Criminal Law - Murder - Complicity - Common purpose to assault victim - Death - Direction that jury might convict if satisfied accused contemplated that intentional infliction of grievous bodily harm possible incident of joint enterprise.

BRENNAN CJ, DEANE, DAWSON, TOOHEY AND GUMMOW JJ The appellants, Sean McAuliffe and David McAuliffe, are brothers. They were both convicted of the murder of a man named Rattanajaturathaporn, who was of Thai origin, on 20 July 1990. They were also convicted of different offences against a man named Sullivan committed at the same time as the murder: in the case of Sean McAuliffe the offence was robbery with striking and wounding and in the case of David McAuliffe the offence was malicious wounding with intent to do grievous bodily harm. Their appeals against conviction were rejected by the New South Wales Court of Criminal Appeal and they now appeal by special leave to this Court.

2. Sean McAuliffe and David McAuliffe, who at the time of the offences were 17 and 16 years of age respectively, had a friend named Matthew Davis. He pleaded guilty to the murder of the deceased and did not give evidence at the trial of the two brothers.

3. Late in the evening of Friday, 20 July 1990 the two brothers and Davis, after consuming a large amount of alcohol and smoking some marijuana, decided to go to a park near Bondi Beach for a purpose which was variously described as being to "roll" or "rob" or "bash" someone. The park which the three youths selected was between Bondi and Tamarama where there are cliffs and lookout areas. The cliffs are high and a person falling over them would be likely to be killed.

4. Sean McAuliffe armed himself with a hammer and Davis armed himself with a baton or stick. Sean McAuliffe was aware that Davis had the stick but there was no direct evidence that David McAuliffe was aware of this fact before they arrived at the park. There was also no direct evidence that the others knew that Sean McAuliffe had armed himself with the hammer. Sean and David McAuliffe were experienced in the sport of Tae Kwon Do, which involves the use of kicking, and Davis was described as an experienced street fighter.

5. When the three youths arrived at the park they saw two men, who were the deceased and Sullivan, near a lookout at the top of a cliff. The two men were not in each other's company but were not far apart. The three youths set upon them. Sean McAuliffe threatened Sullivan with the hammer and took his coat. Sean McAuliffe then punched and kicked Sullivan. At about the same time David McAuliffe and Davis attacked the deceased, McAuliffe punching and kicking him and Davis beating him with the stick. Davis chased the deceased on to an elevated footpath which led away from the lookout and ran along the top of the cliff some distance away from the edge. He continued to assault the deceased on the footpath. Sean McAuliffe then went over to the deceased and side kicked him in the chest. He said he did this "to finish the fight". It caused the deceased to fall from the footpath into a puddle in the rocks a short distance below. The puddle was some three to five metres from the edge of the cliff. By this time the deceased was covered in blood. Davis then turned to Sullivan and began to assault him, using the stick. He stopped as the McAuliffe brothers left the scene, calling upon Davis to go with them. Davis went towards the footpath but joined the others a minute or two later. He had a lot of blood on him.

6. Sullivan went to the police the next day and reported the incident. He was severely injured. Subsequently the deceased's body was found in the sea at the bottom of the cliff. Blood stains consistent with the deceased's blood group led from the footpath to the puddle in the rocks immediately below the footpath. Further bloodstains then led to the edge of the cliff and were also to be seen on a ledge several metres below the edge. Vomitus and some of the deceased's personal papers were also found on the ledge. The ledge was narrow, wet and slippery. Access to it from the cliff top was difficult. The evidence was consistent with the deceased's having fallen from the top of the cliff to the ledge below and, after a period of time on the ledge, into the sea at the bottom of the cliff.

7. The actual death of the deceased would appear to have been directly caused by the injuries sustained by falling from the cliff and drowning. It is likely that the deceased suffered fractures and bruising to the skull, a broken nose, a fractured collar bone and various lacerations to the face before the fall. Some of the injuries were due to the application of force with a blunt instrument, and others were consistent with blows from fists.

8. 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 the injuries which the youths directly inflicted on 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(1).

9. 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 (i.e. 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 it was in this area."

10. 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.

11. 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 realization 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.

12. 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(2). 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 a 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(3).

13. 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(4). 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(5).

14. Two questions arose in Johns (T.S.) v. The Queen(6) 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(7).

15. 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, said(8):

"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."

16. In Johns the Court confined its attention to the scope of the common purpose arising from the understanding or arrangement between the parties. That is why, in the passage just cited from the joint judgment, Street CJ is quoted with approval when he speaks of liability being imposed for an act which was within the contemplation of both the secondary offender and the principal offender. It was accepted without question that both parties were equally liable for offences committed by one of them in the course of executing, and within the scope of, the common purpose. The Court did not consider the situation in which the commission of an offence which lay outside the scope of the common purpose was nevertheless contemplated as a possibility in the carrying out of the enterprise by a party who continued to participate in the venture with that knowledge. That situation would occur where, for example, a party knows that another party to a joint criminal enterprise is carrying a weapon which that other party might use to kill or inflict grievous bodily harm in carrying out the enterprise and expressly rejects any agreement that the weapon might be used but nevertheless continues with the venture. The question arises whether both parties are liable if the weapon is used to inflict harm in the course of executing the common purpose, that action being one which lay outside the scope of the common purpose or agreement, but within the contemplation of the secondary party.

17. No explicit answer to that question was provided by the Privy Council in Chan Wing-Siu v. The Queen(9) but remarks made by Sir Robin Cooke in delivering the judgment of the Privy Council in that case suggested that liability would be imposed upon both parties. He referred(10) to the principle whereby a secondary party acting in concert with a primary offender is criminally liable for acts done by the primary offender of a type which the secondary party foresees but does not necessarily intend. He continued(11):

"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 that foresight."

"In some cases in this field it is enough to direct the jury by adapting to the circumstances the simple formula common in a number of jurisdictions. For instance, did the particular accused contemplate that in carrying out a common unlawful purpose one of his partners in the enterprise might use a knife or a loaded gun with the intention of causing really serious bodily harm?"

18. After the decision in Chan Wing-Siu v. The Queen, in which Sir Robin Cooke relied expressly on Johns, there were a number of decisions of the Court of Appeal in England in which Chan Wing-Siu v. The Queen was applied. In a commentary in the Criminal Law Review upon one of those decisions(13) Professor J.C. Smith pointed out that insufficient attention had been paid to the distinction to which we have referred between acts falling within the scope of the common purpose and acts which, although excluded from any understanding or arrangement, are within the contemplation of one of the parties to a joint criminal enterprise who nevertheless continues in it. In Reg. v. Hyde(14) Lord Lane CJ referred to the commentary by Professor Smith and, in correction of some remarks made in Reg. v. Slack(15), said that the correct principle, being that enunciated by Sir Robin Cooke in Chan Wing-Siu v. The Queen, was as follows(16):

"If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture. As Professor Smith points out, B has in those circumstances lent himself to the enterprise and by so doing he has given assistance and encouragement to A in carrying out an enterprise which B realises may involve murder."

In Hui Chi-Ming v. The Queen(17) the Privy Council accepted that passage as correctly stating the law. However, their Lordships correctly qualified the passage cited above from the judgment of Sir Robin Cooke in Chan Wing-Sui v. The Queen in which the word authorisation was said to be a synonym for contemplation. They said(18):

"Their Lordships consider that Sir Robin used this word (authorisation) - and in that regard they do not differ from counsel - to emphasise the fact that mere foresight is not enough: the accessory, in order to be guilty, must have foreseen the relevant offence which the principal may commit as a possible incident of the common unlawful enterprise and must, with such foresight, still have participated in the enterprise. The word 'authorisation' explains what is meant by contemplation, but does not add a new ingredient. That this is so is manifest from Sir Robin's pithy conclusion to the passage cited: 'The criminal culpability lies in participating in the venture with that foresight.'"

19. 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 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 criminal enterprise with the necessary foresight and that is so 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.

20. 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.

21. Relying on common purpose, the prosecution case was that the death of the deceased was caused by an act or acts for which each of the appellants was responsible. The prosecution contended that, because of the bashing which he received, the deceased ended up on the ledge from which he subsequently fell and that the continuation of those events was not interrupted by any act of some other person or by any conduct of the deceased himself which would break the chain of causation. The trial judge directed the jury as follows:

"(Y)ou cannot convict the accused of murder or manslaughter unless you are satisfied that the death of the deceased in this trial was causally related to an act for which the accused, whose case you are considering, was responsible. To be a cause of death, for the purposes of these offences, the act for which the accused is responsible must be a substantial or significant cause of bringing about death but need not be the sole cause but it must be a substantial or significant cause viewed in a commonsense and practical way."

22. The appellants complain that the trial judge failed to direct the jury that if the deceased acted unreasonably and simply walked in the wrong direction for reasons unrelated to the injuries received, other than his proximity to the cliff edge, then the chain of causation would be broken. However, the trial judge on a number of occasions reminded the jury that an act of the deceased himself was capable of providing an intervening cause of death and of breaking the chain of causation which commenced with the assault upon him by the appellants and Davis. He suggested to the jury a number of possible explanations of the manner in which, upon the evidence, the deceased may have met his death, without suggesting that the examples were exhaustive. One such example was:

"that of the deceased being out on that rock area on the sea side of the park having been left there and then having got up at some stage and I suppose turned one direction, turned towards the sea, and walked off rather than walking the other way back to safety. That again is very much a matter of commonsense for you to consider in the circumstances. You would no doubt take into account the extent to which there was any light in the area. You would take into account what effect any physical injury or attack, confusion, and the like had upon him."

In the light of the direction previously given that the jury consider whether any act of the deceased was such as to break the chain of causation, that passage would clearly have directed the jury to the matters which the appellants complain were not brought to their attention.

23. The learned trial judge did not direct the jury with respect to the reasonable foreseeability of any action on the deceased's part but the case was a relatively simple one and did not call for such a direction. The trial judge did however deal with a possible response of the deceased to the acts of the three youths saying:

"As a matter of law where the conduct of a person for which the accused is responsible induces in the victim a well-founded apprehension of physical harm, such as to make it a reasonable consequence that the victim would seek to escape, then the fact that the death occurs in the course of that escape does not break the chain of causation so long as the response of the victim is reasonable or proportionate having regard to the nature of the conduct of the accused or for which the accused is responsible, and the fear it is likely to have provoked."

It was observed in this Court in Royall v. The Queen(19) that in directing a jury on causation of death in fright, escape or self-preservation cases, it is ordinarily undesirable to focus attention upon foreseeability. In that case, a direction of the kind given by the trial judge here was approved. There is, in our view, no substance in the appellants' complaints about the trial judge's directions in relation to causation.

24. For these reasons, we would dismiss both appeals.

1 Section 18 of the Crimes Act 1900 (N.S.W.) states:

"(1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him 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 for 25 years.

(b) Every other punishable homicide shall be taken to be manslaughter.

had 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 See Giorgianni v. The Queen [1985] HCA 29; (1985) 156 CLR 473.

3 cf. Reg. v. Lowery and King (No.2) [1972] VicRp 63; (1972) VR 560 at 560 per Smith J

4 Mansell (1556) 2 Dyer 128b [1794] EngR 2078; (73 ER 279); Ashton's Case (1698) 12 Mod. 256 (88 ER 1304); Reg. 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) at 209-214.

5 See Reg. v. Johns (1978) 1 NSWLR 282 at 287-290 per Street CJ

6 [1980] HCA 3; (1980) 143 CLR 108.

7 cf. Reg. v. Lowery and King (No.2) (1972) VR at 560-561 where Smith J appears to have held a contrary view.

13 Reg. v. Wakely (1990) Criminal Law Review 119; the commentary is at 120-121. See also Smith and Hogan, Criminal Law, 7th ed. (1992) at 142-145.

19 [1991] HCA 27; (1991) 172 CLR 378 at 390, 412-413, 425.