Darkan, Deemal-Hall & McIvor v The Queen
[2006] HCATrans 164
[2006] HCATrans 164
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B87 of 2005
B e t w e e n -
HOWARD RODNEY DARKAN
Appellant
and
THE QUEEN
Respondent
Office of the Registry
Brisbane No B88 of 2005
B e t w e e n -
GWENDOLINE CECILY DEEMAL‑HALL
Appellant
and
THE QUEEN
Respondent
Office of the Registry
Brisbane No B89 of 2005
B e t w e e n -
MARLOW PHILIP ANDREW McIVOR
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 11 APRIL 2006, AT 10.16 AM
Copyright in the High Court of Australia
MR A.J. RAFTER, SC: May it please the Court, I appear for the appellant, Darkan. (instructed by Legal Aid Queensland)
MR P.J. CALLAGHAN, SC: If it please the Court, with my learned friend, MR A.W. MOYNIHAN, we appear on behalf of the appellant, Deemal‑Hall. (instructed by Legal Aid Queensland)
MR M.J. BYRNE, QC: May the Court please, I appear for the appellant, McIvor. (instructed by Legal Aid Queensland)
MR M.J. COPLEY: If the Court pleases, I appear on behalf of the respondent in all matters. (instructed by Director of Public Prosecutions (Queensland))
GLEESON CJ: I understand counsel has agreed between themselves on an order of address.
MR CALLAGHAN: If that is suitable to the Court, we have agreed on that.
GLEESON CJ: Yes, Mr Callaghan.
MR CALLAGHAN: We are also, it seems, all in agreement as to the issue which is raised by this appeal which is the meaning of the term “probable consequence” as it appears in sections 8 and 9 of the Criminal Code (Qld) and the manner in which a jury in a criminal trial should be instructed when these sections are operative.
Our submissions are straightforward, that is that, as a general proposition, the term “probable consequence” means what it says and does not require elaboration. In the alternative, if it does require elaboration, that elaboration cannot be made in the terms which are currently used by the Queensland courts. Those terms can, we submit, only confuse and mislead and, in effect, remove the benefits which are conferred by codification in the first place.
KIRBY J: Does that structure of your argument mean that you accept or do not accept the use of “likely” as an equivalent?
MR CALLAGHAN: We accept the use of “likely” if there is a need for elaboration for whatever reason. Our primary submission, though, is that there is no need for a trial judge instructing a jury to go further than the words of the section.
GLEESON CJ: You say there is no need, but do you mean no right, no capacity? Judges do not limit themselves to things they have to say.
MR CALLAGHAN: No – and I hope this is answering your question – but to instruct a jury that in this context “probable” means “likely” would be no error.
KIRBY J: The seeds of this case began in Brennan, in a sense, did it not?
MR CALLAGHAN: Yes.
KIRBY J: With Justice Starke using “possibility” and Justices Dixon and Evatt using “likely” as an analogous word?
MR CALLAGHAN: Yes, and Justice Starke indeed used “likely” as well and in that part of his judgment which followed said some other things upon which Justice Fitzgerald in the Queensland Court of Appeal has fastened and in the case of Hind and Harwood, to which I will come, established the definition which in turn became part of the model direction which is now given to juries in Queensland.
KIRBY J: It was not just Justice Fitzgerald, it was also Justice Pincus.
MR CALLAGHAN: Also said things which encouraged the adoption of this direction, that is so.
GLEESON CJ: But when you say possible consequence does not require elaboration, do you mean to say elaboration is impermissible? You will be familiar, of course, with the problems that have arisen in relation to the expression “beyond reasonable doubt”. Do you say the same applies to “probable consequence”?
MR CALLAGHAN: That is our primary submission.
GLEESON CJ: It must not be elaborated.
MR CALLAGHAN: In the first place, that is right.
KIRBY J: It is hardly true to say that this particular phrase in the Code is in the same status as “beyond reasonable doubt”. The reason for the courts saying in Australia that, unlike Canada for example, you cannot elaborate, that is that this is a key core word of the whole lexicon whereas “probable consequence” is really a particular for the one particular group of crimes so it is not in the same league.
MR CALLAGHAN: It is not in the same league, your Honour, no, but by the same token it is probably not far down in terms of importance. These sections are one of the key methods by which criminal responsibility is attributed in the context of derivative liability so these are important provisions.
KIRBY J: I suppose you can say that derivative liability is itself an exception to the general principle and therefore it should not be allowed to slip into a bigger exception.
MR CALLAGHAN: That is so. Derivative liability is, we say, an area where there is a need for great sensitivity, if you like, to the words of the statute, in this case a Code.
GLEESON CJ: I am still not sure whether it is your submission that it is an error of law for a judge to elaborate upon the meaning of the words “probable consequence”.
MR CALLAGHAN: Your Honour, that is our primary submission. If we are wrong about that then we say in the alternative that it is open on the basis of what is said in Brennan for a trial judge to instruct a jury that “probable” has the meaning “likely”, which is the dictionary definition of “probable” in any event. If a juror was to go home and look up the dictionary that is what they would find so there is no harm done by such a direction.
KIRBY J: One has to be a little careful, if one comes from a non‑Code State, entering into the mysteries of the Code, but could you tell me from the beginning of the Code in Queensland, was it the judicial approach or instruction of the Queensland judges, for example, that the purpose of the Code was to use language which was simple, to be understood by lay jurors and therefore that prima facie one ought not to elaborate the meaning of particular words in the Code?
MR CALLAGHAN: Clearly, yes, and with ‑ ‑ ‑
KIRBY J: Was that Sir Samuel Griffith’s own wish?
MR CALLAGHAN: Yes.
KIRBY J: Did he ever express that himself? I know we have said it in a number of cases including recently, but was that part of the whole strategy of having a Code as distinct from the more flexible common law?
MR CALLAGHAN: It was, and in our outline we have quoted Sir Samuel in his explanatory letter to the honourable Attorney‑General as saying that:
“A Code ought if possible ‑ ‑ ‑
KIRBY J: Paragraph?
MR CALLAGHAN: I am sorry, paragraph 31 of our outline on page 8:
“A Code ought, if possible, to be so framed as to require no definitions of terms in common use in ordinary speech or writing”.
The words “probable” and “consequence” are such terms. They are in common use.
KIRBY J: What page is that, I am sorry?
MR CALLAGHAN: It is page 8 of our outline. It is the last part of paragraph 31. Paragraph 31 commences on page 7. The respondent’s outline has also made reference to Sir Samuel and the process by which the Code came into existence. The relevant parts of his outline appear on page 6 at paragraphs 5.10 and 5.11. What is clear, we submit, is that when one looks at the process that Sir Samuel went through the choice of the word “probable” was a conscious decision made, indeed, eschewing the word “likely” but perhaps nothing turns on that, but it was a conscious decision which we say should be respected in the interpretation of the Code and the directions which are given in a trial under it.
Your Honours have no doubt considered the outlines and the summaries of the evidence which have been contained in them. The evidence in this trial painted an unattractive picture of the appellant, Deemal‑Hall.
KIRBY J: It certainly did. Can I just clarify one factual matter? I understood some parts of the submissions to say that she actually supplied the stick.
MR CALLAGHAN: No.
KIRBY J: No, is that not correct?
MR CALLAGHAN: That is not part of the ‑ ‑ ‑
KIRBY J: She left it in the park.
MR CALLAGHAN: Your Honour, we must take care to refer only to the evidence which is admissible against her. There were, of course, three trials on foot.
KIRBY J: All right, well, I will let you develop it because I must say that my reading of the submission of the respondent rather painted your client in a darker light than I recalled from the special leave hearing.
MR CALLAGHAN: And, indeed, the other appellants in their interviews with the police paint her in a darker light but they are not admissible against ‑ ‑ ‑
KIRBY J: They would not be involved but for her initiative?
MR CALLAGHAN: No, but you asked me a specific question about the use of the weapon which is important, and the provenance of the weapon.
KIRBY J: One of the appellants said that he was surprised to see the weapon used.
MR CALLAGHAN: Yes, and perhaps more importantly, the witness, Bowen, said he was surprised that the weapon was produced and he is the principal source of evidence against the appellant, Deemal‑Hall, and it is upon his evidence which we must really focus.
It is clear that the appellant was on the evening of 13 January 2003 driving around Mareeba recruiting men for the purposes of assaulting her former de facto husband. The terms in which she did so are important, and we learn those from the evidence of two witnesses. At appeal book 232 you find the evidence of a witness, Michael Cobus, who at line 51 records that he was approached and asked to come and give a “touch up” to this man. The evidence at 234, line 1 is also relevant or essentially repetitive of that. Mr Cobus refused to get involved but, of course, Crown witness Bowen
agreed, and ‑ ‑ ‑
GLEESON CJ: I suppose that what is involved in “a touch up” depends on the propensities of the person you are requesting to do the touching?
MR CALLAGHAN: It might, and it follows from that that the relevance will depend upon evidence as to the state of knowledge of those propensities.
GLEESON CJ: In the sentencing remarks the judge said:
You have deliberately sought out people who have a history of violence, criminal conduct, and it seems clear that you exploited those persons.
That is at page 457.
MR CALLAGHAN: Yes, she said that on sentencing. By that stage he knew that they had a propensity for violence because their criminal histories had been tendered. They were not evidence in the trial, nor, we would submit, was there any evidence admissible against Deemal‑Hall from which the inference could be drawn that she was aware of specific violent propensities on the part of either of her co‑accused.
GLEESON CJ: You would not ask somebody to go and touch somebody else up if you knew that he was a member of the Salvation Army?
MR CALLAGHAN: No, but of course she asked three people which is a two‑edged sword, but if you have three perhaps you do not need a weapon, perhaps you do not need someone who has a particular skill for violence. These are arguments I apprehend, your Honour, that we will address when we come to consider issues relating to the proviso.
Bowen’s evidence is crucial and it appears at appeal book 30. I will not traverse all of it, but can I just take you to two passages which are of some interest, or perhaps more than two. At appeal book 32 we have the evidence where Bowen speaks as to his being approached by Darkan in the first place, and at line 30 he records Darkan as having said that Deemal‑Hall wanted someone to “fix him up”. Further down the page, line 50, that phrase is repeated. At appeal book page 36, line 50, we have the relevant passage where Bowen records the appellant – and this is speaking in the vehicle on the way to the scene of the crime in the presence of all ‑ ‑ ‑
KIRBY J: Which page is this?
MR CALLAGHAN: This is appeal book 36, line 50, he records that ‑ ‑ ‑
KIRBY J: You really have to start a little bit before this, do you not? The matter that had propelled your client into gathering this group to fix up or dust up the deceased was apparently the dispute with the former partner concerning an allegation that he had raped the daughter of your client, is that correct?
MR CALLAGHAN: Your Honour, I have skipped over all of that because at the end of the day we submit that the motive is unclear.
KIRBY J: No, but it helps to explain - there are two factors that are relevant to why she was gathering this group of strong people. One was the size and reputation of the deceased and the other was her extreme anger that he had sexually interfered with her daughter.
MR CALLAGHAN: In the admissible evidence against Deemal‑Hall we would submit that does not appear. The closest it gets is at appeal book 195 and this is evidence from one of the police officers, lines 33 and following. There is a record of an incident of what might loosely be termed domestic violence and, indeed, the police officer confirmed that Mr Toth had entered pleas of guilty to charges of common assault and breaches of domestic violence orders. We would submit, in the admissible evidence against Deemal-Hall, that is as close as it gets to a motive.
KIRBY J: Did it come in elsewhere in the trial?
MR CALLAGHAN: In the cases against the others I believe there was discussion of perhaps other reasons but not in her presence and not sourced to her in any admissible form.
KIRBY J: Yes, very well.
MR CALLAGHAN: I was taking your Honours to the relevant phrases in which the actual counselling occurred, or the procuring, and I had taken your Honours, I think, to appeal book page 36, line 50 and then, if I can take you over to appeal book 48, line 35 where Bowen agreed that the plan was to give a “touch-up”, “And nothing more than a touch-up”. At 49, line 1:
there was no suggestion of doing anything other to this fellow than a touch-up –
Bowen agrees.
KIRBY J: How do you define a “touch up”?
MR CALLAGHAN: Again, that is something we will have to address in the context of the proviso. The short answer to your Honour’s question is that a jury in Cairns is really the only tribunal of fact that can resolve that question.
GLEESON CJ: Yes. You would also need to address it in the context of the community in which the conversations took place.
MR CALLAGHAN: Yes, that is very much part of our submission.
KIRBY J: But that may not help you because a violent community of strong and violent men may take “touch up” to be something more disruptive of the body, of the person, than say a group of people in Vaucluse in Sydney.
MR CALLAGHAN: True. It may not help the appellant on a retrial. For the time being we will take our chances on it. It is helping us with the proviso.
GLEESON CJ: Did you say there have been three trials already?
MR CALLAGHAN: The trial has commenced three times, not to a conclusion, no. The jury was discharged twice in earlier trials for reasons which do not really matter and not after the trial had proceeded for any great length.
GLEESON CJ: Thank you.
MR CALLAGHAN: It is clear, whatever a “touch up” is, or whatever “getting into” or “fixing up” is, that the appellant, Deemal‑Hall, did counsel the commission of an offence. Whatever it is it must have been at least an offence of assault. That brings into play section 7(1)(d) of the Criminal Code.
We then look to what occurred after that. I know I do not need to traverse that in great detail. The course of events is charted in paragraph 13 of our outline. Darkan started a fist fight with Mr Toth. That went for “a good while”, whatever that is. That is another thing we will have to come to in good time. Then the situation spiralled out of control. As a result Mr Toth was on any version unlawfully killed and this brings into play section 9 because the unlawful killing, be it murder or manslaughter, was an offence of a different nature from that which had been counselled and the appellant, Deemal-Hall, was therefore exposed to liability for either murder or manslaughter. If the facts which constituted that unlawful killing were a probable consequence of carrying out the counsel the ‑ ‑ ‑
KIRBY J: Do I understand it that all three appellants conceded that there were unlawful acts? In short, is it your submission that your client ought to have been convicted of no offence of murder or manslaughter or is it your submission that she ought to have been convicted of manslaughter?
MR CALLAGHAN: I make no – well, again, that is something which makes it very difficult if not impossible to apply the proviso in this case because of the difficulty in distinguishing those two and it comes back to the question of what is a “probable consequence” of a touch up which is something that only a jury can answer.
The appellant’s counsel at trial pressed for an acquittal of either murder or manslaughter but acknowledged that it was within the jury’s province to return a verdict of guilty of manslaughter. That would be a tactical decision to be made as to how you might handle that but there is no way that can be resolved in this Court, is the appellant’s submission. The relevant directions to the jury appear at appeal book starting at 396. At 396 at the bottom of the page, the last four words there:
Firstly, the prosecution contends –
and his Honour the learned trial judge went on to give a direction in the terms of section 7(1)(d) and section 9, in effect, incorporating the provisions of 302(1)(a) which I will call for current purposes just “intentional murder”, that is that there was a killing with intention to kill. Then the direction where it all happens is at 398 between lines 25 and 30:
Now when I speak of probable consequences –
and so on. That is the direction which his Honour was probably reading from the Bench Book which is issued to the Supreme and District Court judges in Queensland ‑ ‑ ‑
GLEESON CJ: Is there a typographical error there on line 30:
it means that it’s a real possibility or a substantial cause ‑ ‑ ‑
MR CALLAGHAN: Yes, that is an error. The Bench Book reads “substantial chance”.
GLEESON CJ: Well, an error in the transcript?
MR CALLAGHAN: I think we have all accepted that it is just an error in the way that his Honour read it. I do not believe anyone has actually checked the original notes of the court reporter.
KIRBY J: Do we have the page of the Bench Book?
MR CALLAGHAN: Yes, that ought to be before you.
GLEESON CJ: Nobody asked for that to be corrected at the trial?
MR CALLAGHAN: No, your Honour.
GLEESON CJ: Does that not suggest that the error was an error on the part of the court reporter rather than on the part of the judge?
MR CALLAGHAN: It may do.
KIRBY J: But you have not raised any separate point on that?
MR CALLAGHAN: We have not. The most that could be said about it is if it were said as it reads I suppose it could have confused, but it does not really change anything, in our submissions.
GLEESON CJ: Well, may we decide this appeal on the basis that what the judge actually said was “substantial chance”?
MR CALLAGHAN: I cannot for the moment think of any reason why not, but perhaps come back to you if I do. The first part of our submission in respect of that direction ‑ ‑ ‑
GUMMOW J: Which page of the Bench Book?
MR CALLAGHAN: Well, there are two relevant parts.
HEYDON J: One is 71.11:
“‘Probable’ has the meaning of ‘likely’ or ‘a real possibility’.
That is attributed to R v Hind.
KIRBY J: It is at the bottom of section 8, is it not, page 11?
MR CALLAGHAN: That is in respect of section 8 and there is also a direction referable to section 9.
CRENNAN J: Page 6.
MR CALLAGHAN: Thank you, 71.6.
HEYDON J: Is there any request for a redirection or was this taken as being Queensland law because of the state of the authorities?
MR CALLAGHAN: Yes, your Honour, the state of Queensland law is that judges have been told that they should ordinarily comply with the Bench Book direction.
HEYDON J: Counsel have the Bench Book?
MR CALLAGHAN: Have access to it. It is on the Internet, yes. So no point was taken at the trial. This point was taken for the first time in the Court of Appeal.
HEYDON J: The judge, had the point been taken, would have had no alternative but to reject the request?
MR CALLAGHAN: That is so, given the status of the Bench Book and the decision in Hind and Harwood.
In the opening exchanges, the first part of our argument in respect of this direction was flagged. This is part of the Code which is framed in ordinary language. The principles which apply to the construction of a code are well settled and I do not propose to traverse those in my oral submissions. They have been considered by this Court on many occasions. Indeed, it is the case in Queensland, certainly prior to the existence of the Bench Book, that a trial could proceed without comment with no elaboration upon the term “probable consequence” being given.
I have given your Honours the unreported Queensland decision of R v Salmon; R v James [2003] QCA 17. At paragraph [45] of that case concerning the meaning of “probable” – this is in the judgment of the President of the Court of Appeal, her Honour Justice McMurdo, she notes that in that case:
His Honour’s directions to the jury followed the wording of s 8 without any amplification of the meaning of “probable”. The word “probable” is a concept which is well understood by ordinary people and does not need further explanation.
There is difficulty in reconciling that observation with the paragraph which precedes it, but again her Honour was doing no more than reflecting what was the state of the law as discussed in Hind and Harwood.
GUMMOW J: Apparently the cases in footnote 6 support what is said in the text.
MR CALLAGHAN: The cases in footnote 6 are essentially those, from memory, which are concerned with directions such as directions on intent or, if not reasonable doubt, then something like that where ‑ ‑ ‑
HEYDON J: Thomas and Green are both reasonable doubt cases.
MR CALLAGHAN: Reasonable doubt, yes.
HEYDON J: What is more, to say “See Boughey . . . and cf” is to say, “There is one authority for what I say and five against”.
MR CALLAGHAN: Yes, and Boughey will be considered ‑ ‑ ‑
HEYDON J: Boughey is a decision of the High Court.
MR CALLAGHAN: Yes, but I do not think – well, it is not being noted in a way to suggest that those are against what she said in that paragraph; merely that it is not directly on point, I would suggest, is what she is saying in that footnote.
KIRBY J: Is the point that has been reached, therefore, that where it is a word of ordinary speech, the judge does not have to elaborate it, but where the judge does elaborate it, they should stick to the Bench Book?
MR CALLAGHAN: I suppose that is right, yes. I have not ‑ ‑ ‑
KIRBY J: That retains the original Griffith idea, but superimposes the fact that judges have a conversation with the jury and they try to help the jury, but if they do they should stick to the template.
MR CALLAGHAN: The Bench Book of course embraces so much more than the Code itself. Many of the standard directions on all sorts of things which arise in criminal trials are canvassed in it. So we reach the point in the submissions where we move on to the alternative; that is to say, that if there is any need for elaboration as, for example, if the jury was to ask a question, then it could not be mistaken to inform them that “probable” meant “likely”. Those words, as we have noted, were equated in Brennan v The King (1936) 55 CLR 253.
Can we say this, that nothing in Brennan is to be read as endorsing a view that juries should be instructed. It does not cut across our initial submission but it does, we acknowledge, allow that the words “probable” and “likely” can be equated, but this is a convenient juncture to move to the next point, which is to say, that if there is a need for elaboration it cannot be given in the terms which are currently used. These terms can only confuse and distort the meaning which is especially undesirable in the context of derivative liability.
We have identified as the source of the direction the case of Hind and Harwood (1995) A Crim R 105 and principally the judgment of Justice Fitzgerald ‑ although as noted, Justice Pincus had some relevant things to say. Your Honours, we have canvassed these issues in the outline, in essence. Our submission is this that under the guise of construction and with undue regard for common law analogies his Honour has read into the Codes words which are more likely to mislead than enlighten. He has done so on the basis of what he says, is “The overall effect of” of Justice Starke.
GUMMOW J: Where does he say that?
MR CALLAGHAN: He says that in Hind and Harwood at 116, second‑last paragraph:
The overall effect of the passages emphasised –
and so on. We continue to focus on the word “possible” which is a word that we say cannot be read into this part of the Code. We have referred to the dictionary definitions and pay particular attention to the Concise Oxford which defines “possible” as:
capable of existing or happening –
or being “achieved” and tellingly is the second definition offered –
that may exist or happen, but that is not certain or probable –
The terms are to be used for the purposes of contrast not for the purposes of being synonymous.
GLEESON CJ: Are we concerned in the present case with whether that which is probable is death or grievous bodily harm?
MR CALLAGHAN: We are concerned with whether the facts which constitute the offence are a probable consequence and I come back to the words of section 9.
GLEESON CJ: But in the present case, to make it concrete, what is it that has to be regarded as probable, whatever “probable” might mean?
MR CALLAGHAN: All right, an unlawful killing and the second question is whether it was probable that such unlawful killing should be accompanied by an intent to kill or do grievous bodily harm.
GLEESON CJ: Right. So it would be sufficient if that which was probable was killing with intent to do grievous bodily harm?
MR CALLAGHAN: Yes, that would be murder.
GLEESON CJ: Thank you.
MR CALLAGHAN: We have referred to Boughey v The Queen (1986) 161 CLR and again, I will not take you through all that we have said in the outline about that but there is the part of the judgment of Chief Justice Gibbs at 15 and this is in the context of considering the word, “likely”, but his Honour, at that part of his judgment, suggested that in explaining such a word it might be helpful to mention the word “possibility” but only for the purposes of explaining that “possibility” is not enough and, with respect, we agree.
KIRBY J: Where is that actually said?
MR CALLAGHAN: That is at 15.
KIRBY J: Justice Brennan was on the court in that case, did he say anything separately himself? Yes, he did.
MR CALLAGHAN: Yes, at 15, about seven or eight lines down:
It would however be helpful to the jury to explain that a possibility, as distinct from a probability, is not enough.
HEYDON J: And Chief Justice Gibbs specifically forbade the use of the word “chance”, even if qualified by “good”, “substantial” or “real”.
MR CALLAGHAN: Because it must embrace “probability” and “possibility”. This is at the essence of our argument, your Honours. Once you start using words which invite further definition, such as “chance”, you multiply the number of ways in which a number of different people might interpret the same words. This really does cut across the purposes of codification. To try to sit the statements of Chief Justice Gibbs and Justice Fitzgerald side by side, or if you fuse the two statements, the direction would be something like, “probable consequence” means a real possibility but a possibility is not enough. It becomes meaningless and distorts the whole operation of the provisions.
HEYDON J: I think merely to say “probable” might lead any 12 people to disagree quite strongly as to what was meant. You say it has only one meaning but I am not sure it does.
MR CALLAGHAN: I am sure it means different things to different people, your Honour, as does “reasonable doubt”.
HEYDON J: Should not the law applied in criminal cases be identical, as it were, for all juries and all accused?
MR CALLAGHAN: You are never going to get people to think the same way, you are never going to get two people to have exactly the same understanding of any one word. Our point is this, let us keep it as simple as possible. Once you start injecting other words into it, you only multiply those problems because you have two words that people might interpret differently, or three or four, or so on.
GLEESON CJ: Let it be assumed, for the moment, that in the context where this conversation took place, procuring a touch up was an invitation to cause grievous bodily harm. Just make that assumption for the moment. On that basis, what you would be asking yourself, whatever the word “probable” means, is whether death as the result of acting with an intent to cause grievous bodily harm, was probable.
MR CALLAGHAN: Yes.
GLEESON CJ: What is the process of reasoning that you would go through in order to reach a conclusion about whether death was probable as distinct from merely possible? What is the practical reasoning process that you would go through?
MR CALLAGHAN: One must start, in our case, with the terms of the procurement, the terms of the counselling, and then, applying life experience to those, make an assessment as to whether something was probable or likely to occur. If the grievous bodily harm that you are contemplating in the question that you posit was specified as the severance of a limb, for example, one does not need a medical degree to know that death is a probable consequence of that. If it is to inflict a scar on an extremity of the body, that may not follow. It will depend upon the terms of the procurement or, in the case of section 8, the scope of the unlawful agreement and will vary, your Honour, as infinitely as the circumstances in which it may apply.
GLEESON CJ: If you procure a thug to give somebody a severe beating without specifying further than that what should be involved - leaving it, as it were, to his discretion – how do you go about making a judgment as to whether death is a probable consequence as distinct from a possible consequence?
MR CALLAGHAN: If you have only those bare facts then it is almost impossible but, of course, inevitably, there will be more evidence than that. In this case, to come back to the circumstances that we have, the Crown would point to the fact that there were three men, that it was secluded location. I am sure Mr Copley can advance the Crown case better than I can, but there will be other considerations apart from the terms of the counselling, I accept that, which will embellish a Crown case. But in this case, your Honour, we submit, you really do have to come back to the terms of what was said by the appellant, Deemal-Hall, because there is not much more. There is plenty of evidence of callous behaviour after the event such as could be equally consistent with the guilt of manslaughter as it would be guilt of murder. But again we are into the areas relating to the proviso – we may as well move to that because ‑ ‑ ‑
GUMMOW J: Just a minute. In addition to Chief Justice Gibbs do you rely on Justice Brennan at 43 to 44?
MR CALLAGHAN: Yes, your Honour. In our outline we have isolated ‑ ‑ ‑
GUMMOW J: What was the division between Justice Brennan and the rest of the court?
MR CALLAGHAN: He dissented as to the disposition of the application but not for any reason that is, we submit, relevant to the current purposes.
KIRBY J: Where is the passage in Justice Brennan that you rely on?
GUMMOW J: Bottom of 43.
MR CALLAGHAN: Yes. We have referred to that in paragraph 60 ‑ ‑ ‑
GLEESON CJ: At the bottom of 43 and the top of 44 he seems to regard it as important that the Code should have the same meaning as the common law in those terms.
MR CALLAGHAN: Yes, but rejected the notion that – I have not addressed that issue and I apprehend those that follow me will, but the relevance of the common law can be simply stated in that, we say, there is little relevance to the common law at all because it approaches this whole area of derivative liability from a different perspective and focuses upon the subjective state of mind of the offender ‑ ‑ ‑
KIRBY J: As do some Codes elsewhere.
MR CALLAGHAN: Some Codes embrace both.
KIRBY J: In New Zealand.
MR CALLAGHAN: They use terms like “know” or “ought to have known” so there is still a subjective element there.
KIRBY J: But what Justice Brennan said about endeavouring to get common general principles is that one of the general principles of interpreting the Code but of course sometimes you cannot do it.
MR CALLAGHAN: Yes. But the cardinal principle, of course, of interpreting the Code is to take the words as they are written and not to assume that they were intended to reflect the common law.
KIRBY J: They are two pretty strong arguments for your primary submission from two judges who well knew the Code.
MR CALLAGHAN: Yes, your Honour. In terms of our primary submission and that which I have already said and that which is contained in our outline I will assist the Court in respect of anything I can, but I am conscious of the time and the fact that there are three other counsel to follow, so I will commence to address our submissions in relation to the proviso and those submissions are in three parts. The first submission is this that this has been such a serious breach of the pre‑suppositions of a criminal trial as to deny the application of the proviso because the error, if that is what it is found to be, relates to the sole method by which the Crown seeks to attach criminal responsibility to this appellant and this is not an error as to an ancillary direction or something that might have been incidental to the trial. It is so important that it can, in effect, be said that there has not been a trial at all. I apprehend that Mr Byrne on behalf of McIvor will be directing submissions to the operation of the proviso in these circumstances.
Our second part of our submission in respect to the proviso is that there are real difficulties in applying it in this case because of the impossibility of distinguishing between murder and manslaughter. Now, this involves a consideration of many of the factual issues. I do not propose to traverse those in argument, but can I refer you to the appeal book at 347 to 364 where Mr Martin SC’s address to the jury is transcribed and he has identified a number of the factual matters which we say are relevant to any attempt by the Crown to persuade your Honours that there is no reasonable doubt as to the appellant’s guilt of murder. There are many things, as I have acknowledged, that can be said about the appellant’s behaviour after the event which are telling but, we submit ‑ ‑ ‑
KIRBY J: No, but let us start with before the event.
MR CALLAGHAN: Well, I was going to come to that last, your Honour, because that is the most important part. The events after the event, we say, might equally prove guilt of manslaughter as murder. The evidence of things which occurred during the event is vague, too vague to sustain any attempt by the Crown to bring a charge pursuant to section 7. They do not seek to attach liability by reason of her presence whilst the killing occurred. We come back necessarily to that which occurred before the event and the counselling and the procuring which is the essence of the case against the appellant, Deemal‑Hall, and here is where you run into the natural limitations which inhibit any appellate court in its assessment of a record of evidence such as you have in this case, because in making any assessment of that which was in fact counselled by the appellant, you must necessarily make an assessment of the witness, Bowen.
I have already identified in his evidence subtle but important differences in the manner in which he described that which was counselled, “get into”, “fix up” or “nothing more than a touch up”. Now, he also at appeal book 49, line 20 agreed that it was never part of the plan to assault Mr Toth in such a violent way.
HEYDON J: Never discussed.
MR CALLAGHAN: Thank you, your Honour.
GUMMOW J: What about the pick handle?
MR CALLAGHAN: Well, that was a surprise to Bowen as well, and the evidence admissible against Deemal‑Hall in that regard is again sketchy at best and certainly there is no admissible evidence against her which directly establishes knowledge as to the presence of the pick handle. The degree to which Bowen was convincing in that part of his evidence where he agreed that the plan was nothing more than a touch up might go some way towards negativing any other inference which the Crown would seek to have your Honours draw.
KIRBY J: Yes, but steady on, we have got the fact that your client organised this affair, that she organised for it to happen in a park where it would be possible to do more damage than in the normal house or some other place, she felt it was necessary to have three men, and she knew that the deceased was a very violent person onto whom she was setting three men, and at no time during the affray, though she was present, did she call off the three men from the assault that they were performing. I thought there was the other added element that she supplied them with a stick but she certainly put the stick in the park, did she not?
MR CALLAGHAN: I would submit – and I will stand corrected by the Crown – but the admissible evidence against the appellant does not go that far.
KIRBY J: You had better get that point cleared up because that was my understanding of the facts.
MR CALLAGHAN: As I think I said before, certainly the appellant, Darkan, said that in his interview which was an out‑of‑court statement tendered against him, but that is not part of the Crown case against the appellant, I am confident as I can be on my feet. I will check it.
KIRBY J: We will hear about that, yes, when you have a moment.
MR CALLAGHAN: Well, can I say it would certainly change things.
KIRBY J: Well, I would take that out of the equation then, but even the matters that I have referred to, and as the Chief Justice said, looking at it in this community and choosing men who would be strong and able to deal with her former partner who was himself big and known to be violent man now, if you add all those things up, leaving aside her apparent callousness and the lies that she told after the event, you have, at least arguably, a very strong case that she knew that it was probable that something terrible would happen.
MR CALLAGHAN: Your Honour, arguably you do. I do not back away from that for a moment.
KIRBY J: I realise the force and I have said myself in reasons which are quoted somewhere that everybody, even a guilty person, is entitled to a legally accurate and fair trial in the normal circumstances, so I take the force of that, but when you are applying the proviso, as Weiss says you have to do it, then you are entitled to have a look at the considerations that I have just mentioned to you.
MR CALLAGHAN: That is so, but our point is this, that when Bowen gave evidence that the plan was for nothing more than a touch up, there may have been something sufficiently convincing about him in that regard to negate the inferences which can be drawn from the matters that you have identified, and that is where, no matter how strong the Crown case might be to be made from those other inferences, you sitting here cannot deprive the appellant of the opportunity of having those considered by a jury.
GLEESON CJ: One thing we know about those words that you have just quoted is that they were put into the witness’ mouth by a barrister.
MR CALLAGHAN: We do and, therefore, as a matter of first principles, might be considered to have less weight; that is so. By the same token, it may be that he sprang to life at that point and gave the appearance that his memory had just been refreshed and, I think, even though put into his mouth, they were put into his mouth by reference to a statement which he had made at a time closer to the incident than ‑ ‑ ‑
KIRBY J: Do we have that statement in evidence?
MR CALLAGHAN: No, but it is referred to, I think, in cross‑examination.
GLEESON CJ: But, as I think has already been pointed out to you, when you are engaging somebody to beat up somebody else, the propensities of the person who is going to be on the receiving end of this treatment are in a practical sense very relevant to the question of what you are being asked to do.
MR CALLAGHAN: Yes, and the respondent may point to evidence which suggests that the appellant, Deemal‑Hall, was aware of those propensities but it is not centre stage if it is there. Indeed, your Honour Justice Kirby in the course of exchanges a moment ago said that if you choose men known to be strong – I do not know that the evidence goes that far to establish that she knew that they were strong.
GUMMOW J: What about the steel‑capped boots?
MR CALLAGHAN: Again, I do not know that the evidence goes so far as to suggest that she paid attention to the boots that the others were wearing.
GUMMOW J: She was travelling with them in the van, was she not?
MR CALLAGHAN: Yes, but that ‑ ‑ ‑
GUMMOW J: Mr Martin seemed to say that there is no light on, so maybe she could not see the stick, maybe she could not see their boots – pull the other leg.
MR CALLAGHAN: Your Honour, there is clearly a Crown case to be made, but we come back to the way that criminal liability is being sought to attach here, and it is through section 7(1)(d) and 9. It is through the counselling and the procuring and the probable consequence of that.
GUMMOW J: I was looking at page 356 of the appeal book.
MR CALLAGHAN: Thank you. Before I forget, whilst all those considerations that your Honour Justice Kirby has put to me are clearly relevant, let us not lose sight of the fact when we consider that there were three men involved in the assault – let us remember the way the assault commenced, as a one‑on‑one fistfight, which might be thought to be consistent with a touch up, whatever that is, a one‑on‑one fistfight with the other two not involved, but clearly present and lending their assistance by their presence, but remember, the weapon does not come out until it seems Mr Toth is perhaps getting the better of Darkan, and that is when the second phase commences, and that is an important consideration.
I have made the point that the proviso cannot be applied because of the importance of Bowen’s evidence and the importance which might attach to his demeanour. The second point is as regards the language that Bowen says was used. The term “touch up” itself is the functional part ‑ ‑ ‑
GUMMOW J: Wait a minute, what was not put into Bowen’s mouth were the words “fix him up” at page 32.
MR CALLAGHAN: That is so, but the fact is ‑ ‑ ‑
KIRBY J: Maybe that phrase connotes “fix him up but not kill him” because if you fix something, can that mean that you sort of leave it to survive another day as distinct from – but these are colloquial words and they are really to be evaluated by a jury, not by us parsing them like a deed.
MR CALLAGHAN: Your Honour Justice Gummow at the special leave application allowed that you did not know what a touch up in Cooktown was.
GUMMOW J: That is right.
MR CALLAGHAN: Nor, with respect, could you or any appellate court.
GUMMOW J: I suspect it is not a matter of delicacy.
MR CALLAGHAN: No.
HEYDON J: Mr Callaghan, the question is what your client meant by “touch up” or “fix up”. Your client asked for something to be done and then she saw something being done. She did not protest about it. Does it not follow that what she saw being done was what she asked to be done?
MR CALLAGHAN: She did not protest about the fistfight ‑ ‑ ‑
HEYDON J: It would be easy enough to say, “This is not what I wanted. Stop, stop, stop, don’t kill him”.
MR CALLAGHAN: Remembering that the evidence as to her presence during the assault is also fairly vague. She was clearly not at the scene for the entire time.
GLEESON CJ: Under the Code is this question of probability or likelihood objective or subjective?
MR CALLAGHAN: Objective.
GLEESON CJ: Very well. When you request that somebody be beaten up and you know that that person is going to respond violently to any attack, is it not objectively probable or likely – whichever word you prefer ‑ that the violence will escalate to the point where grievous bodily harm and death resulting from grievous bodily harm is likely?
MR CALLAGHAN: Your Honour, that – I start to repeat myself – would depend upon the manner in which the offence was counselled, that which was counselled, and an assessment to be made by people who understand or are in a position to understand the dialect, if you like, of ‑ ‑ ‑
GLEESON CJ: But, objectively, the character of Mr Toth was such, was it not, that if you took to him with violence what was going to result would not be according to the Marquise of Queensbury rules?
MR CALLAGHAN: No. Escalation is always on the cards. Escalation to the point of death – there was very little to suggest that that was planned, very little to suggest any cover up of death or serious injury was contemplated in advance.
GLEESON CJ: That expression you just used “on the cards”, is that a reasonable synonym for “likely”?
MR CALLAGHAN: No. If it is on the cards, it might be as little as one in 52.
GLEESON CJ: I only ask the question because I think there is a judgment of Justice Mahoney in the Court of Appeal in New South Wales dealing with that expression.
MR CALLAGHAN: It is not a synonym which should be used in the context of the Criminal Code.
KIRBY J: I would have thought “on the cards” means “it is possible”, depends on the cards that come up. It might be an ace or it might be just a minor card, whatever that is.
MR CALLAGHAN: But any given card was probable.
KIRBY J: Your point is that if you get three men and if you get this situation and especially if you throw in boots and a stick, then anything is possible, anything is on the cards, that is just the way things work out, but the Code lays down that it has to be probable, and that that is a very important distinction. It is well known in other areas of law and if you are simply asking the jury is it possible that this will happen, they could well reason, yes, it is possible, it is even a real possibility, but you have to prove that it is probable that this will happen.
MR CALLAGHAN: That is so.
KIRBY J: That distinction is important, it is protective of you and particularly where you are standing for trial of murder and liable on conviction to life imprisonment mandatorily.
MR CALLAGHAN: Yes, for something you did not do yourself.
KIRBY J: So it is an important distinction and you are entitled to have the benefit of that differentiation and, to the extent that other cases and the Bench Book put a lower hurdle for the Crown, that is wrong to the language of the Code, it is wrong in principle to Sir Samuel Griffith’s approach, and it ought not to stand as the law of Queensland because it is contrary to the text and also, by the way, to Brennan in this Court.
MR CALLAGHAN: Yes.
GLEESON CJ: On that point, could I just take you back to what Justice Pincus said in Hind and Harwood 80 A Crim R 105 at 138. What do you say about his reasoning based on Boughey on page 138?
MR CALLAGHAN: As to that and as to Boughey generally, it must, we submit, be considered in the context of that case where the trial judge had given a direction and, on appeal, it was being argued that the direction should be to the effect that “likely” meant more than 50 per cent chance. So that which is being said here in Boughey is being said as a rejection of that proposition. It is not, we submit, to be taken as laying down a direction that juries should be directed in such terms.
GLEESON CJ: Whether he was right or wrong, what Justice Fitzgerald seems to have done and what Justice Pincus did was to begin with the proposition that “probable” means “likely” and then to look at what was said in Boughey about the meaning of “likely” and to reach the conclusion they reached, right or wrong, but that was their process of reasoning.
MR CALLAGHAN: That is true.
GLEESON CJ: Where did they take a false step in that?
MR CALLAGHAN: In taking what this Court said about the proposition that the trial judge in that case was not incorrect as being some sort of licence to go on then and use the synonyms used by that judge for the purposes of a direction under the Criminal Code. Of course, that was part of Justice Fitzgerald’s reasoning but it was the passage in Brennan that appears to have formed the principal basis for his formulation, and we have identified what we say are the errors in that.
GLEESON CJ: Justice Pincus seems to have said Brennan says “probable” means “likely”, Boughey says “likely” means “a substantial or real chance”.
MR CALLAGHAN: Yes, in the context of what was being discussed there, that is the way it reads but, as I say, it was never intended as being a direction that a judge should direct in such terms. I was just completing my submissions on the proviso ‑ ‑ ‑
HEYDON J: Do you ask for Boughey to be overruled, the majority, Justices Mason, Wilson and Deane?
MR CALLAGHAN: If it is thought that the ratio of Boughey is to the effect that a jury should be directed in such terms, then, yes, but we would submit that that is not the ratio of Boughey.
HEYDON J: What is the ratio of Boughey? I mean, the majority language is different from Chief Justice Gibbs and Justice Brennan.
MR CALLAGHAN: Yes. The ratio is that there is no requirement when the word “likely” appears in the Criminal Code (Tas) for the jury to be directed that it means more likely than not. In other words, we apprehend the reasoning in Boughey is that you should not read words into the Code which are not there, and that is our point. Beyond that, we say Boughey is confined to the circumstances ‑ ‑ ‑
HEYDON J: The Queensland Code and the Criminal Code (Tas) are not different in this respect and ‑ ‑ ‑
MR CALLAGHAN: Well, they are concerned with the word “likely” in the murder provision of the Criminal Code (Tas), so it is not even in the derivative liability of the Criminal Code (Tas).
KIRBY J: “Likely” is used in the Queensland Code, is it not? The word is used.
MR CALLAGHAN: Yes, the word is used and used in the same part of the Queensland Code that relates to the offence of murder, but not in respect of derivative liability, not in respect of sections 8 and 9, where the Tasmanian Code conforms essentially with the Queensland Code.
KIRBY J: Judges in the past, and one of the passages is quoted, but I think it is the Lord Chancellor said just because one person turns up is not a reason, except in clear cases, to burden others who happen to be there with the derivative liability.
MR CALLAGHAN: Yes.
KIRBY J: What was that case?
MR CALLAGHAN: I am sorry, I cannot tell you, but ‑ ‑ ‑
KIRBY J: That might have been why in the Queensland Code a distinction of language is used between “probable” in the case of derivative liability and “likely”, which is a slightly softer connotation I think, in other cases of murder.
MR CALLAGHAN: It may be.
GUMMOW J: Do we not have to construe the Code as a whole? In some provisions Sir Samuel Griffith used “likely” and in other provisions he used “probable”.
MR CALLAGHAN: Yes.
GUMMOW J: Are there shades of meaning involved there or is it just happenstance that sometimes you hit on one word and sometimes another synonym? I do not know enough about the Code and we are never taken through it as a coherent whole, but it was designed as a coherent whole.
MR CALLAGHAN: I can tell you this, that the word “probable” appears in the Code really for current purposes only in this part of the Code dealing with derivative liability in sections 8, 9 and 10A, which is effectively ‑ ‑ ‑
GUMMOW J: What about “possible” and what about “likely”?
MR CALLAGHAN: “Likely” appears in a number of places throughout the Code.
GUMMOW J: We had better have a note at some stage I think.
MR CALLAGHAN: I can supply that. We have checked that. “Probable” appears only in one other part of the Code and that is in the offence of extortion where the phrase “without reasonable or probable cause” is used. I would suggest that is not relevant for current purposes.
GUMMOW J: What about “likely”?
MR CALLAGHAN: Your Honours, we can give you the number of places throughout the Code in which “likely” is used. Some of those, from memory, will be in some of the more recent editions to the Code and they will not be part of Sir Samuel’s draft.
GUMMOW J: No, I understand. I was really worried about Griffith’s structure.
MR CALLAGHAN: Yes. We have not done the analysis of working out where he used it.
GLEESON CJ: You have told us that in your submission “probable” does not mean real chance, substantial possibility.
MR CALLAGHAN: Yes.
GLEESON CJ: Let us suppose the jury asked the judge what it does mean. Should the judge tell them it means more likely than not?
MR CALLAGHAN: No, I would submit that ‑ ‑ ‑
GLEESON CJ: What should he tell them?
MR CALLAGHAN: We would happily urge that upon you, but the state of the authorities, in particular Boughey, I would suggest prevent us from doing that.
GLEESON CJ: So if the jury do ask for more explanation of these shades of meaning, what should they be told?
MR CALLAGHAN: They can only be told that “probable” is a word which is in ordinary usage which is well understood. It means, as it happens, something that is likely to happen, and there it must be left.
GLEESON CJ: What if they persist, as they sometimes do, and say, “Do you mean more likely than not, or do you mean 50/50 chance, or do you mean something less than 50/50?” What do you say then?
MR CALLAGHAN: Well, I think you come back to the same – I mean, your Honour would have no doubt seen the persistence with questions about “reasonable doubt”.
GLEESON CJ: Yes, many times.
MR CALLAGHAN: Juries are simply told that the law does not permit further instruction on that issue.
GLEESON CJ: That is what they are told in Australia; it is not what they are told in England. But in this area, if there are different shades of meaning to these words and you have a jury that asks questions about the shades of meaning, then the most obvious question they are likely to ask is, “Do you mean at least a 50/50 chance?” You would say no?
MR CALLAGHAN: Well, I have to, given the way in which that question has been addressed by the courts, both in Boughey and also in the Queensland case I referred to earlier.
GLEESON J: Well, if it does not have to be at least a 50/50 chance, what I am struggling to understand is the point of practical difference between the real or substantial possibility and the position for which you contend. I am just not sure of the position for which you contend.
MR CALLAGHAN: The difference is this – let us start from the other direction. Anything is possible. Anything is possible, and “real” only means actually existing or occurring in fact. Now, we know that the death of Mr Toth was a real possibility. It did happen and it was a possibility, along with everything else that could have occurred. In other words, if he died, then the appellant was liable. It is a form of strict liability, which is what Justice Fitzgerald seemed to think he was creating. That cannot be what was intended by the Code or the word “probable” would not be there at all. It must add something. It must convey some degree of contingency.
GLEESON CJ: Yes, what degree?
MR CALLAGHAN: Well, more than possibility, more than a possibility, more than something which ‑ ‑ ‑
GLEESON CJ: More than a bare possibility?
MR CALLAGHAN: Yes.
GLEESON CJ: A real and substantial possibility?
MR CALLAGHAN: No.
GUMMOW J: This word “chance” does not appear in Sir Samuel Griffith’s Code either, does it?
MR CALLAGHAN: No, it does not and, as Sir Harry Gibbs noted, it embraces both probability and possibility. That is what I said before: you start defining words which you have injected for the purposes of clarifying and it multiplies.
GLEESON CJ: Well, judges can always take a firm stand on not explaining the meaning of words.
MR CALLAGHAN: Yes.
GLEESON CJ: It might be wise if they can get away with it, but judges cannot stop juries asking questions.
MR CALLAGHAN: No. It would have to be said though that, as I have indicated, judges have been directing on section 8 for 100 years. This problem has not arisen by reason of something that has been asked by a jury; it has arisen ‑ ‑ ‑
KIRBY J: It has arisen because of Justice Fitzgerald’s reasoning and Justice Pincus agreeing, and that has led to the present situation.
MR CALLAGHAN: Yes. Your Honours’ concerns have not surfaced in a case of which we are aware for the last century.
KIRBY J: I must say – I have not heard what the respondent says but as a matter of principle and policy in a circumstance of derivative liability I can see real reasons for sticking to the Code and not watering it down to lesser than nuance may escape many juries but insofar as there is a nuance it is better to stick to probability because that is particular and special to this type of liability. It is in a sense a legal fiction and it ought to be kept at a higher bar than possibility.
MR CALLAGHAN: Yes, and the concept of possibility remains appropriate under the common law where there is proof that someone has actually foreseen or contemplated the offence. Remember this is derivative liability fixing liability for something which may not have entered the mind of the person charged.
KIRBY J: Has there been any discussion of this in texts or articles of what “probability” means in this context?
MR CALLAGHAN: No, not ‑ ‑ ‑
KIRBY J: When you are sending in your other note you can perhaps have a look for that because we do look at commentaries now. Justice Jerrard’s book may have had some comments in it, I do not know.
MR CALLAGHAN: We will check that, your Honour, but we were not aware of this matter being considered. I only had a couple of points to make in respect of the proviso and I have pointed out the importance of Bowen himself, the importance of the language which he says was used and the phrase “touch up” which is not a phrase like some of those which occur in the transcripts of criminal trials with sufficient frequency that allow for a reliable translation to be attempted. This is a phrase which could mean any number of things, and similar considerations apply to the evidence relating to the amount of money which was offered.
Our submission is that to, with respect, use a phrase suggested by your Honour Justice Kirby at the special leave application, “$50 is not murder money”, the respondent’s answer to that suggestion was, and we apprehend will still be, that this might be so in other parts of the country but we do not know a great deal about these people and their lives. With respect, we agree.
GLEESON CJ: It would be probably dangerous for us to rely on our own tuition about the state of the market?
MR CALLAGHAN: In Mareeba in particular, yes. You or any appellate court is our submission, your Honour, and that is why we have juries. In sum, the question of this appellant’s criminal responsibility falls to be resolved in the context of the proviso by reckoning with concepts that are not the subject of legal precedent and which cannot be discovered by an analysis of transcripts and exhibits.
KIRBY J: There was some mention of $1,000?
MR CALLAGHAN: Again, not admissible against Deemal‑Hall. That is in Lyall, I think, the witness Lyall, McIvor’s girlfriend, said that he had said to her that he was expecting $1,000 – again not in Deemal‑Hall’s presence, after the event, not admissible against her. Subject to anything your Honours have those are my submissions.
GLEESON CJ: Thank you, Mr Callaghan. Mr Rafter, you are next.
MR RAFTER: Your Honour the Chief Justice raised with Mr Callaghan the question whether or not the transcript at appeal book 398 should be assumed to contain an error in saying substantial cause was part of the direction given in the context of the section 9 case against Deemal‑Hall. I would simply point out that the summing‑up is ordinarily revised by the trial judge who provides a report to the Court of Appeal. Ordinarily, any error in transcript would be identified and correction made. Here, although not in the appeal book for this Court, the trial judge ‑ ‑ ‑
KIRBY J: It is pretty easy, though, for the eye to trick you. The word used should have been “chance”, should it not?
MR RAFTER: Quite possibly.
KIRBY J: And “cause” starts with “c”. The eye glances at it and can see it a hundred times. I mean, that is the problem with proofing judgments and reasons.
MR RAFTER: I was simply going to point out the trial judge wrote in his report to the Court of Appeal that all relevant matters should appear in the record and had nothing to add. That does not take matters very much further, of course, but one of the counsel appearing at trial, that is for Darkan in fact, appeared in the Court of Appeal as well. Now, the ground of appeal before the Court of Appeal focused on the “real possibility” words in that particular direction. One can see that in the ground as set out in the judgment of the Court of Appeal at page 622. The ground itself is in paragraph [32], ground (b):
that the learned trial judge erred in directing the jury that, for the purposes of s 8 or s 9 of the Criminal Code, a “probable consequence” meant one that was a “real possibility” -
So the ground of appeal did not focus on those other words, but as I pointed out, one of the counsel, Mr Kent for Darkan, had appeared at the trial and also on appeal.
The Court of Appeal seemed to assume that the transcript was accurate because the extract from the summing‑up is set out in Justice Keane’s judgment as it appears at 398 so it is perhaps difficult to say ‑ ‑ ‑
GLEESON CJ: Can I just take you to 398 for the moment? There was a question asked of Mr Callaghan about this but just go to the paragraph preceding what we were told was the critical paragraph. The number (3), do you see that?
MR RAFTER: Yes.
GLEESON CJ: The jury were told that what they were considering was whether:
the facts which constituted the murder, that is the blows causing the death with the intention to do grievous bodily harm, were a probable consequence of carrying out that counselling.
MR RAFTER: Yes.
GLEESON CJ: So it was not the death, was it, that had to be the probable consequence?
MR RAFTER: The probable consequence must be the ‑ ‑ ‑
GLEESON CJ: The blows.
MR RAFTER: There can be fine distinction between acts and outcome.
GLEESON CJ: I am interested to know because it is only when you know this that you can look at the practical reality of the different shades of meaning in the context ‑ what exactly was it that the jury had to ask themselves was probable?
MR RAFTER: It is the offence committed that must be the probable consequence of the counsel. These directions given here are in the context of section 9 directions which were not in issue in this appellant, Darkan’s, case but his Honour having explained probable consequence in the context of section 9, those explanations such as they were would have carried over into the jury’s understanding of section 8.
GLEESON CJ: Yes, but Mr Callaghan told us the critical passage is in the paragraph at line 25 and I want to relate that passage to what appears at line 20.
MR RAFTER: The section 8 requires in the circumstances there outlined that there can be derivative liability when an offence is committed of such a nature – I will not read out the whole thing. The offence here is not the blows, they are the acts. The offence is the killing and for murder it is accompanied by one of the relevant intents although here ‑ ‑ ‑
GLEESON CJ: What the judge told the jury was that the question for them was whether the blows causing the death with the intention to do grievous bodily harm were a probable consequence of the counselling. Is there any question about whether that is right or wrong?
MR RAFTER: That was not debated at trial nor on appeal nor is it in issue here. However, more accurately, the judge ought to have said the offence must be the probable consequence. The offence is an unlawful killing accompanied by one of the relevant intentions according to section 302(1)(a). For an offence of manslaughter it is the unlawful killing that must be a probable consequence of the counsel or of the plan under section 8 ‑ not blows causing death. The distinction may have been a fine one here and no counsel sought redirection on that topic at trial so perhaps no one saw any significance in the distinction if they noticed there was a difference.
As to shades of meaning of the word “probable”, Justice Fitzgerald in R v T [1997] 1 Qd R 623, made a detailed examination of the meaning of the words “likely” and “probable” but in a different context to that obtaining in this particular case. Your Honours have that decision. His Honour discussed the two words at the foot of 627 about line 35 continuing over to 628, line 20. There is also in that case an appendix where his Honour at 662 to 663 set out the various shades of meaning, if you like, of the words “likelihood” and “probability”. We can perhaps go to that at the foot of 622. The heading is “Likely”. Under that his Honour sets out six in all different shades of meaning and cites various authorities ‑ ‑ ‑
GLEESON CJ: It is interesting that at the top of page 628 he refers to Boughey, cites the majority judgment and then compares what Chief Justice Gibbs said.
MR RAFTER: That is right. In the context though of this particular case where the word “probable” is examined in the context of section 8 of the Code, it is noteworthy that in Georgiou; Edwards; Heferen (2002) 131 A Crim R 150 at 163 to 165, paragraphs 66 to 70, the court, comprising Justices McPherson, Williams and Atkinson, discuss “possible” and “probable” in the context of “likelihood” in 302(1)(b) and in the context of section 8. Their Honours say that in the summing‑up in that particular case the word “possibility” had been mentioned in the summing‑up in defining “likelihood” under 302(1)(b). Their Honours say, about halfway down the page, in paragraph 66, towards the bottom of that lengthy paragraph in the middle of page 163:
his Honour may on occasions have referred to “likely” and “possible” as if they were synonyms, which does not accord with the generally accepted meaning of those two words.
Their Honours continue a discussion of section 8 in the paragraph that follows and on page 164, in the context of discussing section 8 liability, in paragraph 68 speak of:
likely to have been committed in the course of carrying out the planned offence.
The conclusion reached at the top of 165, paragraph 70 is that:
irrespective of any earlier confusion, if any, between “possible” and “probable” or “likely” consequences, his Honour had, in what he said in his directions to the jury on the second-last and final days of the summing-up, made it clear that verdicts of manslaughter against either Georgiou or Heferen could be arrived at only if they concluded that the shooting and killing was a probable consequence of carrying out [the plan] –
With respect, that supports the argument that has been put here this morning that “probability” does not equate to “a possibility” even if the “possibility” is qualified by the word “real”.
GLEESON CJ: As Mr Callaghan pointed out, from one point of view, anything that has happened is self-evidently possible but that is presumably why words like “substantial chance” or “real chance” are used.
MR RAFTER: One cannot ignore the possibility, as your Honour the Chief Justice has put to Mr Callaghan this morning, that juries will seek some assistance on the topic. If assistance is required, there would be nothing wrong with explaining that “probable” means “likely”, with respect, but to introduce concepts of possibility invites error. If one looks at Nguyen v The Queen [2001] WASCA 176, a decision of the Court of Criminal Appeal of Western Australia, in discussing the same idea of “probable consequence” in that particular case, the court at paragraph 35 set out the summing‑up, or an extract of it. What the judge had told the jury in that case was “probable consequence”:
“That depends on what people had with them, how they saw it, and objectively you look at it and say: What was the probable consequence? What was likely to happen, the way this was going?”
GLEESON CJ: Has this particular explication of “probability” been taken up in any of the other Code States?
MR RAFTER: No, not according to my understanding. Indeed, in Western Australia in Stupar there is a model type direction there set out. My learned friend, Mr Copley, sets this out in his written submissions, which really conforms largely to the language in the section itself.
GUMMOW J: What is the citation of that?
KIRBY J: It does not seem to be in your compilation.
MR RAFTER: No, not in mine, but it is in the Crown’s outline.
GUMMOW J: (1999) 104 A Crim R 238.
MR RAFTER: Yes.
GUMMOW J: What is the particular paragraph?
MR RAFTER: It is probably at the foot of 247 and continuing to the top of 248.
KIRBY J: Where is the passage which criticises ‑ ‑ ‑
MR RAFTER: It is not a criticism. It is at the top of 248 where a model type direction that can be given is there set out, perhaps at the beginning of the foot of 247:
if two persons form a common intention to prosecute an unlawful purpose and an unintended death results, then in order to determine whether both are guilty of murder, a simple direction can be given to the jury along the lines indicated by Gibbs J that if two persons form a common intention to prosecute an unlawful criminal purpose and in the prosecution of that purpose one does an act which is likely to endanger human life, and in fact causes death, then both participants would be guilty of murder if the act which caused the death was a probable consequence of the prosecution of that purpose.
That would be a combined direction in respect of sections 8 and 302(1)(b) of the Queensland equivalents of the provisions there under consideration. There is no suggestion in that model direction that there be any elaboration upon the concept of probability.
GLEESON CJ: Just before you go any further, it comes back to the same point that I raised in relation to the question of what it is that has to be probable. It says:
if the act which caused the death was a probable consequence of the prosecution of that purpose.
MR RAFTER: Well, that is no doubt because, bringing it back to Queensland, under section 8 the offence must be a probable consequence. “Offence” is defined and section 8 of course was given detailed consideration by this Court in Barlow. The term “offence” is defined in the Criminal Code in a way that introduces concepts of acts under section 2:
An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.
GLEESON CJ: Yes, so here that of which the probability was in question was the act or acts causing the death of the victim.
MR RAFTER: One cannot easily separate out the acts and the end result because the offence encompasses both the acts causing death and the death itself.
GLEESON CJ: In accordance with this model direction that you have just pointed us to on page 248 in Seiffert, if what happened was that somebody got whacked over the head with a pick handle and they died in consequence, what you would have to ask yourself is whether hitting him over the head with a pick handle was the probable consequence of the prosecution of the purpose, would you not?
MR RAFTER: Section 8 renders liable participants involved in a common unlawful purpose and they are made liable for an offence that occurs. Now, the offence ordinarily encompasses both the act and the result. If one is liable only for the blows with the pick handle, then that would be an assault with a ‑ ‑ ‑
GLEESON CJ: The direction that you have pointed us to in Seiffert does seem rather clear.
MR RAFTER: It does. Manslaughter though is defined by section 303 as an unlawful killing “under such circumstances as not to constitute murder”.
“Murder” is provided for in the preceding section and relevantly here involved paragraphs (1)(a) an intentional killing, that is with intent to do the killing or grievous bodily harm, or under paragraph (1)(b) death “by means of an act done in the prosecution of an unlawful purpose”.
GLEESON CJ: Did we not look at all this in a Queensland case where some people took a man along to the bush and beat him?
MR RAFTER: That was Gilbert.
GLEESON CJ: Gilbert?
MR RAFTER: Yes. Now, Gilbert involved, though, an issue as to whether or not there had been a miscarriage of justice because manslaughter had not been left to the jury for consideration. The other case that I mentioned earlier that looked at section 8 and the meaning of “offence” in section 2 was Barlow, which interestingly of course had its origins back in Hind and Harwood itself, because Hind and Harwood had held that the section 8 derivative party was liable for the offence actually committed. If that was murder, they were liable for that and there was no intermediate position whereby a secondary party could be held liable for manslaughter. That was what was held in Hind and Harwood and on appeal by the Crown to this Court Barlow reversed Hind and Harwood in that respect, although section 10A of the Criminal Code was introduced for the purpose of overcoming that.
GUMMOW J: Gilbert 201 CLR 414 and Barlow 188 CLR 1.
MR RAFTER: Thank you. I was just about to give that. Thank you, your Honour.
GUMMOW J: Barlow has been controversial, has it not, in Queensland?
MR RAFTER: Well, it was then. The controversy has since abated because of the legislative amendment brought about by section 10A.
GUMMOW J: I had better look at 10A.
KIRBY J: Section 10A was inserted after Barlow, was it not?
MR RAFTER: After Barlow, o in fact it may have even been pre‑Barlow, but it was certainly intended to overcome the interpretation adopted by the Court of Appeal in Hind and Harwood. It was introduced on 1 July 1997.
GLEESON CJ: The offence is the act, not the legal quality that the law attaches to the act.
MR RAFTER: Section 2 defines “offence” as the act but one cannot separate out easily, in my submission.
GLEESON CJ: That was what Barlow was about, was it not?
MR RAFTER: That is what it was about. Barlow was decided on the 3 June 1997 so it was decided shortly before section 10A was introduced. Just going back briefly to the Western Australian case of Seiffert and Stupar that I mentioned before, the passage that I took the Court to at 248 was dealing with the Queensland equivalents of section 8 and 302(1)(a). Sorry – it is the combined effect of 302(1)(b) and section 8. The passage that I took the Court to says at the end the direction is stating the combined effect of the sections. Mr Copley is reminding me that the directions in the passages we were looking at in the appeal book concerned section 302(1)(a).
As I mention in my written outline the case against this appellant was put on three different bases: that he was the actor, that is he caused the death himself; he was a party to a killing caused by McIvor or he was liable upon the combined operation of sections 8 and 302(1)(b). There is, with respect, further support for the proposition that “probable” in section 8 does not mean possible or anything like it. In R v Beck [1990] 1 Qd R 30 in the judgment of Justice Derrington at page 52, line 25 his Honour is discussing liability under section 7(c) and in the second sentence moves to a consideration of section 8 and in the following paragraph commencing at 35 his Honour says:
First it must be noted that the Code uses the word “probable” and this necessarily distinguishes it from the position at common law where the standard adopted is that of a possible or foreseeable consequence -
His Honour there cites Brennan and Johns.
KIRBY J: What page was that on?
MR RAFTER: That is on page 52 at line 35, your Honour.
GLEESON CJ: Yes. The common law test is subjective and looks at it in terms of foreseeability.
MR RAFTER: That is right. Mr Callaghan has already taken the Court to R v Salmon & James ‑ ‑ ‑
GLEESON CJ: Sometimes described as undemanding.
MR RAFTER: Particularly at the R v Salmon & James [2003] QCA 17 in the judgment of the President at paragraphs [44] to [46]. Her Honour said there that:
The word “probable” is a concept which is well understood by ordinary people and does not need further explanation.
The footnote [6] that was referred to cites Boughey and the other cases mentioned there in the footnote – Thomas, Green and the Queensland cases of Irlam, Punj are all concerned with elaborating upon the meaning of “beyond reasonable doubt” and that has been the position for some time that that is an expression that requires no elaboration.
As to the proviso in this appellant’s case, in my submission, Shannon Bowen’s description of events at Bicentennial Lakes Park in Mareeba was an important part of the Crown case. His evidence in relation to Darkan’s participation in the assault was in dispute. It was challenged by the cross‑examination at pages 61 to 66 of the appeal book. What partly disputed, of course, is the content of the recorded interviews with the police. Initially there was a denial of any knowledge of the matter in the first interview, exhibit 19A, at page 517 and following. After that interview, Darkan told the police officer at page 182 - he was about to be taken to the watch house:
“It wasn’t me that did all the damage; it was the owner of the weapon that did all the damage -
a reference to the appellant, McIvor. He said that to the police officer at 182, line 30. There then followed a second interview which is in the appeal book at exhibit 20A, pages 535 to 541. He confirmed that earlier statement that it was not he who had done all the damage. It was the owner of the wood, as he called it. It was the other bloke, and I will not read all these passages out, but I ‑ ‑ ‑
HEYDON J: What page was that last?
MR RAFTER: Page 535 to 541, it is the second interview.
HEYDON J: Yes, but which particular part of it, though?
MR RAFTER: Yes, all right. At 536.
HEYDON J: There is no need to read it as long as we get the precise reference, 536?
MR RAFTER: No, I will not read it. I will just give the page references where he makes the claim it was the owner of the wood, being McIvor, who did the damage, 536, 538 about lines 25 to 30.
KIRBY J: It was actually a pick handle, was it not?
MR RAFTER: It was a pick handle, yes.
KIRBY J: So calling it a stick is a bit of a euphemism?
MR RAFTER: Yes, 540 ‑ ‑ ‑
KIRBY J: Whose idea was it to take the pick handle?
MR RAFTER: That depends on which case is being looked at, because as Mr Callaghan explained, there are pieces of evidence admissible in one case that are not admissible in the other. In this appellant, Darkan’s case, he said that the stick was brought by McIvor, and that it was his, that is what he said.
KIRBY J: Did they live together in the same place?
MR RAFTER: No. He said it had been brought along ‑ ‑ ‑
KIRBY J: How would McIvor bring his stick?
MR RAFTER: For the purpose of carrying out the assault, presumably.
KIRBY J: I realise that, but how would he get possession of Mr Darkan’s pick handle?
MR RAFTER: It was not Mr Darkan’s pick handle, on Mr Darkan’s case. It was McIvor’s pick handle which McIvor brought there in the van. That is what Darkan said.
GLEESON CJ: If you were setting out to assault Mr Toth there would not be much use bringing a feather duster?
MR RAFTER: That is right. Now, some of the matters that were put to Mr Callaghan about factual matters that implicated his client, Deemal‑Hall, had come from this interview, which as Mr Callaghan rightly pointed out, are not admissible against Deemal‑Hall, and the third interview which appears as exhibit 21A at 587 to 595 contains a number of those things. At 587B he said the plan was “To bash this guy”, that Deemal‑Hall wanted help. At 587G he says at line 40 that “she told Andrew to jump” in the vehicle.
At the foot of 587G there is reference to what had happened “to her, and her daughter” which is explained at the top of 587H as being a rape of the daughter, according to what Darkan said he had been told, at the top of 587H, that “she wanted to get him in the dark” and “she wanted us to bash him” – 587H line 20. At the foot of 587I there is reference to sitting down at the table - this is at the barbeque area in the park. He was asked:
Was the weapon there?
INTERVIEWEE: Yeah, it was there.
UNIDENTIFIED OFFICER: How did it get there?
And he explains at the top of 587J:
She hid the weapon – she hid the weapon –
a reference to Deemal‑Hall. Again, this was not admissible against her, of course, but this was what the appellant said in respect of it. “It was hidden behind a bush”, he says at line 40. At the top of 588:
She told Andrew to go and get the weapon.
He says he used his bare hands, there were about four punches and then Mr Toth “fell to the ground” at 588, line 25. He said, “we started kicking”:
What did she do?
INTERVIEWEE: She was just standing up . . .
She was telling one of us to get the weapon [indistinct], you know, we was too – we was too frighten to get – to get the weapon.
At the top of 589 he claims that it was Deemal‑Hall who went and got the weapon herself from where it had been hidden and he claims that she gave Mr Toth a number of blows – line 30, “a couple of good swings”, he says. Afterwards, at 590 he said he said to Deemal‑Hall, “You shouldn’t have used the weapon on him”. There are some other words included there that I will not read out.
KIRBY J: This is the first appellant before us said that to Mr McIvor?
MR RAFTER: He said that to Deemal‑Hall, according to what he is telling the police there, “I told her you shouldn’t have used the weapon”. He claims she had used the weapon herself.
GLEESON CJ: According to your client, she also provided the steel‑capped boots. That appears on page 591.
MR RAFTER: Yes. He said he was not wearing steel‑capped boots himself, but McIvor was. He said he was wearing his joggers, at 594, and much was made of that in final address by counsel.
HEYDON J: Does your client accept that it was within the idea of touching someone up that you punch them four times to the ground and then kick them, even if you are wearing joggers?
MR RAFTER: Well, that is what he did, so on the assumption that he was not then believing he was exceeding what he was asked to do, that must have been in the realms of what was planned, what he was engaged to do.
GLEESON CJ: What was the evidence that was admissible against Deemal‑Hall as to how the victim met his death?
MR RAFTER: Well, that chiefly came from the witness, Bowen, and Bowen had – I have summarised his evidence in my written outline. He had an initial blow from Darkan and then McIvor coming in and striking a severe blow and then most of the violence thereafter being perpetrated by Darkan mainly, including by kicking.
GLEESON CJ: My memory might be playing tricks with me, but I have a recollection of having been involved in a case in which it was said that the best evidence of what was within the contemplation of somebody who counsels and procures an assault is what has actually happened, especially if it happened in their presence. In other words, if you want to know what the plan was, have a look at what people did, and in the absence of any evidence from the person who did the counselling and procuring that this went beyond what the plan was, that is a reasonable inference.
MR RAFTER: I cannot bring to mind the case that held that. That is perhaps an observation of fact in that particular case.
GLEESON CJ: Yes.
MR RAFTER: It is not unknown, of course, that plans are exceeded and that is why section 8 liability attaches to another offence not actually planned but which is a probable consequence of the plan, and that was, of course, one of the bases of liability here in Darkan’s Case. I have summarised the factual matters so far as they related to my client on page 4 of the outline. That was the evidence that Bowen gave. It was very much in issue and counsel for Darkan cross‑examined Bowen putting many of the claims that he made in issue and suggesting that he had minimised his own involvement and shifted responsibility for some of the violence onto others, especially onto Darkan. So there was a serious credibility issue, one that is difficult to have resolved on the record of appeal. Of course, Weiss requires this Court, if there is found to be an error, examine the record and decide for itself whether or not guilt is established beyond reasonable doubt.
GUMMOW J: It requires the Court of Criminal Appeal to do that.
MR RAFTER: Or alternatively do that. My submission is that this is not a suitable case for the application of the proviso because it involves a serious credibility contest between the appellant and what he said in his interview and that having been tendered by the Crown was admissible both against and for him and, in my submission, that put in dispute Bowen’s evidence. It is a suitable case to be retried by a jury if error is found, in my respectful submission.
The appellants are all serving life sentences, a mandatory sentence under the law of Queensland for the most serious offence in the Criminal Code. I am not submitting that the proviso cannot be applied in murder
cases, but I do submit that serious consideration needs to be given to dismissing an appeal in a murder case on the footing of the proviso.
There were serious arguments put by counsel for the accused at trial in his final address to the jury between pages 335 and 346. I will not read everything out that counsel said, but he made submissions that put in issue the appellant’s liability on both murder and manslaughter. Those are my submissions, your Honours.
GLEESON CJ: Thank you, Mr Rafter. Yes, Mr Byrne.
MR BYRNE: May the Court please, I can usefully adopt much of what has been said by my learned colleagues in respect of this matter. On behalf of the appellant, McIvor, can I identify the specific complaint that is made and that is what has already been referred to at page 398 of the appeal book when the trial judge directs the jury that:
when I speak of probable consequences, it means that it’s a real possibility –
and I emphasise those two words, “real possibility”.
Your Honour the Chief Justice asked the question during the course of discussion this morning as to where Justice Pincus took a wrong step. I think your Honours words were “in his reasoning in Hind and Harwood, that is, by looking to whether “probable” can be equated to “likely” and whether “likely” can then be equated to “real” or “substantial chance”. My answer to that is to be found in the recent judgment of this Court of Weiss v The Queen (2005) 80 ALJR 444. In paragraph 9 – and it is third sentence in paragraph 9 upon which I place reliance – the Court said this:
It is the words of the statute that ultimately govern, not the many subsequent judicial expositions of that meaning which have sought to express the operation of –
that goes on to talk about the proviso but, in my submission, it is equally applicable to what is the task of this Court in the present case, that is whether the focus should be upon the words “probable consequence” in the Criminal Code or whether it was permissible or whether it was, alternatively, a wrong step to look to whether “probable” is being meant to mean “likely” and whether “likely” is being meant to mean something else. So my answer is that the focus should be, as this Court has recently said in Weiss, upon the words in the statute.
The words, “probable consequence” are, of course, part of the Criminal Code of Queensland and the Codes of the other States. They are also words which find their way into the primary criminal statutes in both New Zealand and Canada and I have put in the written outline reference to statements in the final appeal courts of those two jurisdictions where distinction is drawn, in my respectful submission, properly and understandably, contrasting “probable” with “possible”.
GLEESON CJ: What paragraph of your written submissions?
MR BYRNE: I have dealt with New Zealand in paragraphs 3.4 to 3.7 and Canada in 3.8 to 3.11. All the statements that I have been able to find in those jurisdictions draw that distinction and that is quite contrary to what the direction complained upon in the present appeal states. I have not been able to find any statement in the Supreme Court of the United States, but I have extracted in paragraphs 3.12 onwards statements made in Courts of Appeal of States or districts in which, again, “probable” is used in juxtaposition to “possible” to mean they have different meanings and “probable” is something over and above what is “possible”.
I have for completeness dealt with the situation in the United Kingdom but, as your Honours would be aware, that is a common law test and the word “possible” is involved in that, but it is put into the outline to distinguish it from the objective test which applies in the Code States and, it would seem, in the other jurisdictions which have a primary criminal statute.
GLEESON CJ: Is the subjective test “within the contemplation as a possibility”? Is that the common law test?
MR BYRNE: That seems to be the test, yes.
GLEESON CJ: So at common law you ask whether the accused in fact contemplated this as a possibility.
MR BYRNE: Indeed. I have extracted a statement from Sir Robin Cooke in the Judicial Committee of the Privy Council at paragraph 5.16, where his Honour said this:
It turns upon contemplated or, putting the same idea in other words, authorisation, which may be express but is more usually implied. It meets the case for a crime foreseen ‑ ‑ ‑
GLEESON CJ: Is that that case with the Chinese name?
MR BYRNE: Yes, it is Chan Wing-Siu:
The criminal culpability lies in participating in the venture with foresight
I think that is ‑ ‑ ‑
GLEESON CJ: That was applied in McAuliffe, was it not?
MR BYRNE: Yes, quite so. Indeed, the Privy Council has gone to apply the decision of this Court on the common law as well as expressed in similar tests.
GLEESON CJ: I wondered if one of your arguments is that where the common law test requires proof of contemplation as a possibility, if under the Code system the test is objective, then it is understandable why objectivity would require probability.
MR BYRNE: That is why the distinction is drawn between New Zealand, Canada and the States which have, in America, the objective test and the common law test. That is the reason why probability is so important and cannot be used by way of definition to include real possibility. That is the nub of the argument, your Honour.
KIRBY J: Would you explain why that is so? I just do not quite follow that.
MR BYRNE: The common law adopts “possible” because it combines it with subjective foreseeability so there is ‑ ‑ ‑
GLEESON CJ: An actual contemplation.
MR BYRNE: Yes. So there is that level of protection for derivative liability. The protection under the Code and similar jurisdictions is the use of “probable”, namely imparting an objective test which does not import any degree of possibility.
GLEESON CJ: The problem being that if it actually happened, it is self‑evidently possible.
MR BYRNE: Correct. That brings me directly to the response made on behalf of the appellant, McIvor, to the application of the proviso in this case. My learned friend, Mr Copley, in his submissions at paragraph 5.42 states that in terms of what this Court said in paragraph 41 in Weiss, that is whether there was admissible evidence capable of establishing the guilt of the appellant, McIvor, beyond reasonable doubt, then the proviso can be applied. I am not going to seek to gainsay that in any fashion. There clearly was against the appellant, McIvor, from his own record of interview, and I have to put my hand up to some of the questions that your Honours have been asking my friends. McIvor clearly told the police that it was he who went and got the, his words “stick”, albeit pick handle. He put on steel‑capped boots and he then entered into this common purpose to touch up, fix up, whatever it may have been.
So there is no doubt, if I may make the concession, that there was evidence capable of satisfying a jury beyond reasonable doubt of his guilt. However, the proviso point on which reliance is placed is not on that paragraph in Weiss, but it is upon paragraph 45 of the judgment of this Court. That paragraph states relevantly:
that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.
Now, here I go back to where I began. It was left to the jury by the trial judge that liability for McIvor on the basis of section 8 could be founded upon a real possibility. Now, that matter was further addressed by the summing‑up. Can I take your Honours to page 396 of the appeal book at about line 42 ‑ ‑ ‑
KIRBY J: Was this point reserved at the trial for the Court of Appeal, for us, the Court of Appeal having passed on the matter and being the source of the direction? Presumably there would not be much chance at the trial of the judge doing anything except apply the Court of Appeal’s instruction.
MR BYRNE: That is so.
KIRBY J: Was it formally reserved or not?
MR BYRNE: That does not in my experience seem to be the practice of the Court of Appeal of Queensland to formally reserve points. What occurred here ‑ ‑ ‑
KIRBY J: It is not the practice in Queensland formally to reserve that the Court of Appeal erred in its decision which is being applied? You say they do not do that in Queensland?
MR BYRNE: I may be at cross‑purposes to your Honour.
GLEESON CJ: I think you are being asked about what goes on at trial.
MR BYRNE: At trial. There was nothing reserved by the trial judge for the Court of Appeal.
KIRBY J: No, you did not take a formal objection that the Court of Appeal had been wrong in the point that you are now arguing before us?
MR BYRNE: Certainly at trial ‑ ‑ ‑
HEYDON J: No formal submission was made that the Court of Appeal was wrong, which obviously would not be developed.
MR BYRNE: No, that is so.
GLEESON CJ: When a judge is manifestly following the Bench Book, counsel does not object to the summing‑up?
MR BYRNE: Correct, and that is what occurred here. I apologise, your Honour.
KIRBY J: No, I did not make it very clear.
GLEESON CJ: There being no rule 4 in the Criminal Appeal Rules in Queensland?
MR BYRNE: That is so. I was taking your Honours to page 396 about line 42 where in his directions to the jury the trial judge said this:
The learned Crown Prosecutor puts forward an alternative approach for considering the guilt of these two defendants –
that is McIvor and Darkan –
to a charge of murder. On that approach, you do not have to be concerned about the intention to do grievous bodily harm.
So what the trial judge is directing is that the jury do not have to be worried about whether there was intention – whether there was evidence which could satisfy them that there was intention on behalf of McIvor to do grievous bodily harm. They can reach a verdict of guilty without considering that issue, and that is via section 8 and section 8 pulling in, because of the definition the trial judge gave, the concept of a real possibility.
That that was so was emphasised in the way the matter proceeded. At page 431 – and this is in the course of redirections – about line 32, the Crown Prosecutor informed the judge that there were two bases of liability. One was the intention to cause grievous bodily harm, and the other is 302(1)(b) with section 8, and the prosecutor correctly stated it as saying:
The latter course is the purely objective simpler course.
In the latter course it just has to be an act where death is a probable consequence, probable consequence of course having been explained to the jury as including real possibility. Indeed, at page 440, line 41, the trial judge in his final directions to the jury on that point said this:
So keep focusing on the words “probable consequence”.
So in effect my submission in respect to the proviso is this. The jury were given a route to conviction of the appellant, McIvor, which was said to be the simpler, which involved a probable consequence, meaning real possibility. They were told to keep focusing upon that, told it was the simpler route to conviction and that, in my submission, means in terms of paragraph 45 of this Court’s judgment in Weiss that there has been a significant denial of procedural fairness which would ‑ ‑ ‑
KIRBY J: Well, the passage on 441 twice repeats the adjective as “probable”.
MR BYRNE: Yes.
KIRBY J: Now, I realise you say that that is in square brackets what I have said it is to be defined as, but the judge ultimately comes back to using the correct and Code word “probable”. Did that cure the direction that was given on page 398?
MR BYRNE: Certainly, your Honour, there could be no complaint if the directions were solely in those terms, but the complaint is where his Honour has specifically and pointedly given to the jury a definition equating disparate terms of “probability” correct and “possibility”, in my submission, incorrect, and that is the fault and the denial of procedural fairness.
HEYDON J: On that basis, would not any non‑trivial misdirection be a significant denial of procedural fairness and, if that was so, paragraph 45 would mean you could never apply the proviso?
MR BYRNE: No, my submission is it does not go to that. It goes to where the basis of criminal liability at trial – in this case for murder – was left on an incorrect basis, then that amounts to a denial of what one would expect in a fair trial.
HEYDON J: The judgment in Weiss v The Queen in paragraph 45 goes on to say in the next paragraph that there is a related question of whether some errors are so serious as to deny the capacity to apply the proviso at all. Let me put this to you, that what is being spoken of in paragraph 45 is something with a certain parity of seriousness to that is rather exceptional, not just misdirections, even if they misstate the ingredients of criminal liability.
MR BYRNE: The difficulty in the present case is there were two routes that the jury could go to ‑ ‑ ‑
HEYDON J: We do not have to worry about the jury, according to Weiss.
MR BYRNE: If it was open to the jury to proceed on that basis correctly but they were given an alternate basis on which they could proceed and which was said to be the simpler one and they returned a verdict of guilty and that is an incorrect approach, then that becomes substantially my submission. I have given your Honours a reference in paragraph 3.23 of the written outline to a decision of Justice Wilson in the Supreme Court of Canada where it was said:
the trial judge failed to clearly and properly instruct the jury on the very complex issue of party liability. The result must therefore be a new trial for the accused.”
So, to answer your Honour’s question, there seems to be at least a contemplation in that case that where there is this breakdown on the directions on criminal liability, then that can fall into the category contemplated in paragraph 45. Unless there is something further, those are my submissions.
GLEESON CJ: May I ask you this question, Mr Byrne, before you finish, on the main point. Suppose you have a persistent jury who are told that it has to be “probable” and then, perhaps, that means “likely” and they say, “No, we want better than that”, what degree of predictability is necessary to engage this provision? What does the judge say?
MR BYRNE: I do not think I am adding anything original to what my friends have answered to similar questions posed by your Honour. It must be at best a two‑step process. The jury should be directed that “a probable consequence” means that. If they come back and question that, similarly with a question, what does “beyond a reasonable doubt” mean, then there is scope, albeit limited, to give the jury some assistance in the dialogue that occurs between the bench and the jury. But one should not (a) do that at the first instance, namely, provide them with a definition of “probable” can mean (a), (b), (c) or (d). If there is persistence then the authorities on
“probable” in other jurisdictions appear to allow the use of the word “likely” but go no further. If the trial judge is pressed further than that, in my submission, he or she should draw the line.
GLEESON CJ: Thank you. Yes, Mr Copley.
MR COPLEY: Your Honours, in order for the prosecution to prove the case of murder against Deemal‑Hall, the first route to murder lay in the provisions of section 7(1)(d) and section 9 of the Code. Down that route the prosecution had to establish that it was a probable consequence of what she had counselled that Darkan and McIvor would at least kill the deceased intending to do to him some grievous bodily harm.
So the direction that your Honour the Chief Justice questioned some of the other counsel about at page 398 of the appeal book, the third point, is a correct statement of what had to be proven. The question for the jury was whether it was a probable consequence of carrying out the purpose of jointly assaulting the deceased, that some one or other or more of the assailants would probably form an intention to do grievous bodily harm and, of course, in reality kill him, but that was what the probable consequence was that had to be proven.
GLEESON CJ: But did the death have to be one of the probable consequences?
MR COPLEY: Yes, it would have to be because otherwise then it would not be murder. The first direction was at 398, the first thing they had to be satisfied of was that she in fact counselled or procured these fellows to assault the deceased. The second was that as a consequence of that counselling, they in fact murdered, that is to say killed with an intention to kill or do grievous bodily harm, but that was not sufficient. It was not sufficient to convict her of murder by counselling unless the probable consequence of carrying out the joint assault was that some one or more of those assaulting would do so with the intention to do grievous bodily harm.
So the way the matter was put at 398 of the appeal book at the third point is correct. It does not conflict with the passage that my learned friend Mr Rafter referred your Honours to from Seiffert’s Case because at that passage in Seiffert’s Case the Court of Appeal of Western Australia was there referring to a murder brought about through the combined operation of the Western Australian equivalent of sections 302(1)(b) and 8. What his Honour is here directing the jury about is a murder that comes about pursuant to 302(1)(a) of the Criminal Code. So we can forget about the Western Australian case except to this extent, that, unhelpfully to the respondent, it does not include an example of a court explaining upon the notion of “probable”. So to that extent it might help the Court but it does not help the respondent. Otherwise, there is nothing in conflict between what was said in Seiffert and what appears at point (3) here on this page.
So it was of central importance for the jury in this trial to understand what the nature of a probable consequence involved and it is put against the respondent that this word “probable” is a word that is so well understood that no explanation of it is necessary. But judges commonly explain to juries the meaning of words, creating offences or extending criminal liability. If we take the expression “aids another person in committing the offence” in section 7(1)(c) of the Code or the words “counsels or procures” in section 7(1)(d) of the Code, the judge told the jury correctly in relation to “aid” that it meant to help or to assist another, then he added, “Knowing that that person that you are helping or assisting intended to kill”. That direction is at page 390, points 30 to 40, of the appeal book.
It is simply an example of a direction expanding upon what would seem to be as straightforward an English word as “probable”, namely aiding, yet no criticism is made here.
GLEESON CJ: There are some contexts in which the word “probable” means more likely than not. It seems to be common ground that it does not mean that here.
MR COPLEY: That is why it is necessary to expand upon the meaning of the word “probable” because if the word had not been explained to the jury some members of the jury might have thought that they could only convict of murder if it was more probable than not that one of those assaulting would do so with the intention to do grievous bodily harm, whereas others of them might have thought that they could convict of murder if that was simply something that was open more or less remotely, and that was why it was important for his Honour to explain to the jury the ambit of the word “probable”. Now, if his Honour had said to the jury that a probable consequence is simply something that is possible, well then that would be a matter that would be erroneous.
GLEESON CJ: That presumably is why this Court in Brennan said “probable” means “likely”. They meant likely as distinct from more likely than not?
MR COPLEY: Possibly, but in Brennan’s Case it was an appeal against the reasonableness of the verdict. It was not an appeal concerning what should or should not have been told to a jury, and that is a thing that that case has in common with Hind and Harwood, too. Hind and Harwood was a case concerning the reasonableness of the verdict, not what the jury should have been told about the meaning of the word “probable”.
The respondent’s central submission here is that the word “possible” was qualified by or coloured by the other words that the judge employed. All of my learned friends have focused upon the word “a real possibility” as if it was the only expression that was employed. It was not. He used expressions such as “a real chance” which are words that are capable of conveying the notion of something that was an appreciable risk of occurring. He also referred to “a substantial cause” which if we assume that he meant to say “a substantial chance” then the word “substantial” conveyed the idea again of something much more than illusory or remote or theoretical.
When one considers the direction in its entirety at page 398 it is not one that would have left the jury with the understanding that they could convict of murder with simply a possible outcome of the counselling for the purposes of section 8. It was a direction that was suitable or appropriate to convey to the jury that before they could convict Deemal-Hall then they had to be satisfied that the formation of an intention to do grievous bodily harm was a probable or likely outcome of her counselling.
KIRBY J: The trouble is though, when you use words such as “chance” and “possible” it is lower in the pecking order and the Code seems to create a bar which is higher than “chance”. We act on the assumption that these subtle differences are all carefully noted and put into effect by the jury and there is no other assumption we can act on but if they do attend to the words “chance” and “possible” it is definitely a much lighter obligation for the prosecution than “probable”.
MR COPLEY: It does conjure up a lighter obligation but they cannot be divorced from the other words that went with them.
KIRBY J: I realise that and it just has to be read but if you are confronted by the Code language is it not better as a matter of principle in derivative liability for this Court to say consonant with Sir Samuel Griffith’s objective and the scale of subtle distinctions between the degree of conviction that is required, well because of the objective of the Code, because of the language of the Code, and because of the principle that this is the exceptional case of criminal liability for something that is attributed to the person, that it is better to stick to the Code language and to correct what Justice Fitzgerald and Justice Pincus have brought into this area of discourse.
MR COPLEY: My response to that is that even though Sir Samuel Griffith set out to attempt to draft a code that required no explanation of non-legal terms, it has been recognised by this Court itself in the context of the Tasmanian Code that often the codifier does not achieve his objective and it is necessary to illuminate or commentate upon some of the ordinary expressions used in the Code and that was what Justices Mason, Wilson, and Deane said in Boughey’s Case.
KIRBY J: …..just has to be a bit careful as a common law State person to carry with you the baggage of the common law and move it into the Code area where the approach is really quite different, in this context.
MR COPLEY: Yes. I will deal with that in a second but just for the reference, the passage I had in mind about what their Honours said in Boughey was at page 21, in the second large paragraph of the judgment and indeed, in that paragraph, in response to what your Honour Justice Kirby said, after making the observation that sometimes it will be necessary to expand or comment upon ordinary words ‑ ‑ ‑
KIRBY J: What are you reading now, I am sorry?
MR COPLEY: I am still on page 21 of Boughey. In the second big paragraph they set out what the basic objective of a codification should be, then after noting that it is not always able to be achieved, the majority, or the plurality rather, do go on to say that courts should be wary of the danger of frustrating the basic purpose of codification with less than appropriate synonyms.
GLEESON CJ: Would you, over the luncheon adjournment, check on whether, at the time this Code was enacted, the current edition of Russell on Crimes and Misdemeanors gave as the test whether or not something was “not improbable”?
MR COPLEY: Yes, your Honour.
GLEESON CJ: We will adjourn until 2.15.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.18 PM:
GLEESON CJ: Yes, Mr Copley.
MR COPLEY: During the luncheon adjournment I had provided to your Honours an extract from A Treatise on Crimes and Misdemeanours published by Sir William Russell, the 1896 edition, and at page 169 of that extract, in the chapter concerning principals and accessories, in the third paragraph from the top the concept is expressed in terms of “not improbable”.
GLEESON CJ: So Sir Garfield Barwick was right. Does that suggest that at the time of the Criminal Code (Qld) the objective test was the common law?
MR COPLEY: Yes.
GLEESON CJ: Does that suggest that Sir Samuel Griffith probably thought that in the Criminal Code in this provision he was simply reflecting or expressing the common law?
MR COPLEY: Yes.
GLEESON CJ: We know that he made some marginal notes in his commentaries on the Code and against some of them he put the common law. Do we have the marginal note for this one?
MR COPLEY: In the book that the respondent provided at tab No 4 ‑ your Honours have the marginal notes?
GLEESON CJ: Yes.
MR COPLEY: They simply say “Common Law”.
GLEESON CJ: That is my point.
MR COPLEY: Bill of 1880 and then he refers to two sections, 72 and 73, of the Draft Bill of 1880. At tab No 5 is the extract from the Draft Bill of 1880. Section 72 in its second paragraph is the forerunner to section 8 of the Code and section 73 in its second paragraph is broadly the equivalent to section 9 of the Code.
So the drafters of the Bill of 1880 looked to a notion of a probable consequence for the equivalent of section 8 but for section 9 they looked to the notion of a likely consequence. They distinguished one from the other. By using the word “probable” in each of sections 8 and 9, Sir Samuel Griffith perhaps felt that there was not any relevant difference between the two expressions. There is another difference though, between section 8 and 9 as enacted and the draft bill, and that is involved in the expression which appears say at line 5 of the draft section 72 which says:
the commission of which offence was or ought to have been known to be a probable consequence –
and Sir Samuel Griffith deleted the expression “was or ought to have known”.
KIRBY J: I just have a problem with this approach to the interpretation of the Code. The Code is not speaking in 1899, it is speaking in 2003 or whatever it was, and this approach to trying to find out what it meant a century ago is just not the way you interpret a Code. It has to be interpreted (a) in the juxtaposition of the use of language in the text and (b) as it speaks to us today.
GLEESON CJ: Now, this line of inquiry was prompted by Brennan v The King 55 CLR 253 and by Sir Garfield Barwick’s argument in that case at 255. That was the case in which this Court said that “probable” means “likely”, was it not?
MR COPLEY: Yes.
GLEESON CJ: Where do we find that?
MR COPLEY: We find that in the judgment of Mr Justice Starke at page 261 in the very second line from the top and we find that in the judgment of Mr Justices Dixon and Evatt ‑ ‑ ‑
GLEESON CJ: Well, before you go any further from 261, at the bottom of 260 and the top of 261 he explains the probable consequence as one that might be foreseen as likely to follow and that, he says, means “a not improbable consequence”, a little further down 261.
MR COPLEY: Yes, your Honour.
GLEESON CJ: We now know where he would have got the expression “not improbable” from.
MR COPLEY: Yes.
GLEESON CJ: Where is the next passage?
MR COPLEY: Page 264 and it begins about halfway down the page with the words “Our answer to this question is that”.
KIRBY J: There is a big difference between looking at a synonym “likely” and offering a synonym of “not unlikely” and even a bigger difference between giving as the synonym “chance”, or words to that effect, “possibilities”. It is a scale here: “beyond reasonable doubt”, next step down “probable”, next step down “likely”, next step down “not unlikely”, next step down “chance” or “possibility”. It is just safer to stick to the language of the Code, and I thought that is the way you have to interpret the Code. I mean, I am not an expert in the Code, but I think that is the way courts have urged the construction of the Code.
MR COPLEY: Yes, they have, but in that passage I referred your Honours to this morning from Boughey v The Queen the judges who wrote the joint judgment recognised that there might well be occasions when these words need to be expanded upon. Dealing with the last point that your Honour made, in my submission, there is not a difference between something that is probable and something that is likely in the relevant sense of a step down.
KIRBY J: Of course, this is largely a matter of impression and your immediate reaction to words, but I would have thought “probable” is a more affirmative way of saying “likely”.
MR COPLEY: At tab No 3 of that publication there is extracted some definitions from the Australian Concise Oxford Dictionary and the extract from page 871 – the number is at the top of the page – has the word “probable” and it is said to be “that may be expected to happen or prove true, likely”. At tab No 2 there is the photocopy from the 2004 or 2005 edition of the Macquarie Dictionary where the first meaning given of “probable” is “likely to occur or prove true”. So my submission is that even today the words “probable” and “likely” can be used interchangeably without detracting from the meaning of the former.
GLEESON CJ: I thought that is what your opponents actually submitted. I thought they said you should not say anything to interpret “probable”, but if you do say anything, you should say “likely”.
MR COPLEY: That is what they do say, yes.
GLEESON CJ: I did not understand any of your opponents to suggest that “probable” means more than a 50/50 chance that it will happen.
MR COPLEY: No, they do not say that. The reason the respondent focuses upon this analogy with “likely” is this, that this Court itself has not set its face against explanations of apparently ordinary words. If we go to Boughey’s Case we will see that the expression there under consideration was the expression “likely” in the Criminal Code (Tas), and in the judgment of Mr Justices Mason, Wilson and Deane, they described ‑ ‑ ‑
HEYDON J: Mr Copley, Justices Mason, Wilson and Deane.
MR COPLEY: I am sorry, your Honour, I must have missed ‑ ‑ ‑
KIRBY J: They were Mister at the time but it has been abolished.
GLEESON CJ: They have not changed, however, in the meantime. What passage?
MR COPLEY: Page 21, in the first paragraph, commencing “In our view, the word ‘likely’”, and then over on page 22 in the third paragraph, after they set out the direction given to the jury in that case, the judges observed that:
the above passage contained helpful and correct guidance for the jury about the expression “likely to cause death” in s. 157(1) of the Code. His Honour’s comments clearly and properly made the point that, whatever may be the difficulties of precise definition, the expression “likely to cause death” in s. 157(1) is an ordinary expression which is meant to convey the notion of a substantial or real chance as distinct from what is a mere possibility ‑ ‑ ‑
GLEESON CJ: I have to tell you that I think that the words “probable” and “likely” are both notoriously ambiguous words. If I said I think it is likely that Bangladesh will win the current cricket test against Australia and I said, to paraphrase Boughey, I think it is likely that McGill will take five wickets in the second innings, I think I would be saying different things.
MR COPLEY: Yes. In my submission, that is why the jury needed assistance with the word “probable” and the beginning point of this discussion has been that it was simply an error to explain that expression. I am attempting to shortly take your Honours down some other final courts of appeals in the common law world to see what they have had to say about the word but at the moment ‑ ‑ ‑
GLEESON CJ: Which word?
MR COPLEY: ‑ ‑ ‑ “probable” – I am wishing to draw to your Honours’ attention that in Boughey v The Queen Justices Mason, Wilson and Deane did not find anything wrong with the notion of saying that it was a good chance that something might occur or of equating “likely” with “a substantial or real chance”. In the passage that his Honour has used here there is only one word that he has used which it seems is offensive to the notion of “probable” on the authority of Boughey and that is “possible”, but he has qualified it with “real” and he has coloured the word “possible” with the other expressions that he has used. So at the end of the day his direction was not apt to impermissibly reduce the burden of what it was that the prosecution had to prove.
In New Zealand, the Court of Appeal there has taken an attitude towards the explanation of the word “probable” quite contrary to that advanced by my learned friends and I direct your Honour’s attention to R v Piri [1987] 1 NZLR 66, which is at tab 10 of the book. The relevant passage that I wish to refer your Honours to is at page 79 in the judgment of the President at about line 10 to line 15, “The tenor of the argument was rather that the Judge should refrain from” explaining the word “likely” because it was an ordinary English word, but the President felt that:
where a critical issue as to the degree of likelihood or probability clearly arises, that may not do. The jury may then be entitled to more guidance ‑ ‑ ‑
GLEESON CJ: What did he say about the submission recorded at line 5? He said counsel:
appeared to shrink from explicitly contending that the trial Judge should tell the jury that they must be satisfied that the accused assessed the unfortunate consequence as more than a 50% chance.
MR COPLEY: He probably answered that on the preceding page at line 50, in that he said that:
this Court has held that in the context of the two sections in the Crimes Act the words do not require proof that the accused thought that the result which in fact eventuated was more likely than not. A fine calculation that the odds were against it, although the risk was plainly there, is no defence.
Then at page 79 at line 25 he observed that:
Expressions commonly used to indicate the degree of foresight of death required to be proved against the accused are a real risk, a substantial risk, something that might well happen.
Then I would like to direct your Honours’ attention to section 66 of the Crimes Act (NZ) which is at tab 6 of this book. It is extracted from the statutes as passed in 1961 but it has not changed. Section 66(2) is the equivalent roughly to Queensland’s section 8. Your Honours will see there that it uses the words “a probable consequence”. Then I would ask your Honours to look at tab 9 of the book ‑ ‑ ‑
GUMMOW J: What did Sir Robin Cooke in Piri get out of this consideration of the English draft bill of 1878?
MR COPLEY: He was considering that draft bill in the context of roughly the equivalent of section 302(1)(b) of the Code about a dangerous act done that was likely to cause death. He was not considering it in terms of “probable”.
GLEESON CJ: What did the New Zealand Court of Appeal say about “probable”?
MR COPLEY: If your Honours would turn to R v Gush [1980] 2 NZLR 92, which is at tab 9 of the booklet ‑ ‑ ‑
GLEESON CJ: The Wagon Mound gets a run?
MR COPLEY: They referred to it but the President, Mr Justice Richmond, noted at page 93 that:
The usual practice had been for trial Judges to keep to the particular language of the Crimes Act, whether it be “likely” or “probable”, without going on to direct the jury as to the shade of meaning appropriate to those words in their contexts.
He went on to say at page 94 that:
The two most common meanings are “more probable than not” and what Lord Reid described as “likely but not very likely”. We prefer, for present purposes, to say that a probable event, in this second sense of the word, means an event that could well happen. These two most common meanings are both descriptive of a stronger prospect of the occurrence of an event than is conveyed by the word “possible”. We see no justification for reading “probable consequence” in s 66(2) as “possible consequence”. On the other hand –
it does not mean “more probable than not”. The point that emerges, in my submission, from that passage is that in New Zealand a jury can be told that a probable consequence is an event that could well happen. In the unreported New Zealand Court of Appeal case which is at tab 13, R v Hagen, Gemmell and Lloyd, CA No 162, 185 and 195 of 2002, at paragraph [16] of the judgment it is said that:
the jury was directed, consistently with R v Gush [1980] 2 NZLR 92 that “probable” meant “could well happen” –
but that counsel in that case said that the jury should be told it means “more probable than not”. The Court of Appeal rejected that contention and at paragraph [46] of the judgment said:
Nor are we persuaded to eschew the meaning accorded to “probable consequence” in s66(2) by this Court in R v Gush, where the meaning “could well happen” was expressly preferred to “more probable than not”.
KIRBY J: Could you just explain to me why “more probable than not” is not closer to the word “probable”? It contains “probable”.
MR COPLEY: Yes.
KIRBY J: “Probable” usually connotes that on the balance of probabilities it tips the scale, therefore, it is a little bit more than 50 per cent. Now, why is that not more accurate than introducing notions of likelihood, which is a bit further down the scale?
MR COPLEY: My submission is because the expression in the statute uses the words “a probable consequence” and that clearly is contemplating that there can be a number of probable outcomes of an unlawful plan. It does not talk about “the probable consequence”. So perhaps if the section said “the probable consequence”, it would be acceptable to say “more probable than not”, but when it uses the indefinite article, that is arguably the reason why the court in New Zealand has adopted that approach.
KIRBY J: I will have to think about that but, whether it is “the” or “a”, it is still probable, and “probable” means something that is over the scale. I mean, in the old days of civil juries, you would go into “probable” all the time. So this is not unexplored territory.
MR COPLEY: No.
GLEESON CJ: What you would be dealing with with juries was “more probable than not”, the balance of probabilities.
MR COPLEY: Yes.
GLEESON CJ: But these cases take you so far but perhaps not far enough. As I have said before, I do not understand any of your opponents to be contending for the proposition that “probable” means more than a 50/50 chance, but I understand their contention to be it does mean more than what was said by Justice Fitzgerald and Justice Pincus.
MR COPLEY: I understand their contention to be, though, that the word should not be explained.
GLEESON CJ: That is another matter. Tell me, what do they do in New Zealand about “beyond reasonable doubt”? Do they explain that?
MR COPLEY: I have not explored that, your Honour. I just wanted to take you to the New Zealand authorities to show that the idea of not explaining the word “probable” is not the way they are approaching it in New Zealand. Then I was lastly going to – and they only take me so far and they only take me this far, that in Canada they explain the notion of “a probable consequence” as well. They do not set their face against explaining it.
GLEESON CJ: How do they explain it?
MR COPLEY: Well, in the context of manslaughter cases it is acceptable to explain it as being the foreseeability of a risk that a person might suffer harm. That is to be seen in the case of Cribbin (1994) 89 CCC (3d) 67, which is at No 12 of the tabs, at page 77h where Justice of Appeal Arbour, as she then was, said that:
the jury should have been instructed –
in that case about –
a verdict of manslaughter . . . the jury could still return a verdict of manslaughter if they found that, in the pursuit of a common intention to rob, Reid committed murder and a reasonable person in Cribbin’s position would have foreseen at least the risk of harm –
Now, the reference to the word “foreseen” is perhaps because, if we go to tab 7 of the booklet where the Canadian section 21 is set out – it is section 21(2) that is the equivalent to our section 8 in Queensland – it uses the expression “each of them who knew or ought to have known”. So that was solely the purpose of taking you to the New Zealand and Canadian cases.
Your Honours have my argument about why there was no misdirection in the circumstances of this case and ‑ ‑ ‑
GLEESON CJ: But what do you say about the argument that if something has happened, it must have been a possibility?
MR COPLEY: Well, that seems to follow simply as a matter of logic, that with the benefit of hindsight it must have been possible, otherwise it could not have happened. So I do not disagree with that.
GLEESON CJ: That means that there is no real issue about probable consequence then, is there, because by hypothesis it has happened.
MR COPLEY: Well, if the consequence has occurred, it must have been at least possible, otherwise it could not have happened.
GLEESON CJ: Physically possible?
MR COPLEY: Yes.
KIRBY J: That is the complaint, as I understand it. The complaint is that if you use “possible”, by definition it was possible and therefore the game is over.
MR COPLEY: That is the complaint, yes.
HEYDON J: But you argue, do you not, that there is a difference between a possibility and a real possibility.
MR COPLEY: Yes.
HEYDON J: A real possibility is something of some – there is a greater probability of its occurrence than an ordinary possibility.
MR COPLEY: Something that is an appreciable risk of occurring. Something that might well occur, is the way the New Zealanders put it.
HEYDON J: A substantial chance or a real chance.
MR COPLEY: Yes.
KIRBY J: The problem is that the Code is meant to speak to jurors directly by simple everyday language.
MR COPLEY: Yes.
KIRBY J: Now, it is true that there is ambiguity in virtually every English word - it is the nature of our language – but on the Richter scale of possibilities to probabilities, “real possibility” takes it up from say 30 per cent to 40 per cent, but it still is not over the 50 per cent, which is what “probable” is.
MR COPLEY: My response to that is that when the whole phrase that his Honour employed is considered, then it gets it to the appropriate level.
KIRBY J: Well, I will just have to think about ‑ ‑ ‑
MR COPLEY: Yes, I probably would only be covering old ground now if I was to return to it.
KIRBY J: Can I ask you for help on the policy question. If you have to decide it by reference to, well, this gets it over the line, or it does not, would one not act with some special care in the case of departure from the Code language where you are visiting criminal liability on a person who has not taken part in the actual offence, and this is a derivative criminal liability which is itself quite a significant exception from the normal rule of our criminal law.
MR COPLEY: My submission is that, whether the person is being sought to be held liable as the principal actor or on the basis of derivative liability, there needs to be the directions that are appropriate in terms of the Code to be given. But your Honour has said a couple of times today that derivative liability is an exception, yet it is an exception that has been around for a very long time.
KIRBY J: There is a lot of criticism in the litigation, not generally from judges, but from those who are the guardians of the principles of our criminal law, that you are not normally rendered liable in criminal law without personal intent.
MR COPLEY: But, your Honour, for example, in 1861 in England there was a statute passed called the Accessories and Abettors Act and in the preamble it said that it was expedient to consolidate and amend the statute law of England and Ireland relating to accessories and abettors. So the notion of consolidating and amending the statute law of England and Ireland in 1861 in relation to this subject ‑ ‑ ‑
GUMMOW J: Yes, and what I am wondering about, does that 1861 Act provide a parentage to what was section 72 of Sir Samuel’s draft of 1880?
MR COPLEY: No, it does not, it is a procedural act. It allowed the accessories to be tried with and to be convicted in the absence of the principal offender.
GLEESON CJ: Sentencing judges repeatedly say that in the context of homicide the person who procures the commission of the offence is often more culpable than the person who does the killing. You have only to look at the account of the facts of the present case – I know that Mr Callaghan says a lot of it is in evidence that was not admissible against his client – but the ringleader here was the person who is the subject of the proposed derivative liability.
MR COPLEY: Yes, I understand the point your Honour is making. The point I wanted to make was that, as exceptional as it is, and as uncomfortable as academic writers might be about sheeting home to parties intentions that cannot be proven that they actually had, it has been a notion that has been around in the law for a very long time.
KIRBY J: It had to be brought in by a statute by what you say and people have been hanged, as you know, in England, lately exonerated ex post facto by Lord Bingham and his colleagues, for what they did not actually do on the basis of derivative liability which, because they got roped in by a stronger willed person who was under age.
MR COPLEY: But even going back before then, your Honour, before the statute of 1861, in a book written by Sir Michael Foster – and I am embarrassed to say I cannot remember whether I have this extract from the one written in 1792 or the one written in 1809 - he wrote that so where the principle goes – I am just putting it into modern English – beyond the terms of the solicitation if in the event the felony committed was a probable consequence of what was ordered or advised, the person giving such orders or advice will be an accessory to that felony. So the notion of derivative liability has at least an almost 200-year pedigree in the English law.
GLEESON CJ: The problems of derivative liability have risen in circumstances such as happened in some South African trials under the apartheid regime where people who were in mobs calling for violence were all roped in but derivative liability applies in a perfectly orthodox and understandable fashion in many very straightforward cases. To take a well‑known case from New South Wales, it was not Mr Kalajzich who pulled the trigger of the gun that shot his wife.
MR COPLEY: Right. In relation to your Honour Justice Kirby’s inquiry this morning about articles concerning this, your Honour has yourself collected up some of those articles in your judgment in Gillard v The Queen (2003) 219 CLR 1 and your Honour Justice Kirby’s reference to articles appears from pages 20 and 21. Perhaps the most helpful one was one written by a man called C.B Cato in the Bond Law Review but my submission is that many of these writers of articles have a certain philosophical stance about the appropriateness of derivative liability which, of course, is not appropriate for the respondent to have one way or the other because the respondent is here to argue what the law is, not perhaps what the law should be.
KIRBY J: But if you have that philosophical approach ‑ I have some sympathy for it - then it is a reason for sticking to the Code.
MR COPLEY: I understand the point your Honour is making, yes.
KIRBY J: You just have to think about all these points.
GUMMOW J: Do you know the provenance of the Canadian Criminal Code?
MR COPLEY: Do I know the provenance of it?
GUMMOW J: Provenance, yes. When did it – when was the ‑ ‑ ‑
MR COPLEY: It has been repealed and re-enacted a couple of times but it was originally passed in 1892.
GUMMOW J: Right. That is what I thought. It has a similar pedigree in some ways to your Criminal Code (Qld).
MR COPLEY: Yes.
GUMMOW J: It is not an accident, I think, that section 21(2) that you took us to as to common intention is rather close in the text to section 72 of Sir Samuel’s effort of 1880.
MR COPLEY: That is where it was copied from, I have discovered. In fact, the Code of 1892, like the New Zealand one, had the relevant provision as section 61(2) and in that Code of 1892 it is in the same terms then as it seems to be even now. That came in shortly after the draft Bill of 1880.
GUMMOW J: Yes. I wonder then, have you had access to the English draft Bill of 1878 that Sir Robin Cooke referred to in Piri?
MR COPLEY: Yes.
GUMMOW J: I know he was referring to a different portion of it but did that deal with these particular provisions we are looking at?
MR COPLEY: Yes. I do not have it here but my recollection is that Sir Stephen’s draft Bill was in the same terms as the draft Bill went into the House of Commons as.
GUMMOW J: Yes. I think Sir Samuel Griffith has been given a lot of credit for the work of Sir James Fitzjames Stephen. I think this may be another example. I would be assisted if you could research that some more.
GLEESON CJ: Did we not look at Sir James Fitzjames Stephen’s work in that case of the bulldozer driver who took ‑ ‑ ‑
GUMMOW J: We did, indeed. Yes.
MR COPLEY: Yes. I will get that out – those draft sections ‑ ‑ ‑
GUMMOW J: I am referring to Sir James Fitzjames Stephen’s Bill. It is his Bill, is it not, of 1878?
MR COPLEY: Yes. I think I will be able to get that Bill when I get back to Brisbane.
GUMMOW J: I just think there is a common route to this.
MR COPLEY: Yes.
GUMMOW J: It was a great time of codification, attempted codification. Bills of exchange is another example in that last quarter of the 19th century. Sale of goods is another one.
MR COPLEY: Yes. The Italians codified their law too around that time ‑ ‑ ‑
GUMMOW J: Yes. We know that Sir Samuel was reading Dante.
KIRBY J: Benson was scandalised by the mess of the common law and thought it could all be fixed up by lots of Codes.
MR COPLEY: Yes.
GLEESON CJ: But it seems that Sir Samuel Griffith thought that the provision that we are construing reflected the common law.
MR COPLEY: Yes, it seems he did from his marginal note. If what I read out from Foster’s book reflects the common law then indeed it did. Turning now to the situation concerning the proviso, should the Court conclude there has been a wrong decision on a question of law then that will have to be considered and the test is that contained in Weiss v The Queen at paragraph 41 of the judgment. The Court of Appeal of Queensland did not consider whether the proviso could be applied because that court found no error on the trial judge’s part.
However, a ground of appeal advanced on Deemal-Hall’s behalf below was that the verdict in her case was unreasonable so some of the observations of Mr Justice Keane might be of assistance to the Court in determining whether the proviso should be applied because this Court has now likened the test for the application of the proviso to the test confronting a court when it said the verdict is unreasonable.
In relation to all three of the appellants the Court may find it of assistance the observations of Mr Justice Keane at appeal book 618, point 60 to appeal book 619, point 5 because he there said that:
The nature and extent of the injuries inflicted on the deceased . . . were such that the jury were entitled to conclude that whoever inflicted the injuries did so with the intention of at least doing grievous bodily harm to the deceased. That conclusion was not only open but compelling.
The respondent recognises that the test for the proviso is no longer a matter of asking would the jury inevitably have convicted, but the passage just referred to can be considered to be, in my submission, a conclusion about the strength of an inference open on the evidence and thus of assistance to your Honours.
The evidence relating to the injuries that the deceased man suffered is set out at paragraph 5.37 of my outline. I will not go into that. Now, it is necessary to deal with the proviso in relation to each of the three appellants separately because the cases against all three were different. So starting with McIvor, in relation to McIvor the respondent contends that the Court can be satisfied beyond reasonable doubt that he is guilty of murder either because he intended to – he killed the deceased intending to do him grievous bodily harm or because he did various acts knowing that Darkan had the intention to do grievous bodily harm.
McIvor’s understanding of the task that he had agreed to perform for money was that the intended victim whom he did not know was to have some of his bones broken and be hospitalised, so it is not correct, in my submission, to characterise the plan so far as McIvor was concerned as “a touch up” or “a fix up”. The reference to bones being broken and being hospitalised is at appeal book 580, point 5 to point 10, and all of these references that I am going to make now come from his own words to the police.
KIRBY J: Now, you remember the principle that a person who does not get a trial according to law and in particular where the ingredients of the offence and how you come at it are not accurately explained to the jury, in a sense has a greater claim on a retrial because that is sort of at the core of the trial according to law. That was urged upon us for the female appellant. Do you say that cannot survive after Weiss or is that still good law in the application of what is the equivalent to the proviso provision in Queensland, because you will remember that was the first submission that was made that, in a sense, you do not get to the proviso because of the fact that there was not a trial according to law?
MR COPLEY: I would submit that that submission cannot sit with what was decided in Weiss. If it could then it is difficult to imagine when the proviso could ever operate because if evidence is wrongly admitted that should not have been admitted then the man did not have a trial according to law.
KIRBY J: But there has been dicta in the past which say that failure to explain the ingredients of the offence is more serious than just allowing some evidence which might or might not have had particular weight.
MR COPLEY: Yes.
KIRBY J: Because if the jury are not focusing on the correct issue, and it is not irrelevant in this case, because if you say, well, is it possible or a real possibility that the offence will occur, well that is not the same as if you are saying, you have to consider whether or not it is probable, that it was within the contemplation that this would happen.
MR COPLEY: No, but if I can persuade your Honours that this Court can be satisfied of the guilt of McIvor and Darkan on a basis that had nothing to do with the probable consequence, then you can apply the proviso. That is my submission in relation to each of the two actors.
GUMMOW J: I think what was being put to you is paragraph 46 of Weiss, footnote 60.
KIRBY J: I thought this point was reserved in Weiss because it was a view that Justice McHugh held strongly that there were some cases where the mistake was so egregious or the failure to explain the offence so serious that you do not really get to the stage of considering the proviso. I thought that was reserved specifically ‑ ‑ ‑
GUMMOW J: That is paragraph 46. That is why I referred to it.
KIRBY J: Paragraph 46, is it?
MR COPLEY: Yes. “It is unnecessary in this appeal to examine that issue further” it is said there, and it would be unnecessary to examine the issue further here if you were satisfied beyond reasonable doubt that the kickers are guilty by the route of section 7(1)(a) and/or section 7(1)(c) and section 302(1)(a). That is what I am attempting to show, because McIvor understood the task to be the hospitalisation and/or the breaking of bones. Now, if that is his understanding of the task, then how easy is it to infer that that was what his intention was and/or that when he aided Darkan he knew that that was what Darkan’s intention was.
GUMMOW J: Do we know why the deceased went with them in the first place?
MR COPLEY: We do not, because Deemal‑Hall did not give an interview.
GUMMOW J: It is a mystery, is it not?
MR COPLEY: We do not know.
GUMMOW J: Why did he get in the van?
MR COPLEY: Well, it was his van.
GUMMOW J: He owned the van?
MR COPLEY: It was registered to him.
GUMMOW J: But why did he make it available and go with them?
MR COPLEY: Well, he had had a relationship with her and he had resigned his job or left his job on the very day he gave notice to go up that way and her version to the police was that he was going to go to Kowanyama, which is further north again, to take a job. They had arranged, by reference to telephone records, it seems, a meeting point at Mareeba and she drove from Cooktown down to Mareeba to see him. He was staying at the motel and the inference is that she had got him from that because it took her half an hour between when she dropped the three men at the park to when she returned with him, Toth. That is really all we know. McIvor knew there was going to be much more than a touch up. He admitted to the police at page 585, point 30 that in a way he put on his steel‑capped boots to do some damage to the deceased.
Darkan told him that Deemal‑Hall wanted the man smashed up – reference 550, point 15 – and McIvor told the police that Deemal‑Hall told him that she wanted the man bashed – reference 553, point 5 to 10. Knowing of these desires, McIvor fetched a stick or a pick handle or a weapon, however one wants to call it, and he gave it to Darkan, plus aiding Darkan to eventually break bones and hospitalise the deceased. McIvor admitted kicking the deceased in the mouth once and in the ribs twice when the man was on the ground, though he said it was only a soft kick to the mouth.
HEYDON J: Little soft kick.
MR COPLEY: Little soft kick. Darkan was kicking him at the same time. Thus McIvor aided in the process of hospitalising the deceased by hastening the collapse of the deceased’s will to resist his attackers and to defend himself. When Darkan produced the stick, McIvor said, “Just knock him out. Don’t kill him.” That remark betrays an awareness on McIvor’s part that Darkan was about to employ the stick on the man’s head. So they are the things that McIvor admitted to the police. Are they reliable? Well, Shannon Bowen said that McIvor was there and that McIvor kicked the deceased when he was on the ground. Shannon Bowen, of course, also says that McIvor felled the deceased with the stick. That is disputed by McIvor, but that is what Bowen says he saw. Then he saw the two of them, Darkan and McIvor, kicking, at appeal book 42, point 40.
It can safely be inferred beyond reasonable doubt that McIvor intended to do grievous bodily harm or he aided Darkan knowing of the latter’s intention when he jointly assaulted a man on the ground by kicking him with steel‑capped boots. Bowen’s claim that McIvor hit the deceased over the head with the stick, if accepted, is powerful evidence about intent and his claim about that was supported by Mr Lyall’s evidence at appeal book 255, point 30 to 35, where Lyall testified that when McIvor came home to his girlfriend’s house he said, “Guess what? I bashed him,” and McIvor showed him the stick. Neither McIvor’s girlfriend nor the man Lyall spoke of McIvor expressing any surprise or consternation about the way in which the event unfolded at the park.
Lastly, Justice Keane, at page 637, point 15 described as overwhelming the Crown’s case that McIvor assaulted the deceased with the intention of doing him grievous bodily harm. That was not an observation made in the context of a complaint about reasonableness of verdict. It was just an observation Justice Keane had formed or an opinion he had formed about the evidence, it seems.
HEYDON J: In this argument, which part of 302 do you rely on?
MR COPLEY: Subsection (1)(a).
HEYDON J: Subsection (1)(a):
if the offender intends . . . some grievous bodily harm.
MR COPLEY: Yes. In relation to Darkan, the respondent would similarly attempt to persuade the Court that this Court can be satisfied that he his guilty, divorced from any notions of a probable consequence, again relying on section 302(1)(a) coupled with section 7(1)(a) and/or 7(1)(c). Darkan’s appreciation of what the task was from his point of view is illustrated by his comment to the police that he was not the only person who gave the deceased a hiding, he said, at page 518, point 10 to 20. His understanding of the task he had agreed to perform for money involved much more than a mere touch up. He said that Deemal‑Hall told him she wanted a man bashed. My references in the outline to that are erroneous. At page 13 of the outline, paragraph 5.44, the references for the first dot point should be appeal book 587B and 587C, not 287 in each case.
Darkan heard Deemal‑Hall instruct McIvor to get a weapon and he saw McIvor emerge from his house with the weapon. He also noticed that McIvor was wearing steel‑capped boots. Darkan told the police that he was aware that Deemal‑Hall had secreted the weapon on the bus and he was also aware that Deemal‑Hall had taken the weapon from the bus and put it in the bushes near the barbecue. He admitted, at page 588, point 25, that he punched the deceased four times before the deceased fell to the ground. Then he said he and the other two men started, “kicking him around”, at page 588, point 35.
With each blow Darkan aided his colleagues because each blow diminished the deceased’s will and ability to resist the bashing that Darkan had agreed to be a part of. He said that while they were kicking him around – at page 589, point 25 – Deemal‑Hall gave the deceased a couple of hits in the back of the neck with the stick.
Evidence about Darkan’s understanding of the task also came from Shannon Bowen. Bowen said that Darkan had told him that Deemal‑Hall wanted somebody fixed up, at page 32, point 30. Bowen said that in Darkan’s presence, Deemal-Hall informed everybody in the vehicle that she just wanted somebody to get into the deceased, at 36, point 50. Bowen said that Darkan was the first to apply violence to the deceased and that thereafter McIvor used the stick and that thereafter Darkan joined in the kicking for what he described as “a good while”, and Bowen described Darkan as flogging the deceased with the stick, and then after a couple of minutes Darkan was disarmed of the stick, according to Bowen by Bowen, but then Darkan retrieved the stick and applied it to the deceased’s head and the way Bowen expressed it at page 44, point 35 was “like he really meant it this time”.
In relation to Deemal‑Hall now, the notion of a probable consequence is central to her liability under the only avenues that were open to the jury to convict. However, the respondent submits that even though Deemal‑Hall, according to Bowen, expresses herself in terms of a desire for the deceased to be fixed up or touched up or got into, the Court can infer that despite the use of these euphemistic expressions, the level of violence that would be employed was objectively likely to be greater than that contemplated by the words she used to describe her wishes.
She spent quite some time, it seems, between the hours of about 6.00 and 8.00 pm rounding up three men to administer this fix up or touch up. She selected the site for the beating, which just happened to be a place away from the presence of other people who might be able to intervene to assist. She was prepared to pay money to those who administered the touch up and she did pay money to Bowen after the touch up had ended. She gave him $50 and said she would be back the following week to pay the rest. There is no evidence in this case as to how much more she was intending to pay, except that McIvor’s understanding, as expressed to his girlfriend, was that he was going to get $1,000. It probably is the case that McIvor would have been unhappy with the way things turned out in that regard if there had been no arrests, but anyway.
On Bowen’s evidence Deemal-Hall said or did nothing to express dissatisfaction with what had occurred. She did not intervene or try to get help for the deceased, even anonymously, afterwards. So given the number of men rounded up, the site selected for the touch up and in view of the fact that these men were the sort of men who were prepared to act in numbers against a man they did not even know for money, then it was highly likely or probable that in the course of carrying out her counsel one of the attackers at least would form an intention to do grievous bodily harm to the deceased.
At page 635, line 10 Justice Keane described as “compelling” the conclusion that the level of violence employed by Darkan and McIvor did not exceed Deemal-Hall’s intentions. The relevance of that observation is that it was made in the course of considering the reasonableness of the verdict. As your Honours have observed in Weiss, the task confronting a court when determining if the proviso can be applied is akin to the task confronting a court when a verdict is said to be unreasonable; hence the observations of Mr Justice Keane in that regard might be of some assistance to the Court.
HEYDON J: What was that precise reference again? You said 635, line 10 ‑ ‑ ‑
MR COPLEY: Page 635, point 10 down to about point 20, actually, your Honour. Thank you, your Honours.
GLEESON CJ: Thank you, Mr Copley. Yes, Mr Callaghan.
MR CALLAGHAN: Your Honours, can I begin by clarifying one point which arises out of queries from your Honour the Chief Justice during the course of submissions. To clarify that it might be easiest to turn to page 6 of our outline and paragraphs 25 and 26 therein. We have set out sections 9 and 8 of the Criminal Code because ‑ ‑ ‑
GLEESON CJ: Section 6 of your outline?
MR CALLAGHAN: Page 6 of our outline, paragraphs 25 and 26 – I am sorry, paragraph 25 begins on page 5.
GLEESON CJ: Thank you.
MR CALLAGHAN: Over the page you have sections 9 and 8. Your Honour was directing queries earlier in the day as to what actually has to be the probable consequence. There is actually a difference as between section 9 and section 8. Section 9 ‑ ‑ ‑
GLEESON CJ: Just a minute, I will get those sections. Yes.
MR CALLAGHAN: Section 9 requires that it is “the facts constituting the offence actually committed [be] a probable consequence”. Section 8 requires the commission of an offence.
We had not sought to make anything of this but it was something which appeared to create a little confusion earlier. If there is a difference, it might be argued that a higher degree of particularity is required to be proven for section 9, because the facts must mean the facts as proven in the trial and not simply an offence which was committed by whatever means. But I am not seeking to make something of what is probably a distinction without a difference, but it is worthwhile noticing the differences in the sections.
Turning then to the question of the proviso as it applies to Deemal‑Hall. It is clear enough, I think, now from the respondent’s submissions, both in writing and those which you have just heard, that the only basis upon which the Crown seeks to attribute liability is upon the combined operation of sections 7 and 9. Mr Copley just referred to avenues and ‑ ‑ ‑
HEYDON J: Not to your client – no, you are right, 9, yes. I withdraw that.
MR CALLAGHAN: Yes, at the trial there was an attempt to make section 8 relevant to our client. As I apprehend it, it is not sought to maintain the proviso on that basis. It is the combined operation of 7(1)(d) and 9 and 302(1)(a) of the Criminal Code. To that end, with respect, the case against Deemal‑Hall is only that which has been stated both in writing and in submissions by the respondent, and to clarify matters which were raised with your Honour Justice Kirby this morning, that means there is no proof of knowledge on the part of Deemal‑Hall as to the strength of these men, as to their propensities, as to their footwear, as to their possession of a pick handle, there is no evidence against her as to the amount of money which may have become payable at some future point in time and certainly nothing in the nature of blood on her or anything like that.
HEYDON J: She could see the men?
MR CALLAGHAN: After the event.
HEYDON J: Not before that – surely, did she not recruit them?
MR CALLAGHAN: I am sorry, she could see the size of them and so on, yes.
HEYDON J: You said there was no evidence against her of their size?
MR CALLAGHAN: No, that she knew their strength or propensities. She must have known their size.
HEYDON J: Strength follows from size?
MR CALLAGHAN: Not necessarily. A small man might be quite muscular.
HEYDON J: A large man is usually a strong man?
MR CALLAGHAN: I will not seek to quibble with your Honour about that proposition, but the point I make is that as artificial and perhaps unattractive as it may be there is much in the record which cannot be used against Deemal‑Hall in this context.
HEYDON J: She was there.
MR CALLAGHAN: Can I turn to that, because there were two matters raised by your Honour the Chief Justice which were what we apprehend to be related concepts. Your Honour asked, I think, what was the evidence as against Deemal-Hall as to when Mr Toth actually met his death and your Honour also put that the best evidence of that which was counselled is usually that which subsequently occurred so ‑ ‑ ‑
GLEESON CJ: Assuming it occurs without any protest.
MR CALLAGHAN: That is why we have to look to the evidence as to where she was when the actual beating was taking place. If I can take your Honours to appeal book at page 43, lines 45, and say at the outset the only admissible evidence as to what Deemal-Hall was doing at the time of the attack itself is provided by Bowen. At appeal book 43, line 45 or thereabouts, Bowen is describing a point in the attack when the stick is being used and describes Deemal-Hall as “just standing up watching”. That is the best for the Crown.
Can we read it though, in conjunction with appeal book 52, just above line 50 where Bowen is being cross‑examined at the point where the fistfight begins. Deemal-Hall is clearly present then albeit on the side of the table farthest from the fight but he agrees that he did not see her again until he reaches the van where the engine is running and tellingly at 53, line 5:
And, in between times, there’s the fist fight, you’re aware of Gwen being there; the next time you see her she is in the vehicle with the vehicle running; in between times there has been all this activity -
So, there is a significant gap in the evidence as to what can safely be concluded about what Deemal-Hall was doing and where she was at that time. We can speculate but in terms of proof there is not much there and to the extent that anything that might be said against her goes beyond speculation and reaches the height of an inference they are inferences which, we submit, might well be negated if Bowen is accepted on these points, if his evidence is accepted at face value, if he impressed in that way. I come back to the point that that is not a judgment that an appeal court of any description can make.
The status of the common law as at the time the Code was enacted has been the subject of some discussion and just for convenience I might refer you to a passage in McAuliffe v The Queen 183 CLR 108 at 114, and slightly above halfway down the page, the paragraph beginning:
Initially the test . . . was determined objectively . . . the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one –
and that makes it clear that it is the common law which has changed. That the Code has remained fixed is equally clear because we have the Code in the form enacted and the Code in the form that it is now. It is not, in our submission, for the courts to try to force them back together. One has branched off; the other has remained the same.
As regards the New Zealand authorities, it will be apparent to your Honours that section 66(2) of the Crimes Act (NZ) incorporates the phrase, “known to be a probable consequence”. That subjective element is imported again and in those cases there may be good reason for trying to elaborate or water down, if you like, the meaning of the word “probable” as in with the common law.
GLEESON CJ: Do you say the meaning of the word “probable” is more than 50 per cent chance?
MR CALLAGHAN: No, your Honour, I have not changed since this morning.
GLEESON CJ: You say it is likely?
MR CALLAGHAN: Yes.
GLEESON CJ: Although you prefer the judge to say nothing?
MR CALLAGHAN: To say nothing in the first instance.
KIRBY J: But he has to refer to the word “probable”?
HEYDON J: Cannot there be trials in Queensland by judge alone which would involve the application of section 9, though?
MR CALLAGHAN: No.
HEYDON J: Why not?
MR CALLAGHAN: There is no provision for a trial of an indictable offence by judge alone.
HEYDON J: So that section 9 only applies to indictable ‑ ‑ ‑
MR CALLAGHAN: No, I am sorry, it applies to all statute law. I suppose a magistrate might ‑ ‑ ‑
HEYDON J: Yes, precisely. A magistrate would have to write down, would he not, what he thought “probable” meant or she or “likely”?
MR CALLAGHAN: There would be nothing to stop – they are words of the section.
HEYDON J: But what does it mean? It is a word in an Act, it must have a meaning.
MR CALLAGHAN: No, as an arbiter of fact – yes, of course it has a meaning, but the magistrate sitting by his or herself directs his or herself according to the law, says, “This is the law and as arbiter of fact I find as follows”.
HEYDON J: What does “likely” or “probable” mean in section 9?
MR CALLAGHAN: Your Honour I cannot take it further than I have taken it and it cannot mean “real possibility”.
HEYDON J: It is not as high as more than a 50/50 chance, but higher than a real possibility?
MR CALLAGHAN: As much as I would like to urge that it is higher than 50 per cent, it would cut across my argument that you do not read words into the Code that are not there. The Code could easily read “a consequence that was more probable than not”. It does not.
GLEESON CJ: Well, as I think your opponent has pointed out, what it actually says is “a probable consequence”, not “the probable consequence”.
MR CALLAGHAN: Yes. I am sorry, has your Honour Justice Heydon – because Justice Kirby asked me ‑ ‑ ‑
HEYDON J: I know it is difficult for you, but I just cannot personally accept the proposition that it is impossible to define the expression “a probable consequence” with some linguistic precision.
MR CALLAGHAN: Well, your Honour, I know you understand my submission, but let us hypothetically say ‑ ‑ ‑
HEYDON J: Well, this is the second phase. This is the fallback.
MR CALLAGHAN: Yes. If it is, we do not advance a positive contention as to how it should be interpreted. We do advance a negative contention saying that the way in which it has been done waters down the requirement ‑ ‑ ‑
HEYDON J: It is easy for you to say, as the notices of appeal say, that the trial judge erred in what he said, but we cannot say that he erred in what he said without putting up a positive alternative. You cannot say that Mr Justice Fitzgerald was wrong without saying what is right.
MR CALLAGHAN: Well, with respect, I do not know that that follows, because ‑ ‑ ‑
HEYDON J: Well, because judges in Queensland have to, if they are sitting alone, work it out for themselves, and if they are directing juries, be prepared to answer questions, and they might even go so far as to feel that they could give some assistance to the statutory meaning, even if they may not be obliged to.
MR CALLAGHAN: We begin to go over old ground, your Honour, because the same questions will be asked in respect of other words and other terms and the law can only assist juries so far.
HEYDON J: That is just nihilism frankly.
MR CALLAGHAN: Well, I am only repeating the essence of that which has been said by the courts in respect of phrases like “reasonable doubt”.
HEYDON J: In Australia?
MR CALLAGHAN: Yes.
HEYDON J: It is a very special term, as Justice Kirby pointed out this morning.
MR CALLAGHAN: There are others though such as “intent”.
GLEESON CJ: The difficulty is that we now know that what I will call the Queensland view is not in the least idiosyncratic. It seems to accord with the New Zealand view and the Canadian view. Ultimately you may persuade us – those on your side of the record may persuade us that the view that has been taken in Queensland is wrong, but it is not peculiar and we might be thought to need to come up with something better if we say that that is wrong.
MR CALLAGHAN: Well, the New Zealand and Canadian views are under their own statutes, which I have already pointed out have different considerations.
KIRBY J: Can you come up with anything better than the words of the Code?
MR CALLAGHAN: Your Honours, if one had to pick from the formulation in the Bench Book the phrase which perhaps came closest to at least implying some degree of contingency, then the phrase “substantial chance” might begin to get there.
KIRBY J: But I thought your basic answer was, no, you cannot find a better word than ‑ ‑ ‑
MR CALLAGHAN: It is. I have been forced into this in a hypothetical sort of a way. I am not retracting from my submission.
KIRBY J: Or from torture.
GLEESON CJ: No, it is because you have an alternative submission and we are just testing your alternative submission. We know your first submission is treat this like beyond reasonable doubt.
MR CALLAGHAN: Yes, and then we have bypassed my second, which is that you can say “likely”. You have actually forced me into a third.
GLEESON CJ: Yes. Well, somebody might ask you what you mean by “likely”.
MR CALLAGHAN: That is right, and that is where we are at, as I understand it.
KIRBY J: Then you would say “probable”.
MR CALLAGHAN: I have already made the submission that once you start providing definitions for words for definitions, then you are defeating the purpose of codification.
GLEESON CJ: Because what judges say about “beyond reasonable doubt” is, “I am not going to tell you”, and the reaction that that sometimes produces on juries is worth seeing.
MR CALLAGHAN: Yes, I have seen it on a number of occasions.
KIRBY J: The research that has been permitted in recent years of juries’ deliberations is that “beyond reasonable doubt” is the matter that worries them most.
MR CALLAGHAN: I am not here with an answer to that, nor really with an answer to your Honour’s queries as to what might be said if not what we have already submitted should be said. Those are the matters I had in reply.
GLEESON CJ: Thank you, Mr Callaghan. Yes, Mr Rafter.
MR RAFTER: Your Honours, there was some discussion about the mode of constructing the Code. I was simply going to draw attention to a passage in the judgment of your Honour Justice Kirby in Murray v The Queen (2002) 211 CLR 193. I have set it out at paragraph 36 of my written outline at page 12. I will not read the whole of the paragraph out but the point that your Honour ‑ ‑ ‑
KIRBY J: Is that inconsistent now with what the Court has unanimously said in Weiss?
MR RAFTER: This is dealing with the construction of section 23 of the Code dealing with codification and not dealing with the proviso.
HEYDON J: That says:
They should be capable of being explained to a jury, according to their own terms ‑ ‑ ‑
MR RAFTER: Which, in the context of section 23 of the Code there under consideration, was in relatively simple language, but I was going to draw attention to the earlier sentence on the first line:
[A Code] is a special kind of legislation. It does not merely collect and restate the pre-existing common law. Its purpose is to provide a fresh start and thereby to introduce greater clarity of expression and sharpness of concepts.
GLEESON CJ: What was the decision of this Court in which we attached importance to the fact that Sir Samuel Griffith noted “Common Law” beside one of the provisions?
MR RAFTER: I am not sure, your Honour. As to the proviso, I have also set out in the outline a passage from your Honour Justice Kirby’s judgment in KBT (1997) 191 CLR 417. The extract from that judgment is at paragraph 45 of the written outline and your Honour there emphasised the importance of:
a jury [being] properly instructed on the elements of the offences charged, to have fair procedures followed and not to suffer the stigma of conviction and the burden of punishment where these basic requirements are unfulfilled.
I do not read Weiss as necessarily overturning those principles. That is it remains important that the jury be properly instructed about the elements of the offence, the provisions attaching liability and so forth. However, in light of Weiss, the appellate court where there is error may apply the
proviso if satisfied beyond reasonable doubt of the guilt of the appellant. In this case, where credibility issues loom large, that is a difficult task and recent decisions of the Queensland Court of Appeal applying Weiss have recognised that. I have made reference to some recent decisions in Queensland in one of the footnotes, at footnote 37 on page 14 of the written outline – I will not go to those cases now – but that is a problem in this case in applying the proviso. Those are my submissions, your Honours.
GLEESON CJ: Thank you, Mr Rafter. Yes, Mr Byrne.
MR BYRNE: May the Court please. In response to issues raised lately this afternoon can I just point out to your Honours in paragraph 3.13 of my written outlines I have made references I did in passing before lunch to what seems to be the leading American decision, a decision in the Columbia Court of Appeals. What that court said, which has been picked up in other State courts, is relevantly this:
We need not define ‘probable’, except to note that, even standing alone, this adjective sets a significantly more exacting standard than the word ‘possible’.
That can be used, given that “probable” is indeed used as an adjective in section 8 of the Criminal Code. The passage over which there has been focus in debate today has been using “possibility” as a noun and derivatives of it, “real possibility”, et cetera. If one goes back to section 8 where it currently reads “an offence is committed of such a nature that its commission was a probable consequence”, if it were to read alternatively “an offence is committed of such a nature that its commission was a” – using the indefinite – “possible consequence”, then there in reality strict liability. That is why, whatever definition is given to “probable, it must be contrasted to “possible”.
To answer finally, if I may, the proposition put by your Honour Justice Heydon, if there is a positive onus to establish what does “probable” mean, then the best test is to go to what the current dictionary says. Our friend, Mr Copley, has been good enough in his material to extract the Australian Concise Oxford Dictionary – that is at tab 3 of his bundle of authorities. Your Honours will see there that “probable” is defined as “that may be expected to happen or prove true, likely”, or to “a probable candidate, member of team”, as distinct from “possible”. So there is that distinction.
HEYDON J: Do you urge a balance of probabilities test, more probable than not?
MR BYRNE: Well, like my friend, Mr Callaghan, if that were open on the authorities, including Boughey, that would be an appropriate way to go but ‑ ‑ ‑
HEYDON J: You do not have to worry about authorities here.
MR BYRNE: Well, I must admit, speaking submissions, as it were, if we are going from a clean slate, then there is, with respect, much to be said for Justice Kirby’s proposition that “probable” does, as a matter of impression, import notions well known to the law, that is, more probable than not.
KIRBY J: You have given us a lot of help on the point of principle, but would it not be fair to say that your client has the most difficult case from the point of view of the proviso, given that he was the person, as I understand it, who had the pick handle? When you go in and have fisticuffs, it is one thing, and if that is what you meant by “dust up” it is one thing, but if you bring a heavy piece of wood into a fray like this, then it is really very difficult to say that it was not probable that your client at least knew that the probability would be that the commission of the offence would be probable?
MR BYRNE: Your Honour, my client, for want of a better term, pleaded guilty to being the bringer of the stick, to deliberately putting on the steel‑capped boots and all of those things that your Honour puts to me. What I said this morning, I cannot gainsay what my friend, Mr Copley, says about the route to conviction under 302(1)(a). My sole complaint, and I suppose submission more than complaint in respect to the proviso, is that where the jury were left two routes and one involving what is argued or said to be a substantive error as to the foundation of criminal liability, then that comes back to whether the person has had in truth a real trial where the proper bases of criminal liability have been left.
It is not sufficient, nor is it an answer, in my submission, for the Crown to say there was all this strong evidence against him and that could prove an intention to do grievous bodily harm. The difficulty with that proposition is that it was left to the jury on an alternate basis and one being said to be more simple than the other and, at the risk of repeating myself, that is the one where it is said the fundamental error occurred. Those are my submissions.
GLEESON CJ: Thank you, Mr Byrne. We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow.
AT 3.39 PM THE MATTERS WERE ADJOURNED
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