EAGD v The State of Western Australia [No 2]
[2014] WASCA 68
•2 APRIL 2014
EAGD -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2014] WASCA 68
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 68 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:24/2013 | 19 FEBRUARY 2014 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 2/04/14 | |
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal on ground 1 refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | EAGD THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Unlawful killing under such circumstances as not to constitute murder The State alleged the appellant and a cooffender formed a common intention to prosecute an unlawful purpose, namely to engage in a drag race in their motor vehicles at high speed on a suburban street The State also alleged that in the course of prosecuting the unlawful purpose another motorist was unlawfully killed and that the offence was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose Trial before a judge alone without a jury Whether the verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported Whether the trial judge erred in determining that the unlawful killing was a probable consequence of the pursuit of the alleged unlawful common purpose |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(3)(a) Criminal Code (WA), s 8, s 280 |
Case References: | Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : EAGD -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2014] WASCA 68 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : FENBURY DCJ
File No : CC 1801 of 2011
Catchwords:
Criminal law - Appeal against conviction - Unlawful killing under such circumstances as not to constitute murder - The State alleged the appellant and a cooffender formed a common intention to prosecute an unlawful purpose, namely to engage in a drag race in their motor vehicles at high speed on a suburban street - The State also alleged that in the course of prosecuting the unlawful purpose another motorist was unlawfully killed and that the offence was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose - Trial before a judge alone without a jury - Whether the verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported - Whether the trial judge erred in determining that the unlawful killing was a probable consequence of the pursuit of the alleged unlawful common purpose
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Code (WA), s 8, s 280
Result:
Leave to appeal on ground 1 refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Ms L Petrusa SC
Solicitors:
Appellant : N R Barber Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
1 McLURE P: I agree with Buss JA.
2 BUSS JA: This is an appeal against conviction.
3 The appellant was convicted, after a trial in the Children's Court before Fenbury DCJ, on one count of having unlawfully killed Leonard Douglas Thomas under such circumstances as not to constitute murder, contrary to s 280 of the Criminal Code (WA) (the Code).
The general nature of the State's case at trial
4 The general nature of the State's case at trial was as follows.
5 The appellant and his co-offender, YH, engaged in a 'drag race' on Vahland Avenue, Willetton. The race culminated in a collision between the vehicle driven by YH and a vehicle driven by Mr Thomas, who died from injuries suffered in the collision.
6 The State's case against the appellant was based on s 8 of the Code. It was alleged that the appellant and YH had formed a common intention to prosecute an unlawful purpose, namely to engage in a drag race in their vehicles at high speed on Vahland Avenue. The State also alleged that in the course of prosecuting the unlawful purpose Mr Thomas was unlawfully killed and that offence was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.
7 In other words, on the State's case:
(a) the appellant and YH formed a common intention wilfully to drive in a manner (involving excessive speed) that was inherently dangerous or that was, having regard to all the circumstances, dangerous to the public;
(b) in the course of the appellant and YH wilfully driving in that manner, YH committed an offence, namely the unlawful killing of Mr Thomas; and
(c) the offence was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.
8 Accordingly, the appellant was culpable with YH for Mr Thomas' death.
9 YH pleaded guilty to the offence of manslaughter. Later, he was a State witness at the appellant's trial. YH received a discount on his sentence for his cooperation with the authorities.
The general nature of the appellant's case at trial
10 The appellant did not give or adduce any evidence at the trial.
11 Defence counsel accepted that YH had been criminally negligent. However, defence counsel maintained that the appellant was not guilty. First, it was argued that the State had failed to establish the formation of the alleged common intention to prosecute an unlawful purpose. Secondly, in the alternative, it was argued that if the requisite common intention had been established then the drag race had concluded, and the common intention had ended, before the vehicle driven by YH collided with the vehicle driven by Mr Thomas, and YH's dangerous driving was the sole cause of the collision and the unlawful killing of Mr Thomas (ts 238 - 239).
The State's allegations as to the relevant facts and circumstances
12 According to the State, the relevant facts and circumstances were as follows.
13 On 4 February 2011:
(a) the appellant was driving a black 4-cyclinder Subaru Impreza sedan owned by his mother; and
(b) YH was driving a V8 Holden Caprice sedan owned by his mother.
14 The appellant and YH were aged 16 and each of them was the holder of a learner's permit to drive.
15 It was not in dispute that, before 4 February 2011, the appellant and YH had had discussions about whose vehicle was faster and who was the better driver.
16 On the morning of 4 February 2011, the vehicle driven by YH had a flat tyre. The appellant drove YH to premises at the Southlands Shopping Centre where the tyre could be repaired and replaced. The State alleged that during this journey there was a discussion between them about having a race later that day.
17 After the tyre had been replaced, the appellant, who was driving his vehicle, followed YH, who was driving his vehicle. They travelled along Vahland Avenue, which is a dual carriageway, until YH arrived at the traffic control signals located where Vahland Avenue forms a T-junction with Collins Road. Vahland Avenue is the continuing road and Collins Road is the terminating road. Although the signals facing YH were green, YH slowed his vehicle, almost to a stop, in the right-hand lane. The State alleged that at this point the appellant, who had been travelling behind YH, but in the left-hand lane, suddenly accelerated his vehicle through the intersection, past YH, and along Vahland Avenue. YH, in the belief that the race had started, accelerated his vehicle in the right-hand lane along Vahland Avenue, at high speed, with a view to catching and overtaking the appellant.
18 Vahland Avenue forms a T-junction with Apsley Road. Vahland Avenue is the continuing road and Apsley Road is the terminating road. There is a crest in Vahland Avenue just before this T-junction. As the appellant and YH approached the crest, YH caught up to and overtook the appellant. As YH travelled over the crest, he saw the vehicle driven by Mr Thomas in front of him. Mr Thomas had been travelling along Apsley Road and had stopped at the intersection with Vahland Avenue. He was in the process of turning right into Vahland Avenue. This involved crossing the carriageway in which YH was travelling. YH braked but was unable to avoid a collision. The State alleged that the appellant saw the collision, applied his brakes and turned left from Vahland Avenue into Apsley Road. He drove along several streets before his passenger, Hammard Chaudhry, insisted he stop. The appellant and Mr Chaudhry returned to the scene of the collision. They spoke to YH and then went home.
19 An examination of YH's vehicle revealed that the speedometer was stuck at 130 km an hour. The State's case was that the speed at which YH's vehicle was travelling, on a busy road and at a time when parents were collecting their children from a school in Apsley Road, was the direct cause of the collision.
The State's witnesses at the trial
20 At the trial the prosecutor called the following witnesses:
(a) Kimberley Moffatt;
(b) Alexander McMillan;
(c) Michaela MacDonald;
(d) Ahmed El-Mobeid;
(e) Peter Tucker;
(f) Mr Chaudhry;
(g) Frances Sinclair;
(h) YH; and
(i) Detective Sergeant David Byrne.
The trial judge's findings of fact in his reasons for decision
21 The trial judge made the following findings of fact in his reasons for decision:
(a) Before 4 February 2011 there had been conversations between YH and the appellant about whose vehicle was faster and who was the better driver, but no race had occurred between them before 4 February 2011 and there had never been an agreement to race on a particular day (ts 278).
(b) On 4 February 2011, before they left the Southlands Shopping Centre, there was a conversation between YH and the appellant about having a race, but it was non-specific as to when and where the race would occur (ts 278).
(c) On no occasion was there a conversation that was 'specifically focused on racing at a particular time and place' (ts 278).
(d) The appellant drove 'right behind' YH from the time they left the Southlands Shopping Centre to the point where YH stopped in the right-hand lane at the traffic control signals at the intersection of Vahland Avenue and Collins Road, despite the signals facing YH being green (ts 281).
(e) YH stopped at the traffic control signals until he saw the appellant accelerate past him through the intersection. The appellant then accelerated up Vahland Avenue. YH responded by accelerating his vehicle. YH pushed the accelerator 'flat to the floor', pursued the appellant and passed him (ts 281 - 282).
(f) The distance from the intersection of Vahland Avenue and Collins Road to the intersection of Vahland Avenue and Apsley Road was about 700 m (ts 281).
(g) After leaving the intersection of Vahland Avenue and Collins Road, the appellant was, in the early stages, 'well ahead of [YH] going up Vahland Avenue', either because the appellant accelerated first or because YH had to slow and pass a car in front of him (ts 279).
(h) YH reached very high speeds on Vahland Avenue before the collision. YH had been travelling at between 120 and 150 km an hour. The speedometer on his vehicle showed 130 km an hour 'at the loss of power to the gauges on impact' (ts 281 - 282).
(i) The appellant's vehicle was 'alongside' YH's vehicle 'somewhere near … the crest' in Vahland Avenue, 'perhaps 100 metres, 120 metres or something like that' before the intersection of Vahland Avenue and Apsley Road (ts 282).
(j) Mrs Sinclair, an office manager who was driving to her children's school and whose evidence his Honour accepted, turned her vehicle from the right-hand turning lane on Vahland Avenue, across the carriageway on which the appellant and YH were travelling, and into Apsley Road immediately before the collision. As soon as her vehicle cleared the intersection, 'she heard a very loud close bang behind her'. As soon as she heard the bang, 'she immediately decided to pull over, then she saw [a bumper bar flying through the air] and then she saw [the appellant's vehicle] in her rear vision mirror and [the appellant] passed her and accelerated away' (ts 282 - 283).
(k) The proximity of the appellant's vehicle to the point of impact between YH's vehicle and Mr Thomas' vehicle was such that Mrs Sinclair noted the colour and registration details of the appellant's vehicle (ts 283).
(l) The appellant's vehicle was 'plainly quite close behind' YH's vehicle (ts 283). Mrs Sinclair's evidence, which was 'very impressive', established that the appellant was 'close enough at the end of things, at the collision to suggest [the appellant] pretty much kept up with or wasn't far behind [YH's vehicle] at all after he had passed [the appellant's vehicle]' (ts 283).
(m) Mrs Sinclair's evidence contradicted defence counsel's suggestion that the appellant had slowed his vehicle and withdrawn from the common intention to prosecute the unlawful purpose. The notion that the appellant had withdrawn from the common purpose was not credible. However, even if the appellant did withdraw, 'it was far too late'. The 'momentum of the prosecution of the illegal common purpose was always going to carry through the last 100 metres' (ts 283 - 284).
(n) Mr Chaudhry was 'a believable witness' (ts 295).
(o) His Honour said that the notion of 'racing' in this context was 'not to be too finely judged'. It did not require a standing start or a line across the road. All it required was that 'two drivers are or start trying to keep ahead of each other competing' (ts 296). His Honour elaborated by reference to the evidence in the case:
Evidence seems to me strongly to suggest that [the appellant] got the jump on [YH] at the lights, [the appellant was] speeding, [YH] had the more powerful car, [YH] caught up to [the appellant] and passed [him] and all of this over 600 metres and that in my book is racing (ts 296).
(p) In all the circumstances, and especially having regard to the evidence of YH, Mrs Sinclair and Mr Chaudhry, his Honour was satisfied that YH and the appellant were racing each other (ts 297).
(q) His Honour did not accept defence counsel's suggestion that the appellant had raced briefly, but had withdrawn or was merely driving at his own speed and not racing. His Honour said this suggestion was not supported by the evidence and was excluded beyond reasonable doubt 'as a reasonable theory consistent with innocence' (ts 297).
(r) The appellant 'provoked or dared or challenged' YH, and YH responded (ts 297 - 298).
(s) His Honour reiterated that there had been some discussion during the previous weeks from time to time and on the very morning about racing, about which of YH's vehicle and the appellant's vehicle was faster and, in general terms, discussion about settling the issue by having a race (ts 298).
(t) The appellant had seen that YH was stationary at the intersection of Vahland Avenue and Collins Street, the lights being or just having turned green. The appellant drove his vehicle 'such that [he] accelerated through the lights at speed and accelerated up Vahland Avenue and got … the jump on [YH]' (ts 298).
(u) His Honour did not accept YH's estimate that the appellant accelerated through the intersection at 90 km an hour, but his Honour accepted that the appellant passed YH under acceleration and this was 'a challenge unspoken' and YH responded (ts 298).
(v) His Honour was in no doubt that the appellant, 'by the implicit challenge in jumping the lights at Collins [Road], in the light of all that had gone before on that day and earlier, sought to burn off [YH] … and [YH] did what [the appellant] knew he would. [YH] chased [the appellant], raced [him], passed [him]'. His Honour said 'that is racing, and more particularly a common intention to drive recklessly, or at the very least dangerously' (ts 299).
(w) His Honour addressed the question of whether the unlawful killing of Mr Thomas was a probable consequence of the pursuit of the unlawful purpose, as follows:
The question is whether the killing of a person that occurred was an offence of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose of racing at high speed on a suburban street at school break-up time. The matter is to be determined objectively. In my view, the killing of another person, whether motorist, passenger or pedestrian, could well happen when this conduct occurs. In my view, therefore, it is a probable consequence, and the requirements of section 8 are met (ts 299).
22 The trial judge referred to YH and his evidence on numerous occasions in his Honour's reasons for decision.
23 In particular:
(a) His Honour noted that YH had pleaded guilty to manslaughter and had been sentenced to detention (ts 275).
(b) At the time of the collision, the appellant and YH had known each other for some years. They were friends (ts 277 - 278).
(c) YH's sentence had been discounted by 30% upon his undertaking to give satisfactory evidence at the appellant's trial. He knew that if he did not fulfil the undertaking he could be resentenced (ts 280).
(d) His Honour directed himself that he could act on YH's evidence if he was satisfied beyond reasonable doubt as to its truth and accuracy. His Honour also directed himself that 'it is considered dangerous to do so unless there is evidence that independently supports or corroborates [YH's] evidence' and that he should be 'cautious in accepting [YH's] evidence' (ts 280).
(e) His Honour said there was evidence which was capable of corroborating YH's evidence, but it was for his Honour to decide whether he accepted the evidence and whether he regarded it as corroboration in fact (ts 280).
(f) His Honour said that YH 'did not seem to hold back at all in his account and in particular his evidence of what [the appellant] did'. His Honour was of the view that YH felt animosity towards the appellant (whom his Honour described as a former friend). It was his Honour's 'very strong impression that [YH's] demeanour of hostility towards [the appellant] came from … a strong sense of grievance he feels about [the appellant's] role in the matter which can only be … that [YH] feels that [the appellant] provoked or challenged him into the criminally negligent behaviour he engaged in'. His Honour said that, in any event, there was 'an abundance of cogent evidence that supports [YH's] evidence' (ts 280 - 281).
(g) His Honour dealt with the essence of YH's evidence-in-chief and the challenges to his evidence-in-chief made by defence counsel in cross-examination, as follows:
The gist of [YH's] evidence-in-chief was that you threw down the challenge you both had discussed generally and got the jump on him at the Collins Street lights and that he set off in pursuit of you up to a very high speed and lost control but that he was trying to catch up with you as you well knew and caught up … just before the slope in Vahland [Avenue] and that collision was inevitable. But that from his point of view it was your conduct that triggered the relevant events. In cross-examination of [YH], [defence] counsel challenged him about his estimates of the speed of you going through the Collins Street lights, suggesting it was more 70 or 75 and not 90. I must say in the scheme of things I … don't think it makes much difference really. The only other substantive challenge of [YH's] evidence was his evidence that your Subaru was alongside of his V8 Statesman immediately prior to the collision. Counsel asserted that this could not be so otherwise the Subaru could not have taken the left-hand turn into Apsley Road that you did because you would have been going far too fast. [YH] stuck to his evidence about this, observing or alleging that you had braked. I think it improbable the Subaru was alongside the V8 at this moment just before impact but it was, in my view, alongside somewhere near at the crest in Vahland [Avenue], perhaps 100 metres, 120 metres or something like that earlier which at the speeds we've been talking about is two or three seconds earlier. There is evidence that corroborates [YH's] account about where the Subaru was at impact and I'll turn to that and it comes from the witness, Frances Sinclair; a sensible mother of school aged children and [an] administrative officer of 42 years of age (ts 282).
24 The appellant relies on two grounds of appeal.
25 Ground 1 alleges that the trial judge erred 'in drawing the inference that [YH] and the appellant were engaged in the common purpose of driving recklessly when, in all the circumstances, it was reasonably open to conclude otherwise'.
26 The particulars of ground 1 assert that:
(a) it was reasonably open to his Honour to conclude that YH and the appellant did not agree to 'drag race' and that YH was acting independently of the appellant; and
(b) it was not reasonably open to his Honour to conclude that Mr Thomas' death was a probable consequence of the appellant having participated in the alleged common enterprise.
27 At the hearing of the appeal the court pointed out to counsel for the appellant that his drafting of ground 1 was odd. After prompting from the court, counsel said ground 1 was intended to allege that the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. Counsel argued that an inference that YH and the appellant were 'drag racing' was not the only reasonable inference available on the evidence.
28 Counsel for the State was not prejudiced by counsel for the appellant's reformulation of ground 1. I will consider the merits of the ground as reformulated and developed at the hearing.
29 Ground 2 alleges that the trial judge erred in determining that the unlawful killing was a probable consequence of the pursuit of an unlawful common purpose, namely 'racing at high speed on a suburban street at school break-up time'.
30 The particulars of ground 2 assert that his Honour failed to make an 'adequate distinction' as to whether the death was a 'probable consequence' or a 'likely consequence' of the unlawful common purpose.
31 On 31 August 2013, Mazza JA granted leave to appeal on ground 2 and referred the application for leave to appeal on ground 1 to the hearing of the appeal.
Ground 1: this court's approach to a ground of appeal which alleges that a verdict of guilty, on which a conviction is based, is unreasonable or cannot be supported
32 By s 30(3)(a) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
33 In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act):
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).
- See also Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450.
34 In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:
[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)
- See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300[41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
35 It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
36 However, this court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ); SKA [13].
Ground 1: the relevant evidence at trial
37 The evidence at trial relevant to ground 1 was as follows.
38 Ms Moffatt was aged 15 as at 4 February 2011. She was a passenger in YH's vehicle when the collision occurred. On that day, at the Southlands Shopping Centre, Ms Moffatt overheard a conversation about a drag race but she was 'not quite sure' who was speaking (ts 11). She described the journey along Vahland Avenue which culminated in the collision.
39 Ms Moffatt said in examination-in-chief:
(a) YH stopped at the traffic control signals at the intersection of Vahland Avenue and Collins Road because the signals facing YH were red. At the intersection the appellant was in the left-hand lane and YH was in the right-hand lane (ts 15).
(b) After the signals turned green, the appellant and YH 'sped off' (ts 15).
(c) The appellant 'went first'. YH responded by '[putting] his foot flat on the accelerator'. He tried 'to speed up to catch up with [the appellant]' (ts 15).
(d) YH continued to accelerate his vehicle. He went past the appellant. She was 'not quite sure' where that occurred (ts 16).
(e) When YH's vehicle passed the crest and was approaching the intersection of Vahland Avenue and Apsley Road, she 'saw … a car come out' and then the crash occurred. She did not see the appellant's vehicle at that point. She did not 'really … remember' any events after the crash (ts 16).
40 Ms Moffatt gave evidence in cross-examination that:
(a) She had no information to suggest that the appellant and YH had been in a drag race before 4 February 2011 (ts 20).
(b) YH came to a 'complete stop' at the intersection of Vahland Avenue and Collins Road. The appellant also came to a 'complete halt' at the intersection (ts 22 - 23).
(c) The appellant 'took off reasonably quickly' when the traffic control signals turned green. YH was 'speeding from the traffic lights'. YH caught up to the appellant 'fairly quickly' and 'whizzed past' him. At the end YH's vehicle was travelling 'much faster' than the appellant's (ts 23 - 24).
(d) She could not remember whether YH passed the appellant before or after the crest (ts 24).
(e) She did not 'really' see the appellant's vehicle after YH's vehicle passed him (ts 25).
41 Mr McMillan was aged 15 as at 4 February 2011. He was a passenger in YH's vehicle when the collision occurred.
42 Mr McMillan said in evidence-in-chief:
(a) When YH's vehicle arrived at the intersection of Vahland Avenue and Collins Road the traffic control signals were red. YH stopped his vehicle in the right-hand lane at the lights. The appellant stopped his vehicle in the left-hand lane at the intersection after YH's vehicle had stopped (ts 32).
(b) After the signals turned green the appellant 'took off'. YH was unable to 'take off' because there was a brown car in front of him. A 'little bit' down the road, about 15 m, YH swerved around the brown car and 'took off down Vahland' (ts 32).
(c) The appellant's vehicle 'took off pretty fast' after the signals turned green and YH's vehicle was 'going fast'. As YH's vehicle 'got to Apsley [Road], [the appellant] was slowing down to make the turn [into Apsley Road] and [YH's vehicle] flew past [the appellant]' (ts 32 - 33).
(d) YH's vehicle then 'crashed into another car' (ts 33).
43 Mr McMillan gave evidence in cross-examination that:
(a) When YH's vehicle arrived at the intersection of Vahland Avenue and Collins Road the traffic control signals were red. YH stopped at the intersection (ts 37).
(b) The appellant stopped at the intersection. When he stopped the signals were red. He 'only took off when the lights went green' (ts 38).
(c) He clarified that he could not 'really remember' whether the appellant turned left into Apsley Road before YH's vehicle crashed into the other car. That was 'just what [he had] been told' (ts 39).
(d) He remembered passing the appellant's vehicle but was unable to remember where this occurred or how much time elapsed between YH passing the appellant's vehicle and YH colliding with the other car (ts 39 - 40).
44 Ms MacDonald was aged 16 as at 4 February 2011. She was a passenger in YH's vehicle when the collision occurred.
45 Ms MacDonald said in evidence-in-chief:
(a) When YH's vehicle arrived at the intersection of Vahland Avenue and Collins Road the traffic control signals were red. YH stopped his vehicle in the right-hand lane at the lights. At that point the appellant was 'coming up … behind [them]' in the left-hand lane. As the appellant approached the intersection, the signals turned green and both vehicles 'went off'. The appellant was in front. YH accelerated. YH's manner of acceleration was 'pretty heavy … full on and straight, like, down'. The appellant's acceleration of his vehicle was 'pretty fast' (ts 48 - 50).
(b) As both vehicles travelled along Vahland Avenue, YH 'sped off and got in front of' the appellant (ts 50).
(c) When YH's vehicle arrived at the crest, YH 'started to' apply the brakes. Then the accident happened (ts 51).
(d) She saw the appellant's vehicle 'just out of the side of [her] eye' turn left into Apsley Avenue (ts 51 - 52).
(e) She was 'pretty sure' that the appellant was 'slowing down' as he approached the red signal at the intersection of Vahland Avenue and Collins Road, and when the signal turned green 'he went off' (ts 54).
46 Ms MacDonald gave evidence in cross-examination that:
(a) The appellant was travelling 'much quicker' than YH as the appellant went through the intersection of Vahland Avenue and Collins Road (ts 60).
(b) The appellant's vehicle '[got] some distance in front' after traversing the intersection while another car was blocking YH's way (ts 60).
(c) After overtaking the other car that was in his way, YH '[floored] the accelerator' (ts 60).
(d) YH caught the appellant and passed him (ts 60). This happened 'just before the crest' (ts 60). At the time it seemed YH was 'going much faster than [the appellant] in order to pass him' (ts 60).
(e) YH did not slow down until after he had 'got over the crest' and saw the car with which he collided (ts 60).
(f) She saw the appellant's vehicle turn into Apsley Road 'just before the crash' (ts 61).
(g) She could have been mistaken in her belief that she saw the appellant's vehicle turn left into Apsley Road before YH's vehicle crashed into the other car. She accepted that the vehicle she saw turning may not have been the appellant's (ts 52).
47 Ms MacDonald said, in answer to a question from the trial judge, that after leaving the intersection of Vahland Avenue and Collins Road the appellant's vehicle was not at any stage more than about 15 m in front of YH's vehicle (ts 63).
48 Mr El-Mobeid was aged 15 as at 4 February 2011. He was present at the Southlands Shopping Centre on that day and helped YH arrange for his flat tyre to be repaired (ts 66 - 67). He was not a passenger in the appellant's vehicle or YH's vehicle when the collision occurred (ts 70).
49 Mr El-Mobeid said in evidence-in-chief that before 4 February 2011 he was present when the appellant and YH had spoken about cars (ts 69). He said they spoke about 'whose car would be quicker and whose car had more power and things like that' (ts 70).
50 Mr El-Mobeid gave evidence in cross-examination that:
(a) before 4 February 2011 there were often discussions between the appellant and YH about which of them was the better driver and who was likely to win if they had a drag race (ts 73);
(b) he had heard about the collision in which YH was involved on 4 February 2011, but before that time he had not heard of the appellant and YH having raced each other even though they had 'talked about it lots and lots and lots' (ts 74).
51 During his cross-examination Mr El-Mobeid had the following exchange with defence counsel:
ELLIOTT, MR: … No one said, 'We'll have a race today,' did they---On the occasion, yeah, there was, on the day.
I see---On just - way before that there wasn't but on - on the day there was.
Did they say where they were going to have a race---No. It was just a - if he brings - if we both have the car at the same time, they will.
Okay---Sort of thing, yeah.
Is it correct that there was no arrangement for a particular time - - ----(Indistinct)
- - - or a particular place or a particular type of race------No.
Or a particular type of race---Nuh.
…
And they didn't say, 'We'll do it at this time.' Is that correct---Yep.
And they didn't say, 'We're going to have a drag race or a circuit race or whatever type.'
…
Is that correct? Yes.
…
All right. So that was a discussion in general terms about the vehicles---Yep.
Is that correct---(No audible answer)
Not about the rules for a specific race that was to be held at some point in time---Yep (ts 74 - 75).
52 Mr Tucker saw the collision between YH's vehicle and Mr Thomas' vehicle. He had travelled in his vehicle along Apsley Road and was waiting at the T-junction with Vahland Avenue (ts 76 - 77).
53 Mr Tucker said in evidence-in-chief:
(a) when he first saw YH's vehicle travelling down the slope from the crest in Vahland Avenue he did not notice whether there were any other vehicles coming down the slope (ts 79);
(b) when he first saw YH's vehicle it was about 35 to 50 m from the point of the collision (ts 83).
54 Mr Tucker gave evidence in cross-examination that:
(a) when he first saw YH's vehicle he did not notice any other vehicle: he was 'glued to [YH's vehicle] because once [he] saw it and [Mr Thomas' vehicle], [he] just knew what was going to happen' (ts 84);
(b) if there had been a car 'right next to' YH's vehicle he would have seen it because he would have thought Mr Thomas' vehicle was 'going to get hit by two cars' (ts 85);
(c) he did not remember seeing a black Subaru sedan (ts 85);
(d) if a black Subaru sedan had been 'alongside' YH's vehicle he would have seen it, but he could not say that he would have seen it if it had been 'a little way behind and it was travelling quickly' because '[his] eyes were glued on [YH's vehicle and Mr Thomas' vehicle]' (ts 85);
(e) there was certainly no vehicle 'immediately alongside' YH's vehicle (ts 86).
55 Mr Chaudhry was aged 15 as at 4 February 2011. He was a passenger in the appellant's vehicle when the collision occurred.
56 Mr Chaudhry said in evidence-in-chief:
(a) As the appellant's vehicle approached the traffic control signals at the intersection of Vahland Avenue and Collins Road the signals were green (ts 92).
(b) Before the intersection YH's vehicle was ahead of the appellant's vehicle. Although the signals were green, YH's vehicle slowed, not to a dead stop but it was 'rolling really slowly', at the intersection. The appellant did not stop at the intersection. YH was in the right-hand lane and the appellant was in the left-hand lane (ts 92 - 93).
(c) Mr Chaudhry told the appellant 'he [did not] have a chance in winning because … [YH has] got a completely bigger engine'. The appellant replied 'yeah, I know'. The appellant then accelerated his vehicle and 'flew past' YH at the intersection (ts 93).
(d) After the appellant had traversed the intersection, Mr Chaudhry 'looked back' and saw YH's vehicle (ts 93).
(e) The appellant accelerated 'full on' through the intersection. When Mr Chaudhry looked back after the appellant had traversed the intersection he observed that YH's vehicle was 'gaining' (ts 94).
(f) After YH's vehicle traversed the intersection, it overtook a car being driven by a third person. Both the appellant's vehicle and YH's vehicle continued to drive along Vahland Avenue towards Apsley Road. Mr Chaudhry was 'pretty sure' that YH's vehicle caught up to the appellant's vehicle before the crest, and YH crashed as the appellant came down from the crest towards Apsley Road (ts 95).
(g) Mr Chaudhry estimated that the appellant's vehicle was travelling at '100, 110, something like that' and YH's vehicle was travelling at '130, 140 and faster than that' (ts 95).
(h) Mr Chaudhry estimated that when the collision occurred the appellant's vehicle was about 20 to 30 m from the point of the collision. When the collision occurred Mr Chaudhry told the appellant to turn left (ts 96).
(i) On the day of the collision Mr Chaudhry was present when the appellant and YH were having discussions about their vehicles. Mr Chaudhry said the appellant and YH were 'talking about racing and then they said they'd meet here, like, you know, go and do it now after school. They planned to do it after school' (ts 99 - 100).
57 Mr Chaudhry gave evidence in cross-examination that:
(a) When the appellant approached the traffic control signals at the intersection of Vahland Avenue and Collins Road he was travelling faster than 60 or 70 km an hour. As the appellant went through the intersection, he got a 'major head start' on YH (ts 108).
(b) YH caught the appellant somewhere along Vahland Avenue and overtook him (ts 108).
(c) As YH overtook he was travelling much faster than the appellant (ts 108).
(d) The appellant had not started to slow down when YH overtook him. The appellant did not slow down until the collision occurred (ts 108).
(e) The appellant braked firmly 'as he was going down from [the] crest'. From the crest to Apsley Road, the appellant was able to slow his vehicle and turn left into Apsley Road without leaving 'any skid marks or screech marks or anything of that sort' (ts 109).
(f) As the appellant passed over the crest 'he wasn't going at it … like a really ridiculously fast speed that he couldn't stop without slamming. He was going at a speed that he could stop … which is pretty high, like, a 100 plus or something like that' before he slowed down (ts 109).
(g) YH was going a lot faster than the appellant at that stage. YH was 'probably going 180 plus' before he applied his brakes (ts 110).
(h) Mr Chaudhry only told the appellant to turn left into Apsley Road 'after [YH] flew past and crashed' (ts 111).
(i) Mr Chaudhry did not think that there was a 'specific arrangement' between the appellant and YH to have a race on the day in question. He thought it was 'more of a spontaneous thing' (ts 115). The following exchange then occurred between defence counsel and Mr Chaudhry:
All right---It wasn't planned over, like, this many days or we're going to have it at this date. I - I think it was just both people had their cars at school that day. They were - they were - they were there. They were just, like, 'Yeah, we got a (indistinct) run the race'.
Now - - ----What - what day was this? On a - what - - -
This was a Friday---Yeah, it was a Friday. That's probably why.
Now, my - my next question is in - in whatever discussions were held before this, did anyone say, 'Let's go to such-and-such a road and we'll do it there'---They said, 'Let's race'.
Right---And then we were going off to race, but I don't remember if - because I wasn't around then the whole time. I don't remember if they said this location is the location.
Okay. Did you hear anyone say, 'Let's go to such-and-such a place. Let's go to Vahland Av. Let's go to Collins Road'---I'm pretty sure someone said go to Vahland (ts 115 - 116).
59 Mrs Sinclair said in evidence-in-chief:
(a) The speed limit on Vahland Avenue was 70 km an hour (ts 130).
(b) Just after her vehicle cleared the intersection of Vahland Avenue and Apsley Road, she heard 'a really loud bang'. She looked in her rear-view mirror and saw 'a bumper flying in the air'. She veered to the left of Apsley Road to stop and park her vehicle. In the process of doing that she looked again in her rear-view mirror and saw the appellant's vehicle on Apsley Road (ts 130).
(c) Mrs Sinclair estimated that the time between when she first looked in her rear-view mirror and when she next looked in her rear-view mirror was 'probably two to five [seconds] at the maximum' (ts 130).
(d) The appellant's vehicle passed her in Apsley Road. It was 'accelerating fairly quickly to get to the speed limit' (ts 132).
60 Mrs Sinclair estimated in cross-examination that the distance from the crest to the intersection of Vahland Avenue and Apsley Road was about 100 m (ts 135). The following exchange occurred between Mrs Sinclair and defence counsel:
ELLIOTT, MR: … Into Apsley Road when you heard the bang. You just cleared it---I literally just cleared the intersection.
And - and by that, if one were to draw an imaginary line from - along the edge of Vahland Avenue you'd just gone past that line into Apsley Road---I think so.
And you're talking about the tail-end of your vehicle, I take it---Yes.
And how quickly after you heard the bang do you think you saw the bumper flying---I looked straight away. So a second, half a second.
All right. A second or half a second. And when you saw the bumper how high up in the air was it---It was quite high up. It was arcing from the north side of Vahland over to the south side.
All right. I follow you, yes. And when you saw - when you saw that bumper flying did you see any cars in your rear vision mirror---No.
…
Is there some small lapse of time between seeing the bumper in your rear vision mirror and thinking, 'Gee, I'd better pull over'---Well, milliseconds maybe. As soon as I saw it I went into that kind of adrenalin mode where I wanted to stop immediately to make sure that I wasn't involved.
All right. Is it fair to say that - that there must have been some - some thinking time to allow you to process what you'd just seen? There's a bang. There's something flying through the air. 'Gosh, I'd better pull over'---Yes, but not a lot.
Okay. Might - might it be a second or a couple of seconds---I don't think it would be a couple of seconds. I think it was pretty close to under a second.
Okay. All right. And then you've indicated---Yes (ts 135 - 136).
61 YH said in evidence-in-chief:
(a) When he approached the traffic control signals at the intersection of Vahland Avenue and Collins Road they were green. Nevertheless, he came to a complete stop at the intersection. He was in the right-hand lane on Vahland Avenue (ts 154).
(b) The appellant was travelling behind him. YH saw the appellant was approaching the intersection 'at a pretty high speed' in the left-hand lane. YH estimated that the appellant passed him at the intersection, while the signals were still green, at a speed of about 90 km an hour (ts 154).
(c) The appellant accelerated past him in the left-hand lane. The speed limit on Vahland Avenue at that time was 70 km an hour (ts 155).
(d) Before 4 February 2011, YH and the appellant had discussed 'a couple of times' whose car was faster. They 'agreed to have a race, but there was never a date set or a time set' (ts 155).
(e) On 4 February 2011, when the appellant and YH went to collect a tyre for YH's vehicle that was being repaired, they 'talked about having a race'. YH could not recall exactly what was said (ts 155 - 156).
(f) After the appellant accelerated past YH at the intersection, YH 'accelerated to the floor'. He 'floored the accelerator' (ts 156).
(g) YH estimated that in travelling along Vahland Avenue after the intersection of Vahland Avenue and Collins Road he 'got up to 150' kilometres an hour (ts 160).
(h) When he noticed Mr Thomas' vehicle, YH 'hit the brakes' but before then YH had accelerated continuously and had not reduced his speed (ts 160).
(i) YH saw the intersection of Vahland Avenue and Apsley Road as he came over the crest (ts 162).
(j) At the point of the collision the appellant's vehicle was 'just right behind me' (ts 163).
(k) When YH accelerated his vehicle he intended to race the appellant or, at least, catch up to him (ts 166 - 167).
62 YH gave evidence in cross-examination that:
(a) YH stopped at the traffic control signals at the intersection of Vahland Avenue and Collins Road, even though the signals were green, because he thought the appellant would stop 'so we can discuss what we were going to do' (ts 173).
(b) However, the appellant did not stop. He drove through the intersection at about 90 km an hour (ts 173 - 174).
(c) It took YH some time to accelerate to 110 km an hour (ts 175).
(d) YH passed the appellant at the crest. YH probably got to 110 km an hour about 100 m before the crest (ts 175 - 176).
(e) After YH accelerated to 110 km an hour, he continued accelerating (ts 176).
(f) When YH braked his vehicle skidded (ts 176).
(g) YH passed the appellant at the crest. At that stage YH was travelling faster than the appellant (ts 180).
63 Detective Sergeant Byrne investigated the circumstances of the collision. He estimated that the distance from the intersection of Vahland Avenue and Collins Road to the intersection of Vahland Avenue and Apsley Road was about 650 m (ts 198 - 199).
Ground 1: its merits
64 My examination of the trial record does not require the conclusion that the trial judge should have entertained a doubt as to whether:
(a) the appellant and YH had formed a common intention to prosecute an unlawful purpose, namely to engage in a drag race in their vehicles at high speed on Vahland Avenue; or
(b) the unlawful killing of Mr Thomas was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.
65 His Honour was entitled to reject the appellant's defence and be satisfied beyond reasonable doubt that:
(a) the appellant and YH had formed a common intention to engage in a drag race in their vehicles at high speed on Vahland Avenue;
(b) YH was not, at any material time, acting independently of the appellant; and
(c) the unlawful killing of Mr Thomas was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.
66 My reasons for these opinions are as follows.
67 At the material time the speed limit on Vahland Avenue was 70 km an hour.
68 The trial judge relied on a range of evidence including the evidence of Mr Chaudhry, YH and Mrs Sinclair.
69 Mr Chaudhry, who was a passenger in the appellant's vehicle at the time of the collision, gave evidence that while there had been discussions between the appellant and YH prior to 4 February 2011 about a race to ascertain whose vehicle was faster, the race on 4 February 2011 was 'more of a spontaneous thing' because the appellant and YH had their vehicles at school that day (ts 115). Mr Chaudhry gave evidence that '[t]hey said "Let's race"' and then 'we were going off to race' (ts 115). He was 'pretty sure' someone said 'go to Vahland' (ts 116). Mr Chaudhry recounted that, as the appellant was driving to Vahland Avenue, he told the appellant that the appellant could not beat YH in a race.
70 Mr Chaudhry said in cross-examination that the appellant was travelling at more than 60 or 70km an hour when he approached the intersection of Vahland Avenue and Collins Road. Mr Chaudhry rejected defence counsel's proposition that the appellant had already started to slow down when YH overtook him. According to Mr Chaudhry, the appellant did not slow down until the collision occurred. Mr Chaudhry estimated that the appellant was travelling at '100 [kilometres an hour] plus or something like that' before he slowed down and YH was 'probably going 180 [kilometres an hour] plus' before he applied his brakes (ts 109 - 110).
71 His Honour said in his reasons for decision that Mr Chaudhry was 'a believable witness' (ts 295).
72 YH gave evidence that before 4 February 2011 he and the appellant had discussed 'a couple of times' whose car was faster, and they 'agreed to have a race' but without a date or time being set (ts 155). YH also gave evidence that on 4 February 2011, when the appellant and YH went to collect a tyre for YH's vehicle that was being repaired, they 'talked about having a race', although YH could not recall exactly what was said (ts 155 - 156). YH said he stopped at the traffic control signals at the intersection of Vahland Avenue and Collins Road, even though the signals were green, because he thought the appellant would stop 'so we can discuss what we were going to do' (ts 173).
73 His Honour directed himself appropriately in relation to the need for caution before he accepted YH's evidence. There was, however, an abundance of evidence, which his Honour accepted, that supported YH's account of events in numerous relevant respects.
74 The evidence of Mrs Sinclair, who his Honour said was a very impressive witness, indicated that the appellant was travelling very close behind YH, and that YH had been travelling at a very high speed, before the collision occurred and the appellant applied his brakes to enable him to turn left into Apsley Road.
75 His Honour found that:
(a) the appellant accelerated past YH at the intersection of Vahland Avenue and Collins Street;
(b) the appellant then accelerated up Vahland Avenue;
(c) the distance from the intersection of Vahland Avenue and Collins Road to the intersection of Vahland Avenue and Apsley Road was about 700 m;
(d) after leaving the intersection of Vahland Avenue and Collins Road, the appellant was, in the early stages, well ahead of YH, either because the appellant accelerated first or because YH had to slow and pass a car in front of him;
(e) YH had been travelling at between 120 and 150 km an hour on Vahland Avenue before the collision;
(f) the appellant's vehicle was 'alongside' YH's vehicle 'somewhere near … the crest' in Vahland Avenue, 'perhaps 100 metres, 120 metres or something like that' before the intersection of Vahland Avenue and Apsley Road (ts 282);
(g) the appellant, by his conduct at the intersection of Vahland Avenue and Collins Road, 'provoked or dared or challenged' YH, and YH responded (ts 297 - 298); and
(h) the appellant, 'by the implicit challenge in jumping the lights at Collins [Road], in the light of all that had gone before on that day and earlier, sought to burn off [YH], and [YH] did what [the appellant] knew he would. [YH] chased [the appellant], raced [him], passed [him]' (ts 299).
76 The trial judge was correct in finding, principally on the evidence of Mr Chaudhry, YH and Mrs Sinclair, that at all material times the appellant and YH were racing their vehicles at high speed on Vahland Avenue. His Honour directed himself correctly on the drawing of inferences adverse to the appellant. His Honour was correct in excluding, as a reasonable inference, defence counsel's suggestion that the appellant had slowed his vehicle and withdrawn from the common intention to prosecute the unlawful purpose. His Honour added that, in any event, even if the appellant did withdraw, 'it was far too late' and the 'momentum of the prosecution of the illegal common purpose was always going to carry through the last 100 metres' (ts 283 - 284). The only reasonable finding or inference was that the appellant and YH had formed a common intention to race their vehicles at high speed on Vahland Avenue. This is inherent in his Honour's finding that the appellant, by 'jumping the lights at Collins [Road]', in the context of the discussions between the appellant and YH on and before 4 February 2011, issued an implicit challenge to YH, and YH responded, as the appellant knew he would, by pursuing him and engaging in a race (ts 299).
77 His Honour found in substance that the appellant and YH were driving wilfully at a speed which was dangerous to the public, if not inherently dangerous, given the time of day and the fact that children were leaving school. The collision occurred at about 3.00 pm. Mrs Sinclair gave evidence that she left work early to collect her children from school. It was not in dispute that there was a school on Apsley Road and that motor vehicle traffic increased generally in that location between 3.00 pm and 3.30 pm. In the circumstances, there was no doubt that at the material time there was, in addition to general traffic in the vicinity, increased vehicular and pedestrian traffic associated with the school finishing for the day. His Honour was correct in concluding that, on an objective determination, the killing of another person, whether a pedestrian, passenger or driver, 'could well happen' as a result of the appellant participating with YH in their common enterprise of driving dangerously or recklessly (ts 299). No other finding or inference was reasonably open.
78 It is apparent, on a fair reading of his Honour's reasons for decision as a whole, that the trial judge gave careful consideration to the evidence and the findings he should make. His Honour did not act unreasonably in accepting or rejecting particular evidence. The sufficiency and quality of the evidence which his Honour accepted supported his findings of fact.
79 The trial judge's verdict was not unreasonable. It is supported by evidence his Honour was entitled to accept. His Honour, acting reasonably, was not precluded by the state of the evidence at trial from being satisfied beyond reasonable doubt of the appellant's guilt. The evidence at trial does not require the conclusion that his Honour must necessarily have entertained a doubt about whether the State had proved each of the elements of the offence. I do not have a doubt.
80 Ground 1 is without merit.
Ground 2
81 As I have mentioned, the trial judge said, in the context of s 8 of the Code, that the question was 'whether the killing of a person that occurred was an offence of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose of racing at high speed on a suburban street at school break-up time' (ts 299). After noting that the matter was to be determined objectively, his Honour said that, in his view, 'the killing of another person, whether motorist, passenger or pedestrian, could well happen when this conduct occurs' and therefore it was 'a probable consequence' and the requirements of s 8 were satisfied (ts 299).
82 Counsel for the appellant complained in his written submissions that his Honour failed to make an 'adequate distinction' between a 'probable consequence' and a 'likely consequence' and that 'it is arguable that his Honour did not appropriately direct himself on the difference between a "likely" and a "probable" consequence'.
83 At the hearing, counsel for the appellant maintained that 'his Honour … needed to state that he had found that he had excluded that it was a likely consequence' (appeal ts 44). Counsel said he was 'meaning "likely" in the sense of coming down to the level of the possible' and that 'if something is likely, it's possible' (appeal ts 45).
84 Ground 2 is without merit. Counsel for the appellant's submissions in support the ground are misconceived.
85 In Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373, the High Court analysed s 8 and s 9 of the Criminal Code 1899 (Qld).
86 Section 8 of the Queensland statute is identical to s 8(1) of the Western Australian statute. Section 8(1) provides:
When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
87 The appellants in Darkan were jointly tried before a judge and jury on a charge of murder. They were convicted. Their appeals against conviction to the Court of Appeal of Queensland were dismissed. The appellants then appealed to the High Court on a single ground relating to the trial judge's directions to the jury on the meaning of the expression 'a probable consequence', as used in s 8 and s 9 of the Criminal Code (Qld). The appellants contended, relevantly, that the trial judge erred in telling the jury that 'a probable consequence' was one which was 'a real possibility or a substantial cause or a real chance'. The High Court held that this direction was erroneous. However, by a majority, the court applied the proviso and dismissed each appeal. No substantial miscarriage of justice had actually occurred.
88 The High Court held in Darkan that for an offence to be 'a probable consequence' of the prosecution of an unlawful purpose, within s 8, the commission of the offence must not merely have been possible but must have been probable in the sense that it could well have happened during the prosecution of the unlawful purpose. Gleeson CJ, Gummow, Heydon and Crennan JJ explained:
The difficulty in defining 'a probable consequence' is that once it is accepted that 'probable' does not mean 'on the balance of probabilities' and that it means more than a real or substantial possibility or chance, it is difficult to arrive at a verbal formula for what it does mean and for what the jury may be told.
The expression 'a probable consequence' means that the occurrence of the consequence need not be more probable than not, but must be probable as distinct from possible. It must be probable in the sense that it could well happen (R v Gush[1980] 2 NZLR 92 at 94 per Richmond P, Richardson and O'Regan JJ; R v Hagen(unreported, Court of Appeal (NZ), 4 December 2002) at [46] per Tipping, McGrath and Anderson JJ).
…
It is not necessary in every case to explain the meaning of the expression 'a probable consequence' to the jury. But where it is necessary or desirable to do so, a correct jury direction under s 8 would stress that for the offence committed to be 'a probable consequence' of the prosecution of the unlawful purpose, the commission of the offence had to be not merely possible, but probable in the sense that it could well have happened in the prosecution of the unlawful purpose [78], [79], [81].
90 Ground 2 fails.
Conclusion
91 I would refuse leave to appeal on ground 1. The appeal should be dismissed.
92 MAZZA JA: I agree with Buss JA that leave to appeal on ground 1 should be refused and that this appeal should be dismissed. With respect to ground 1, my own assessment of the sufficiency and quality of the evidence adduced at trial accords with Buss JA. For the reasons that he gives, the trial judge's verdict was not unreasonable and was supported by the evidence. I do not have a reasonable doubt as to the appellant's guilt.
93 With respect to ground 2, I agree with Buss JA for the reasons that he gives that his Honour properly directed himself with respect to s 8 of the Criminal Code in accordance with Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373.
8
10
2