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[1980] HCA 3
High Court of Australia
1980-07-01
Wilson JJ
Original judgment source is linked above.
High Court of Australia Barwick C.J. Stephen, Mason, Murphy and Wilson JJ. Johns v The Queen [1980] HCA 3
ORDER Application for special leave to appeal granted. Appeal dismissed.
The applicant for special leave to appeal was convicted by the Supreme Court of New South Wales (1) of murder and (2) assault with intent to rob and wounding at the time of the assault, the applicant being then armed with an offensive weapon. He was sentenced in respect of murder to imprisonment for life and in respect of the assault and wounding to fourteen years with no non-parole period, the sentences to run concurrently. The applicant, though indicted as a principal along with one Dodge, was claimed by the Crown to have been an accessory before the fact by reason of his complicity in a common design to rob and, if need be, assault the deceased.
Three points are raised for consideration as furnishing special reasons for the grant of leave: (1) that the doctrine of common purpose is inapplicable in the case of an accessory before the fact; (2) that the participants in a common design are only responsible for the probable, as distinct from the possible, consequences of execution of the common purpose; and (3) that the sentence of imprisonment for life is not mandatory under the provisions of the Crimes Act, 1900 N.S.W. in the case of the conviction for murder of an accessory before the fact.
The evidence at the trial would support the following account. The applicant and a man named Watson, who had been known to the applicant for some six years, agreed that the applicant should drive Watson to Kings Cross, Sydney, where Watson intended, after meeting another associate of his, one Dodge, to rob a man named Morriss whom Watson told the applicant always had a large amount of money and jewellery in his possession, "something in the vicinity of $40,000". Morriss was said to be a "fence" with whom Watson had dealt in stolen goods. Watson said he was going to Morriss' unit in Wylde Street, Potts Point, along with Dodge, pretend he had stolen property to sell and then "hold him up, tie him up and take the money and stuff". Watson, to the applicant's knowledge, always carried a .25 calibre automatic pistol which the applicant, whilst not knowing if it was loaded on this occasion, expected it to be. After the robbery, Watson was to return to the applicant's car, deposit the stolen money and property with him, and make his own getaway. The applicant was to hold the stolen property in a convenient place until later when the applicant expected to get "something out of it, particularly with that much money involved".
On the way to Kings Cross, Watson told the applicant, who knew Watson to be quick-tempered and capable of becoming quite violent, that he, Watson, wouldn't stand for any nonsense, that Morriss was "always armed and wouldn't stand any mucking round if it came to a showdown". The applicant said he "knew he (Watson) wouldn't let the bloke Morriss get on top of him".
The applicant delivered Watson to a point near the El Alamein fountain in Kings Cross where Watson joined Dodge in another car and drove off. The applicant waited about half an hour when the other car returned. Watson, without leaving the car, informed the applicant, "I didn't get it mate, it's gone bad, it's off" and drove off.
In fact, Watson and Dodge had waited in the shadows near the front of Morriss' unit or town house for Morriss' return. Morriss did return, but when accosted by Watson and Dodge, was not carrying any money or jewellery. These he had left in his car. Apparently there was a struggle, Morris was struck on the head, perhaps rendered unconscious and shot dead, probably when on the ground. The applicant learned next morning through the newspapers of Morriss' death.
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 a 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 [1] and the second, Reg. v. Guay [2] .
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 a 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.
We are here concerned with criminal responsibility under the common law. Each of the two cases which I have earlier mentioned turned upon a statutory provision in a criminal code. The State of New South Wales has no such code and no statutory provision comparable to the sections which were the basis of the cited decisions.
Brennan v. The King turned upon the express terms of s. 8 of the Criminal Code of Western Australia. That section provides:
When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
The decision in Reg v. Guay was based on s. 21 (2) of the Canadian Criminal Code, which is in the following terms:
Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. So understood, this decision is in line with Brennan v. The King which is cited in the leading judgment.
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.
Thus, in my opinion, the trial judge was not in error in giving the directions which I have quoted.
Neither of the above cases cited bear on the question of responsibility for acts which fall within the ambit of the enterprise or design. Neither, in my opinion, support either of the applicant's submissions.
I turn then to the third reason advanced in support of the application for special leave.
To understand the submission as to the inappropriateness in the case of an accessory before the fact of the sentence imposed, it is necesscary to set out several sections of the Crimes Act, 1900. I therefore set out the text of the following sections:
Whosoever commits the crime of murder shall be liable to penal servitude for life.
The provisions of section 442 shall not be in force with respect to the sentence to be passed under this section.
(1) Every accessory after the fact to murder shall be liable to penal servitude for life.
Where by any section of this Act an offender is madeliable to penal servitude for life or to penal servitude or imprisonment for a fixed term, the judge may nevertheless pass a sentence of either penal servitude or imprisonment of less duration.
Nothing in this subsection shall prevent the awarding of hard labour or solitary confinement, where at present authorised by law, or the directing of the offender to enter into recognizances to keep the peace and be of good behaviour.
(2) Where by any section of this Act an offender is made liable to a fine of any fixed amount, the judge may nevertheless inflict a fine of less amount.
The argument for the applicant was that the operation of the second paragraph of s. 19 was confined to the sentencing under s. 19 of the person who actually committed the murder. An accessory before the fact, it was said, is not sentenced under s. 19 but under s. 346. Therefore, it was submitted, the provisions of s. 442 were available in the sentencing of an accessory before the fact. Consequently, a sentence of penal servitude for life was not mandatory in the case of an accessory before the fact.
I am unable to accept these submissions. A function of s. 346 is to enable an accessory before the fact to be "indicted, convicted and sentenced as a principal in the felony". It does not itself provide what the sentence is to be. To ascertain the appropriate or permissible sentence, it is necessary to turn to the section which prescribes the punishment for a principal to the felony, in this case s. 19. The accessory before the fact is not sentenced under s. 346. He is, in my opinion, sentenced under s. 19 doubtless because of the provisions of s. 346. Therefore, in my opinion, the provisions of the second paragraph of s. 19 were applicable in the sentencing of the applicant. Accordingly, the sentence imposed on him of penal servitude for life was the sentence required by s. 19.
In the result, I agree with the conclusions expressed by the Court of Criminal Appeal upon both the matters argued in support of this application. Although I do not think there was really any such doubt as to the correctness of these conclusions as to have warranted the grant of special leave, I have come to the conclusion that the three points raised are of sufficient general public importance to merit a final pronouncement by this Court.
Consequently, I would grant special leave to appeal but, for the reasons I have expressed, I would dismiss the appeal.
Having read the joint judgment of Mason, Murphy and Wilson JJ., I am relieved both of the necessity of any very detailed description of the facts and of the need to deal at all with the applicant's second ground for special leave to appeal, that concerned with sentence; I agree with all that is said in that judgment on that issue. It is only with the first ground, relating to the doctrine of common purpose and its operation in the case of an accessory before the fact, that I wish to deal.
The applicant Johns complains of error in the trial judge's charge to the jury concerning common purpose. With his co-accused, Dodge, the applicant was charged with the murder of a dealer in stolen jewellery, Morriss. Morriss was shot and killed by one Watson, who is himself now dead. Dodge was with Watson at the time; they had together intended to rob Morriss of jewellery and money which they mistakenly thought he would be carrying. When Watson and Dodge waylaid Morriss, he resisted and Watson shot him. Johns' part in the affair had been to drive Watson to his rendezvous with Dodge, a considerable distance away from the scene of the shooting, and to wait there in his car while Dodge and Watson drove off to waylay and rob Morriss. They were to return after the robbery and give to Johns, for concealment by him, what they hoped would be the proceeds of the robbery. This brief statement of the facts comes, of course, from the Crown case, which the jury must be taken to have accepted. Fuller details of the facts appear in my brothers' joint judgment. The only further fact which I need mention here is that Johns knew that Watson was carrying a gun when he set off to waylay Morriss, that he expected that it would be loaded and that he knew Watson to be quick-tempered and not prepared to let Morriss get the better of him.
Johns' role in the abortive robbery was, then, to be that of accessory both before and after the fact, whereas Dodge was to be a principal. They were each charged with the murder of Morriss.
The trial judge, in charging the jury, referred to the doctrine of common purpose as applicable to both defendants alike. He told the jury to consider for themselves the nature and extent of the joint enterprise alleged by the prosecution and, in the case of a crime of violence involving the carrying of a firearm, said that it was for them "to consider whether the parties must have had in mind the contingency that for the purpose of carrying it out or attempting to carry it out the firearm might be discharged and kill somebody. If the jury considers that a party to such a design to carry out such a crime must have been aware of such a possibility or contingency then he is responsible for the death whether he was present assisting or encouraging as a principal in the second degree, or had given assent and encouragement as an accessory before the fact" (emphasis added).
Johns says that while such a direction may have been well enough in the case of Dodge, who was present at the killing aiding Watson, it was wrong in his case, that of a mere accessory before the fact not present at the killing. He should, he said, only be liable to be convicted of the murder of Morriss if found by the jury to have known that, in carrying out the common purpose of robbery, it was likely or probable, and not merely "a possibility or contingency", that Morriss would be killed.
There are two main features of the applicant's argument. The first is a submission that the criminal responsibility of an accessory before the fact should be judged by a standard different from that of an accessory at the fact, a principal in the second degree. The second is that, according to this different standard, an accessory before the fact will only be liable for the crimes of a principal offender if they were within his contemplation as a probable consequence of the common purpose of the parties.
In his judgment in the Court of Criminal Appeal Street C.J. has drawn attention to one important practical distinction between the accessory before the fact and the accessory at the fact. It arises directly from the continuing physical proximity of the latter to the principal offender and the opportunity which that affords the two of them of agreeing upon changes in and development of their common criminal purpose to meet the changing needs of the situation as it confronts them from moment to moment. The accessory before the fact will not normally be so situated. The common purpose which serves to associate him with the criminality of the others will usually remain fixed as at the moment when the active perpetrators of the crime set off to commit it. His absence from the scene will make him incapable of assenting to the commission of other crimes, quite outside the scope of the original common purpose, in which the principal offenders engage on the spur of the moment.
This practical distinction is both important and rational but, as Street C.J. points out, there is nothing to be said for differentiating between an accessory before the fact and a principal in the second degree in the manner urged on behalf of the applicant. Of course, parties to a crime may not share precisely the same mens rea and, as well, to one of them special considerations may apply, as where diminished responsibility is raised - see generally Russell on Crime, 12th ed. (1964), vol. 1, p. 150, Glanville Williams, Criminal Law, The General Part 2nd ed. (1961), pp. 390-391. But, those cases apart, so long as what is in question is within the scope of the common purpose neither reason nor fairness suggests that any such distinction as the applicant urges should be drawn. Each of the parties has complicity in the crime: each has knowingly assisted, in different ways, in its commission. Where the crime in question does not involve a mandatory sentence, their respective roles may of course bear upon the sentences to be imposed upon conviction, but not necessarily in a manner favourable to the accessory before the fact, who may prove to be the more blameworthy of the two. As Glanville Williams points out, Lady Macbeth was surely more blameworthy than was her husband and "The master mind and guiding spirit of a crime ring will probably receive a heavier sentence than his tools" (p. 404). However the respective roles should not of themselves attract to each a different criterion of liability.
No trace of the distinction suggested by the applicant has ever existed in our criminal law, so carefully summarized in the judgment of Street C.J. and which is described in detail in Holdsworth: History of English Law (1942), vol. 3, pp. 307 et seq., Pollock and Maitland: History of English Law (1968), vol. 2, pp. 509 et seq., and Stephen: History of the Criminal Law of England (1883), vol. 2, pp. 229 et seq. The relative positions of accessories before the fact and of principals of both degrees may, as a broad generalization, be summarized in the words of Glanville Williams, again at p. 404, where he says: "The distinction between principals in the first and in the second degree, and between principals and accessories, generally has no legal importance." In the absence of any authority or of any considerations of principle supporting the applicant's suggested distinction, it must be rejected.
Counsel for the applicant did not suggest that the trial judge in any way mis-stated the criterion of complicity applicable to Dodge, a principal in the second degree: if, as I have concluded, no relevant distinction exists between accessories before the fact and principals in the second degree, it follows that that is enough to dispose of the present application. However, since what I have called the second feature of the applicant's submissions suggests a criterion of liability based upon probable, rather than possible, consequences, it merits consideration as a basis of liability for accomplices generally, if only for the purpose of exposing features which I regard as making it unacceptable. I turn therefore to this second feature.
The criminal responsibility here under discussion is not that relating to the crime which is the prime object of a criminal venture. As to that crime, one who, while not actually physically present and participating in its commission, nevertheless knows what is contemplated, and both approves of it and in some way encourages it thereby becomes an accessory before the fact: Russell on Crime, 12th ed. (1964), vol. 1, p. 151. His knowledge, coupled with his actions, involves him in complicity in that crime. But if, in carrying out that contemplated crime, another crime is committed there arises the question of the complicity of those not directly engaged in its commission. The concept of common purpose provides the measure of complicity, the scope of that common purpose determining whether the accessory before the fact to the original crime is also to share in complicity in the other crime. If the scope of the purpose common both to the principal offender and to the accessory is found to include the other crime, the accessory will be fixed with criminal responsibility for it. In determining scope, it may either be restricted to what the accessory regarded as probable consequences of the criminal venture or may be extended to include what he regarded as possibly involved in the venture. To apply to such a situation a criterion of what is probable, as contrasted with what is merely possible, seems singularly inappropriate. The commission of that other crime will not have been the prime object of the criminal venture; it will in all probability have been committed as a reaction to whatever response is made by the victim, or by others who attempt to frustrate the venture, upon suddenly being confronted by the criminals. There will usually be a variety of possible responses to the criminal act. With each of these contingencies the criminals will have to reckon, if they are at all to plan their future action. What they conceive of as contingent reactions to each possible response will have, interposed between these reactions and the planned crime, at least one and perhaps a whole sequence of spontaneous and relatively unpredictable events.
In those circumstances it is understandable that criminal liability should be made to depend upon the jury's assessment of whether or not the accessory before the fact must have been aware of the possibility that responses by the victim or by third parties would produce the reaction by the principal offender which led to the other crime. In such a speculative area, it would be remarkable were the accessory's liability for the other crime to depend upon the jury assessing, in terms of "more probable than not", the degree of probability or improbability which the accessory attached to the happening of the particular reaction by the principal offender which in fact occurred, itself dependent upon the intervening uncertain responses of victim or third parties. Yet that is what would be required were an accessory's responsibility to depend upon such a criterion of probability, necessarily involving a balancing process and often a nice assessment of odds. I have spoken of intervening contingencies dependent upon human responses; however to these must be added those contingencies which may arise without any human intervention.
Another and perhaps more substantial objection to the suggested criterion of probability lies in the standard of blameworthiness and responsibility which it presupposes. If applied, it would mean that an accessory before the fact to, say, armed robbery, who well knows that the robber is armed with a deadly weapon and is ready to use it on his victim if the need arises, will bear no criminal responsibility for the killing which in fact ensues so long as his state of mind was that, on balance, he thought it rather less likely than not that the occasion for the killing would arise. Yet his complicity seems clear enough; the killing was within the contemplation of the parties, who contemplated "a substantial risk" that the killing would occur: Howard, Criminal Law, 3rd ed. (1967), p. 276.
As Glanville Williams says, op. cit., pp. 397-398 "it seems that a common intent to threaten violence is equivalent to a common intent to use violence, for the one so easily leads to the other". It was just such an approach to which Herron C.J. referred in Reg. v. Vandine [3] , when, in reviewing recent decisions of the English courts, he spoke of the willingness of courts to infer from the knowledge of an accused that his companion was carrying a weapon, that the former also knew it might be used, its use in fact being regarded "as within the ambit of or a consequence of the common purpose of the original disturbance". In Reg. v. Smith [4] the Court of Criminal Appeal emphasized how cogent might be an accomplice's knowledge of the principal offender's possession of a deadly weapon in leading to the conclusion that their common purpose extended to the use of that weapon and to the resultant killing of the victim. The Court of Criminal Appeal reverted to the matter in Reg. v. Anderson; Reg. v. Morris [5] again in the context of principals of the second degree, not accessories before the fact. Their Lordships there stressed the importance to be attached to knowledge, by those engaged in a criminal venture involving violence, of the possession by one of them of a weapon which, if used, might cause death.
That the notion of "probability" as a suggested criterion of an accessory's liability for what I have called "the other crime" finds its place in the literature is perhaps due to Sir Michael Foster's use of the term. In his Crown Cases, 3rd ed. (1809), in treating of accessories before the fact, he says, at p. 370: "So where the principal goeth beyond the terms of the solicitation, if in the event the felony committed was a probable consequence of what was ordered or advised, the person giving such orders or advice will be an accessary (sic) to the felony" (emphasis added). However it is clear from the illustrations which the learned author then gives that he cannot intend "probable" in any such sense as the applicant would use it; that is, as meaning "more probable than not", almost as a question of percentage calculation. The second illustration given by Foster aptly demonstrates this, it is as follows: "A. adviseth B. to rob C., he doth rob him, and in so doing, either upon resistance made, or to conceal the fact, or upon any other motive operating at the time of the robbery, killeth him. A. is accessary (sic) to this murder." The same point may be made of other illustrations which Foster gives. In Reg. v. Radalyski [6] counsel for the appellant, an accessory before the fact to abortion, sought to rely on the passage from Foster for the proposition that, for his conviction of murder to stand, the death of the woman during an attempted abortion had to be shown to be a probable consequence. When this was put, Williams J. pertinently observed, in the course of argument [7] , that the "extension of the instances given (that is to say, Foster's examples) is against you": Street C.J. made a similar observation when the present matter was before the Court of Criminal Appeal.
Sir James Stephen, when he came to write his Digest of the Criminal Law, cited (8th ed. (1947), p. 21) the above passage from Foster J. in support of his own statement of an accessory's criminal responsibility. He used the phrase "likely to be caused" rather than "probable consequence" but repeated verbatim Foster's illustration which I have set out above. The meaning of "probable" for which the applicant must contend, that of something which is more probable to happen than not to happen, seems to be no more intended by Stephen's use of "likely" than by Foster's use of "probable".
"Probable" may bear a variety of meanings. As Lord Reid observed in delivering the judgment of the Board in The Wagon Mound [No. 2] [8] :
It is used with various shades of meaning. Sometimes it appears to mean more probable than not, sometimes it appears to include events likely but not very likely to occur, sometimes it has a still wider meaning and refers to events the chance of which is anything more than a bare possibility. The Shorter Oxford English Dictionary includes as meanings "credible" and "worthy of acceptance or belief". It is not clear to me with what precise meaning Foster J. used the word, but it is significant that in the commentary which follows his examples Foster J. explains an accessory's responsibility in terms of his "extremely flagitious" conduct which has led to criminal consequences which "though possibly falling out beyond his original intention, were in the ordinary course of things the probable consequences" of what the principal offender did under the accessory's influence or at his instigation. It is noteworthy that the approach of Foster J. is generally much concerned with criminal liability based upon theories of causation and is objective in character, little concerned with the accused's state of mind or and with whether the accused himself believed an outcome to be more probable than not. 1. [1967] 1 A.C. 617, at pp. 634-635.
Again, references in the older works of authority to "probable" or "likely" must be understood in their setting in time, before Woolmington v. Director of Public Prosecutions [9] and at a time when juries, instructed to adopt an essentially objective approach, did not so readily encounter the difficulties nor face the curious consequences which I have referred to above as being involved in the appellant's suggested criterion of probability, used in a subjective sense as representing the required state of an accused's mind.
So far as the authorities are concerned, those relied upon by the applicant, since they are concerned with the criminal codes of Western Australia and of Canada, are for that reason of little relevance: those codes expressly refer to the probable consequence of a common purpose. They have been closely analyzed in my brothers' joint judgment. In that judgment a number of other decisions of Australian and English courts are examined. To Reg. v. Radalyski [10] a decision of the Victorian Full Court, I have already made passing reference. In it, it was held that an accessory before the fact to abortion was properly convicted of murder when the woman died as a result of the attempt to procure her abortion. The jury had been instructed by Madden C.J. that the accessory "stood in precisely the same position as the principal offender so long as the latter did not substantially depart from the particular crime to which the other was accessory " [11] . The Court held that direction to be substantially correct. It explained those cases in which an accessory's responsibility was said to be limited to "ordinary and probable consequences" as concerned only to exclude from responsibility and accessory when the principal offender "turns aside and commits another felony which the accessory did not advise" and which constitutes some "new enterprise of the principal" [12] .
In R. v. Betts and Ridley [13] , Avory J., delivering the judgment of the Court of Criminal Appeal, approved of a much-cited passage from Foster's Crown Cases, (1800) at p. 369, concerning the liability of accessories before the fact. There Foster contrasted the case of the principal offender, in carrying out the common purpose, "varying only in circumstance of time or place, or in the manner of execution", with the case where the principal offender "totally and substantially varieth, if being solicited to commit a felony of one kind he wilfully and knowingly committeth a felony of another, he will stand single in that offence". Only in the latter would the accessory go free. Although not expressed in subjective terms this emphasizes the extent of the departure from the planned crime which must occur if the accessory is to be free of responsibility for the crime with which he is charged. It is wholly inconsistent with the applicant's submission as applied to the present case, where there was no such departure but at most the conversion of the threat of a loaded revolver into the actual firing of it.
It is for these reasons that I agree with the approval given in my brothers' joint judgment to the passage which they cite from the judgment of Street C.J. as to the criminal liability of an accessory before the fact.
I would grant special leave and dismiss the appeal.
The applicant was indicted with one Dodge on 17th February 1977 on the following charges: (1) that on 18th April 1975 at Potts Point he did murder Raymond Keith Morriss; and (2) that on the same date and at the same place, then being armed with an offensive weapon, that is to say, a firearm, he did assault the same man with intent to rob him and at the time of the assault did wound him. The applicant pleaded not guilty. After a long trial he was convicted on 25th February 1977 on both counts. He was sentenced to penal servitude for life on the first count and penal servitude for fourteen years concurrently on the second count. Because the trial judge considered that he was bound to impose the mandatory sentence of penal servitude for life on the first count, he did not specify a non-parole period.
The applicant appealed to the Court of Criminal Appeal against both convictions and against sentence. His appeal against the convictions was dismissed by a majority decision (Street C.J. and Begg J., Lusher J. dissenting). His appeal against sentence was dismissed by a differently constituted Court consisting of seven judges.
The applicant has applied to this Court for special leave to appeal against the dismissal by the Court of Criminal Appeal of his appeal to that Court against the conviction for murder and against sentence. In support of the application for special leave, two grounds have been argued. The first ground relates to a direction given by the trial judge to the jury on the topic of common purpose or common design. The second ground relates to the question of sentence, the applicant's submission being that on the true interpretation of the relevant provisions of the Crimes Act, 1900 N.S.W. the trial judge was not bound to impose the mandatory sentence of penal servitude for life.
In order to appreciate the applicant's submissions, particularly the first submission, it is necessary that we set out the facts in some detail. At the trial the Crown case was that a man named Watson, in company with another man named Dodge, proposed to carry out an armed holdup in the early hours of 18th April 1975 of Morriss at his residence near Wylde Street, Potts Point. Morriss was known to be a receiver of stolen property, including jewellery, and was thought to carry on his person large sums of money and valuables. Watson and Dodge, who resided together at Green Valley, intended to hold Morriss up with a loaded pistol at his residence, rob him and decamp with the proceeds of the robbery. The Crown case was that the applicant, knowing of this plan, agreed to drive Watson to a rendezvous at Kings Cross in the applicant's vehicle where Watson was to join Dodge in Dodge's vehicle and proceed to the scene of the intended robbery. The applicant, it was alleged, agreed to wait at the rendezvous where, after the robbery, he was to be joined by Watson and Dodge who would hand the proceeds to him. The applicant was to hide the stolen property in a construction site in Liverpool Street, Sydney, where he was working. The applicant was to receive part of the proceeds of the robbery.
The plan miscarried. Morriss resisted when he was set upon by Watson and Dodge in Wylde Street as he was returning to his residence and as a result he was killed by a bullet fired from Watson's gun. Thereupon Watson and Dodge ran from the scene without effecting the robbery. They returned to the applicant, who was waiting in his vehicle, and told him what had occurred. He then drove off.
When the applicant drove Watson to Kings Cross on 18th April he was aware that Watson was carrying a pistol. Moreover, he expected that the pistol would be loaded. The applicant knew that Watson was quick-tempered and that he had said that he would not stand for any nonsense. The applicant described Watson to the police who interrogated him as "a likeable sort of chap but he was quick-tempered and could become quite violent". The applicant also stated that he knew that Watson would not let Morriss "get on top of him". In the applicant's record of interview, which was tendered in evidence, there appears this question and answer:
Q. 30. Did Geoffrey at any time say what he would do if he met any obstacle during the course of the robbery?
A. He said he wouldn't stand for any nonsense and I know that he is quick-tempered.
It was the Crown case that Watson was the principal in the first degree, that Dodge was a principal in the second degree and that the applicant was an accessory before the fact. None the less the applicant was charged in the terms appropriate to a principal offender in accordance with the provisions of s. 346 of the Crimes Act.
The Crown relied upon the doctrine of common purpose or common design in order to involve Dodge with complicity as a principal in the second degree and the applicant as an accessory before the fact. It thus became necessary for the trial judge to direct the jury on the meaning and effect of that doctrine in its application to the facts as the jury might find them. The judge directed the jury that a principal in the second degree may be held liable pursuant to the doctrine of common purpose if the act constituting the offence committed was one which the jury might regard as being within the contemplation of the parties as an act done in the course of carrying out the particular venture upon which they had embarked. The judge gave this direction and applied it not only to Dodge as a principal in the second degree but also to the applicant as an accessory before the fact. It is evident from an examination of the summing-up that the trial judge did not distinguish between Dodge and the applicant in expressing the meaning and effect of the doctrine of common purpose.
It is to this aspect of the summing-up that the applicant takes exception. The applicant's case is that the jury should have been instructed that as the applicant was an accessory before the fact, it was necessary, in order to find him guilty, for the jury to conclude that it was a likely or probable consequence of the way in which the crime was to be committed, that is, of the common purpose, that the gun would be discharged so as to kill the deceased. The applicant concedes that the doctrine of common purpose as applied to a principal in the second degree will involve him in complicity if the act constituting the offence charged was contemplated as a possibility by the parties in arriving at their common purpose or design, or if it was incidental to the execution of that purpose or design, but says that the doctrine differs when it is applied to an accessory before the fact.
The argument does not reveal any reason why as a matter of legal principle or legal conception there should be such a difference. True it is that the common law distinguishes for the purposes of classification between the accessory before the fact and the principal in the second degree, but this classification is quite unrelated to the doctrine of common purpose. The object of the doctrine is to fix with complicity for the crime committed by the perpetrator those persons who encouraged, aided or assisted him, whether they be accessories or 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 he 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 C.J. 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. The applicant referred to some cases in which reference has been made to the offence charged as a "probable" consequence of the common purpose and sought to gain support from them. Two comments should be made about these cases. One is that none of them lends any countenance to the notion that the doctrine differs in its application to an accessory before the fact as compared with a principal in the second degree. The second comment is that the observations in the two cases on which the applicant principally relies relate, not to the common law, but to the interpretation of one only of two relevant provisions in statutory criminal codes. It should be noted, as will be mentioned later, that there is support for the view that the relevant code provisions reflect the common law.
The first case was Brennan v. The King [14] , in which a conviction for manslaughter was set aside and a new trial ordered. The applicant and two other persons were indicted for wilful murder. The two others broke into a jeweller's shop, stole jewellery and in the course of committing that crime killed the caretaker. The applicant remained on watch outside the shop. The jury were instructed that if they found the applicant to be a party to the robbery it necessarily followed that he was guilty of murder or manslaughter. The conviction was set aside on the ground that the direction was erroneous. The Court ordered a new trial because on the evidence the conclusion was open "that the applicant aided and abetted" the other two "in a criminal enterprise which he knew included the use of some force upon the person of the caretaker to prevent his giving the alarm, or obstructing the commission of the theft" [15] .
The outcome of the case turned on s. 7 and, to a lesser extent, on s. 8 of the Criminal Code of Western Australia, 1913. Section 7 provided (inter alia):
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence
(a) Every person who actually does the act which constitutes the offence;
(b) Every person who does any act for the purpose of enabling or aiding another person to commit the offence;
(c) Every person who aids another person in committing the offence.
Of this provision Dixon and Evatt JJ. said [16] : "the applicant was liable to conviction for manslaughter if it was established that the plan on which his confederates acted included some physical interference with the caretaker amounting to an assault, that in fact death resulted from such an assault, and that he remained on watch for the purpose of aiding them in carrying out that plan and so commit the assault".
The order for a new trial was based on a Crown case resting on s. 7. There was no element of "probable consequence" in that case. The expression "probable consequence" is not mentioned in s. 7 or in their Honours' comments upon the section.
This expression appeared in s. 8 of the Code which provided that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. Of this provision Dixon and Evatt JJ. said [16] :
The section appears to be based in some respects upon the often cited statement of Sir Michael Foster in reference to accessories before the fact, viz.: "So where the principal goeth beyond the terms of the solicitation, if in the event the felony committed was a probable consequence of what was ordered or advised, the person giving such orders or advice will be accessory to that felony" (Foster, Crown Law (1809), p. 370; Halsbury's Laws of England, 2nd ed., vol. 9, p. 36). But it forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. Later, their Honours said of s. 8 [17] : "the death can be considered the probable consequence of the prosecution of the purpose if the purpose in which the applicant concurred made it likely that his confederates would, if necessary, use violence and such a kind or degree of violence as would probably cause death." 1. (1936) 55 C.L.R., at p. 263. 2. (1936) 55 C.L.R., at p. 264.
Section 8 provided an alternative basis for fixing an accessory with complicity. However, their Honours plainly thought that s. 7 presented a stronger basis on the facts of the case. Their comments indicate that s. 8 was directed to a situation in which the act constituting the offence charged lies outside the scope of the common purpose or solicitation, even outside the actual contemplation of the purpose on which the parties have agreed. None the less, the section provided that in such a situation there is complicity if the act is a probable consequence of the prosecution of the purpose in the sense already explained. Although their Honours were concerned with ss. 7 and 8 of the Code, the distinction which exists between the two sections can be seen reflected in the common law, e.g. Stephen's Digest of the Criminal Law, 4th ed. (1887), pp. 32, 34 (Arts. 38, 41):
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 actually instigate or assist in its commission.
Article 41. where crime committed is probable consequence of crime suggested.
If a person instigates another to commit a crime, and the person so instigated commits a crime different from the one which he was instigated to commit, but likely to be caused by such instigation, the instigator is an accessory before the fact.
See also Russell on Crime, 12th ed. (1964), vol. 1, p. 161.
The next case was Reg. v. Guay [18] , which was a decision on s. 21 (2) of the Canadian Criminal Code 1953-1954, a provision similar to s. 8 of the Criminal Code of Western Australia in that it involved a person in complicity for an act which was a probable consequence of the common purpose. There the appellants were convicted of murder. It was held that the trial judge had not made it clear to the jury that they could only convict if they found that murder was a probable consequence of carrying out the common purpose to rob and that mere foresight of violence or foresight of bodily harm in carrying out the unlawful purpose did not justify a verdict of murder. The applicant relied particularly on the observations of Roach J.A. [19] :
It would not be enough for the jury to find that the accused as parties to the plan of theft knew or ought to have known that violence would as a matter of reasonable probability develop out of that plan and that the violence that did occur was connected with the plan. Before they could convict of murder they would have to be satisfied beyond a reasonable doubt that the accused knew or ought to have known that murder was the probable consequence of the violence that might as a matter of reasonable probability develop out of the plan to steal. 1. [1957] O.R. 120. 2. [1957] O.R., at p. 132.
His Lordship went on to cite Brennan [20] as well as two Canadian decisions in support of the proposition that the jury "could only convict if they found that murder was a probable consequence of carrying out the common purpose to rob" [21] .
His Lordship did not look to that part of Brennan which dealt with s. 7 of the Western Australian Code. He was concerned only to invoke Brennan as an authority for the application of the Canadian s. 21 (2) which was a counterpart to s. 8 of the Western Australian Code. He did not give attention to s. 21 (1) of the Canadian Code (the counterpart to s. 7 of the Western Australian Code). Whether his Lordship's observations accurately reflect what was said in Brennan on the application of s. 8 is a question which we need not pursue. What is important for present purposes is that Guay is a decision which turns on the interpretation of a provision in a criminal code which specifically provides for liability in a case where the act charged is a probable consequence of the common purpose. Guay pays no attention to the other provision in the Code which is more apposite to the case now in hand.
The applicant derives no support from the common law cases. Indeed, the recent decisions in England and New South Wales are against him. In R. v. Surridge [22] , Jordan C.J. said:
If two combine to effect a common criminal purpose, each is liable for any act done by the other in order to effect the purpose which was common to both of them, but not for anything done by the other which was not incidental to the carrying out of their common purpose. A person is an accomplice in the crime charged if he took part in its commission, and was "privy to the criminal intent of the thing done": R. v. Cramp [23] i.e., if he aided not only in the commission of what he knew to be a criminal act, but in the commission of what he knew to be, or to be likely to involve, the particular criminal act charged, so that what was done was in the course of carrying out a common purpose. The first sentence in this passage indicates that the Chief Justice was not saying that the accused is guilty if, and only if, it was more probable than not that the criminal act charged would take place. 1. (1942) 42 S.R. (N.S.W.) 278, at p. 282. 2. (1880) 14 Cox C.C., at pp. 390-393.
In Reg. v. Smith [24] the appellant was a participant in a concerted attack on a public-house. A barman was killed with a knife by one of the attackers inside the public-house whilst the appellant remained outside. The appellant knew that the man who stabbed the barman was carrying a knife. It was held by a bench of five judges that a conviction of manslaughter could be sustained on the ground that it must have been within the appellant's contemplation that the knife might be used and that the use was therefore within the scope of the concerted action.
In Reg. v. Vandine [25] the appellant, a principal in the second degree, was convicted of murder. He had agreed with S. and M. to rob a messenger who was killed when struck by M. with an iron bar which, to the appellant's knowledge, M. brought to the scene of the crime. Herron C.J. said: [25a]
It seems to me to have been a matter for a common-sense jury to decide whether or not a wounding of the victim with the bar was a consequence of the conspiracy to rob. It seems to me that there was evidence fit for the jury to consider that the appellant knew that McCoy had the bar and must have known that it was intended to be used as a natural consequence if the occasion presented itself to McCov as necessary to effect their purpose. See also Reg. v. Radalyski [26] and R. v. Murray [27] . 1. [1970] 1 N.S.W.R. 252. 2. [1970] 1 N.S.W.R., at p. 256. 3. (1899) 24 V.L.R. 687, at p. 692. 4. [1924] V.L.R. 374.
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.
The comment made by Sir Michael Foster, quoted by Dixon and Evatt JJ. in Brennan [28] , appears to relate to an act which stands outside the parties' actual common purpose. Its effect is to bring the act within the common purpose if it is a probable consequence of carrying out that purpose. However this may be, the statement reflects a view of the common law which was based on an objective approach to the relationship between the common purpose and the act charged. As Street C.J. pointed out, a subjective approach to criminal liability has prevailed in more recent times. In any case, the subjective test may well involve an accused person in criminal liability for an act which is a probable consequence of the execution of the common purpose to which he is a party because, if the act is a probable consequence of the execution of the common purpose, there is evidence from which a jury can conclude that it was within the parties' contemplation.
The narrow test of criminal liability proposed by the applicant is plainly unacceptable for the reason that it stakes everything on the probability or improbability of an act, admittedly contemplated, occurring. Suppose a plan made by A, the principal offender, and B, the accessory before the fact, to rob premises, according to which A is to carry out the robbery. It is agreed that A will carry a loaded revolver and use it to overcome resistance in the unlikely event that the premises are attended, previous surveillance having established that the premises are invariably unattended at the time when the robbery is to be carried out. As it happens, a security officer is in attendance when A enters the premises and is shot by A. It would make nonsense to say that B is not guilty merely because it was an unlikely or improbable contingency that the premises would be attended at the time of the robbery, when we know that B assented to the shooting in the event that occurred.
In the present case there was ample evidence from which the jury could infer that the applicant gave his assent to a criminal enterprise which involved the use, that is the discharge, of a loaded gun, in the event that Morriss resisted or sought to summon assistance. We need not recapitulate the evidence to which we have already referred. The jury could therefore conclude that the common purpose involved resorting to violence of this kind, should the occasion arise, and that the violence contemplated amounted to grievous bodily harm or homicide.
By his second ground for special leave the applicant seeks to support the dissenting judgment of Street C.J. (with whom Lusher J. agreed) on this question and the earlier decision of the New South Wales Court of Criminal Appeal in Reg. v. Eldridge [29] which was overruled by the other five members of the Court of Criminal Appeal in the present case. In Eldridge , the Court had held that s. 442 (1) of the Crimes Act (which provides that where by any section of the Act an offender is made liable to penal servitude for life the judge may nevertheless pass a sentence of either penal servitude or imprisonment of less duration) while expressly excluded from s. 19 (which provides for a mandatory life sentence upon conviction for murder), is not excluded from s. 346 (which provides that an accessory before the fact shall be liable to the same punishment as the principal felon). Consequently, the Court held that a life sentence was not mandatory in the latter case.
In the instant case the majority held that an accessory before the fact to murder and a principal in the second degree commit "murder" and thus fall within s. 19 of the Crimes Act and are therefore liable to the mandatory sentence of penal servitude for life which that section provides for in the case of murder. The majority arrived at this conclusion as a matter of statutory construction, reinforcing their interpretation by reference to an examination of the legislative history of the relevant provisions. We agree with their conclusion and, generally speaking, with the reasons given by their Honours.
The question turns on the provisions of the Crimes Act. Sections 345 and 346 provide:
Section 18 contains the statutory definition of "murder". Section 19 then goes on to provide: Murder - punishment. Whosoever commits the crime of murder shall be liable to penal servitude for life.
The provisions of section four hundred and forty-two of this Act shall not be in force with respect to the sentence to be passed under this section.
The effect of s. 346 is that an accessory before the fact is to be dealt with as a principal. He is to be indicted, convicted and sentenced as a principal. He is charged as a principal under s. 18 and he is convicted and sentenced in that capacity, not as an accessory. He is therefore sentenced under s. 19, not under s. 346. The latter section merely states that he is liable to the same punishment as the principal felon; it does not, as we read it, constitute an independent source of authority for the imposition of a sentence.
The applicant's argument flies in the face of the legislative intention manifested in s. 346. The intention there expressed is that the accessory is liable to the same punishment as the principal. The punishment prescribed for the principal is the mandatory sentence of penal servitude for life. Yet the effect of the applicant's argument is that the accessory may be sentenced to a lesser punishment. It is an argument that is not only at odds with the specific provision relating to punishment in s. 346 but it is also at variance with the intention, plainly expressed in the section, that an accessory before the fact is to be treated in all respects as a principal.
Because the arguments advanced by the applicant raise questions of importance, we would grant special leave to appeal. Because the arguments fail in their objective, we would then dismiss the appeal.
Johns
The Queen