Mitchell v The King
High Court of Australia · 2023
Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5
Five men were said to have agreed to steal cannabis from a grow-house. Its occupant was beaten to death, and no one could say who struck the fatal blow. Did foreseeing violence make the others murderers?
What happened?
Benjamin Mitchell, Alfred Rigney and Aaron Carver were convicted of the murder of Mr Urim Gjabri, and so was Matthew Tenhoopen, whose application for special leave was heard with their appeals ([49]-[51]). The prosecution case was that each of them and Jason Howell, who was tried separately, agreed to steal a substantial amount of cannabis from a "grow-house" in northern Adelaide, where Mr Gjabri lived ([2], [77]). Mr Gjabri was violently assaulted, including by blows to the head, one of which caused his death; it was not possible to identify the person who inflicted that blow ([2]-[3]).
The Crown did not say the murder was within the scope of the agreement, and it was accepted that the appellants could not be taken to have agreed to what occurred ([20]). The trial judge left murder to the jury by two pathways, common law murder and constructive murder under s 12A, and on both the Crown relied on extended joint criminal enterprise ([85]). The jury was not asked which pathway it took ([89]). The appeals to the Court of Appeal of the Supreme Court of South Australia were dismissed ([51]).
What did the Court decide?
The appeals of Mitchell, Rigney and Carver were allowed. Tenhoopen was granted special leave and his appeal was allowed. In each matter the Court of Appeal's order 2 was set aside and in its place the appeal was allowed, the conviction quashed and a new trial ordered ([109]). Kiefel CJ and Gageler, Gleeson and Jagot JJ each agreed with the orders proposed by Gordon, Edelman and Steward JJ ([31], [48]).
The reasons are in three parts: Kiefel CJ ([1]-[31]), Gageler, Gleeson and Jagot JJ ([32]-[48]) and Gordon, Edelman and Steward JJ ([49]-[109]). The Proposition sets out what each said.
Proposition
What is the principle?
Each of the three sets of reasons held that the common law doctrine of extended joint criminal enterprise cannot be combined with s 12A of the Criminal Law Consolidation Act 1935 (SA) ("CLC Act") so as to make an accused guilty of murder on foresight of the possibility that a co-venturer might commit an intentional act of violence. Kiefel CJ held that "The principle of extended joint criminal enterprise cannot apply to s 12A of the CLC Act", largely as a matter of construction and because "constructive crimes should be confined so far as possible in their operation" ([30]); the only foresight such a secondary offender could have is that "almost any act or threat of violence may take place", which she held cannot be a sufficient mental element for murder ([29]). Gageler, Gleeson and Jagot JJ held that because s 12A does not create an offence, the doctrine is "incapable of application to s 12A alone" ([42]); that applying it to the statutory pathway to murder would distort the legislative choice to make liability depend on the participant's own intention to commit, or agree in the commission of, the act of violence ([43]-[44]); and that "it is the common law doctrine which must yield to ensure coherence" ([46]). Gordon, Edelman and Steward JJ held that the trial judge erred by permitting the Crown to combine the two doctrines "to create, in effect, a new doctrine of constructive, constructive murder" ([52]), because extended joint criminal enterprise is derivative liability and "s 12A does not permit the attribution of an intentional act of violence by a primary offender to a secondary participant where the act was not agreed to, or was not within a common purpose or a common enterprise" ([98]; see also [96]-[97], [104]). Where an accused is alleged under s 12A to be a party to an agreement to commit the major indictable offence, Gordon, Edelman and Steward JJ said the jury must be satisfied that "the agreement included the possible commission of an intentional act of violence of the same general nature as that which caused the death" ([108]); Gageler, Gleeson and Jagot JJ agreed with that statement ([48]).
Gordon, Edelman and Steward JJ, addressing the third ground because retrials were to be ordered ([105]), held that the decision in Miller precluded holding an appellant responsible for common law murder on extended joint criminal enterprise unless the prosecution proved beyond reasonable doubt that he foresaw both that a participant might act with murderous intention and that acts committed in the course of the enterprise might cause really serious bodily injury or death ([106]). What is to be foreseen is the commission of the incidental crime, "being all elements of that crime" ([56]). The trial judge erred by failing to direct the jury that the accused must also foresee the consequence of death or really serious bodily harm, though they observed that in many cases "foresight of this consequence might be a very short step from foresight that a participant might act with murderous intention" ([107]). A participant who foresees the elements of a lesser crime only "can only be convicted of that lesser crime under the principles of extended joint criminal enterprise"; their example is a participant in a robbery who foresees very serious bodily harm or death but not murderous intent, who can be convicted of manslaughter ([60]). These are the reasons of three of the seven Justices. Kiefel CJ, describing the doctrine in the context of murder at common law, said the foresight necessary for the secondary offender's culpability "is of the possibility of acts which may kill or cause serious bodily harm being committed" ([24]).
Why does this case matter?
Because the jury was not asked which pathway to murder it took, Gordon, Edelman and Steward JJ observed that an error in the directions on either pathway required the convictions to be set aside entirely ([89]). A problem on a co-venturer's killing therefore benefits from identifying the prosecution's route to murder before the mental element is discussed, because the same facts can be run on more than one route and the answer can differ between them.
Students also take a case about one statutory provision of one State as if it were a general statement about every statute that deems a killing to be murder. Section 12A is a South Australian provision, and the Court's reasons are tied to its text, its history and the CLC Act's structure.
Exam and application relevance
For a South Australian problem in which the prosecution relies on foresight, set out the route through common law murder and the route through s 12A separately, and state the mental element that each route requires, citing the paragraphs of the Justices whose reasons you use.
Where the facts show an agreement that itself covered the possible use of violence of the kind that caused the death, ask whether the agreement-based route under s 12A is made out ([108], [48]); that is a different enquiry from foresight of acts outside the agreement.
Cite the foresight requirement for common law murder to the reasons in which it is stated ([106]).
Where a Code or a different statute governs, the question may be one of construction of that statute; the reasons here concern s 12A.
Check your understanding
1. What did the Court order in each of the four matters, and which Justices proposed those orders? ([109], [31], [48]) 2. How did Kiefel CJ, and Gageler, Gleeson and Jagot JJ, each explain why s 12A could not be combined with extended joint criminal enterprise? ([29]-[30], [42]-[46]) 3. According to Gordon, Edelman and Steward JJ, what had the trial judge omitted from the directions on common law murder, and what did the participant who foresees only the elements of a lesser crime face? ([106]-[107], [60]) 4. Which agreement-based route to s 12A liability did Gordon, Edelman and Steward JJ describe, and which Justices agreed with that description? ([108], [48]) 5. Whose reasons address what must be foreseen for common law murder, and why did they address it when the first ground was already sufficient for the appeals? ([105], [49])