point of the second jury question. Obviously, the Judge would have to relate the directions to the facts.
A direction along the lines I have suggested always has to be adapted to the facts of the particular case and there may be better ways of putting the matter but the point has been sufficiently made. The test of honest belief if a subjective one. It is the belief of the appellant that is critical. In determining whether there is a reasonable possibility that the accused held the honest belief in question, as a matter of fact, it will be appropriate to have regard to the matters which he knew and the matters which he did not know and the grounds on which he held the belief.
The jury should have been told that if the Crown had proved beyond reasonable doubt that the accused did not honestly believe that Untan and Diamantis were not going to break and enter the house at Ambarvale on 9 May 1997 or in the next few days and steal, then they had to be satisfied beyond reasonable doubt that, on withdrawing from committing the intended offence, the accused did not try to dissuade Untan and Diamantis from committing the offence and that the accused did not take reasonable steps to prevent the crime being committed. The directions would need to be appropriately explained and related to the facts. The jury would have had to consider what steps could have been taken, for example, alerting the householder or the police and whether these were reasonable and practicable.
The Judge’s answer to the second question of the jury was incorrect, the mistake made was on an important matter and verdict cannot stand. The Crown accepted that this was so and that the error necessitated a new trial. Thitherto I have proceeded upon the basis that there is no material difference between a principal and an accessory so far as the law of withdrawal. That is true so far as this case is concerned. On any view the issue of honest belief had to be put to the jury.
Counsel submitted that there was a material difference in the law of withdrawal between the position of a principal and that of an accessory. As to the latter, it was contended that is sufficed if there was an effective withdrawal and that physical or other action to prevent the crime was not required. There is an informative discussion of the point in Archbold, 1998 edition, pp.1445-1446 which indicates that it has been left open in a number of cases in England which have been cited. Counsel pointed out that Tietie and White v Ridley (1978) 140 CLR 342 dealt with the case of a principal. It is unnecessary to resolve the issue having regard to the relief which is appropriate.
The appellant’s submission that there was no sufficient case to go to the jury is incorrect. Having regard to the evidence of the agreement or arrangement made on 8 May and the subsequent offence on 9 May, there was evidence to go to the jury on the second count and verdict could not be described as unsafe or unsatisfactory.”
15 Nov 2024