Clayton v R

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Gleeson CJ,Gummow,Hayne,Callinan,Heydon,Crennan JJ,Kirby J
• Judgment Date: 13 December 2006
• Neutral Citation: 2006-0809 HCA A,[2006] HCA 58
• Docket Number: M156/2005, M157/2005 & M158/2005 Matter No M157/2005 Matter No M158/2005
• Date: 13 December 2006

Celia Kathleen Clayton

Applicant

and

The Queen

Respondent

John Douglas Hartwick

Applicant

and

The Queen

Respondent

Lisa Jane Hartwick

Applicant

and

The Queen

Respondent

[2006] HCA 58

Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ

M156/2005, M157/2005 & M158/2005

Matter No M156/2005

Matter No M157/2005

Matter No M158/2005

HIGH COURT OF AUSTRALIA

Clayton v The Queen; Hartwick v The Queen; Hartwick v The Queen

Criminal Law — Criminal liability — Complicity — Extended common purpose — Applicants carried out a common plan to assault victim, who died — Applicants tried together on counts alleging murder and assault — Prosecution could not identify which applicant inflicted fatal wound on victim — Bases on which murder left to jury included extended common purpose — Whether murder on the basis of extended common purpose should have been left to the jury — Whether extended common purpose a proper basis for conviction of murder.

Criminal Law — Criminal liability — Complicity — Re-consideration of extended common purpose — Whether maintenance of extended common purpose as common law doctrine justified — Whether there is disconformity between legal and moral responsibility where conviction for murder is based on doctrine of extended common purpose — Whether extended common purpose imposes criminal liability without requiring proof of actual intent — Availability of verdict of manslaughter where murder by extended common purpose left to jury — Whether doctrine of extended common purpose adds undue complexity to trials — Necessity for trial judge to identify, and leave to jury, only the ‘real issues’ of fact — Role of courts in altering law of homicide — Whether doctrine of extended common purpose should be re-expressed so as to replace ‘foresight of possibility’ with ‘foresight of probability’, or ‘want’, or ‘virtual certainty’ that the incidental crime would be committed.

Words and phrases — ‘extended common purpose’.

Crimes Act 1958 (Vic), s 568(1).

Representation

C B Boyce with J P Wheelahan for the applicant in Matter No M156/2006 (instructed by Patrick W Dwyer)

L C Carter with M J Gumbleton for the applicant in Matter No M157/2006 (instructed by McNamaras)

M J Croucher for the applicant in Matter No M158/2006 (instructed by Robert Stary and Associates)

P A Coghlan QC with C M Quin for the respondent in all matters (instructed by Director of Public Prosecutions (Victoria))

ORDER

In each matter, the application for special leave is dismissed.

1 Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ. The applicants were presented for trial in the Supreme Court of Victoria on a single presentment alleging two counts against each: a count alleging the murder of Steven John Borg and a count of intentionally causing serious injury to Paula Michelle Rodwell. Each was convicted on both counts. Each sought leave to appeal to the Court of Appeal of the Supreme Court of Victoria against the convictions. The applications for leave to appeal against conviction on the second count (of intentionally causing serious injury) were allowed and a new trial ordered on that count 1. Each application for leave to appeal against the conviction for murder was dismissed.

2 The applicants sought special leave to appeal to this Court on a number of grounds. In so far as each applicant sought special leave to appeal on grounds which, in effect, invited the Court to reconsider its decisions in McAuliffe v The Queen 2 and Gillard v The Queen 3, the applications for special leave were referred for argument, as on an appeal, before the whole Court. In so far as the applications sought special leave to appeal on other grounds, they were dismissed.

3 At the conclusion of oral argument on the grounds inviting reconsideration of McAuliffe and Gillard, the Court announced that the invitation to reconsider those cases was declined and ordered that each application for special leave be dismissed. It follows that intermediate and trial courts must continue to apply the principles established by those decisions. It also follows that it is neither necessary nor desirable to attempt to elaborate or explain those principles in any way. Nothing that is said in these reasons should be understood as doing so. Rather, what follows are our reasons for joining in declining to reconsider those cases and for making the orders that were made.

4 It is necessary to say something about the facts of the case. Although the trial of the applicants lasted 46 days, it is possible to describe the essential facts of the matter quite shortly.

5 The deceased, Mr Borg, had a relationship with Ms Rodwell, the alleged victim of the second count charged against the applicants. Mr Borg did not live with Ms Rodwell but was visiting her house when he met his death. The applicant Lisa Hartwick lived in the same street as Ms Rodwell. The applicants John and Lisa Hartwick had been married to one another but at the relevant time were divorced. Mr Hartwick often visited Ms Hartwick and stayed at her house. The other applicant, Ms Clayton, was a friend of Lisa Hartwick. The Hartwicks both knew Mr Borg and Ms Rodwell, but Ms Clayton had met Ms Rodwell only twice before the date of the offences and had never met Mr Borg.

6 On the day Mr Borg died, Lisa Hartwick accosted Ms Rodwell and assaulted her saying, among other things, that she owed Mr Hartwick money and had accused Mr Hartwick of being a ‘dog’, a police informer. Celia Clayton was present during these events. Lisa Hartwick, Celia Clayton and Ms Rodwell then went together to Ms Hartwick's home to clear these matters up with Mr Hartwick. It was agreed that there had been a mistake, and the two women apologised to Ms Rodwell.

7 Ms Rodwell went back to her house and told Mr Borg what had happened.

He had consumed a quantity of drugs and he became very angry at the way she had been treated. He drove to Lisa Hartwick's house in a stolen car, accelerated into her driveway and smashed his car into the rear of Ms Clayton's rented car. That car was propelled into another that was parked directly in front of it. Both cars were seriously damaged, and some damage was done to the house. Mr Borg then returned to Ms Rodwell's house and, with her, consumed a cap of heroin.

8 When the applicants discovered what had happened they became very angry and very agitated. There was evidence at trial that the applicants uttered various threats of violence against the person or persons responsible for the damage that had been done, and that these threats were uttered both before and upon arriving at Ms Rodwell's house. Who said what was a matter of dispute at trial.

9 There was evidence at the trial that each of them armed himself or herself in some way before leaving Ms Hartwick's house. The weapons were variously described as including metal poles, wooden poles, and a large carving knife. Who had what weapon or weapons, and who knew what weapon or weapons were being carried (if any), were matters of dispute at trial.

10 Ms Rodwell gave evidence of the applicants coming to the door of her house, assaulting her and one of them then detaining her at knifepoint while there was a prolonged assault on Mr Borg. The applicants disputed her account of what happened. But the injuries done to Mr Borg were consistent with her account of an attack lasting 30 to 40 minutes in which he was severely beaten with poles and stabbed a number of times. One of the stab wounds caused fatal injuries.

11 The prosecution's case at trial was that, although it could not identify which of the applicants inflicted the fatal stab wound, each was guilty of murder. This contention was put in three ways. First, it was said that the killing occurred in the course of the applicants' implementation of a plan to cause really serious injury to the deceased. That is, the prosecution alleged that each applicant had participated in a joint enterprise. Alternatively, the prosecution argued that each applicant was guilty of murder because each had agreed to assault the deceased using weapons, and reasonably foresaw the possibility that death or really serious injury might be intentionally inflicted on the victim by one of them in the course of their carrying out the agreed assault. It is this second way of putting the case (‘extended common purpose’) that engaged the principles described in McAuliffe and Gillard. Finally, the prosecution argued that the two applicants who did not inflict the fatal wound had aided and abetted the person who did, by intentionally helping, encouraging or conveying their assent to that person in his or her commission of the murder. This third contention depended upon principles of accessorial liability.

12 The prosecution accepted that if murder was not established, it would be necessary for the jury to consider manslaughter, but the principal contention advanced on behalf of the prosecution was that each applicant was guilty of murder on one or other of the three bases described.

13 Questions of provocation were mentioned at trial but, in the end, no party asked for provocation to be left to the jury and it was not. Self-defence was in issue because there was evidence that the deceased was armed with a knife. It was necessary, therefore, at trial, to consider the possible application of a number of intersecting legal principles. The prosecution contended that three separate legal paths led to the conclusion that each applicant was guilty of murder. Each applicant contended that the prosecution had to disprove that he or she had acted in self-defence. And these legal principles were to be applied where there was much dispute about who had done what in the events culminating in Mr Borg's death.

14 Questions of extended common purpose had to be considered at trial. The principles authoritatively established in McAuliffe and Gillard...