WESTERN AUSTRALIA. Criminal Law-Principal in second degree-Common design-EvidenceCommission
of unlawful purpose-Probable consequences-Liability of aider and Direction to jury-Criminal Code (W.A.) (No. 28 of 1913), secs. 7, 8, 277-280.
The Criminal Code (W.A.) provides, by sec. 7, that "when an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say-(a) every person who actually
which constitutes the offence: (b) every person who any act for the purpose of enabling or aiding another person to commit the offence: (c) every person who aids another person in committing the offence." Sec. 8 provides that "when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the
The applicant and two other persons were charged on an indictment for wilful murder. The other two persons had broken into a jeweller's shop and stolen jewellery therefrom, and, in the course of committing that crime, had brought about the caretaker's death. The applicant remained outside the shop on watch. The trial Judge directed the jury that if they were satisfied that the applicant was a party to the robbery it necessarily followed that he was guilty of the offence, either murder or manslaughter, found against the other two persons. The jury returned a verdict of manslaughter against the three accused.
Held that it did not follow as a matter of law that, if the applicant aided and abetted the shopbreaking by keeping watch outside, he was criminally responsible for the homicide committed by his confederates within. Whether it followed from the facts was a question for the jury, depending on the conclusion they drew as to the nature of the plan to which he lent his aid and as to his knowledge of his confederates' intention. The jury had been misdirected, and the conviction of the applicant should be quashed. But on the evidence the conclusion was open that the applicant aided and abetted the other two persons in a criminal enterprise which he knew included the use of some force upon the person of the caretaker to prevent his giving the alarm or obstructing the commission of the theft, and therefore there should be a new trial of the applicant for manslaughter.
Decision of the Court of Criminal Appeal of Western Australia reversed.
APPLICATION for special leave to appeal, and APPEAL, from the Court of Criminal Appeal of Western Australia.
This was an application by Cyril Thomas Brennan for special leave to appeal against a judgment of the Court of Criminal Appeal of Western Australia dismissing his appeal against…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Brennan v The King [1936] HCA 24
Case
[1936] HCA 24
Decision Date
CaseChat Overview and Summary
The case of *Brennan v The King* concerned an appeal to the High Court of Australia from the Court of Criminal Appeal of Western Australia. The applicant, Cyril Thomas Brennan, had been convicted of manslaughter along with two co-accused, Flynn and Walsh, who had broken into a jeweller's shop and caused the death of the caretaker during the commission of the burglary. Brennan's role, as alleged by the prosecution, was to act as a lookout outside the shop.
The central legal issue before the High Court was whether the trial judge had correctly directed the jury regarding Brennan's criminal liability. Specifically, the court had to determine if it was a matter of law that Brennan's participation in the burglary as a lookout automatically rendered him guilty of the homicide committed by his confederates, or if this was a question of fact for the jury to decide based on the nature of the plan and Brennan's knowledge of his confederates' intentions. The court also considered the application of sections 7 and 8 of the *Criminal Code* (W.A.) concerning participation in offences and common intention to prosecute an unlawful purpose.
The High Court found that the trial judge had misdirected the jury. It was not a necessary legal consequence that if Brennan aided and abetted the shopbreaking by keeping watch, he was automatically criminally responsible for the homicide. The court reasoned that Brennan's guilt depended on the jury's findings regarding the specific plan to which he lent his aid and his knowledge of his confederates' intentions, particularly whether that plan involved the use of force against the caretaker. The jury's verdict of manslaughter against the co-accused implied they did not find the act causing death was likely to endanger life, which complicated the application of section 8 of the Code. However, the court concluded that the evidence did support the possibility that Brennan aided and abetted a criminal enterprise that he knew involved the use of some force against the caretaker to prevent interference.
Consequently, the High Court allowed Brennan's appeal, quashed his conviction for manslaughter, and ordered a new trial on the charge of manslaughter. The court determined that while the original direction was flawed, the evidence was sufficient to present the case to a jury, who would need to determine the factual questions regarding Brennan's knowledge and the nature of the common design.