Gilbert v The Queen

[1999] HCATrans 439

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B47 of 1999

B e t w e e n -

WILLIAM LAWRENCE GILBERT

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 3 DECEMBER 1999, AT 10.19 AM

Copyright in the High Court of Australia

MR A.J. GLYNN, SC:   May it please the Court, I appear with my learned friend, MR A.J. RAFTER, for the appellant. (instructed by the Legal Aid Office (Queensland))

MR M.J. BYRNE, QC:   May the Court please, I appear with my learned friend, MR C.W. HEATON, for the Crown.  (instructed by the Director of Public Prosecutions (Queensland))

GLEESON CJ:   Yes, Mr Glynn.

MR GLYNN:   Thank you, your Honour.  Your Honours, the appellant, together with his brother Donald and one, Harding, were charged with murder and accessory after the fact to murder.  All three were convicted of murder.  The Crown case was that the actual killing was carried out by Donald Gilbert, with some unspecified or uncertain involvement by Harding, there being a number of versions about the extent of Harding’s participation. 

The deceased was killed in an area to which he had been driven in a motor vehicle by the appellant, together with Donald Gilbert and Harding.  The appellant was not present at the scene of the killing.  The main evidence against the appellant was a record of interview with police in which he told of his actions in driving the others to the area where the death occurred and in which he answered questions about his knowledge of Donald’s intensions with respect to the deceased when they got there.

All three appealed. Donald Gilbert, against whom the Crown had, what could be described as, a very powerful case; his appeal was refused. Harding’s appeal was allowed on the basis, as I read the judgment, that the directions on section 8 were inappropriate.

In the appellant’s case the Court of Appeal were unanimously of the view that the trial judge’s directions on manslaughter were flawed, but the majority rejected his appeal by applying the proviso.

GUMMOW J:   Now, what is the section that has the proviso?

MR GLYNN:   Section 668E(1A), your Honour.

GUMMOW J:   Yes, thank you.

MR GLYNN:   The basis upon which the court found there was a misdirection was that the jury should have been told that in the light of this Court’s decision in Barlow manslaughter should have been left open to the jury pursuant to section 8 of the Criminal Code and that that was not done.  The majority applied the proviso on the basis that the jury must inevitably have convicted of murder pursuant to the provisions of section 7(1)(b) of the Code, that is as a person doing an “act for the purpose of enabling or aiding” Donald Gilbert or Harding “to commit the offence” of murder.

The basis for the majority’s finding was their view that the statements made by the appellant to the police led inevitably to the conclusion that in driving the deceased, Donald Gilbert and Harding, to the murder scene he knew sufficient of Donald Gilbert’s intentions, capacities and personality to say that he knew that Donald Gilbert intended to cause at least grievous bodily harm to the deceased.  In supplementary record book at page 565 Justice McPherson said, about line 35:

At the trial there was no issue that the appellant had driven the others to the scene of the killing.  The only question for the jury was whether he had done so knowing that the intention of either of his co‑accused was to inflict death or grievous bodily harm on the victim.  Of that, the evidence against the appellant was of an unusually compelling kind.

And his Honour Justice Davies also shared that view.

HAYNE J:   Regardless of the classification that the Court of Appeal gave to the evidence, and confining attention for the moment only to the directions given by the trial judge, was an issue or the issue for the jury as put to them by the trial judge relevant to your appellant, his knowledge of intention of the co‑accused?

MR GLYNN:   That was the issue that was put in respect of murder, your Honour, yes.

HAYNE J:   Does it follow that consistent with the verdict of this jury they must have concluded to the requisite standard that he knew the intention of the co‑accused was to inflict death or grievous bodily harm?

MR GLYNN:   Your Honour, that is, I suppose, one view that could be taken of the verdict.

HAYNE J:   Is there any other view consistent with what this jury was told?

MR GLYNN:   The problem was, your Honour, that the jury were told, in effect, that they could not convict William, the appellant, of manslaughter if they convicted either of the other two of murder, which really left the jury in the position of convict of murder or acquit completely.

McHUGH J:   They came back and asked a question and were given a direction by the trial judge.

MR GLYNN:   They did.  They came back and asked the very question and, in fact, his Honour’s response to the prosecutor was interesting in that he said “Your worst fears have come back to haunt you, Mr Ridgeway”, that the jury are asking this very question.

HAYNE J:   But the respondent’s case against you today, as I understand it, is that this jury, instructed as it was, must have made a finding to the requisite standard of knowledge of the intent of the co‑accused and, therefore, even if they had been properly instructed the verdict of guilty was inevitable.  That is the argument, as I understand it, against you.

MR GLYNN:   Yes.  That seems to be but, your Honour, of course, when it came to the question of manslaughter the jury was simply told that once they convicted one of the others of murder they could not consider manslaughter.  Now, manslaughter of course was also open under section 7, although it was never put to the jury.  Unfortunately, it was just never put to the jury as a basis for manslaughter but of course the jury, having been told that manslaughter was not open once they convicted one of the others, really were left with no choice, in my submission, that once they found he was to a degree involved in the killing, murder was the only verdict that they could return.

HAYNE J:   Regardless of their finding, if any, or regardless of whether they found knowledge of co‑accused intent?

MR GLYNN:   Yes.  Murder against the co‑accused was based on involvement in the actual killing plus an intention.

HAYNE J:   Yes.

MR GLYNN:   But in respect of this appellant, certainly it was put on the basis that murder was dependent on knowledge, but the other option, namely, manslaughter which was also properly open, was simply taken away from the jury.

GLEESON CJ:   If manslaughter had been left to the jury, what would they have been instructed about it?

MR GLYNN:   They would have been told, your Honour, that depending on their view – under section 7 it would depend on what he believed the intention of his brother was. In other words, if his brother’s intention was to assault and the victim died, then he would be guilty of manslaughter. Under section 8, if death was not a likely consequence of the common intention to assault, then he again would be guilty of manslaughter if death resulted from the assault. So both of those would have been possible bases, although I concede that the one under section 7 was never put, nor was it asked for. But, in any event, had it been put, it would have also been cut off by virtue of the direction that once they found either of the other two guilty of murder, then manslaughter simply was not open.

That means that a verdict properly open was effectively removed in the case of this appellant from the very moment that one or other of the other two were convicted of murder, and one would assume that in the light of that direction, the jury would have approached it on the basis that they would first test the case against Donald and Harding, and then come to the case against Gilbert.  That was certainly the order in which they were dealt with by his Honour, although it would be up to the jury to approach it in any order.

HAYNE J:   Consistent with the trial judge’s directions, and confining our attention solely to what the trial judge told this jury, could they have reached a verdict of guilty without forming the conclusion beyond reasonable doubt that this appellant knew the co-accused were going to inflict death or GBH?

MR GLYNN:   Not properly, your Honour.

HAYNE J:   Consistent with what this trial judge told them?

MR GLYNN:   I think that is probably correct.  It is hard to avoid that in the light of that but, nonetheless, if the jury are faced with, “This is an unlawful killing.  If he’s involved, it’s either murder or manslaughter if you find murder against the other two”, it really leaves the jury with little option but to convict him of murder.

HAYNE J:   Why, consistent with what they were told?  Assume they obeyed to the letter what the trial judge told them.

MR GLYNN:   If they had obeyed to the letter what the trial judge told them and just that, then certainly they could properly convict of murder.

GLEESON CJ:   Will that always be the case where somebody who has been convicted of murder complains that manslaughter was not left to the jury?

MR GLYNN:   I do not know whether it will always be the case, your Honour.  I would be hesitant to be as certain as that but it would frequently be the case, in my submission.  I am not sure that I would be prepared to say that it would always be the case.  Nonetheless, your Honour, if I could come back to that point, the direction even robbed him of the opportunity for a verdict of manslaughter under section 7.

GLEESON CJ:   This is really the point addressed by Justice Pincus on page 570 line 30, is it not?

MR GLYNN:   Yes.  In fact, I had a note to come to that but your Honour has identified it.  That is right.  His Honour is saying that, although there has been a conviction – and one assumes what his Honour is saying is a proper conviction on the directions – that does not mean that that is the end of the matter because, if manslaughter was not left and it should have been, then effectively the accused has - in my submission, there has been a fundamental failure in the requirement for a fair trial in that the jury have not had available to them all the options which they might have considered.

It is unrealistic, in my submission, to think that a jury, faced with the options that were here, namely, convict him of murder or let him effectively go on unlawful killing at least, may well have thought that they should convict of murder rather than ‑ ‑ ‑

HAYNE J:   But the premise of the argument is, disobedience to the judicial instruction.

MR GLYNN:   Or not following it to the letter, yes, your Honour, and, with respect ‑ ‑ ‑

HAYNE J:   And maybe that is the right answer that we have got to confront.

MR GLYNN:   Yes, and that is a risk, of course, that occurs, when the accused is robbed of the fundamental requirement, that he have all of the possible verdicts that, are properly open, put to the jury.

CALLINAN J:   And in view of the question, this one was expressly excluded.

MR GLYNN:   Yes, your Honour; expressly, and one could say repeatedly and expressly, when one considered there are about three passages in the summing up to which I will refer your Honours, plus the very direct question by the jury answered just as directly and explicitly by his Honour.

GLEESON CJ:   But the answer to the submission that you put, whether it is right or wrong, that the majority gave, was, well, having regard to the admissions that he made, the jury could not have reasonably reached any conclusion, other than that he knew that his brother intended to do at least grievous bodily harm.

MR GLYNN:   Yes, that is the position.  My submission is that their Honours were incorrect in reaching that decision, but that is clearly their view.

CALLINAN J:   Was the strongest evidence against you, the evidence quoted by Justice Davies at page 560 paragraph 5, that the victim:

had “chalky bones or something like that”; “if he gets into a fight all he has to do is get one hit in the jaw or something or in the head...that...could...break his bones so easy” -

a fairly explicit admission.

MR GLYNN:   That was certainly as strong as it got, your Honour.

CALLINAN J:   That seems to be the high point.

MR GLYNN:   It is, with respect.

CALLINAN J:   It is fairly high, is it not?

MR GLYNN:   Certainly, and I should make plain, my submission is not that a jury could not have convicted, properly directed, of murder, but simply that they did not have the opportunity to consider all of the possibilities.  I certainly would not say that it was not open, because it clearly was, but it depended on what view the jury took of the statements in the record of interview, for example – because they were conflicting statements – which ones they would rely on ‑ ‑ ‑

CALLINAN J:   It was not inevitable.

MR GLYNN:   No, it was not inevitable, in my submission, and the jury might have thought, for example, the more damaging ones were made with the advantage of hindsight, with the sort of, “I should have realised”, becoming, “I knew”, because it was not until some time after the killing, a couple of weeks at least, that he was interviewed by the police. 

I think your Honours have probably noted what Justice Pincus said at page 571, where he says that, although there is clearly a strong argument in favour of the Crown case, the position is not inevitable.  But I should say, your Honours, my position is, firstly, that the failure to leave a verdict of manslaughter that is properly open is a fundamental miscarriage of justice and it should, where the verdict was properly open, always be such that the proviso is not applied.

In Barlow, your Honours, this Court decided that a secondary offender – although, perhaps I do not need to go to Barlow; I think your Honours probably are familiar – I will just summarise.  A secondary offender might be convicted of manslaughter, although the primary offender was convicted of murder, but at the time of the trial, of course, in Queensland, the trial judges were bound by the decision of the Court of Appeal in Hind and Harwood, which was to the contrary.

I was going to take your Honours next to the various passages in the summing up, which are to be found in volume II of the record. Early in the summing up his Honour dealt with section 7 and section 8 in a broad and abstract way, which really, in my submission, has little bearing on this hearing and at page 449 his Honour turned to the case against this appellant. From about line 3 to line 46 his Honour firstly put the murder on the basis of section 7, and that is the passage to which your Honour Justice Hayne refers. That is from about 3 to about line 20. Then he says:

Now, manslaughter would be open only –

and this is line 25 –

if you found neither Don Gilbert nor Harding guilty of murder, but found a verdict of manslaughter against both or one of them, and manslaughter would be open on the basis that Bill Gilbert formed a common intention with Don Glibert and/or Harding to prosecute an unlawful purpose, the purpose being to bash Whintre Linsley but not to kill him or do grievous bodily harm to him -

Then at page 450 at about line 46 his Honour said in reference to this verdict:

But as I’ve said, that really depends on a situation where you found a verdict of manslaughter only in respect of Don Gilbert and/or Harding.

Then at page 451 his Honour commencing at line 15 said:

Now, he is not alleged to be the person who did the act constituting the offence, that is to say the actual killing.  What is alleged is that he knew it was intended by Don Gilbert, Harding, or both of them, to murder Whintre Linsley, and knowing that, willingly drove them there for the purpose of enabling them to do so.  The question is did he do an act for the purpose of aiding whoever you find to be guilty of murder, to commit murder.

GUMMOW J:   Now, how would that fit in in the legislative structure?  What section would that bring into play?

MR GLYNN:   That would be section 7(1)(b), your Honour.

GUMMOW J:   Yes.

MR GLYNN:   And then his Honour says:

Now, that sort of scenario presupposes that you find Don Gilbert, Harding, or both of them, guilty of murder -

and then he repeats that from about line 45 to line 56 and then at page 454 at about line 6 he comes back to the question of manslaughter:

Now, manslaughter is also open in the case of Bill Gilbert.  To find a verdict against him of manslaughter you would need to find that he formed a common intention with Don Gilbert, Harding, or both, to prosecute an unlawful purpose.

And then at line 32 he says:

I should say also that to come to that conclusion, or to consider that issue of manslaughter on that basis, it presupposes that you have found only a verdict of manslaughter in respect of the other person or persons with whom you find he had the common intention.  If you find a verdict of murder against one or other of Harding or Don Gilbert, then you don’t get to consider manslaughter in relation to Bill Gilbert.

So it is a fairly clear direction on the point.

GUMMOW J:   Well, its deficiency is not disputed, is it?  Its deficiency vis‑a‑vis Barlow is not disputed.

MR GLYNN:   No, it is not, your Honour, but what is important is the very explicit nature of the direction in that once the jury reached a verdict of murder against either of Don Gilbert or Harding it closed off even a consideration of manslaughter in respect of this appellant.  Then, finally, at page 470 at about line 3 his Honour said in respect of the jury question:

It looks as though your fears have come back to haunt you, Mr Ridgway.  The jury have two questions.  One is, “If either Jason or Don is convicted of murder, no charge of manslaughter is available against Bill; is that correct?”

And his Honour at the bottom of page 474 said:

The situation is that if a verdict of murder is found in respect of Harding, Don Gilbert, or both, a verdict of manslaughter is not open against Bill Gilbert, which I think is essentially what your understanding of the matter was.  The second question – I’ll just say this at this point:  if a verdict of murder is found against one person, the possible verdicts against the other would be guilty of murder, not guilty of murder -

so manslaughter is very clearly excluded.

McHUGH J:   But what is the liability of your client based on, section 302 of the Code, when you are looking for his intention?

MR GLYNN:   Section 302 combined with section 7 or section 8, your Honour.

McHUGH J:   That only makes me all the more certain I was right in Barlow, even though I was the sole dissenter in that case.  How do you relate his intention in this particular case if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed some grievous bodily harm?

MR GLYNN:   I think in Barlow it is a question of, as your Honour would recall, what was identified as the offence.

McHUGH J:   Yes, I know.

MR GLYNN:   And, of course, what the majority said was that it is the acts, not the offence as a whole with all of its elements so you have to then say what his intention was in respect of the acts.

McHUGH J:   That he did not do.

MR GLYNN:   Yes, and I suppose that comes back to his knowledge.

McHUGH J:   Yes.

MR GLYNN:   At least I do not reignite the debate on Barlow, your Honour.  I would cause great distress in Queensland if I did.  In fact, there was a legislative attempt prior to Barlow to achieve what was achieved in Barlow which was section 10A, I am just reminded by Mr Rafter, which, of course, was effectively superseded by Barlow or made unnecessary by Barlow.

GUMMOW J:   Well, maybe, but it is now in the Act.

MR GLYNN:   Yes, it is still there.

GUMMOW J:   And we have to look at it.  It is not a question of still there.

MR GLYNN:   But I think it is probably no longer necessary.

GUMMOW J:   But it is the Act.  It is a section in the Act.  Why do we not look at it?  How would 10A bear on the matters you were discussing with Justice McHugh?

MR GLYNN:   It seems to say that you identify it by the act or omission.  Under section 7 a person’s criminal responsibility extends to any offence that, on the evidence admissible against him, is either the offence proved against the person who did the act or made the omission that constitutes that offence or any alternative to that offence.  In other words, what it says is that if the primary offender is convicted of an offence then it still remains open for the secondary offender to be convicted of either the same offence as the primary offender or an alternative that was properly open.  That was effectively what was achieved.

GUMMOW J:   When was that section added?

MR GLYNN:   July 1997.  Yes, your Honour.

GUMMOW J:   So that is after the events in Barlow?  Judgment in Barlow was in June.

MR GLYNN:   Yes.  I think it was on the way.

GUMMOW J:   Now, did it apply to this trial?

MR GLYNN:   No.  This is quite an old hearing and it was after this trial.

GUMMOW J:   That is the reason why we do not look at it then.

MR GLYNN:   I am sorry.  Yes, I am being obtuse.  I apologise for that.

McHUGH J:   What I must say I have difficulty in understanding is what is meant by Justice McPherson when he said at page 565 at line 40:

The only question for the jury was whether he had done so knowing that the intention of either of his co‑accused was to inflict death or grievous bodily harm on the victim.

Now, that seems to raise an issue – if he had knowledge of the intention of the co‑accused, that was sufficient to convict him.  But is that enough, having regard to the terms of 302?  Does not the Crown have to show that your client intended to do the person killed some grievous bodily harm?  The fact that he knew the other co might intend that is not sufficient, having regard to Barlow.

MR GLYNN:   Your Honour, my understanding of Barlow is that, no, that his Honour is right in that. What you have to have is knowledge of what was the intention of the primary offender, when you are implicated by virtue of section 7 or section 8 other than 7(a), of course.

McHUGH J:   Where does this requirement of your knowledge come from?  Where is the Act?

MR GLYNN:   It comes, your Honour, in section 7(1)(b) ‑ ‑ ‑

McHUGH J:   That only talks about:

who does…..for the purpose of enabling or aiding another person to commit the offence;

It has nothing to do with knowledge as such, has it?

MR GLYNN:   My understanding has always been that the phrase “for the purpose of” meant that you have to have knowledge of what the intention was to come within the provision; in other words, if you do it for that purpose.

McHUGH J:   I understand that but, correct me if I am wrong, do not the majority say that nevertheless a co‑accused, although on one view he might literally be within (b), he still escapes unless he has the relevant intention specified in 302.  Am I wrong in recollecting that what the majority say is 7(1)(b) makes him a party to the facts of the matter but if you want to convict him of murder you cannot do it derivatively, you have to show that he, himself, had one of the intentions specified in section 302.  Where do you get your argument about manslaughter?  It can only be because you did not come within 302, is it not?

MR GLYNN:   You did not come within 302 by virtue of section 7.

GUMMOW J:   Thereby bringing you within 303.

MR GLYNN:   Yes, your Honour.  In other words, the argument is that it was open to the jury either not to be satisfied that he had the requisite knowledge to have the intention, or to support the intention of the primary offender.

McHUGH J:   Yes, but that is my difficulty.  Where does this notion of intention come from?

MR GLYNN:   I have to say that I have always understood that it comes from the concept of doing an act for the purpose of enabling.  In other words, that because it says “for the purpose of” enabling it, it is saying that you had, effectively, that intention, if you do it for that purpose.

McHUGH J:   But does that not mean that you do not examine the accused’s intention then for the purpose of 302; that he can be convicted derivatively?

MR GLYNN:   It is not his intention, at least in respect of the deceased that is in issue, it is whether he had an intention to aid, in effect, the person, knowing that the person had that intention.  That is, I hope, a correct understanding of the basis of liability.

GLEESON CJ:   The judge accurately instructed the jury on murder and section 7.

MR GLYNN:   Yes.

GLEESON CJ:   No problem about that.  But your complaint is that he should have given them an alternative instruction, or an instruction that left an alternative verdict open to them and am I right in thinking that you say the instruction that he should have given them was that if your client had been mistaken as to the intention of his brother and had not realised his brother intended to do at least grievous bodily harm, but believed that his brother intended to assault the victim, then your client would have been guilty of manslaughter?

MR GLYNN:   That is my submission, your Honour.

GLEESON CJ:   Where does that come from in the Code?

MR GLYNN:   That comes, your Honour, under – that comes really from Barlow.

GUMMOW J:   Yes, but on the face of it, 303 would not operate.

MR GLYNN:   Section 303 ‑ ‑ ‑

GUMMOW J:   But your client did not kill anybody.

MR GLYNN:   No.

GUMMOW J:   Does 293 have some operation?

MR GLYNN:   Section 293 is part of a series of steps that bring ‑ ‑ ‑

GUMMOW J:   “Directly or indirectly causes the death”.

MR GLYNN:   Sorry, that is not the basis to connect the appellant to the killing. He is connected via, in my submission, section 7 or section 8, if he is to be connected at all.

GLEESON CJ:   We will just concentrate on section 7 for the moment ‑ ‑ ‑

MR GLYNN:   Yes.

GLEESON CJ:    ‑ ‑ ‑ and 7(1)(b) for the moment.  What is it about section 7(1)(b) that produces the result that if your client had made the mistake or had been under the misapprehension about his brother’s intention that I just described to you, the consequence would be that your client was guilty of manslaughter.

MR GLYNN:   The fact that he did something, namely, drive the vehicle, to enable his brother to do something, namely, assault, and that that assault resulted in the death – in other words, he did not do it for the purpose of enabling his brother to kill or cause grievous bodily harm, but he did it for the purpose of enabling his brother to assault.

McHUGH J:   Yes, but on that basis, what Justice McPherson says at 565 is completely irrelevant.  His state of mind about knowing what the intention of the co-accused was to inflict is irrelevant.

MR GLYNN:   His Honour also said ‑ ‑ ‑

McHUGH J:   I mean, you either fall within 7(1)(b) or you do not.

MR GLYNN:   His Honour said at the same page, your Honour, at line 25:

A person may be convicted of manslaughter as a secondary offender under either s. 7 or s. 8 even though the primary offender is guilty of murder.

Which is, I suppose, of saying what I have been trying to say.

GLEESON CJ:   Is this the way it works Mr Glynn, following Barlow, that if you look at 7(1)(b), your client was a person who aided by driving them to wherever they went, his brother to bash up the victim?  If he thought that the brother’s intention was merely to assault the victim, he comes within 7(1)(b) because the purpose of driving the brother and the victim to the place of the attack was to aid the brother to do the physical acts that the brother did, and your client’s state of mind produces the consequence that he is guilty of manslaughter, not murder.

MR GLYNN:   With respect, yes, your Honour.

GLEESON CJ:   That, you say, is the combination of 7(1)(b) and Barlow.

MR GLYNN:   Yes, yes.

McHUGH J:   When 7(1) in its introductory words says that a person who falls within (a) to (d) is deemed to have taken part in committing the offence and to be guilty of the offence, Barlow says that does not mean the crime of murder, it means the facts.  So, all 7(1) does, according to Barlow, is to make your client responsible for the actual facts.  His state of mind is still at large.  My problem is where does his state of mind come from that makes the difference between him being guilty of murder or manslaughter?  You do not get it out of 7(1), it seems to me, because, according to Barlow, that is only directed to him being a party to the facts, not the crime.

MR GLYNN:   But then you go to what his purpose was.

CALLINAN J:   There are two purposes involved:  there is the purpose of the person actually perpetrating or committing the killing ‑ ‑ ‑

MR GLYNN:   Yes, your Honour.

CALLINAN J:    ‑ ‑ ‑ and then there is the purpose of the person within 7(1)(b) and he must have the purpose of aiding the first person to commit the assault, an assault which has a purpose which could result in the endangering of human life, under 302.  So there are two purposes involved.  There has to be an independent purpose of your client, of the person charged, but not of the person actually doing the killing.  Is that not right?

MR GLYNN:   That is right.

CALLINAN J:   There are really four steps, are there not?  Your client has to do an act, he has to do it with a purpose, and the purpose has to be to aid the person actually doing the killing to prosecute the acts which could cause the death of another person?  That second person, the actual person doing the killing, must have the requisite purpose under 302.

MR GLYNN:   Yes.

CALLINAN J:   So is that right?

MR GLYNN:   When your Honour says “the killing”, I take it your Honour means the act?

CALLINAN J:   Yes.

MR GLYNN:   Yes.

CALLINAN J:   Is that right?  There are two purposes involved.

MR GLYNN:   That is right, it is his purpose.

CALLINAN J:   Unless both purposes are proved, then your client cannot be convicted of murder.

MR GLYNN:   He cannot be convicted of murder.  If the primary offender, if I can call him that, lacks the intention to kill or to cause grievous bodily harm, then the appellant cannot be guilty of murder.

CALLINAN J:   Is it “cause grievous bodily harm” or “to do an act likely to endanger human life”?

MR GLYNN:   I think it is – I had better read 302 again, your Honour.

CALLINAN J:   I was looking at 302(1)(b).  Is that what it is, or is it (c)?  It might be (c)

MR GLYNN:   If I do not read it I will ‑ ‑ ‑

CALLINAN J:   It does not matter.  It could be (b) or (c), I would have thought.

MR GLYNN:   I think it was put on the basis of (a), your Honour.

McHUGH J:   That is the difficulty I have about this case.  It was never put on the basis of (c).  What appears at page 565 seems to be put on the basis of (a).

CALLINAN J:   That was because of that disputed conversation, whether your client heard it or not.  Is that right principally?

MR GLYNN:   Yes.  It was treated, I would submit, by everybody in the trial as though he did not hear that conversation because it was said to be whispered.  The trial judge when commenting on it put it as though the Crown Prosecutor had not actually relied upon that conversation against the appellant as going to show knowledge of his brother’s intention.

CALLINAN J:   That is killing but I suppose there could still be other conversations which he did hear that were capable of demonstrating an intention on the part of the primary offender to cause grievous bodily harm.

MR GLYNN:   Yes, but the only evidence from which those could be drawn was what he said to the police, because there was no other conversation that was in evidence.  There was no other conversation in evidence that could have given him that knowledge that was proved.

CALLINAN J:   So the admissions to the police and the evidence that was given by that woman – I have forgotten her name now – - -

MR GLYNN:   McGrath, was it?

CALLINAN J:   - - - who was treated as a hostile witness, is that right?

MR GLYNN:   Yes, that is right, but she really did not provide evidence against the appellant because she said the conversation between her and Don Gilbert was whispered and, as I say, his Honour put it to the jury on the basis that the prosecutor had not relied on that.  Certainly in the judgment in respect of Harding, the Court of Appeal accepted that it was not heard by Harding or by William Gilbert.  I do not think I have dealt with your Honour Justice McHugh’s difficulty, I fear.

McHUGH J:   No.  It probably stems from my being wedded to the dissent in Barlow, I suppose.

MR GLYNN:   If I might adopt what your Honour the Chief Justice put as being the steps, that, in my submission, is what is necessary to establish either murder or manslaughter in the light of Barlow.

HAYNE J:   And if those steps are the ones that need to be taken, do you say that such of them as relate to a possible verdict of murder against your client were sufficiently put and your complaint is about the omission of any reference to the steps that would found a verdict of manslaughter?

MR GLYNN:   Well, in fact, the positive exclusion of the jury even embarking on those steps, your Honour, by virtue of the directions.

HAYNE J:   That is, it was either murder or acquittal?

MR GLYNN:   Yes.

GLEESON CJ:   Does it follow from that, that the jury were instructed that if your client had driven these people to the scene of the attack, believing that the intention of his brother was to assault the victim, he committed no crime?

MR GLYNN:   That would be an interpretation, but it was not really put as clearly as that, your Honour.

GLEESON CJ:   Or perhaps more accurately, he committed no crime of unlawful homicide.

MR GLYNN:   That is right, but the trouble is that ‑ ‑ ‑

HAYNE J:   Or he did not commit the crime of murder, with which he stood charged.

MR GLYNN:   Yes, it really was not put as explicitly as that, and given that the intervening option just was not put, then, in my submission, it really is a fundamental failure.

McHUGH J:   Can I have it again?  What was the alternative scenario that should have been left to the jury?

MR GLYNN:   That his state of knowledge was limited to one of assault or that the probable consequence of the common intention was no more than a killing without intention. That is section 8. The first one was section 7.

McHUGH J:   I have got to say, even on the basis of Barlow, I cannot see how, having regard to the terms of the Act, the direction that was put against your client at 451 over to 452 can be right; I just cannot follow.  The question is - the judge directed the jury, whether you are:

satisfied beyond reasonable doubt that –

sometime before arrival at the scene Bill Gilbert -

realised –

there was an –

intention.....to kill or do grievous bodily harm

and knowing that that was the intention and adhered to the plan by continuing to drive them, and so on?

MR GLYNN:   I am not sure that I can assist your Honour further on the point.

McHUGH J:   No, I know.

MR GLYNN:   Your Honours, I was going to go ‑ ‑ ‑

HAYNE J:   But common law to prove accessory before, what would be the steps of proof in a case of this kind?

MR GLYNN:   Your Honour, I have to confess, I cannot answer that with confidence, because I have never practised in a common law jurisdiction and I did not ‑ ‑ ‑

HAYNE J:   Immersed in the Code.

MR GLYNN:   - - -and I must say, your Honour, I did not look at it for the purposes of this hearing; I apologise, but I do not think I could safely – I would be happy to provide ‑ ‑ ‑

HAYNE J:   Well, comparisons with the common law are always dangerous with the Code, I accept that.

MR GLYNN:   Yes.

McHUGH J:   For the common law you have to be a party to common purpose but not having the intention to kill or cause grievous bodily harm and you would have been entitled to a verdict of manslaughter.  That is what Markby 140 CLR decided.

HAYNE J:   And if you went there, participating in the common purpose by driving, knowing the others intended to kill or do grievous bodily harm, would a verdict of guilty of murder as accessory before stand?

McHUGH J:   I think the answer may be no, according to Markby.

MR GLYNN:   Yes.  Well, that may well be the case and, in fact, from what your Honour just said it would be the case.

McHUGH J:   If you did not have the intention yourself.

MR GLYNN:   Yes.  From what your Honour just said it would be the case if that is the common law.

McHUGH J:   Yes.

CALLINAN J:   Well, on the basis of Royall or Osland if you made a significant contribution and had the requisite intention, that would be enough at common law I think.

HAYNE J:   But is the Code doing more than saying if you do acts which, in fact, help and you do acts which, in fact, help where you know that others have murderous intent, you, regardless of your views towards the deceased, are guilty of murder because you have, in effect, knowingly participated and assisted towards the furtherance of a murderous intent?

MR GLYNN:   Well, under 7(1)(b) you have got to do it for the purpose of enabling the killer to do the killing.

HAYNE J:   “For the purpose of enabling…..the offence”.

MR GLYNN:   Which really comes back in terms of Barlow, your Honour, to the acts which constitute the offence.

GLEESON CJ:   Not only in terms of Barlow, in terms of section (2).

MR GLYNN:   Well, I am sorry, your Honour, yes, section (2) as interpreted by Barlow, I should say.

CALLINAN J:   You have to do it for the purpose of enabling the other person to effect the purpose that other person intends to effect; is that right?

MR GLYNN:   The purpose of – yes, for the purpose of doing the act, namely the killing.

CALLINAN J:   Yes.

MR GLYNN:   Yes.  Your Honours, if I could come to some of the authorities to which I was going to refer.  I was going to take your Honours firstly to Gammage (1969) 122 CLR 444 and the particular passage at page 450 in judgment of Chief Justice Barwick. It is in the second paragraph which commences on that page at about the mid point of the page. His Honour said:

Out of the circumstance that, though not charged, manslaughter if made out may be found on an indictment of murder, there naturally arises the obligation to tell the jury if they ask, or if the accused requires it, that this alternative verdict is open to them if that is their view of the facts.  Failure to so advise them will give rise to a justifiable complaint on the part of the prisoner.  But, part of that advice should, in my opinion, be a clear statement of the occasion on which the jury might properly return a verdict of manslaughter.

And it is in particular the last sentence that is offended by what occurred in this case.  The jury were not, in fact, told of the proper basis upon which they might return a verdict of manslaughter.  Then if I could go to the authorities on the proviso.

GUMMOW J:   Well, they are not controversial, are they?

MR GLYNN:   No, they are not, your Honour.  Firstly, it is said that – well, I suppose there are two – firstly, the appellate court has to consider whether it is a fundamental error, in other words whether it is so fundamental as to deprive the accused of the opportunity for a trial.

If the Court concludes that it is not fundamental then the second question is whether the jury would still have reached the verdict that it did.  I was going to refer to a decision.  In fact, perhaps I can indicate to your Honours the passages that I was going to refer to.  The first was in Mraz (1955) 93 CLR 493 at 514. It commences in the first complete paragraph and it is along the lines of:

It is very well established that the proviso to s. 6(1) does not mean that a convicted person, on an appeal under the Act, must show that he ought not to have been convicted of anything.

That really is the point made by Justice Pincus.  The passage goes down to about halfway down the page where the Court said:

Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law.  It is for the Crown to make it clear that there is no real possibility that justice has miscarried.

I rely on the whole of that passage.  In Wilde v The Queen (1988) 164 CLR 365 at 372 in the judgment of the Justices as they then were, Brennan, Toohey and Dawson, the second line:

Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside.

The Court referred to Driscoll, Storey and Gallagher -

Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed –

GLEESON CJ:   That is the point of departure between the majority and the minority in the Court of Criminal Appeal in Queensland.

MR GLYNN:   That is correct.

GLEESON CJ:   The majority simply said, having regard to the admissions, even if a direction had been given as you say it should have been about manslaughter, he would have inevitably been convicted of murder.

MR GLYNN:   Murder, yes, that is right.

GLEESON CJ:   And Justice Pincus, as I understand it, said: “There is a strong possibility he would have been convicted of murder but it was not inevitable.”

MR GLYNN:   That is certainly one submission I make but my other submission is that, in the light of Gammage, it is a fundamental breach such that you do not even look at the question of what the jury may or may not have found because it is so fundamental that it requires a new trial.  That is really what is dealt with in the second passage I was going to refer to from Wilde at page 373 line 3. The Court says:

It is one thing to apply the proviso to prevent the administration of the criminal law from being “plunged into outworn technicality”…..it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted.  The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings.  If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice.  Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso.

GLEESON CJ:   What was the defence case?

MR GLYNN:   The defence case was essentially, as I understood it, that he was guilty of manslaughter in that he had knowledge of an assault but that he did not have knowledge that his brother intended to kill him.  That is the case as I read it from the summing‑up, because the speeches of counsel are not recorded.

Your Honours, the only other case on the proviso that I was going to go to from our list was that of the decision of the New South Wales Court of Criminal Appeal in Whittaker (1993) 68 A Crim R 476, where your Honour the Chief Justice presided. At page 482 under the heading “A retrial is necessary – the proviso is inapplicable”, the court there summarised the Crown submissions, and then four lines up from the bottom said:

Upon this footing, the jury would have to be convinced, by the appropriate objective standard and to the level of risk described in Wilson, that the appellant must have intended a serious injury to the deceased when he responded to the demand and handed over the knife.

At the top of the next page the court went on:

Whilst we acknowledge the force of the Crown’s submissions on the facts (and would, ourselves, trying those facts, accept those submissions) we do not believe that the case is one for the application of the proviso.

The determination of the criminal quality of the appellant’s action in handing over the knife at Mr Oliver’s urgent demand was not peripheral to the trial of the appellant.  It was an element in one of the possibilities which the trial judge put to the jury.  It was therefore a matter upon which the appellant was entitled, if he were to have a trial according to law, to have the judge accurately instruct the jury in the applicable legal principles.  It is impossible for this Court to know the precise point upon which the appellant was convicted by the jury of the crime of manslaughter.

Then, on the next page 484 in the first complete paragraph on the page, the court said:

Although it is true that no rigid rules can be adopted, a number of authorities make it plain that a very important consideration is whether the appellant has lost a chance of acquittal which was fairly open to him.  We think it fair to say that there is a diminished inclination in recent times to invoke the proviso (even in otherwise

very strong Crown cases) where misdirection has been shown upon an important ingredient of the law applicable to the trial.

That is, in my submission, fundamentally the flaw in this particular case.

As your Honours have noted, the reason the majority here refused the appeal was that they took the view that the statements in the record of interview led inevitably to the conclusion that the appellant knew that his brother intended to cause at least grievous bodily harm.  Whilst, as I have said, I concede that it was one of the possibilities that was open to the jury, it was by no means necessary that a jury would have been satisfied beyond reasonable doubt that that was his state of knowledge.

We have marked a number of passages which I can read to your Honours if you require it which demonstrate that in the record of interview he said things that could be taken both ways.  In other words, he said things upon which a jury could have made a finding of guilty of murder.  He said things upon which the jury could properly have made a finding of manslaughter.  It is impossible to know the basis upon which the jury approached those.  There is a thousand ways and there is no point in my speculating.

My submission is that the appellant will have only had a fair trial according to law if a jury has the opportunity to consider all of the verdicts open on a proper basis in the circumstances of this particular case.  Unless there is something further, your Honours.

GLEESON CJ:   Thank you, Mr Glynn.  Yes, Mr Byrne.

MR BYRNE:   Thank you, your Honour.  May we begin by attempting to put in what we say is the context in which this matter comes before this Court.  There was no contest before the Court of Appeal that there was other than a proper direction in respect to section 7 and murder flowing from section 7.  That direction which we have highlighted in the written outline, but if we may remind your Honours of the final word on this by the learned trial judge to the jury as he concluded his summing up to them in respect of this appellant, and that appears at page 458 of the appeal book commencing at about line 40.  He said this:

At the end of the day, in respect of the count of murder against him the Crown must prove beyond reasonable doubt that he knew at some time before he arrived at the scene that Don Gilbert and/or Harding intended to kill Whintre Linsley, and that knowing that, he did something, that is to say continued to drive them to the scene, for the purpose of aiding or enabling them to commit the offence of murder.  If you have a reasonable doubt about that you have to acquit him of murder.

There can be no doubt and, in our respectful submission, it is quite clear that the answer to questions posed by your Honour the Chief Justice and Justice Hayne to our learned friends, was the finding of the jury, our submission is it must have been.  The direction is clear that if they were not satisfied as to those matters, then they must acquit.

GLEESON CJ:   I hesitate to say “whenever” because it may reflect a failure of imagination, but ordinarily where a person who has been convicted of murder comes to an appellate court complaining that manslaughter was not left to the jury, it will be the case that the jury must have found the elements of murder upon which the trial judge instructed them.  In those circumstances, how could an appellant ever legitimately complain about a failure to leave manslaughter to the jury?

MR BYRNE:   To answer that ‑ ‑ ‑

HAYNE J:   And perhaps the cases of provocation, self-defence or the other excusing or justifying acts.

MR BYRNE: Are examples of such a situation. The other example in the context of this case would be if the trial judge had left liability or criminal responsibility for murder on the basis of section 8, that is the “common purpose” provision, then we concede that this Court could not know the basis on which they reached the conclusion as to the responsibility for murder. In that situation we could not contend that it could not be shown that there was the inevitability of the jury’s findings as there were here.

GLEESON CJ:   That is really the issue, is it not, then where a jury, properly instructed on murder but not properly instructed on manslaughter, convict of murder?

MR BYRNE:   It must depend on the circumstances as to whether or not there is a fundamental defect in the trial, we say.

GLEESON CJ:   Can an accused complain of the fact that the jury were presented with too uncomplicated a choice?

MR BYRNE:   It is difficult to answer that directly because the authorities speak in different ways, depending on the circumstances of the particular case.  Often it is said that it is a favourable direction where the uncomplicated choice is murder or not guilty.  Other authorities say, well it is not clear, it must depend on the circumstances.  But here ‑ ‑ ‑

HAYNE J:   The nub of it is caught, is it not, by the Victorian cases that Justice Pincus said he would not follow in Evans v Lewis.  If the trial judge correctly instructs the jury on the essential elements of the crime of which the appellant is convicted and fully and fairly puts to the jury the defence set up by the appellant, the verdict of guilty amounts to a finding by the jury of every essential element of the crime and if those findings negate a verdict of guilty of a lesser offence, then the verdict cannot be disturbed by a suggestion that the jury might have found him guilty of that lesser offence, if the judge had informed them they were at liberty to do so.  That is the nub of your argument.

MR BYRNE:   Yes, it is, and we do not have to take particular issue with Justice Pincus because what he says is he disputes that those cases say it must always be the case, and clearly, it is recognised in those cases that there are exceptions to the rule and the rule has many forms.  As your Honour has pointed out, where provocation is not left to them, that procedure has not been followed.

GLEESON CJ:   What is that famous decision of this Court on failure to leave manslaughter to a jury where the accused did not want them to leave manslaughter?

McHUGH J:   Pebble or Pymble?

HAYNE J:   That is the provocation case, the provocation raised on the evidence, but not run by the accused.

MR BYRNE:   It must be left if it is raised on the evidence. 

GLEESON CJ:   A case about a gun.

MR BYRNE:   Yes.  Here – if I can continue with that line of submission – there are those ‑ ‑ ‑

McHUGH J:   Pemble.

GLEESON CJ:   Pemble, P E M B L E.

MR BYRNE:   Pemble – Where there is that “not disputed correct direction”, and when there is also - there was no dispute in the context here before the Court of Appeal or before this Court that it was clearly, as I understood my learned friend to say, clearly open to the jury to convict on murder on the evidence, then this Court is in a position to assess whether there has been a substantial miscarriage of justice.  The correct direction given, to summarise, evidence to support that and a finding beyond reasonable doubt on a properly instructed jury as to that route to murder.  Our submission is a short one in that context, that there is no substantial miscarriage of justice in the circumstances of this case.  We fortify that by saying ‑ ‑ ‑

HAYNE J:   To put it at its highest from your point of view so that it can be tested, that the verdict of guilty to manslaughter could have been reached by this jury, given their findings, only in disobedience to instructions.

MR BYRNE:   Quite so, and that is the passage which we have referred to briefly and the case of this Court referred to by our learned friends, that is Gammage v The Queen (1969) 122 CLR 444. We refer simply to the remark made at page 451 by his Honour Sir Garfield Barwick where he said at about point 4 of the page:

They –

that is the jury –

They have no right, in my opinion, to return a verdict of manslaughter where they are satisfied of murder.

That, we respectfully say, supports the proposition put to us by your Honour Justice Hayne.  Here, on an analysis, they were satisfied to the criminal standard that he was guilty of murder.  It is speculation to say if a liability or criminal responsibility was put on another basis, then they may have somehow reached a conclusion that manslaughter was open on that basis.  It is quite a separate head of liability and it is a subsidiary head, in our submission.  The first primary one is whether he has done something, knowingly aiding persons, who he is aware are going to murder.

CALLINAN J:   Why did the jury ask the question, then, about manslaughter?

MR BYRNE:   Your Honour reminded us quite properly in the special leave application not to speculate as to that, but if we may purport to give an explanation ‑ ‑ ‑

HAYNE J:   Once a prosecutor always a prosecutor, Mr Byrne.  Read up the priors.

MR BYRNE:   The context of the trial seems to be this, your Honour:  the learned Crown Prosecutor, in trial, in the course of his address to the jury, said to them that they could return a verdict of manslaughter even though they convicted Don and/or Harding of murder.  There was discussion after the addresses and the learned trial judge in accordance, properly, with authority, then prevailing said, no that is incorrect, and then proceeded to direct the jury, as he did here, that that was not an appropriate course.  We say, without seeking to speculate, that it is not surprising that the jury, given that conflict from the Crown and the learned trial judge, would ask the question, well, what is the true scenario here?

CALLINAN J:   They must have been entertaining the possibility of manslaughter though.

MR BYRNE:   Not necessarily.  They were really caught with two different – I cannot use the word “directions”, but an exhortation from the Crown that this is the way that you can approach it, and a direction by the trial judge that no, the correct way to do it is this.  We say it is understandable for the jury to say, well, what is the correct scenario, and they then go on to consider whether, on the directions they have been given as to murder, they are satisfied, and it can be demonstrated on those directions that they were satisfied of murder under section 7.  Can we add to that point that this is a somewhat unusual situation, not that unusual, but unusual in the sense that, given the confined way it was left to the jury, the court can be satisfied as to what the jury was reasoning and what their findings were.

May we refer, by way of contrast, to comments made in this Court in KBT V The Queen (1997) 191 CLR 417. We refer to comments made in the course of the judgment of Justice Kirby, firstly at page 434 at about point 4 on that page, where his Honour said this:

Because an appellate court (special verdicts apart) has no real means of knowing the reasoning of a jury, it will often be inappropriate, where misdirection is shown, to invoke a provision such as section 668E(1A) of the Code, even in a strong prosecution case.  For all the appellate court knows, the jury might have been unimpressed with the strengths of the case that attract the appellate court.  They might have been affected in their conclusion by the misdirection.

We say here that it can be demonstrated that the jury were not affected by the misdirection because they make positive findings by their verdict that demonstrate the correctness under section 7(1).

May we just refer in passing to another comment by his Honour at page 437 about point 5, where he says where there are “various combinations” of matters:

it cannot be affirmatively determined that.....juror unanimity was obtained.

Here the court is in a position to be able to find that there was that degree of unanimity.

HAYNE J:   But at the risk of diverting you from your argument, Mr Byrne, can you, in effect, take me through, in words of one syllable, how you say the Code provisions lead to the result that the knowledge of the appellant about the intent of the co-accused bears upon his criminal responsibility.

MR BYRNE:   I am doing the best I can in the short compass.  The liability of the principle offender flows through a combination of section 302 and section 7(1)(a), principle offender.  The law, as it has been accepted in Queensland, is that where one has such an offender, then under section 7(1)(b), his or her criminal responsibility rests upon the doing of an Act, naturally the willing:

for the purpose of enabling or aiding another person to commit the offence -

and that has been interpreted as meaning, doing that with knowledge of the intention or the purpose, as Justice Callinan put it before, of the principal offender, if I may use that term.  So that is how it flows, in my submission, and that seems to be in accordance with the way it has been interpreted by the Court of Appeal here.

GLEESON CJ:   Yes, but the next question is suppose he is mistaken as to the intention of the principal offender.  The principal offender intends to cause grievous bodily harm, but the person who is aiding and abetting the principal offender understands that the principal offender is going to assault, but does not know that the principal offender intends to cause grievous bodily harm.

MR BYRNE:   In that scenario here it is clear that the jury should have returned a verdict of not guilty.

GLEESON CJ:   No, as they were instructed.

MR BYRNE:   Yes, I am sorry.

GLEESON CJ:   But having regard to the way they should have been instructed as you concede on manslaughter, what is the process by which they would return a verdict of guilty of manslaughter?  What is the process of application of the Code that would lead them to a verdict of manslaughter?

MR BYRNE:   Pursuant to section 7 it would be simply the lesser knowledge, so their knowledge of what the purpose, if I may use that phraseology, of the principal offender was.  If that was limited to, for example, assault, then that would be a route to manslaughter by section 7.

GUMMOW J:   How?  How does it work through section 303?

MR BYRNE:   Section 303 simply, as I understand it, provides that an unlawful killing which is not murder is manslaughter.

GUMMOW J:   Yes, that is right.  So there is a logical universe operating on the criterion of unlawfully killing?

MR BYRNE:   Yes, your Honour.

GUMMOW J:   Well, how does it work in this case?  How would it work in this case?

MR BYRNE:   There are two ways it could have worked. One is a route to manslaughter via section 7. The other is a route to manslaughter via section 8.

GUMMOW J:   But how does the route to manslaughter work through section 7?

MR BYRNE:   I am not sure that I can put it better than the knowingly aiding did not extend to the knowledge that the person intended to kill or cause grievous bodily harm, a lesser intention in that person, namely to assault and cause bodily harm, for example.

HAYNE J:   That is the offence in 7(1)(b).  You seem to read as though it were an offence cognate with or perhaps related to an offence with which the principal offender is shown to have committed or ‑ ‑ ‑

MR BYRNE:   Actually commits, yes, such that an assault is ‑ ‑ ‑

HAYNE J:   It seems a touch of the heroism with the construction, does it not, but there we are?

MR BYRNE:   It is a similar approach as I understand Barlow in section 8 where one looks at what the principal offender does and then one looks at reasonable probabilities that were open in respect to the common purpose offender.

GUMMOW J:   Well, it is really section 300 actually.  Section 300 erects a logical universe between murder and manslaughter.  That is the starting point in a way.

CALLINAN J:   Are all killings unlawful?

GUMMOW J:   That is section 291.

MR BYRNE:   No.

CALLINAN J:   Yes, 291.

GUMMOW J:   That picks up 293 I suppose.

MR BYRNE:   And if whilst we are in the midst of the Code provisions ‑ ‑ ‑

GUMMOW J:   It is a pity Sir Samuel Griffith did not do better.

HAYNE J:   Beta minus I think is the answer.

GUMMOW J:   They should not be here 100 years later trying to work this out.

HAYNE J:   Very provocative.

GUMMOW J:   I know one is not allowed to say that.

HAYNE J:   A cult figure.

GUMMOW J:   That is right.

MR BYRNE:   If we may, the aspect of speculation is something naturally to be avoided and we have dealt with how one does not need to speculate to determine what the jury has done here.  It is therefore inappropriate, if we may say, to approach this as if saying the jury were left with no other choice if they thought that the appellant was involved somehow in this.  They had clear choices:  guilty of murder, not guilty or accessory after the fact.  They simply did not get to consider accessory after the fact because they found, positively, that he was criminally responsible for murder.

Without wishing to speculate as well, the manner in which the matter was left to the jury was that liability for murder was, as has been recognised, left under section 7(1)(b). Liability for murder was not left under section 8. That is the “common purpose” provision. As has been pointed out and as is accepted, there was an error in the directions regarding the applicability of section 8 to liability for manslaughter, but we would submit that it is not speculation to say that if section 8 had been left as a basis fully for the jury, that is a route to murder as well as manslaughter.

The findings of the jury here, namely, that there was actual knowledge of intention to kill or grievous bodily harm, could not sensibly have led the jury to any conclusion other than guilty of murder pursuant to section 8, but we do not make that point. We simply say that in passing because it was not left that way and we know the way in which the jury approached their task.

GLEESON CJ:   This may be an oversimplification, but would it solve the problem of explaining the operation you give to section 7 if, in the circumstances of a case such as the present, you read the expression “the offence” not as meaning murder but as meaning unlawful homicide on the theory that murder encompasses manslaughter, which seems to be a theory that was discussed and considered in Barlow.

MR BYRNE:   Yes, your Honour.

GLEESON CJ:   So that section 7, going down the paragraphs of subsection (1), deals with “every person who actually does the act” which constitutes unlawful homicide and “every person who does or omits to do any act for the purpose of enabling or aiding another” to commit unlawful homicide, so that if a person does an act for the purpose of enabling another to engage in conduct which would constitute unlawful homicide, that person may be convicted of manslaughter if his purpose was to aid the conduct that would amount to unlawful homicide, although it was not a purpose of aiding conduct that would amount to murder.  Is that the way it works?

MR BYRNE:   We accept that, with respect.

HAYNE J:   Well, how then do you deal with the introductory rubric of 7 in 7(1):

When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence –

At least at first blush it is cast in terms of unity of offence without differential verdicts between principal and person liable in the second degree.

MR BYRNE:   That is, as I understand, your Honour Justice McHugh’s judgment in Barlow. 

GLEESON CJ:   I notice the way the Canadians put it was to say, in relation to a similar provision, if the perpetrator commits murder he or she necessarily commits the offence of manslaughter, although liability for manslaughter being a lessor and included offence in murder is subsumed in the conviction.

HAYNE J:   And the relevant offence here then is the offence under section 300:

Any person who unlawfully kills another is guilty of a crime –

And there are sub-classifications of them.  The offence is the 300 offence.

MR BYRNE:   The Canadian approach is consistent totally, we say, with the approach adopted by this court in Barlow, namely that the terms included offence were not used in the judgment but there was acceptance that there could be differentiation between common purpose offenders, even though section 8 as well as section 7 uses the term “an offence”. Does that answer your Honour’s question? I am not sure I can take it further without upsetting Justice McHugh.

GUMMOW J:   You should not be reluctant about that.

MR BYRNE:   We will not take your Honours through the proviso cases.  They are, we say, well understood.  The issue for determination here is a short one.  It involves looking at the way the trial was conducted, and if we may, before leaving that, seek to answer a question by your Honour the Chief Justice to our learned friends, that the defence case here was set out by the learned trial judge at pages 456 to 458.  There was no dissent to his Honour’s summing‑up in respect to the way the case for this appellant was put.  That was simply that the appellant did not have the requisite knowledge of the intention of the other parties when he drove them to the spot where the unlawful killing took place.  His Honour made it clear at the bottom of page 457 going over to 458, he said this at about line 50:

You will no doubt give some thought to that proposition –

That is the proposition put by defence counsel:

because, as I have said, it seems to me it’s an integral part of the case of murder against Bill Gilbert that he knew at some time significantly before the arrival at the end of the road that there was going to be a murder, but nonetheless continued to drive on.  If you are not satisfied as to that then the count of murder against him does not seem to be made out.

So that, we say, is clearly the defence case and it fortifies the proposition that for the jury to convict of murder here they must have been satisfied of those matters which were directly put to them by the trial judge.

HAYNE J:   At 458 line 35 and following the judge refers to “your looking at the tape”.  I assume that to be the videotape of the record of interview?

MR BYRNE:   Videotape of the interview, yes, your Honour.

HAYNE J:   Thank you.

GLEESON CJ:   It really comes down to two questions for us, does it not – whether those Victorian decisions are correct, and whether the majority in the Queensland court were correct when they say that having regard to the admissions made it was inevitable that even if an instruction on manslaughter had been given, there would have been a conviction of murder.

MR BYRNE:   We accept that, and may we simply say in respect to the first point, that we say the Victorian cases are not a binding rule.  They simply provide that there are cases such as we say the present is, where a verdict for murder can stand despite other matters not being properly put.  In respect to the second matter, the judgment of the Court of Appeal, even the majority, approached it in the way your Honour said at page 563, for example.  It is in the supplementary record book at about line 26.  This is in the judgment of Justice Davies.  His Honour said:

The jury, in my view, must inevitably have concluded that the appellant, at least at the point where he brought his vehicle to a halt in order to enable his passengers to alight, did so knowing that Don’s intention was to inflect grievous bodily harm upon Linsley.

We say that given the findings that the jury must have made, his Honour could have expressed it this way.  The jury did inevitably conclude that the appellant did those things, because that was the specific issue put to them before they could make the finding that they could make the finding that they did.  And it is also in that context, relevant the concession made today, that it was open to the jury to reach that conclusion.  So, subject to those qualifications, yes, we adopt what your Honour the Chief Justice says, or those additions, we should say.  Unless there is something further, those are our submissions.

GLEESON CJ:   Thank you Mr Byrne.  Mr Glynn?

MR GLYNN:   No, your Honours, I do not think there is anything I can add.

GLEESON CJ:   Then we will reserve our decision in this matter and we will adjourn until 2.15 this afternoon.

AT 11.51 AM THE MATTER WAS ADJOURNED