Darkan & Ors v The Queen

[2005] HCATrans 784

[2005] HCATrans 784

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B52 of 2005

B e t w e e n -

HOWARD RODNEY DARKAN

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B53 of 2005

B e t w e e n -

GWENDOLINE DEEMAL-HALL

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B54 of 2005

B e t w e e n -

MARLOW PHILIP ANDREW McIVOR

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 SEPTEMBER 2005, AT 10.26 AM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN, SC:   If it please the Court, I appear with my learned friend, MR A.W. MOYNIHAN, on behalf of the applicant Deemal‑Hall.  (instructed by Legal Aid Queensland)

MR A.J. GLYNN, SC:   If it please the Court, I appear on behalf of the applicant Darkan.  (instructed by Legal Aid Queensland)

MR M.J. BYRNE, QC:    If it please the Court, I appear on behalf of the applicant McIvor.  (instructed by Legal Aid Queensland)

MR M.J. COPLEY:   If it please the Court, I appear for the respondent in each case.  (instructed by Director of Public Prosecutions (Queensland))

GUMMOW J:   Yes, Mr Callaghan.

MR CALLAGHAN:   It has been agreed amongst the parties that I should go first.

GUMMOW J:   Yes, we will hear each applicant’s counsel first and then we will hear from Mr Copley in relation to all three.

MR CALLAGHAN:   Thank you.  The case involves what we submit are two questions of law which are of public importance and the first concerns the law relating to murder as defined by the Criminal Code (Qld) and section 302 is reproduced in our outline ‑ ‑ ‑

GUMMOW J:   Page 210.

MR CALLAGHAN:   In more than one place. I was going to refer your Honours to 181, but certainly, yes, in different places in the application book. Most commonly murder is established pursuant to section 302(1)(a) of the Criminal Code when an intent to kill or do grievous bodily harm is proven.  However, in the Code States, as elsewhere, there is another category of what some textbooks call constructive murder, which has also been called the felony murder rule, and that is the offence which finds expression in 302(1)(b) and notably does not require the Crown to establish the existence of any intent; rather, it applies to a person who does the act which caused the death.  In this case, that is either the applicant Darkan or McIvor or both.  It requires that the act be “done in the prosecution of an unlawful purpose”.  In this case, the only unlawful purpose ever identified or ever suggested was to assault.  That much is made clear in the application book at page 71, line 10, where his Honour told the jury that in this context that:

To unlawfully assault someone is an unlawful purpose.

GUMMOW J:   Now, what I am about to say to you I am saying to all of the applicants’ counsel.  We are not in the Court of Criminal Appeal.  What is the error you find in what on the face of it is a very careful judgment of Justice Keane?

MR CALLAGHAN:   The error is in ‑ ‑ ‑

GUMMOW J:   And take us to the passage that displays the error, if there is one.

MR CALLAGHAN:   The error can be summarised by saying that he regarded the summing‑up as having been sufficient to make clear to the jury that the case was not to be decided on the basis of 302(1)(b).

GUMMOW J:   Where does that error appear?

HEYDON J:   Paragraph [48] on page 146?

MR CALLAGHAN:   Thank you, your Honour.

HEYDON J:   That is the conclusion.

MR CALLAGHAN:   That is the conclusion.

HEYDON J:   So the error may lie further back.

MR CALLAGHAN:   Yes, he leads up to that conclusion.  That contention, we submit, does not withstand scrutiny.  Can we start in the application book at page 13 where, before the jury had heard a word of evidence, they were told that murder could be established pursuant to section 302(1)(b).  At the following page, page 14, we learn at line 50 that the case had been particularised in the past in this way, and then the Crown Prosecutor proceeded at page 16, line 50 to make clear that the Crown case was being put against the applicant Deemal‑Hall in the alternative pursuant to section 302(1)(b).

GUMMOW J:   Now, it is true your client only paid $50 for the touch‑up, but what are the other realities in this case?

MR CALLAGHAN:   Your Honour, I am really not sure about the effect of your question because the case was put against my client on the basis that she was party to a common purpose to assault.  That was admitted or, in effect, not contested.  The fact that she has procured a touch‑up could not be contested on the evidence.  It is what flows from that that this case is all about.

GUMMOW J:   Yes, it is the whole of the circumstances that follow and her involvement in them.

MR CALLAGHAN:   Her involvement really did not go much further than that and the Crown did not say it did.  The Crown did not seek to bring against her a charge that she was guilty of murder by reason of her presence at the scene.  It was the derivative liability which they say flowed from the fact that she was a party to a plan to assault.  That much is admitted, or at least not contested.

KIRBY J:   Well, scholars have criticised this derivative liability but it appears to be the law in Queensland.  If you have a person who, as it were, engineers and pays for an assault, then the common experience of humanity is that sometimes these things get out of hand and, therefore, that is why the criminal law imposes on A the liability for the acts of B that get out of hand, like using a pick handle to do the touch‑up.

MR CALLAGHAN:   And it is the way in which that liability is imposed upon which we must focus, because the Crown put it in two different ways. They said that, first of all, pursuant to sections 7, 9 and 302(1)(a) of the Criminal Code (Qld), she was liable because a murder was a probable consequence of the procurement of the touch‑up. That is, they said, a murder committed as a result of someone committing the offence of unlawfully killing whilst possessing a specific intent. We have no issue with the proposition that that was open. Our issue with that part of the trial concerns the definition of the word “probable” and I am not addressing that at the moment.

KIRBY J:   That is a real issue and I want to hear you on that later, but what is your present point?

MR CALLAGHAN:   My present point is that it was never open to bring a case under 302(1)(b) and by bringing it this way the Crown bypassed the need to prove any intent at all.  They had only to prove that she was a party to an unlawful purpose and that in the course of that unlawful purpose it was a probable consequence that an act likely to endanger life ‑ ‑ ‑

GUMMOW J:   Right.  So what do you say about paragraph [76] on page 155, and [75] too?

MR CALLAGHAN:   Your Honour, it was open for the Crown to bring a case on that basis and to bring a case on the basis that it may have been probable that someone would kill with that intention.  I am still addressing the first ground, which was the proposition that the Crown brought a case which obviated the need for any intention at all to be proved.  They brought that case under 302(1)(b).  It is orthodoxy in the Code States and has been for more than but at least 30 years that it is not open to bring such a case under 302(1)(b) when there is no distinction to be made between ‑ ‑ ‑

GUMMOW J:   What do you mean by “not open”?

MR CALLAGHAN:   It is prohibited.

GUMMOW J:   By what?

MR CALLAGHAN:   By the statement of this Court in Stuart v The Queen.  When the act and the purpose are identical, it is not open to bring a charge of murder pursuant to 302(1)(b), but that is exactly what the Crown did in this case.  There was no distinction between the dangerous act and the unlawful purpose.  Both were an assault, an attack, a touch‑up, a fix‑up, however so described.  What the Crown did in this case was, in our submission, expressly prohibited by the comments of this Court in Stuart, which are reproduced in our outline.

GUMMOW J:   Which page in the outline?

MR CALLAGHAN:   At page 183, paragraphs 31 and 32. That is, indeed, the very essence of our complaint here. Now, your Honour asked me about the approach of the Court of Appeal and it mirrors the approach taken by the respondent in argument. They say there was really no danger that the jury would have acted that way and they must necessarily have acted pursuant to the first method by which the Crown brought the charge, namely, under sections 7 and 9. We will come to that in a moment. We say that it is more likely – we do not have to establish likelihood; we only have to establish that it was open for the jury to have convicted by means of 302(1)(b) – because it was the Crown’s favoured approach.

Can I take your Honours to application book page 22, line 20.  This is in the Crown Prosecutor’s closing address where he presented the alternative of 302(1)(b) – the prohibited alternative we submit – as:

a more satisfactory way of understanding what went on here.

He proceeded in the paragraphs following to outline to the jury how they could convict the applicant pursuant to the combined operation of section 8 and 302(1)(b). The jury was reminded of the Crown approach by his Honour in the course of the summing‑up at different points. Can I take your Honours to application book 67, line 40 where the jury were reminded that:

The learned Crown Prosecutor puts forward an alternative approach for considering the guilt ‑ ‑ ‑

HEYDON J:   Can I just interrupt, Mr Callaghan.  Your argument would seem to suggest that there should have been some application to quash the indictment or an application of that kind; secondly, the argument you are now advancing does not seem to have been one of the grounds of appeal advanced to the Court of Appeal.  Am I wrong in that?

MR CALLAGHAN:   You are as to the second.

HEYDON J:   I am wrong on that?

MR CALLAGHAN:   This was the ground advanced to the Court of Appeal.

HEYDON J:   Well, I am just looking at page 142: 

(a)      that the learned trial judge erred in directing the jury . . . 

(b)      that the learned trial judge erred in directing the jury . . . 

(c)      that the learned trial judge erred in failing to grant a separate trial;

(d)      that the verdict of the jury was unreasonable.

It does not say the trial judge erred in failing to strike from the indictment something or erred in failing to extract a condition from the Crown as to the way it would put its case.

MR CALLAGHAN:   No, but he erred by directing them that the law of 302(1)(b) was applicable to the circumstances of the case.  To come back to the first part of your Honour’s question, it was not the subject of complaint by counsel, be it by way of application for redirection or otherwise, I accept that.  As to that, I can only point to that which I have already taken your Honours to, which is that the trial judge came in and announced to the jury before anyone had said anything that the Crown case was going to be put in this way.  Now, that does not absolve counsel of their responsibility, I accept that, but there might be some explanation for why there was no application.

GUMMOW J:   Any reference to Stuart in Justice Keane’s judgment?

MR CALLAGHAN:   Yes.

HEYDON J:   Well, it is buried in footnotes.  It does not seem to have been on the front of the stage.

MR CALLAGHAN:   I did not catch that, I am sorry, your Honour.

HEYDON J:   It does not seem to occupy a prominent position in his handling of the disposition of the appeal.

MR CALLAGHAN:   No, and this is our complaint, that the Court of Appeal, as the respondent does, seeks to avoid engagement on this issue by saying it was not really raised or, if it was raised, I am sorry, they say it was cured because there is a passage where the jury was directed in terms which they say save the whole of the summing‑up.

GUMMOW J:   It does not sound like a special leave case at the moment.

MR CALLAGHAN:   Your Honour, the important point here is that the orthodoxy of what has been said Stuart is ‑ ‑ ‑

GUMMOW J:   The important point is that there was not a preliminary application.

MR CALLAGHAN:   No, your Honour, the important point is that the Crown is now seeking to obtain a conviction for murder without proving an intent as it is required to do.  It is not seeking to – has obtained against my client and the others convictions for murder on this basis.  That is a question of public importance.  I have taken your Honours in my outline to the other parts of the summing‑up where the concept of 302(1)(b) was raised.  If there is any dispute that it was alive in the mind of everyone at the trial that the jury may well have convicted on the basis, it is resolved by reference to that which happened in an application for redirections.  Briefly, if I can take your Honours to the application book page 102 at line 30, after the redirections the Crown Prosecutor summarised the way he understood the case had been put on two bases: 

section 302(1)(a) with section 8, and 302(1)(b) with section 8.

HIS HONOUR:   Yes.

The short point is a conviction for murder may have been obtained on a basis that was not available.  This is apparently the approach that the Crown in Queensland now sees as being open.

GUMMOW J:   It is not the Crown in Queensland.  It is the Director of Public Prosecutions.

MR CALLAGHAN:   Yes, your Honour.

GUMMOW J:   It degrades the Crown to have that identity given to it, these public servants ‑ ‑ ‑

MR CALLAGHAN:   It is the view of the Director of Public Prosecutions. The second ground relates to the direction that the jury received as regards the first method by which the Crown proposed could prove guilt and that is a combination of section 7(1)(d), section 9 and 302(1)(a) of the Criminal Code.  That is to say, having procured the touch‑up, she was liable for the probable consequences of that procurement.  At application book 69, line 30 your Honours see the direction that the jury was given ‑ ‑ ‑

KIRBY J:   Where does probable arise in the Code? Is it in section 8, is it?

MR CALLAGHAN:   In section 9 – in both. Relevantly for these purposes both, but the Crown ‑ ‑ ‑

KIRBY J:   Now, this formula came from what Justice Fitzgerald said in Hind and Harwood apparently.

MR CALLAGHAN:   It seems to have.

KIRBY J:   Then it went into the Bench Book and it has been used regularly in Queensland.  I do understand your complaint about it and it will no doubt be elaborated by your colleagues as well, but what is the real and substantial danger of using the words that were used by Justice Fitzgerald, “real possibility”, “substantial cause”, “real chance”?

MR CALLAGHAN:   Let us take “real possibility”.  Anything is possible.  The word “real” might be understood to mean no more than actually existing.  If you are liable for the actually existing possibilities of your actions, you are liable for absolutely everything – everything that does, in fact, happen.  We know that it did happen.  We know that an unlawful killing, in fact, a murder, did occur.

KIRBY J:   You carry the burden of the first point, but on the second point how do you say this is factually significant for your client, the difference?

MR CALLAGHAN:   It is the essence of the case against my client because it was established no more than that she had procured a touch‑up.

HEYDON J:   Is it a probable consequence of procuring a touch‑up that the touched‑up person will suffer grievous bodily harm?

MR CALLAGHAN:   Well, that the person attacking them will form an intention to cause grievous bodily harm.

HEYDON J:   Is that not a probable consequence?

MR CALLAGHAN:   It is a textbook jury question and one about which the jury must be properly instructed.  If they are instructed that a probable consequence means one that is a real possibility, they know that someone did, or can infer that someone did, in fact, form that intention.  If all that was required was to establish that it was really possible, then the Crown had proved their case by proving the fact that somebody had committed the murder but not necessarily proved its case against my client who, after all, did nothing herself, did not touch or ‑ ‑ ‑

GUMMOW J:   Did nothing herself?

MR CALLAGHAN:   Did nothing in the assault herself.  Did not touch or take an active part in the assault which led to death.

GUMMOW J:   She promoted it.

MR CALLAGHAN:   She procured it, your Honour.  She procured a touch‑up or ‑ ‑ ‑

GUMMOW J:   I do not know what they regard as a touch‑up in Cooktown.

MR CALLAGHAN:   Well, his Honour at one stage seemed to equate it with the concept of a minor assault.  Can I take your Honour to page 68, line 50.

GUMMOW J:   With a stick.

MR CALLAGHAN:   Well, the evidence may have established that our client was aware of the stick.  There are arguments to be made for the proposition that she may not have been.

GUMMOW J:   It is open for the jury to infer there was.

MR CALLAGHAN:   Of course.  It was open, your Honour.

HEYDON J:   Actually, is not page 68 setting out an argument of counsel rather than a statement of the judge?  “The proposition is”.

MR CALLAGHAN:   It may be, your Honour, yes, but it is an argument that can be made.  That is my time.

HEYDON J:   Yes, it is.

KIRBY J:   Anyway, your point is that your client had the question answered by the jury by reference not to what was a probable consequence but to what was a possible or chance consequence and that that was an incorrect direction?

MR CALLAGHAN:   By words which are not in the Code and should not be read into the Code.

KIRBY J:   I wonder why judges in Queensland depart from the holy text to ‑ ‑ ‑

HEYDON J:   If special leave were granted, do you seek to overturn Johns v The Queen and Brennan v The King?

MR CALLAGHAN:   Your Honour, this is the essence of our argument, that this is one area of law where the Code and the common law have diverged into very distinct paths and this is part of why we say or how we say the error occurred, is that those who have arrived at this formulation have done so after consideration of common law authorities which are concerned with completely different notions.

HEYDON J:   Justices Dixon and Evatt were talking about the Western Australian analogue of section 8 of the Criminal Code.

MR CALLAGHAN:   Yes, but ‑ ‑ ‑

HEYDON J:   We are dealing with titans here.  It is not some little error of Mr Justice Fitzgerald.

MR CALLAGHAN:   No, and Brennan is authority for the proposition that “probable” may be equated to “likely” and I do not seek to overturn that, but I do seek to advance the proposition that Johns, McAuliffe and McAuliffe, any of the other common law authorities referable to this area are not something to which the courts should have regard when seeking to frame a direction on the meaning of the word “probable”.  That, we say, is probably the source of the error.

GUMMOW J:   But Justice Keane fixed on Brennan, did he not, at paragraph [60]?

HEYDON J:   …..real possibility of ‑ ‑ ‑

MR CALLAGHAN:   But Brennan is not authority for the proposition that the words “real possibility” or “real chance” or anything of that nature can be used to define “probable”.  We do not take issue with Brennan in Brennan’s terms.  We do take issue with the interpretation of Brennan that Justice Fitzgerald has adopted.

GUMMOW J:   Yes, thank you.

MR CALLAGHAN:   I have gone well past my time.

GUMMOW J:   Who is next, Mr Glynn or Mr Byrne?

MR GLYNN:   I will go next, your Honours, because I was originally listed ahead of Mr Byrne, that is of course if that is convenient to your Honours.

GUMMOW J:   Yes, Mr Glynn.

MR GLYNN:   Your Honours, my submissions will be really directed towards the second point. The issue of the directions in respect of section 302(1)(b), in my submission, are adequately dealt with by my learned friend and by the outline. In respect of the interpretation of the word “probable”, the Crown in its response makes the point that “probable” is not specifically defined in the way referred to by my learned friend in respect of my client. Your Honours will have to accept my apology – I am having difficulty reading the application book.

KIRBY J:   Yes, we had a little difficulty too, but we got out our magnifying glasses.

MR GLYNN:   I am sorry, I have a cataract, your Honour, and it makes it very difficult for me.

KIRBY J:   I am sorry to hear that, Mr Glynn.

MR GLYNN:   It makes it very difficult for me so I am having to refer to the original Court of Appeal record book.

KIRBY J:   My sister had an operation for that last week and had a wonderful success.  I wish the same for you, Mr Glynn, and we should add a few minutes to your time.

MR GLYNN:   Thank you, your Honour. I think I have them translated. At page 68 of the application book, in the last paragraph, his Honour begins to deal with this question of probable consequence when dealing with section 9, particularly in respect of Mrs Deemal-Hall. His Honour said:

So if I can relate that here.  The proposition is that even if Mrs Deemal-Hall counselled a touch-up, a minor assault, and in the end result a far more serious offence, offence B was committed, then the liability for that offence B is extended to her only if the offence, the actions which caused the offence, actually committed are a probable consequence of carrying out that counselling . . . 

Now when I speak of probable consequences, it means that it’s a real possibility or a substantial cause or a real chance that that event would happen.

GUMMOW J:   We will take a short adjournment.

AT 10.53 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.08 AM:

GUMMOW J:   Yes, Mr Glynn.

MR GLYNN:   Thank you, your Honour.  Your Honours, I think I had just finished, when we lost contact, reading to your Honours the passage at page 69 where his Honour defined the term “probable consequence”.  On the next page, page 70 of the record, his Honour, in the last paragraph beginning on that page, then went on to a second aspect of liability in respect of all three accused and he said:

Now, the prosecution puts forward a second approach for the liability of Ms Deemal-Hall, and that approach relies upon different provisions of the Criminal Code but which really ends up to a very similar effect, and this approach applies as well to the other two defendants, so this one relates to all three defendants, and this is the one I said I would come back to as an alternative approach to the charge against Mr Darkan and Mr McIvor.

His Honour then goes on to read the provisions of section 8 of the Criminal Code and then he says, at about line 18:

Now, the liability for killing in those circumstances extends to all persons who form that common intention – to do the assault – and

that conduct which resulted in the killing was likely to endanger human life, and was a probable consequence of the prosecution of the unlawful purpose. 

Although his Honour repeats that, he does not any further define what he means by “probable” so that, in my submission, the jury would take the definition which he had given only a page or so of his transcript earlier as applying in those circumstances, namely, “a real possibility or a substantial cause or a real chance”. Therefore, the same complaint is made in respect of that as is made in respect of Mrs Deemal-Hall in respect of section 9, that is that “probable” means certainly more than possible, that possible is not an adequate description of the term or the requirement raised by the use of the word “probable” in section 8.

Your Honours, otherwise I simply rely upon the submissions in our written outlines and on the submissions made by my learned friend, Mr Callaghan.

GUMMOW J:   Yes, thank you, Mr Glynn.  Yes, Mr Byrne.

MR BYRNE:   May the Court please.  Doing my best not to be repetitious, may I make these submissions.  There are two distinct points which arise on these applications, both of which, in my respectful submission, are points of general importance to the criminal law in Queensland and the Code States.  The first relates to criminal liability for murder and the second relates to criminal responsibility for joint enterprises.  Both of those, as I say, are of general importance. 

The first relates to the way liability was left for murder under section 302(1)(b) and may I take your Honours immediately to the direction, which you have been referred to briefly already, at page 71 of the application book. At the top of that page the learned trial judge directs:

It is this:  Our law provides that if an unlawful killing is caused by an act ‑

my emphasis –

done in the prosecution of an unlawful purpose which act is of such a nature as to be likely to endanger human life, that killing is murder.  So an act done in the prosecution of an unlawful purpose.  To unlawfully assault someone is an unlawful purpose.

Such basis for liability, it is respectfully submitted, is quite contrary to the way the law has been understood in Queensland and applied by this Court.  If I may take your Honours to Stuart v The Queen (1974) 134 CLR 426 at 438. That is the judgment of his Honour Justice Gibbs, as his Honour then was. At about two-thirds down that page, his Honour said this:

It appears clearly from the words of the section, and it has been laid down by this Court, that the act of the accused which caused the death cannot at once constitute the dangerous act and the unlawful purpose . . . The facts of Hughes v The King clearly exemplify this principle; the dangerous act causing death was a violent assault but the accused had no purpose other than to assault the deceased.

HEYDON J:   Were there not many blows here?  Your argument, I could understand its force if death was caused by one blow and there was only one blow, but are not the facts rather more complicated.

MR BYRNE:   They are no more complicated, in my respectful submission, your Honour, than they were in Hughes.  Hughes was the case referred to there by his Honour Justice Gibbs.  Hughes was of assistance in that there were, not one assault, but a series of assaults interrupted by various arguments and everything else but it was a continuing pattern of assaults, assault being to assault, to use a generic term, being the only purpose.

To that extent, the present case is indistinguishable, in my respectful submission, from Hughes.  There was not any point of distinction as to the number of assaults nor is there any point of distinction in whether bodily harm was somehow an intermediary stepping stone which the principal judge in the Court of Appeal seems to rest upon.  There was no mention and there is no mention in the directions which I have taken your Honours to as to any intermediary step.  It was left clearly to the jury.  The basis for criminal liability for murder was by an assault which at once constituted the act and the unlawful purpose.  It is clear, in my respectful submission, that such a course is contrary to accepted principle in this Court. 

The second point relates to criminal responsibility for joint enterprises.  Your Honours have been taken to the direction at page 69 of the application book and focus is upon that passage because it is, in effect, the definition, at line 28, of what “probable consequence” means, that being the phrase used in the Criminal Codes.  His Honour said:

Now when I speak of probable consequences, it means ‑ ‑ ‑

GUMMOW J:   Sorry, which page, Mr Byrne?

MR BYRNE:   Page 69, your Honour, about line 28, the three-line paragraph.  His Honour there defines “probable consequence” as meaning, in disjunctives, a “real possibility” or other examples or definitions.  “Real possibility” is one of the avenues therefore left open to the jury to fix upon for criminal liability.  The difficulty with that, in my respectful submission, is the real distinction between “probable” and “possible”.

If I may take your Honours briefly to Boughey v The Queen (1986) 161 CLR 10, firstly to the judgment of Sir Harry Gibbs at page 14 going over to 15. His Honour was there dealing with the Tasmanian Code and the use of the word, “likely”. It has been accepted earlier on that page that this Court in R v Crabbe treated “likely” and “probable” as synonymous but his Honour goes on at about point 8 of the page:

In my opinion the word “likely” . . . means “probable” and not “possible”.  That is its natural meaning . . . In any case, if the expression were thought to be ambiguous, the doubt should be resolved in favour of the liberty of the subject.  If “likely” in s 157(1)(c) were regarded as meaning “possible”, that provision would have a very drastic operation ‑

His Honour goes on to use very strong terminology, with respect –

since it would treat as murder a culpable homicide caused by any unlawful act which the offender knew would possibly cause death.  A death in those circumstances might understandably be regarded as manslaughter, but it would be Draconian to call it murder.

The joint judgment in that case, being the judgment of Justices Mason, Wilson and Deane relevantly at page 19 at point 6, their Honours make this point, referring again back to R v Crabbe:

In the course of the joint judgment, the words “probable” and “likely” (and “probability” and “likelihood”) were, on a number of occasions, used as synonyms.

I emphasise the next passage:

Both words were consistently use in contract to “possible” (and “possibility”).

What we say the point of general importance on this aspect is that the direction given in this case and, indeed, as the written outline set out the standard direction in the Bench Book for joint criminal responsibility in Queensland, is what is set out at page 69 which includes the phrase, “real possibility”.  It is the submission that that is a point of general importance because “possibility” consistently has been defined as meaning something in contradistinction to probability.

KIRBY J:   Mr Byrne, at the moment I am with you on that point but the matter that concerns me is the question of whether, if we granted special leave on that point and the Court heard the case, first, could we say anything better than what Justice Starke said in Brennan and Justices Dixon and Evatt said in Brennan which is that the only really permissible synonym is “likelihood”.  Second, in the facts of this case, would it lead anywhere because there is always hovering in the background the proviso and this is a very powerful factual case where, even if you apply the likelihood test, the result would be the same.  What is your answer to those two points?

MR BYRNE:   To answer those two points in sequence:  the first of those is a matter justifying the grant of special leave, in my submission, because ‑ ‑ ‑

KIRBY J:   I understand that.  You say this formula Justice Fitzgerald, I think, adopted from something Sir Robin Cook said in New Zealand, has softened the necessity of the prosecution to prove probability ‑ ‑ ‑

MR BYRNE:   Correct, and indeed, that passage - I am sorry, your Honour.

KIRBY J:   But all we would be saying if the matter came up would be, in my present thinking, “likelihood” not possibilities, which is what Justice Starke and Justices Dixon and Evatt said in their reasons so we would not be adding to the sum total of humanity’s legal knowledge.

MR BYRNE:   Your Honours would, however, be placing back on a correct footing the criminal responsibility for joint enterprise in Queensland, at least, and arguably in the Code States.  If “possibility” is left to remain then that is thrown out of kilter.

KIRBY J:   Are the other States following what Justice Fitzgerald said in Hind and Harwood, do you know?

MR BYRNE:   I cannot answer that question, your Honour, so I restrict my submissions to Queensland but with the proviso, if I may use that term advisedly, that the provisions of reasonable or probable consequence are common throughout the Code.

KIRBY J:   All right.  Now come to the real proviso.

MR BYRNE:   The second question, your Honour, may I answer it this way:  firstly, it was not something which was argued in the Court of Appeal.

KIRBY J:   I realise that but it would still fall to us to give that consideration at the end of the day.

MR BYRNE:   Quite so.  My submission is simply this, it is too early at the special leave stage for your Honours to determine the matter on that basis.  It is something which would require, if the Crown wished to proceed that way, a proper analysis and argument of the facts in issue.

KIRBY J:   Can I put it to you quite bluntly, like the instrument that was wielded on the deceased?

MR BYRNE:   Yes, your Honour.

KIRBY J:   Here, if a person gets two, shall we say, robust and thuggish people to set to and dust up a person, there is always the likelihood and possibility that it will get out of hand.

MR BYRNE:   That is certainly correct, however ‑ ‑ ‑

KIRBY J:   That is a likelihood, is it not?

MR BYRNE:   It is a jury question, in my respectful submission, your Honour and the jury here were not given the opportunity to answer that question with appropriate directions as to the proper law.  For that reason the applicants, particularly the applicant for which I appear, have not had a trial according to law.

KIRBY J:   Was this point reserved at the trial or did you just go along with the use of Justice Fitzgerald’s formula in Hind and Harwood?

MR BYRNE:   That has been a standard direction for, not a long time, but a reasonable time in Queensland.

KIRBY J:   1995.

MR BYRNE:   No objection was taken at trial, to answer your Honour’s question.

GUMMOW J:   But it was taken in the Court of Appeal, was it?

MR BYRNE:   Yes, it was.

GUMMOW J:   Did you appear in the Court of Appeal?

MR BYRNE:   No, I did not, your Honour.

KIRBY J:   I suppose your answer, the proper answer, is it would have been pointless to take the point at trial because the trial judge was bound by

Hind and Harwood and it was in the Court of Appeal that the matter had to be properly decided.

MR BYRNE:   And it goes probably one step further than that.  The Court of Appeal in Queensland has said that judges should, as near as possible, follow the standard directions set out in the Bench Book and this is one of the standard directions in the Bench Book but the point was taken and your Honours can see that in the Court of Appeal at page 142, paragraph [32], ground of appeal (b).

KIRBY J:   Mr Byrne, the matters I just put to you are my own opinions.  They may or may not be shared by other members of the Court but I thought I should put them to you. 

MR BYRNE:   Thank you, your Honour.  Those are my submissions.

GUMMOW J:   Yes, thank you, Mr Byrne.  Yes, Mr Copley.

MR COPLEY:   Your Honours, if it is convenient I might deal with ground 2 first.  My contention is that if the jury had been directed erroneously, for example, that they had to be satisfied to the point of certitude that it would be the case that somebody, in the course of giving the touch-up, would go that step further and form an intention to do grievous bodily harm then in the circumstances of this case the jury would have convicted all three of the appellants. 

KIRBY J:   Yes, but the problem is that we start from the proposition that joint or derivative liability is an exception from the usual principles of individual liability for intended acts so that it is an exception.  It seems to me that it is a much more prudent thing for judges to stick to the language of the Code and not use synonyms which soften the operation of the Code.  What is your answer to that?

MR COPLEY:   My response to that is that that is a perfectly, with respect, correct observation but, nevertheless, the synonyms that were used in this case were ones that did not really detract from what one would understand is meant by the word “probable”.

KIRBY J:   They used the word “possible”.  Now, “possible” is not “probable”, and they used the word “chance” and there are adjectives that decorate those words but they are not the words of the Code.  Sir Samuel Griffith’s purpose in having a Code was to have it there in language that ordinary people and juries could understand and why it is all elaborated – and this is not the first case – is a mystery to me.

MR COPLEY:   Yes, your Honour, and I do place reliance upon the fact that the “possibility” and the “chance” and the “cause” were qualified by other adjectives but those other adjectives were sufficient to convey to the jury the meaning of the word, if they needed any help on it, “probable”, but the jury did not ‑ ‑ ‑

KIRBY J:   That is the question.  It is an ordinary word and in the old days of civil juries it was used all the time, everyday, day in, day out, but here we are in the realm of criminal responsibility and it is derivative responsibility which is a somewhat unsettling thing, at least in the case of the first applicant.

MR COPLEY:   I understand that, your Honour, but my submission is that given the strength ‑ ‑ ‑

KIRBY J:   She is being held liable for what the other two offenders did and she did not really get directions to her jury in terms of the Code, at least as it seems to me.

MR COPLEY:   Your Honours, the circumstances were, the evidence disclosed that she was at a hotel, that she procured Darkan for the sum of $50 to administer a touch-up ‑ ‑ ‑

KIRBY J:   Fifty dollars is hardly murder money.  Fifty dollars is assault money.

MR COPLEY:   It might have been a lot to her though, your Honour, but she then went about trying to get more than one person to do this touch-up, she procured McIvor and she tried to procure Bowen.  She had a car, she and Bowen and Darken went off and got McIvor from his house.  She then took them to the park at Mareeba ‑ ‑ ‑

GUMMOW J:   Why did he go with them?

MR COPLEY:   McIvor or the deceased?

GUMMOW J:   The victim.

MR COPLEY:   The deceased did not go with them, that is the point.  The appellant, Deemal-Hall, took the men to the park first.  They selected ‑ ‑ ‑

GUMMOW J:   Yes, I know, but why did he go with her?

MR COPLEY:   Well, we do not know because she did not give any evidence but the way it was put was that she inveigled him into what seems to have been their car and then she took him down to the park where the men were waiting and all of these men have gone there on the understanding that they are going to get $50 to fix somebody up or touch them up and then after a bit of a talk an argument is contrived and he is set to by two people with fists, feet and stick and she is the person that has brought all of that about.  That is why my submission was that if the jury had been wrong ‑ ‑ ‑

KIRBY J:   She has brought it about but that is the problem, you see.  She has brought about what she says was a touch-up or assault and it got out of hand and she did not actually perform it but now she is convicted of murder – murder, the highest crime in the lexicon, and the question is, was the strictness that is required by our law observed in the directions to the jury.

MR COPLEY:   My submission is that it was because the employment of the three adjectives or synonyms to explain the word “probable” were, in their totality, sufficient for the jury to understand that they were not dealing with mere hypotheticals, they were dealing with something that had to be likely. 

KIRBY J:   If the judge and the Bench Book had stuck to “likely”, no problem, that is the language of Brennan.  Justice Starke used “likely”, Justice Dixon and Justice Evatt used “likely” but instead of that we get these words “chance” and “possibility”, a “real possibility”.

MR COPLEY:   Yes.  In Boughey v The Queen which is a case from Tasmania, Justices Mason, Wilson and Deane at page 22 of the report said that:

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 the Tasmanian Code –

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:  “a good chance that it will happen”; “something that may well happen”; something that is “likely to happen”.

KIRBY J:   Yes, but the word that their Honours disclaim was “possibility” and yet here it has crept into this Bench Book in Queensland and the word “possibility” is used, albeit with the adjective “real”.

MR COPLEY:   That is my answer to your Honour’s observation, with the adjective “real” and with the qualification ‑ ‑ ‑

KIRBY J:   You say the adjective saves it.

MR COPLEY:   Yes.

KIRBY J:   But why depart from the Code?

MR COPLEY:   Your Honour, that is what has happened, it is not for me to ‑ ‑ ‑

KIRBY J:   I do not like it.

MR COPLEY:   No, but the adjective was ‑ ‑ ‑

KIRBY J:   This is derivative liability, a person is convicted and sentenced for the most serious crime known to our law.

MR COPLEY:   Yes, but I rely upon the qualification of the adjective and the employment of “real chance” or “substantial cause” as being sufficient to convey to the jury what they needed to know and I rely upon the strength ‑ ‑ ‑

GUMMOW J:   I think we have ventilated that enough.

MR COPLEY:   Very well, your Honour.

GUMMOW J:   What would the prosecution’s attitude be to a proviso question if we did get into these questions of law?

KIRBY J:   The proviso would operate pretty strongly I would think in the case of the two male applicants but what about the female applicant.

MR COPLEY:   I would submit that your Honours would, in the end, have no hesitation in applying the proviso after you heard all of the evidence, or reviewed all of the evidence.

KIRBY J:   You are trying to intimidate us by reference to “all of the evidence”.

MR COPLEY:   I have brought to your Honours’ attention, in my submission, the salient points that she has procured fellows to go to a park, they have agreed on a defined place ‑ ‑ ‑

KIRBY J:   We know all these things but I repeat, $50 is not murder money, $50 is touch-up money.

MR COPLEY:   Your Honour, that might be so in other parts of the country, but we do not know a great deal about these people and their lives.  That might have been a lot of money to them.

KIRBY J:   Yes, you have said that now.  Leave a little time for the first point.

MR COPLEY:   In relation to the first point, Mr Justice Keane, on behalf of the court, correctly concluded that on the way the case was summed up to the jury, there was no danger at all that the jury convicted any one of the offenders of murder without first being satisfied that at least one of them caused the death or substantially contributed to it with an intention to kill or do grievous bodily harm.  The directions that his Honour gave to the jury which I have extracted, for example, at page 218 of the application book which is in my outline concerning Deemal-Hall - your Honours will see the directions in italics at about line 30 and following to the bottom of the page. 

On each occasion that his Honour gave directions to the jury about 302(1)(b), he erroneously instructed them that before they could convict, reliant upon that provision, they had to be satisfied that one of the kickers, strikers or hitters had a murderous intent. Those directions were wrong if the case was truly a case under 302(1)(b) in section 8 because all that needed to be proven when those two sections operated is set out at page 219 of the application book, paragraph 40. There was no requirement under 302(1)(b), read with section 8, that any of the kickers had a murderous intent at all. So that is why Justice Keane felt able to conclude that the danger which the appellant identified, that somebody might have been convicted of murder without anyone having the requisite intent, did not arise in this case because his Honour’s directions on 302(1)(b), if it was wrongly left, were erroneous in themselves. Thank you, your Honours.

GUMMOW J:   We would like to hear counsel in reply on, in their draft notices of appeal what is the first point, that is to say the section 302(1)(b) point.

MR CALLAGHAN:   On that point, your Honours, I have already identified in my outline four separate occasions upon which the jury were told that 302(1)(b) did apply.  The Crown fastens upon one 17-line passage in the summing‑up wherein it says the jury would have been disabused of the notion that they could operate on that basis.  The trial judge and the Crown Prosecutor were both of the opinion, after all the evidence and all the addresses, that the issue was alive for the jury’s consideration.

Somehow we are meant to accept the jury worked it out for themselves that it did not apply notwithstanding the belief of the trial judge and counsel.  It is just not open to contend that it was not a live issue for the

jury’s consideration and for the reasons that have been advanced it ought not to have been.

GUMMOW J:   Thank you.  Mr Glynn.

MR GLYNN:   Your Honour, I simply adopt what Mr Callaghan said.

KIRBY J:   Mr Glynn, could you help me just on this, that if the Court were minded to grant special leave on the second point, would it not be pretty inevitable that the proviso would be applied in your client’s case as distinct from the female applicant that Mr Callaghan appears for?

MR GLYNN:   Your Honour, I have to concede that, as a starting point, the case against my client was a stronger one than the case against Mrs Deemal‑Hall, but my submission is that the jury were denied the opportunity of making a decision on the law as correctly stated.  The basis upon which they convicted is not known.  If they had convicted my client and Mr McIvor and acquitted Mrs Deemal-Hall, that may have strengthened the application of the proviso, but given that they convicted all three then, in my submission, the proviso still is a matter of detailed submission after the Court has before it all of the evidence.

GUMMOW J:   Yes.  Thank you, Mr Glynn.  Mr Byrne.

MR BYRNE:   I have nothing to add.  Thank you, your Honour.

GUMMOW J:   Looking at the draft notices of appeal which appear in the joint application book respectively at page 170, 173 and 176, in our view there are insufficient prospects of success on what in each case is stated as the first ground, that relating to section 302(1)(b) of the Code, to warrant a grant of special leave. However, there will be a grant of special leave on the second point indicated on each of those pages, namely that concerning the construction of section 8 of the Code. This will be a one‑day appeal and counsel should divide their time between them appropriately, so that we are properly assisted.

AT 11.40 AM THE MATTERS WERE CONCLUDED