(f) of the number of men involved, all physically strong and most with martial arts or security work experience (I have not thus far referred to the evidence to that effect, but this general summation is sufficient.)
91 The appellant submitted that the criminal enterprise was not one of shooting Yildirim and Unsal , but one in which there was not to be any shooting unless (as Nitrovic indicated) Yildirim and Unsal themselves started shooting. He submitted that it was open to the jury to infer that any shooting by the men in the ambush party was only to be in self defence. He submitted that the trial judge should have directed the jury that, to find the appellant guilty of murder, they must be satisfied beyond reasonable doubt that the appellant realised that one or more of the parties to the criminal enterprise might shoot at least one of Yildirim and Unsal intending to kill him or inflict grievous bodily harm upon him otherwise than in self defence; and should have directed the jury that, to find the appellant guilty of manslaughter, they must be satisfied beyond reasonable doubt that the appellant realised that one or more of the parties to the criminal enterprise might fire a gun otherwise than in self defence. The errors lay in the absence of directions to the effect of the underlined words.
92 As can be seen, although the grounds of appeal as framed were in terms of the directions as to the elements of the offences of murder and manslaughter, this limb of the grounds as put in submissions was concerned with the directions as to what had to be contemplated by the appellant as a possibility in order that he be criminally responsible for the killings of Yildirim and Unsal. I use the language of contemplation as a possibility. That language has been used in the cases. Other language can be used, for example, language of realisation or foresight that something might happen, and has been used in the cases. For present purposes nothing turns on the mode of expression, and I will generally stay with the perhaps stilted language of contemplation as a possibility.
93 The Crown submitted that the directions for which the appellant contended were not required both in principle and according to the law as explained in Osland v The Queen (1998) 197 CLR 316; that in any event the trial judge's directions would have been understood in the manner for which the appellant contended; and that, again in any event, there was no miscarriage of justice because on the evidence the appellant could not but have contemplated the possibility of a shooting otherwise than in self defence.
94 It is convenient first to go to the trial judge's directions.
95 The Crown submitted that the summing-up when considered as a whole conveyed to the jury not only that before the appellant could be convicted of murder or manslaughter they would have to be satisfied beyond reasonable doubt that he contemplated the possibility that murder might be committed, but also that the contemplation that murder might be committed was a contemplation of the possibility of a killing occurring otherwise than in self defence. The same applied, it was said, in relation to the directions concerning manslaughter. And, it was said, the absence of complaint by the very experienced counsel appearing for the appellant at the trial indicated that the jury was sufficiently instructed that if the only killing contemplated as a possibility by the appellant was one done in self defence, then he should be found not guilty.
96 The trial judge said -
"Ladies and gentlemen, let me turn then to the basis upon which the Crown says that the accused is guilty of each of those crimes, that is the basis in law.
It is not the Crown case that the accused himself shot either of the deceased. True it is Mr Mullany gave evidence that he saw the accused standing over the prone Mr Unsal, the accused holding what looked like a gun. I will explain to you the relevance of that evidence in a moment. But I emphasise it is not the Crown case that it was the accused himself that shot either of these two men.
The Crown does not have to prove who it was that shot either of them. What the Crown sets out to prove is that, in the circumstances, the accused was criminally responsible for each of those shootings. As I have said, the central issue in this case is whether the accused was even present when those two men were shot. However, if you were satisfied that he was, I must explain to you how he might in law be criminally responsible for those shootings. This involves examining firstly the criminal responsibility of whoever did shoot those two men: that is, whether the shooting in each case was unlawful and, if so, whether it amounts in law to murder or manslaughter.
You may think it is almost impossible to determine from the evidence who shot Mr Unsal. That is a comment about the facts which you can accept or reject as you see fit. That is your province. However, there is evidence from Mr Mullany that it was Mr Nitrovic, Steve Nitrovic, who shot Mr Yildirim and, on Mr Mullany's evidence, that appears to be immediately after Mr Yildirim had stabbed Mr Nitrovic, inflicting upon him quite serious wounds.
In relation to the killing of Mr Yildirim, then, that evidence raises a possible issue of self-defence by Mr Nitrovic, which would make the killing lawful . Alternatively, it raises an issue of what we call in law provocation which would make the killing manslaughter rather than murder.
The best way to go about my task then, I think, is to explain to you first how a person acting alone might be criminally responsible for a killing and how that killing might be classified as murder or manslaughter. Then I will turn to the situation where that person kills in the company of another person and we will examine how that other person might become criminally responsible for that killing." (emphasis added)
97 The trial judge began the first explanation -
"Let us look first at the situation of a man killing a person acting alone, not in company of anybody else. As we all know, people can be killed in a wide variety of circumstances. Some killings are entirely by accident or misadventure in circumstances where whoever caused the death is not guilty of any crime. Some deliberate killings are lawful. The more common example being a killing done in self-defence. That is a matter I will turn to shortly.
When we talk about unlawful killings the law classifies them either as murder or manslaughter. Broadly speaking by the term 'murder' we mean the more serious class of killings. The term 'manslaughter' killings which, for one reason or another, are seen as less blameworthy. That does not alter the fact that manslaughter is still a very serious crime. I am not going to give you a law lecture but I have to tell you as much about murder and manslaughter as you will need to know to decide the issues raised by the evidence in this case." (emphasis added)
98 The trial judge gave directions about the elements of the crime of murder. He then said -
"I call them the basic ingredients of the crime of murder because, even if each of those ingredients is proved, that does not necessarily mean that the person charged is guilty of murder. The killing, even with that intent, may be lawful . In other circumstances a killing with that intent might be partly excused, so as to be classified as manslaughter rather than murder.
Let me deal with killings that may be lawful. For present purposes I am talking now about killings in self-defence . As I have said, that arises here because of the possibility that Mr Nitrovic shot Mr Yildirim at a time when he, Mr Nitrovic, was himself under attack. I will say a little more about that in a moment." (emphasis added)
99 The trial judge gave directions about what was involved in self defence, in the course of which he said that the issue arose because of Mullany's evidence that Nitrovic shot Yildirim and that Nitrovic was heard to shout that Yildirim had a knife and was injured by the knife: hence, the trial judge said, there was a question whether it was Nitrovic who shot Yildirim and, if so, whether at that moment he was acting in self defence.
100 The trial judge dealt with provocation in relation to Nitrovic shooting Yildirim. He then continued -
"Although neither Counsel addressed you on this matter or the matter of self-defence, they are matters which I am required to raise with you because they are issues which do arise on the evidence. I emphasise that these issues of self-defence and provocation arise only in relation to the killing of Mr Yildirim. It may arise from Mr Mullany's evidence that it was Mr Nitrovic who shot Mr Yildirim and Mr Mullany's evidence of the circumstances in which this occurred. If you consider it reasonably possible that it was Mr Nitrovic who shot Mr Yildirim and that he did so in self-defence, then that killing would be lawful and not amount to a crime at all . Alternatively, if you considered it reasonably possible that Mr Nitrovic shot Mr Yildirim and that he did so under provocation then that killing would be classified as manslaughter rather than murder." (emphasis added)
101 The trial judge turned to manslaughter. He said -
"Ladies and gentlemen, what I am about to say now is applicable to both charges, both the killing of Mr Yildirim and the killing of Mr Unsal. There is another way in which a person who kills unlawfully would be guilty of manslaughter rather than murder. That is if the person who killed did not intend to kill or inflict grievous bodily harm. Nevertheless, that person might be guilty of manslaughter on the basis that the killing was the result of an unlawful and dangerous act. For present purposes, an unlawful act means an act not done in self-defence. That issue appears to arise here only in relation to the killing of Mr Yildirim. There is no evidence to suggest that the killing of Mr Unsal was done in circumstances which would make it lawful ." (emphasis added)
102 Directions were given as to the elements of manslaughter.
103 The trial judge then said -
"Ladies and gentlemen, that is a thumb nail sketch of the basic principles of the law of homicide when one examines the conduct of a person who actually did the killing. I want to turn now to the situation where a person kills someone whilst he is involved in a criminal enterprise with another man or other men. The question, which is of central importance in this case, is how the other man or those other men might be criminally responsible for that killing. The principle is the same no matter how many people you are talking about. For convenience I will talk about a criminal enterprise in which two men are joined.
If two men set out to commit a crime, each of them is responsible for what the other does in committing that crime. However, it may be in the course of that criminal enterprise one of the men commits an additional crime, a crime other than the one which they had planned. In that event, the other man would also be guilty of that additional crime if he contemplated the possibility that it might be committed in the course of carrying out the criminal enterprise they had planned. That contemplation is sufficient to make that other man criminally responsible for that additional crime. It would be no defence for that other man to say, 'That is not the crime we planned to commit' or, I didn't want that to happen' or, 'I hoped it wouldn't happen'. Provided the other man realised it could happen, he also is guilty.
Here the Crown does not allege that Mr Bikic and the other men said to have been involved in this enterprise planned to kill Mr Yildirim and Mr Unsal. The plan, the Crown says, was to assault them. For present purposes I do not need to go into he law of assault. It is sufficient to say in law the notion of assault is not confined to striking someone. Even to restrain someone physically amounts to an assault. If the enterprise here were to ambush the two deceased and to physically restrain them in some way, whatever else might have happened, that would be a criminal enterprise because it would involve an assault. However, this accused is charged with murder not with assault. In the event Mr Yildirim and Mr Unsal were shot dead.
Let me turn then to explain to you precisely how this accused might be criminally responsible for each of those shootings and I will do that after a short break." (italics added)
104 The short break became an overnight adjournment, and the next morning the trial judge continued -
"HIS HONOUR: Ladies and gentlemen, good morning. Yesterday you will remember I took you to some basic principles of law.
I commenced by dealing with circumstances in which a killing may be justified so as to be lawful . Then I dealt with unlawful killings and how they might be classified as either murder or manslaughter depending on the circumstances.
I then began to take you to the law of what we call common purpose. That is how, when two men combine to commit a particular crime, and one of them commits an additional crime, the other man might be criminally responsible for that additional crime. As I explained to you that principle is relevant here because it is not suggested by the Crown that the plan was to kill either Mr Yuildirim or Mr Unsal. The plan was to assault them but, as it happened, in the course of that assault both were killed.
I reminded you it is not the Crown case that the accused himself killed either of them. But the question is: Is he criminally responsible for those killings? For him to be criminally responsible for either of those killings you would have to be satisfied, in the first place, beyond reasonable doubt, that he was a party to that enterprise to assault the two men. You would then turn to the question whether he realised that, in the course of carrying out that assault, one or more of his companions might shoot at least one of the deceased. If you were satisfied that he realised that, then he himself would be responsible for the shootings in law, even though he himself did not do them.
It is at this stage, ladies and gentlemen, I would like to distribute to you a very brief outline of principles of law which, I hope, will help you follow what I am about to say." (emphasis and italics added)
105 Copies of the outline of directions were handed to the jury, and became MFI 76.
106 The trial judge said -
"Ladies and gentlemen, I start with the obvious proposition: If you are not satisfied beyond reasonable doubt that the accused was present when the deceased were killed, that is the end of the matter. Go no further. He must be found not guilty of both charges. The directions of law I am about to give you apply only if you are satisfied that he was present at that house that night.
As I have said, the accused would be criminally responsible for the shootings if he took part in this enterprise to assault realising that, in the course of it, one of his companions might shoot at least one of the deceased men . Of course, you would have to be satisfied that Mr Yildirim and Mr Unsal were killed by one of the accused's companions in this criminal enterprise, although, as I have said, the Crown does not have to prove which one of them it was.
It is for that reason that the crucial question here is whether the accused was a party to a plan to ambush the deceased realising that in the course of that ambush one or more of his companions might shoot at least one of the deceased. However, to be found guilty of murder you would need to be satisfied that the accused realised that that shooting could occur in circumstances amounting to murder; that is that one of his companions might shoot at least one of the deceased intending to kill him or to inflict grievous bodily harm upon him.
The accused could not be found guilty of murder unless you are satisfied he realised one of his companions might fire a gun with that intent . In addition, you would have to be satisfied, as to each of the deceased, that whoever did shoot him did in fact shoot intending to kill or to inflict grievous bodily harm. Otherwise that shooting would not amount to murder in law. In other words, you would have to be satisfied, as to each deceased, that he was killed in circumstances mounting to murder.
If the circumstances in which the deceased was killed were lawful then that killing would be no crime and the accused himself could not be found guilty of any crime arising from it. If the circumstances in which either of the deceased were killed amounted to manslaughter, rather than murder, then the accused himself could not be found guilty of anything more than manslaughter.
As I have said, there was evidence that it was Mr Nitrovic who shot Mr Yildirim and that he did so acting in self-defence. If that were so the killing of Mr Yildirim would be lawful and the accused would not be criminally responsible for it. He could not be found guilty of either murder or manslaughter in relation to the killing of Mr Yildirim.
As I have said, the issue of self-defence being raised, it is not for the accused to prove Mr Yildirim was killed in self-defence, it is for the Crown to prove beyond reasonable doubt that he was not.
So, the question is whether you think it is reasonably possible that Mr Nitrovic killed Mr Yildirim and that he did so in self-defence. Unless the Crown can exclude that possibility beyond reasonable doubt the accused must be found not guilty of the murder or manslaughter of Mr Yildirim . The accused must be acquitted outright." (emphasis and italics added)
107 The trial judge turned to the outline of directions provided to the jury. The appeal papers before us did not contain a copy of MFI 76, and neither the appellant nor the Crown provided a copy in order to take us to it.
108 From reference in the summing-up, the outline included in a summary of the ingredients of murder, "that the shooting was unlawful". In going through the outline of directions the trial judge again referred, at some length, to self defence as an issue arising in relation to the shooting of Yildirim. He then said -
"As I say in the outline in relation to Mr Yildirim, the question whether his killing was unlawful arises only because there is evidence that Mr Nitrovic may have shot him and may have done so in self-defence. In that event, the killing would be lawful if Mr Nitrovic believed on reasonable grounds that it was necessary to shoot Mr Yildirim in self-defence. Unless the Crown could exclude beyond reasonable doubt the possibility that Mr Nitrovic shot Mr Yildirim in self defence, the accused must be found not guilty of both the murder and manslaughter of Mr Yildirim." (emphasis added)
109 The trial judge later said -
"The basis of manslaughter that I am going to turn to now focuses on the state of mind of the accused himself, what he foresaw might happen in the course of this assault.
As I have said, to find the accused guilty of murder you would have to be satisfied that he took part in the assault upon the deceased realising not only that one or more of his companions might shoot at least one of the deceased, but also that that person might do so intending to kill or inflict grievous bodily harm upon that deceased.
This accused could not be found guilty of murder as to either charge unless you were satisfied that he foresaw that one of his companions might fire a gun with that intent. If you were not satisfied of that, you would have to consider whether the accused foresaw that a gun might be fired but not to kill or seriously harm either of the deceased but perhaps to frighten without aiming at them. You would also have to consider whether a person doing that in those circumstances would be committing a dangerous act, that is, an act exposing either of the deceased to the appreciable risk of serious injury. If you were satisfied of those things then it would be open to you to find the accused guilty of the manslaughter rather than the murder of both the deceased .
Let me go back to the outline; we are now on page 4 under the heading Manslaughter - Contemplation of the Accused. This issue arises if you are satisfied of the first, second, fourth and fifth points set out on page 1 but not satisfied of the third. Assume you are satisfied that the accused was a party to the enterprise to assault, that he knew one or more of his companions had a gun, that one or more of his companions did in fact shoot the particular deceased intending to kill him or inflict grievous bodily harm upon him and that shooting was unlawful, but you are not satisfied that the accused realised that one of his companions to the enterprise might fire a gun with that intent, might fire a gun intending to kill or inflict grievous bodily harm. If you are satisfied that the accused realised that one of the parties to the criminal enterprise might fire a gun but without intending to kill or inflict grievous bodily harm upon either of the deceased but in such a way as to expose either of them to an appreciable risk of serious injury, in that event the accused should be found not guilty of murder but guilty of manslaughter in respect of both charges. This basis of liability focuses not upon what the killer actually did or what the killer intended but what the accused realised might happen when participating in this enterprise. If his anticipation of what might happen went no further than foreseeing one of his companions might fire a gun but not intending to kill or seriously hurt anyone, at most the accused could be found guilty of manslaughter of the two deceased, he could not be found guilty of the murder of either of them ." (italics added)
110 Towards the end of the summing-up the trial judge said that the Crown submitted that the jury would be satisfied of the honesty and accuracy of Mullany's evidence and that it put the appellant at the scene and apparently holding a gun himself, and continued -
"From that evidence it is said you would conclude that all the elements of the crime of murder, which I have set out in this outline, are made out. The Crown says you could conclude the accused was at the house, that he was a party to an ambush, that he had a gun or knew others did and that he realised a shooting might occur amounting to murder . The Crown submitted you would accept that it was Mr Nitrovic who shot Mr Yildirim, although, as I have said, the Crown does not have to prove it, but the Crown argued you would reject that shooting was done under self-defence or provocation but in circumstances amounting to murder.
True it is there is no eyewitness evidence to the shooting of Mr Unsal. The Crown submitted you would conclude beyond reasonable doubt that he was shot by one of the accused's companions in this criminal enterprise and that shooting also occurred in circumstances amounting to murder ." (bold added)
111 The Crown referred particularly to what it said were occasions on which the trial judge made clear that a killing in self-defence was lawful. I have emphasised relevant parts of the passages set out. It then said that, when giving directions about joint criminal enterprise, the trial judge told the jury that what the appellant needed to contemplate as a possibility was a crime. The result, it said, was that putting these things together the jury would have understood that the appellant could not be found guilty if he had only contemplated the possibility that there might be a killing or a shooting in self-defence, because that would not have been a crime. In the passage last set out from the summing-up, it said, the trial judge in effect so directed the jury, because he repeated the Crown's contention that the jury could conclude that the appellant "realised a shooting might occur amounting to murder" and the shooting by one of the appellant's companions "occurred in circumstances amounting to murder". I have put those parts of the passage in bold.
112 I do not think the Crown's submissions in this respect should be accepted.
113 Although the trial judge did make clear that a killing in self-defence was lawful, he did so in relation to the ingredients of murder. How that translated to manslaughter was perhaps not explained in the passages I have set out, but it is not necessary to explore that matter. He did so expressly with reference to the killing of Yildirim alone, excluding self defence as an issue in the killing of Unsal. As I have said, the appellant's submissions now under consideration were concerned with directions as to what must be contemplated as a possibility for liability by reason of the killings of Yildirim and Unsal. What is contemplated is different from what happens in fact, and a person may contemplate the possibility that there might be a killing only in self defence although as events turn out there is no issue of self defence; conversely a person may not contemplate any such possibility although as events turn out there is an issue of self defence.
114 Thus, making clear that a killing in self defence was lawful did not without more address what must be contemplated for criminal responsibility by reason of the killings of Yildirim and Unsal. When the trial judge came to the directions about joint criminal enterprise, he did not put together the lawfulness of a killing and the appellant's contemplation. I have italicised relevant parts of the passages set out. The first italicised part speaks of contemplation of commission of a crime. But the other italicised parts speak of contemplation of shootings. Overall, the effect on the jury would not have been that, because a killing in self defence was not a crime, the appellant could not be found guilty if he had only contemplated the possibility that there might be a killing or a shooting in self defence. The effect would have been that contemplation of the possibility that there might be a killing or a shooting was sufficient, together with other matters, for criminal responsibility as party to the criminal enterprise. Whether the killing or shooting was a crime because not in self defence was relevantly not part of the directions.
115 Further, even if the jury had put together lawfulness of a killing and contemplation of possibility of a crime, they had been told that there was no issue of self defence in relation to the killing of Unsal. In the manner the matter was left, there was removed from their consideration any contemplation involving the killing of Unsal in self defence, and so any need to be satisfied that the appellant contemplated the possibility that one of the parties to the criminal enterprise might shoot Unsal otherwise than in self defence.
116 I am not persuaded, therefore, that the Crown is correct in its submission that the directions would have been understood in the manner for which the appellant contended.
117 I go then to whether the directions for which the appellant contended were required.
118 In McAuliffe v The Queen (1995) 183 CLR 108 the Crown case was that the victim was killed in an attack pursuant to a common purpose to rob or roll someone, and included that the members of the group contemplated the intentional infliction of grievous bodily harm as a possible incident in carrying out the common purpose. The directions given were summarised in the High Court (at 113) as conveying 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 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."
119 The accused contended on appeal that it was necessary that all parties to the criminal enterprise contemplate the intentional infliction of grievous bodily harm as a possible incident of the carrying out of the enterprise so as to form part of the common purpose. That contention was rejected, and it was held (at 118) that either a shared common intention or an individual contemplation of the intentional infliction of grievous bodily harm as a possible incident of the enterprise would be a sufficient intention on the part of either of the accused for criminal responsibility for the killing.
120 In the course of its reasons the Court said of its earlier decision in Johns v The Queen (1980) 143 CLR 108 -
"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 Robyn Cooke observed [in Chan Wing-Siu v The Queen (1985) AC 168 at 175], 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." (at 117-8)
121 The appellant relied for his submissions upon this passage, taking up the references to commission of a crime and submitting that if the contemplation had to be of the possible commission of a crime, then it was insufficient that the appellant contemplated that there might be a shooting in self defence as an incident of the criminal enterprise.
122 I do not think that McAuliffe v The Queen supports the submission. The Court's references to commission of a crime were plainly not intended to address that matter. By "crime" the Court meant the relevant acts - in that case, the acts constituting the crime of murder. On numerous occasions in the course of the reasons the Court spoke in terms of the acts or actions in contemplation, one instance being (at 118) that the prosecution case was that the death of the victim "was caused by an act or acts for which each of the appellants was responsible". The distinction being made by the appellant in the present case between acts in contemplation not constituting a crime and acts in contemplation constituting a crime was simply not in question.
123 Apart from authority, the appellant submitted that there could not be the commission of a crime by reason of contemplation of something unless that which was contemplated was itself a crime. In principle, it need not be so. There is no reason in principle why an accused's criminal responsibility should not be attached to the acts of another person even if that person is not guilty of a crime, and no reason why the criminal responsibility should not be attached to acts of the accused done with the contemplation of related acts of another person even if the acts of that person do not amount to a crime. If the accused's criminal responsibility is not derivative from and dependent on the guilt of another person, but is primary, the guilt of the other person or contemplation of acts of the other person amounting to a crime is not mandated.
124 The question is whether the appellant's criminal responsibility was derivative, and more particularly whether, although not mandated, one of the constituents of his crime was that the contemplated shooting by one of the ambush party was a crime because not in self defence.
125 The nature of liability for participation in a joint criminal enterprise was discussed in the judgment of McHugh J in Osland v The Queen. Kirby and Callinan JJ agreed with his Honour's discussion.
126 McHugh J said (at 341-2) -
"[70] 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. …
…
[71] 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, 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.
[72] 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."
127 His Honour cited from R v Lowery and King (No 2) (1972) VR 560 at 650, R v Tangye (1997) 92 A Crim R 545 at 556-7 and Brett, Waller & Williams, Criminal Law, 8th ed, 1997 at 465, and continued (at 343-4) -
"[75] As a result, a person may be found guilty of murder although he or she did not commit the acts which physically caused the death of the victim and the person who did is found guilty only of manslaughter. In R v Howe, all their Lordships were of the opinion that R v Richards, which had held that the person who did not perform the acts could not be guilty of a more serious charge than the actual perpetrator, was wrongly decided. Lord Mackay said -
'[W]here a person has been killed and that result is the result intended by another participant, the mere fact that the actual killer may be convicted only of the reduced charge of manslaughter for some reason special to himself does not, in my opinion in any way, result in a compulsory reduction for the other participant.'
This statement is conclusive in England, at all events, in showing that 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."
128 Saying that this was "almost certainly" the view of the Privy Council in Hui Chi-Ming v The Queen (1992) 1 AC 34, and considering and citing from that case, his Honour repeated (at 345) that "it is the acts of the actual perpetrator which are attributed to a non participant who is acting in concert and is present at the scene". He said (at 345) -
"The principle that those who act in concert and are present at the scene are responsible for the acts of the actual perpetrator 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. In Matusevich v The Queen , this Court decided that, when two persons are said to be acting in concert, the fact that the actual perpetrator is legally insane does not necessarily mean that the conviction of the other, who was present at the scene, should be quashed. If the actual perpetrator has sufficient capacity to enter into the agreement or understanding, the person present at the scene who was acting in concert may be convicted of the offence."
129 His Honour said (at 346) -
" Markby v The Queen also supports the conclusion that it is the wrongful acts of the perpetrator which are attributed to the person acting in concert and present at the scene. Markby establishes that if violence is one of the contemplated incidents of a joint criminal enterprise and one of the accused kills a person, the other accused can be convicted of manslaughter even though the killer is guilty of murder. This decision is consistent only with the conclusion that it is the acts constituting the actus reus, and not the crime, of the actual offender which are attributed to the other party. The liability is direct or primary, not derivative."
130 After reference to further cases, McHugh J said (at 350) -
"[93] Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other's acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree. 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."
131 The Crown submitted that the position as thus established was conclusive of the present question. The appellant could be guilty of murder or manslaughter if he contemplated the possibility of a shooting even where the person or persons who shot Yildirim and Unsal were acting in self defence: to repeat from the judgment of McHugh J (at 344) -
" … 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." (emphasis added)
132 The appellant submitted that what was said in Osland v The Queen did not extend to the situation in this case. He submitted that what was said was confined to where there was agreement to do an act, and established that there could be liability for the doing of the act even though the person who did the act was not guilty of a crime; but that what was said had no bearing on "extended common purpose", that is, where the act was not agreed but was only contemplated as something which might be done in carrying out the joint enterprise, as in McAuliffe v The Queen. In the latter situation, it was said, the accused's liability should be regarded as derivative rather than primary.
133 Although in Osland v The Queen McHugh J's discussion generally took up agreement to commit a crime, more correctly to do the acts constituting the actus reus of the crime, when noting Markby v The Queen (1978) 140 CLR 108 his Honour also referred to violence as one of the contemplated incidents of a joint criminal enterprise. In Markby v The Queen it was held that even if the victim's death was an unexpected consequence of carrying out the agreement to rob the accused could be guilty of manslaughter. His Honour appears to have regarded the liability as primary, not derivative, even where the act was not agreed but was contemplated as a possibility.
134 In my opinion, there is no sound reason for distinguishing in the present context between criminal responsibility for an act which is agreed as part of a criminal enterprise and criminal responsibility for an act which is contemplated as a possibility in carrying out the enterprise. In both cases there is the common purpose of carrying out the criminal enterprise. In both cases the act of another person is attributed to the accused, in the one case because the accused agreed that the act should be done and in the other case because the accused contemplated the possibility that it might be done. Agreement is a form of contemplation, contemplation that something will be done, and at bottom it is the common purpose and what the accused contemplated will or might be done in carrying out the criminal enterprise which founds the accused's criminal responsibility. Thus in McAuliffe v The Queen, as is evident from the passages earlier set out, the reasoning was that both an act within the common purpose (agreed) and an act incidental to the common purpose (forseen as a possibility) sufficed for criminal responsibility. And where the parties have agreed to do the acts constituting the actus reus of a crime and are present acting in concert, the objects of the criminal law are equally served by making them liable for acts of each other contemplated as possibilities in carrying out the common purpose as by making them liable for acts of each other agreed to be done. The McAuliffe v The Queen basis of liability so recognises.
135 Hence I do not agree that the appellant's liability should be regarded as derivative, requiring a different approach for that which is contemplated as something which might be done from the approach for that which is contemplated as something which will be done.
136 The appellant submitted that even if the act rather than the crime of the other person was attributed to the accused, it was necessary that the accused have mens rea. He drew attention to McHugh J's references in the passages I have set out to possession of mens rea in addition to attribution of the actus reus, and submitted that there would not be mens rea if all that was contemplated was the possibility of a killing in self defence.
137 This, it seems to me, does not assist the appellant. The relevant mental element in cases such as the present is the accused's contemplation. In R v Powell (1999) 1 AC 1 it was argued that murderous intent in the party to the criminal enterprise was necessary. Lord Hutton (with whom the other members of the House agreed, in some cases with additional reasons) considered (at 25) the possible anomaly "that if foreseeability of death or really serious harm is not sufficient to constitute mens rea for murder in the party who actually carries out the killing, it is sufficient to constitute mens rea in a secondary party", but on public policy grounds considered that the anomaly should not assist the argument. And in McAuliffe v The Queen at 116 the Court cited with approval from R v Hyde (1991) 1 QB 134 at 139, itself founded on Chan Wing-Sui v The Queen (1985) AC 168 -
"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."
138 If the acts and not the crime of the actual perpetrator are attributed to the person acting in concert, to use the words of McHugh J, and the actus reus is thereby established, the relevant mens rea is contemplation of those acts as a possible incident in the carrying out of the joint enterprise. There is no added mental element to the effect that the accused contemplated the acts in circumstances amounting to a crime.
139 In my opinion, therefore, the trial judge was not required to give the jury the directions for which the appellant contended. It may be noted that the direction that, unless the Crown excluded beyond reasonable doubt that Nitrovic killed Yildirim in self defence the appellant must be found not guilty of the murder or manslaughter of Yildirim, appears to have been more favourable to the appellant than the law required.
140 Although it is not material to the outcome of the appeal, there remains the Crown's submission that in any event there was no miscarriage of justice because on the evidence the appellant could not but have contemplated the possibility that there might be a shooting otherwise than in self defence. Here in particular the Crown raised the absence of complaint by the appellant's counsel at the trial, suggesting that realistically there was no question of contemplation of a shooting in self defence. Of course, counsel's silence could equally be attributed to an appreciation that the directions for which the appellant contended in the appeal were not required.
141 The jury was generally directed by reference to shootings, rather than infliction of grievous bodily harm. If the jury accepted the Crown case, they would have been satisfied that the appellant contemplated the possibility that Yildirim or Unsal might be shot by one of the ambush party. Could they properly have regarded the contemplation as contemplation of a shooting in self defence?
142 There was an ambush, with the intention of restraining Yildirim and Unsal and tying them up. If Yildirim and Unsal were readily overpowered there would be no shooting. Any shooting would come if Yildirim or Unsal resisted the attack made on him, possibly but not necessarily in a manner endangering the life or limb of one or more of the ambush party. If the ambush developed in this way, the shooting would either be the better to subdue the man shot, or alternatively in response to the threat to life or limb. As events turned out the alternatives may be thought unreal, and that comes up under ground of appeal 3, but at this point the appellant's contemplation is under consideration.
143 So far as the shooting was the better to subdue the man shot, there would be no question of self defence. So far as the shooting was in response to the threat to life or limb, the self defence would not be of the kind making the killing lawful: see R v Nguyen (1995) 36 NSWLR 397, in which Priestley JA said (at 407) -
"That kind of self-defence has as its starting point a person who, not wanting to fight, is attacked or threatened with attack in a way leading the person to believe self-defence is necessary for the person's own protection from harm. Such situations do not include those where what is going on is a fight which the fighters have willingly joined in, whether to carry on or settle a quarrel, or for some other reason. Once such a fight is under way, the person who has, ex hypothesi, got into it for reasons other than self-defence, may often, because of the nature of fighting, be suddenly faced with injury or death, and to prevent that, self-defence in one sense will be necessary, which may lead to the injury or death of the opponent. That sort of self-defence, if it ends in the killing of the opponent, is not the sort of self-defence that the Crown must negative in showing (when the issue arises) that the killing has been unlawful. The last sentence may need qualification in some circumstances, as for example, if a fight is going on according to broadly understood conventions intended to prevent serious harm and one fighter suddenly breaks the conventions by producing a lethal weapon. That kind of possible qualification does not arise in the present case."