Darkan v The Queen Deemal-Hall v The Queen McIvor v The Queen [2006] HCA 34 22 June 2006 B87/2005, B88/2005 & B89/2005
ORDER
In each matter, the appeal is dismissed.
On appeal from the Supreme Court of Queensland
Representation
A J Rafter SC for the appellant in B87/2005 (instructed by Legal Aid Queensland)
P J Callaghan SC with A W Moynihan for the appellant in B88/2005 (instructed by Legal Aid Queensland)
M J Byrne QC for the appellant in B89/2005 (instructed by Legal Aid Queensland)
M J Copley for the respondent in all matters (instructed by Director of Public Prosecutions (Queensland))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Darkan v The Queen Deemal-Hall v The Queen McIvor v The Queen
Criminal Law – Common intention to prosecute unlawful purpose – Aiding the commission of an offence – Counselling the commission of an offence – Assault causing death – Appellants tried together and convicted of murder – Where Crown case relied on ss 7, 8 and 9 of the Criminal Code (Q) – Jury directed by trial judge that for the purpose of ss 8 and 9 of the Criminal Code (Q) "a probable consequence" was one which was "a real possibility or a substantial chance or a real chance" – Meaning of "a probable consequence" – Whether "probable" connotes something more than "possibility" or "real possibility" or "real chance" – Whether jury was misdirected.
Criminal Law – Application of the proviso under s 668E(1A) of the Criminal Code (Q) – Whether "substantial miscarriage of justice" has actually occurred – Whether trial fundamentally flawed – Relevance of unknown mode of jury reasoning – Relevance of the fact that the misdirection concerned the elements of the offences charged.
Appeal – Court of criminal appeal – Proviso not considered by court of criminal appeal – Whether High Court should consider proviso in the circumstances – Role of court of criminal appeal – Role of High Court – Limitations on High Court considering the proviso without scrutiny of the record of evidence by court of criminal appeal – Defects of a trial on the record.
Words and phrases – "a probable consequence", "substantial miscarriage of justice".
Criminal Code (Q), ss 8, 9, 668E(1A).
GLEESON CJ, GUMMOW, HEYDON AND CRENNAN JJ. These three appeals were argued together. The appellant in the first appeal is Howard Rodney Darkan ("the first appellant"), in the second Gwendoline Cecily Deemal-Hall ("the second appellant") and in the third Marlow Phillip Andrew McIvor ("the third appellant"). The appellants were jointly tried at Cairns before a jury in the Supreme Court of Queensland (Jones J). They were charged with murdering…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Darkan v The Queen [2006] HCA 34
Case
[2006] HCA 34
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered appeals by the first and second appellants against their convictions for murder. The Crown case relied on sections 7, 8, and 9 of the *Criminal Code* (Qld), which deal with common intention to prosecute an unlawful purpose and aiding or counselling the commission of an offence. The central dispute revolved around the trial judge's direction to the jury regarding the meaning of "a probable consequence" in the context of these sections, with the appellants arguing that the judge's explanation, equating it to a "real possibility or a substantial chance or a real chance," was a misdirection.
The legal issues before the High Court were whether the trial judge's definition of "a probable consequence" was legally correct, and if not, whether a substantial miscarriage of justice had occurred, thereby necessitating the application of the proviso under section 668E(1A) of the *Criminal Code* (Qld). The Court also considered whether it should apply the proviso itself, given that the Court of Criminal Appeal had not done so, and the limitations on the High Court's ability to scrutinise the evidence without prior assessment by the intermediate appellate court.
The High Court held that the trial judge's direction on "a probable consequence" was indeed wrong in law, as the term "probable" connotes a higher degree of likelihood than mere possibility or a real chance. However, despite this misdirection, the Court concluded that no substantial miscarriage of justice had occurred. The Court independently assessed the evidence, noting that the nature and extent of the injuries inflicted on the deceased compelled the conclusion that the perpetrator(s) intended at least to cause grievous bodily harm. The detailed admissions and observations of the first appellant regarding the actions of both appellants, including the second appellant's explicit instructions and direct use of a weapon, strongly supported their guilt of murder, irrespective of the flawed direction.
Consequently, in each matter, the High Court dismissed the appeals.
Orders
Orders of the court
In each matter, the appeal is dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
CJ, GUMMOW, HEYDON AND CRENNAN JJ
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
CJ, GUMMOW, HEYDON AND CRENNAN JJ
Each appellant has established that the summing up was wrong in law. The point raised by each appeal is thus to be decided in favour of each appellant. The question remains whether the appeals should be dismissed on the ground that "no substantial miscarriage of justice has actually occurred" within the meaning of s 668E(1A) of the Code.The proviso: general considerations An appellate court invited to consider whether a substantial miscarriage of justice has actually occurred is to proceed in the same way as an appellate court invited to decide whether a jury verdict should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty[80].[80]Weiss v The Queen (2005) 80 ALJR 444 at 454-455 [41] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ; 223 ALR 662 at 673-674. A statement of Keane JA in the Court of Appeal in this case provides a starting point. As a matter preparatory to explaining why the second appellant's appeal to the Court of Appeal on the ground that her conviction was unreasonable should be rejected, he said that the nature and extent of the injuries inflicted on the deceased compelled the conclusion that whoever inflicted them did so with the intention of at least doing grievous bodily harm to the deceased[81]. With respect, that is correct. It is now necessary to consider the evidence against each appellant. [81]R v Deemal-Hall, Darkan & McIvor [2005] QCA 206 at [10].The proviso: the first appellant In an initial interview with the police, the first appellant denied any involvement in causing the deceased's death. In a later interview he admitted to the police that while he had given the deceased a "hiding", and was not the only person who had done so, he had used only his bare hands and that it was the third appellant who had used the pickaxe handle. At a further interview he said that the second appellant had told him that she wanted the deceased bashed in the dark and wanted more help, and that the deceased had raped her daughter. He heard the second appellant tell the third appellant to get a weapon, and saw the third appellant go into his house and come out with the pickaxe handle and wearing steel-capped boots. He saw the second appellant hide the pickaxe handle in the van. He observed the deceased's reluctance to leave the van. Before the fight began, the second appellant took the pickaxe handle from the van and hid it behind a bush. She then told the third appellant to get it, and told the first appellant to hit the deceased. The first appellant punched the deceased four times. The deceased fell to the ground, and the first appellant, the third appellant and Bowen began kicking him in the presence of the second appellant. The second appellant called for someone to get the pickaxe handle and, when nobody did, she got it herself. With it she gave the deceased a couple of "good swings" in the back of the neck. The first appellant then departed as the deceased's blood spread "all over the place".