Darkan v The Queen

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.