Pickett v Western Australia: Mead v Western Australia: Mead v Western Australia: Anthony v Western Australia: TSM (A Child) v Western Australia

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Kiefel CJ,Bell,Keane,Gordon JJ.,Nettle J.
• Judgment Date: 29 May 2020
• Neutral Citation: [2020] HCA 20
• Docket Number: P45/2019, P46/2019, P47/2019, P48/2019 & P49/2019
• Date: 29 May 2020

[2020] HCA 20

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Keane, Nettle and Gordon JJ

P45/2019, P46/2019, P47/2019, P48/2019 & P49/2019

Robert Christopher James Pickett

Appellant

and

The State of Western Australia

Respondent

Stefan Lazba Mead

Appellant

and

The State of Western Australia

Respondent

Clinton Fredrick Mead

Appellant

and

The State of Western Australia

Respondent

Dylan Terrance Wayne Anthony

Appellant

and

The State of Western Australia

Respondent

TSM (A Child)

Appellant

and

The State of Western Australia

Respondent

Representation

S Vandongen SC with A J Robson for the appellants in all matters (instructed by Legal Aid WA)

A L Forrester SC with L M Fox for the respondent in all matters (instructed by Director of Public Prosecutions (WA))

Criminal Code (WA), Chs V, XXVI; ss 1, 2, 7, 8, 29, 36, 268, 277, 279.

Criminal law — Parties to offences — Where group of eight males assaulted victim — Where group included appellants and a youth aged 11 years (“PM”) — Where one member of group stabbed victim causing death — Where appellants charged with murder under Criminal Code (WA) — Where Crown alleged seven males who did not stab victim deemed to have taken part in committing offence under s 7(b), s 7(c) or s 8 of Criminal Code — Where ss 7(b), 7(c) and 8 of Criminal Code operated when “an offence is committed” — Where reasonably possible that PM inflicted fatal stab wound — Where PM could not be criminally responsible for acts unless he had capacity to know he ought not to do act under s 29 of Criminal Code — Where prosecution adduced no evidence to establish capacity — Where trial judge declined to direct jury that they could not convict appellants of murder unless satisfied beyond reasonable doubt PM did not cause death — Where appellants convicted of murder — Whether trial judge erred in declining to direct jury that they could not convict appellants of murder unless satisfied that PM did not cause death — Whether “offence” committed for purposes of ss 7(b), 7(c) and 8 where failure to prove criminal responsibility of person who may have done act constituting offence.

Words and phrases — “accessorial criminal liability”, “an offence is committed”, “authorised or justified or excused by law”, “commission of an offence”, “common law antecedents”, “construction of the Code”, “criminally responsible”, “enabler or aider”, “excuse”, “justification”, “liable to punishment”, “offence”, “participants in the offence”, “parties to the offence”, “party to an unlawful common purpose”, “principal offender”, “unlawful killing”.

ORDER

In each matter:

Appeal dismissed.

1 Kiefel CJ, Bell, Keane and Gordon JJ. The issue in these appeals is whether ss 7(b), 7(c) and 8 of the Criminal Code (WA) (“the Code”) apply to render an enabler or an aider, or a party to an unlawful common purpose, guilty of murder in circumstances where the deceased may have been actually killed by a child who had not been shown to be criminally responsible for the killing because of the operation of s 29 of the Code. The appellants contend for a negative answer to this question. Their contention should be rejected and their appeals dismissed.

2 The provisions of ss 7(b), 7(c) and 8 of the Code operate to attribute to an accused person who is respectively an enabler or an aider, or a party to an unlawful common purpose the prosecution of which had, as a probable consequence, the killing or causing of grievous bodily harm to another, the acts of another person who actually killed the deceased. But they do not attribute to another participant circumstances personal to the actor that, under Ch V of the Code, relieve the actor of criminal responsibility for his or her acts.

3 In the present case, the circumstance that the person who actually killed the deceased may not have been criminally responsible for his act by reason of s 29 of the Code is immaterial to the guilt of each of the appellants under s 7(b), s 7(c) or s 8 of the Code. The liability of each of the appellants to punishment for the murder of the deceased did not depend on proof beyond reasonable doubt that the child who may have fatally wounded the deceased had the capacity to know that he ought not strike that blow.

The facts

4 On 27 January 2016, at about 3.30 am, Patrick Steven Slater (“the Deceased”) died as a result of a stab wound to his chest 1. The wound was inflicted during an attack by a group of eight male persons. That group included the appellants: Clinton Mead, Dylan Anthony, Robert Pickett, Stefan Mead and a youth identified as TSM 2.

5 The stabbing took place on the first floor of The Esplanade Train Station complex in Perth 3. It occurred at the conclusion of the third of three altercations that took place in the early hours of 27 January 2016, between two groups of

people 4. One group comprised the five appellants as well as three other persons: Christopher Birdsall and the juveniles PM and JW (“the Appellants' Group”). PM was aged 11 at the time of the stabbing; it is uncontested that he may have been the person who inflicted the fatal wound to the Deceased. The other group consisted of the Deceased and his acquaintances (“the Deceased's Group”) 5

6 The first altercation commenced about 2.45 am and lasted for about five minutes 6. Physical fighting broke out between members of the two groups 7. It involved the Deceased producing a machete without striking or threatening anyone with it 8. Another member of the Deceased's Group hit Robert Pickett with a tomahawk 9.

7 The second altercation occurred about 15 minutes after the first had concluded 10. It involved members of both groups throwing rocks and pieces of concrete at one another 11. The Deceased's Group ran up the escalators or stairs to the first floor of the complex; members of the Appellants' Group ran after them 12. Some members of the Appellants' Group threw objects towards the Deceased and another member of the Deceased's Group, but the objects did not strike anyone 13.

8 After the conclusion of the second altercation, Christopher Birdsall, Robert Pickett, TSM, Stefan Mead, JW and PM entered Stefan Mead's motor vehicle and drove a short distance away from The Esplanade where they met with

Clinton Mead and Dylan Anthony, who had not been involved in the first two altercations 14. The Appellants' Group collected various items capable of being used as weapons, before walking back towards The Esplanade 15

9 The third altercation began shortly before 3.30 am 16. Each of the eight members of the Appellants' Group was captured by CCTV footage proceeding to the first floor of The Esplanade Train Station complex using either the stairs or the escalators 17. Each appeared to be carrying weapons or objects that could be used as weapons in their hands, although the nature of some of those objects could not readily be discerned 18. Robert Pickett was seen on the footage walking up the stairs holding pieces of blue and white cloth in his left hand and reaching into his pocket with his right hand to retrieve an apparently flat object 19. PM was seen walking up the stairs carrying a bottle in his right hand and a socket bar in his left hand 20.

10 As appears from the CCTV footage, the Deceased ran across a concrete concourse towards a grassed area, and the Appellants' Group followed him 21. At the conclusion of the chase, the Appellants' Group assaulted the Deceased for about 50 seconds, but there was no CCTV footage of the assault 22. The Deceased suffered 23 external injuries as a result of actions undertaken by the Appellants' Group during the assault 23. There was evidence that during the assault, Christopher Birdsall kicked the Deceased on the head and other parts of his body,

Clinton Mead struck the Deceased with the metal star picket and Dylan Anthony struck the Deceased with a long wooden pole 24. At some stage, one of the Appellants' Group used a screwdriver to stab the Deceased in the chest, puncturing his aorta and both lungs and causing him to bleed to death shortly afterwards 25

11 The Appellants' Group fled, making no attempt to assist the Deceased 26. CCTV footage showed that as the Appellants' Group descended the stairs, Robert Pickett was carrying a piece of red cloth under his left arm and PM was carrying the socket bar and a screwdriver 27.

The proceedings

12 Each of the eight males of the Appellants' Group was charged with murder 28. JW pleaded guilty to manslaughter, and his plea was accepted by the Crown 29. PM was tried separately in the Children's Court of Western Australia 30. He was convicted of manslaughter 31.

13 The appellants and Christopher Birdsall pleaded not guilty and were tried together in the Supreme Court of Western Australia before a judge and jury 32.

The appellants' trial

14 At the trial of the appellants and Christopher Birdsall, the case for the prosecution was put on the basis that one member of the Appellants' Group

inflicted the stab wound which killed the Deceased during the third altercation 33. While that person, and only that person, actually caused the death of the Deceased for the purposes of s 7(a) of the Code 34, the prosecution case was that each of the other seven males was, on one or more of the following bases, deemed to have taken part in committing the offence 35

• (1) As a person who did an act for the purpose of enabling or aiding one of the other seven males to commit the offence, pursuant to s 7(b) of the Code.

• (2) As a person who aided another one of the seven males in committing the offence, pursuant to s 7(c) of the Code.

• (3) As a person who formed a common intention, with the person who committed the offence, to prosecute an unlawful purpose (being assault to the Deceased or another member of the Deceased's Group) with that other person, and in the prosecution of that purpose an offence of murder was...