Clayton v The Queen [2006] HCA 58

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

Matter No M156/2005

CELIA KATHLEEN CLAYTON APPLICANT

AND

THE QUEEN RESPONDENT

Matter No M157/2005

JOHN DOUGLAS HARTWICK APPLICANT

AND

THE QUEEN RESPONDENT

Matter No M158/2005

LISA JANE HARTWICK APPLICANT

AND

THE QUEEN RESPONDENT

Clayton v The Queen

Hartwick v The Queen

Hartwick v The Queen

[2006] HCA 58

Date of order: 9 August 2006

Date of publication of reasons: 13 December 2006

M156/2005, M157/2005 & M158/2005

ORDER

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

On appeal from the Supreme Court of Victoria

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))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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.