Common Purpose and Joint Criminal
Enterprise
This paper was written by Peter Zahra SC
SCOPE OF THE DOCTRINE:
1. Is common purpose applicable in
the case of an accessory before the fact?
2. Are the
participants in a common design responsible for the probable, as distinct from
the possible, consequences
of execution of the common purpose?
Johns v the Queen (1980) 143 CLR 108
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'.
3.What is the requisite
mental state of an accessory?
Mills, Sinfield & Sinfield
(1985) 17 A Crim R 411
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.
Giorgianni v The Queen (1985) 156 CLR
473
(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'.
4.Is the doctrine of common purpose only applied in cases where there are
two relevant crimes, one 'foundational' and the other
'incidental'?
R v Smith Unreported CCA (NSW) 12th August
1991
[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.
5.How does common purpose apply to the elements of murder
(involving intent to cause grievous bodily harm) and to felony
murder?
-Directing The Jury-
R v Sharah
(1992) 63 A Crim R 361
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'.
McAuliffe v
The Queen [1995] 183 CLR 108
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.
7.When is
it appropriate to base a case on common purpose?
R v Stokes
and Difford (1990) 51 A Crim R 25
[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)'.
R v Clough (1992)
64 A Crim R 451
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.”
R v Tangye (1997) 92 A Crim R 545
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.
R v Tillott & Ors (1995) 83 A Crim R 151
(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.
[941] OSLAND v R, HCA, 159 ALR 170,
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.
8 Common Purpose: making evidence otherwise only admissible against one
admissible against all accused.
R v Dixon and Smith (1992) 62 A Crim R
465.
[ 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.
9.Withdrawing from the enterprise.
R v Truong NSW CCA
22.6.1998
[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.”