Harwood v The Queen - [2002] HCA 20

HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, HAYNE AND CALLINAN JJ
TODD ANDREW HARWOOD APPELLANT
AND
THE QUEEN RESPONDENT
Harwood v The Queen
[2002] HCA 20
23 May 2002
B49/2001
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Queensland
Representation:
A J Rafter for the appellant (instructed by Legal Aid Queensland)
L J Clare for the respondent (instructed by Director of Public Prosecutions (Queensland))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Harwood v The Queen
Criminal Law – Homicide – Unlawful killing – Appellant and co-accused engaged in armed robbery – Co-accused shot and killed victim – Appellant and co-accused tried jointly – Whether common intention to prosecute an unlawful purpose – Whether, if co-accused convicted of murder, appellant could be convicted of manslaughter.
Criminal Law – Directions to the jury – Failure to direct the jury to possibility, if co-accused convicted of murder, of finding appellant guilty of manslaughter – Whether absence of direction gave rise to a miscarriage of justice.
Criminal Code (Q), ss 8, 289, 291, 293, 300, 302, 303.

GLEESON CJ, GAUDRON, McHUGH, HAYNE AND CALLINAN JJ. Following a trial in the Supreme Court of Queensland, the appellant, Todd Andrew Harwood, and a co-accused, Gary Hind, were convicted of the murder of Raymond Bowering. Both appealed unsuccessfully to the Court of Appeal. The appellant now appeals to this Court.
The facts
The deceased, Raymond Bowering, was shot dead outside the cafeteria at the Bundaberg coach terminal on 16 February 1994. The appellant and Hind had gone to the coach terminal to rob the cafeteria. Hind walked over to the deceased who was sitting in front of the cafeteria and told him to move. When he refused, Hind shot him at close range with a "cut down 22".
The appellant knew that Hind was armed, stating in a record of interview with investigating police that the rifle had been taken "as a sort of persuader". He also knew that there were shells in the car, but said he "didn't know there was one ... actually in the chamber".
The case against the appellant
The case against the appellant was based on his and Hind's having had a common intention to prosecute an unlawful purpose, namely, to commit armed robbery. In this regard, s 8 of the Criminal Code (Q) ("the Code") provided[1], as at the date of the events in question, that:
" When two 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."
[1]Section 8 was subsequently amended, but not in any material respect, in accordance with s 29 of the Reprints Act 1992 (Q).
The case against Hind was left…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harwood v The Queen

Details

AGLC: Harwood v The Queen [2002] HCA 20
Case: [2002] HCA 20
Decision Date: 23 May 2002

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Todd Andrew Harwood against his conviction for murder. Harwood and a co-accused, Gary Hind, were jointly tried for the murder of Raymond Bowering, who was shot and killed during an armed robbery planned by the two men. The prosecution's case against Harwood was based on section 8 of the *Criminal Code* (Qld), which provides that where two or more persons form a common intention to prosecute an unlawful purpose, and an offence is committed which was a probable consequence of that purpose, each is deemed to have committed the offence.

The central legal issues before the High Court were whether the jury should have been instructed that Harwood could be convicted of manslaughter even if Hind was convicted of murder, and if so, whether the failure to provide such a direction resulted in a miscarriage of justice. The Court of Appeal had previously held, by majority, that section 8 of the *Criminal Code* precluded the possibility of a conviction for a lesser offence by an accessory when the principal offender was convicted of murder.

The High Court, in its reasoning, referred to its earlier decision in *R v Barlow*, which had overturned the Court of Appeal's reasoning in this case. The Court affirmed that section 8 of the *Criminal Code* does not prevent a person deemed guilty by reason of a common unlawful purpose from being convicted of a lesser offence than the principal offender. The Court noted that the prosecution's case against Harwood was essentially the same as against Hind, and that the jury was not instructed on the possibility of a manslaughter conviction for Harwood if Hind was convicted of murder, nor was such a direction requested by Harwood's counsel. The Court concluded that the failure to instruct the jury on this possibility did not, in the circumstances, give rise to a miscarriage of justice.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

GLEESON CJ, GAUDRON, Mc Following a trial in the Supreme Court of Queensland, the appellant, Todd Andrew Harwood, and a co-accused, Gary Hind, were convicted of the murder of Raymond Bowering. Both appealed unsuccessfully to the Court of Appeal. The appellant now appeals to this Court.The facts The deceased, Raymond Bowering, was shot dead outside the cafeteria at the Bundaberg coach terminal on 16 February 1994. The appellant and Hind had gone to the coach terminal to rob the cafeteria. Hind walked over to the deceased who was sitting in front of the cafeteria and told him to move. When he refused, Hind shot him at close range with a "cut down 22". The appellant knew that Hind was armed, stating in a record of interview with investigating police that the rifle had been taken "as a sort of persuader". He also knew that there were shells in the car, but said he "didn't know there was one ... actually in the chamber".The case against the appellant The case against the appellant was based on his and Hind's having had a common intention to prosecute an unlawful purpose, namely, to commit armed robbery. In this regard, s 8 of the Criminal Code (Q) ("the Code") provided[1], as at the date of the events in question, that:" When two 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."[1]Section 8 was subsequently amended, but not in any material respect, in accordance with s 29 of the Reprints Act 1992 (Q). The case against Hind was left to the jury on the basis that he could be convicted of murder either if he voluntarily discharged the firearm with the intention of causing death or grievous bodily harm or if the presentation of the loaded gun was an act likely to endanger human life and was done in the prosecution of an unlawful purpose[2]. The jury was also instructed that, if not satisfied as to murder, Hind could be convicted of manslaughter on the basis that he was criminally negligent in his handling of the firearm[3].[2]Sections 302(1) and (2) respectively. At the relevant time s 302 provided:" Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say,-(1)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 or to some other person some grevious [sic] bodily harm;(2)If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;...is guilty of murder."[3]Sections 289, 291, 293, 300 and 303 of the Code.At the relevant time s 289 provided:" It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health, of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger: and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty."Section 291 provided that:" It is unlawful to kill any person unless such killing is authorised or justified or excused by law."Section 293 provided that:"any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person."Section 300 provided that:" Any person who unlawfully kills another is guilty of a crime, which is called murder or manslaughter, according to the circumstances of the case."Section 303 provided that:" A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter."

Evidence

Evidence Before The Court

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Decision

Reasons for decision

HUGH, HAYNE AND CALLINAN JJ

Because the case advanced by the prosecution against the appellant was the exact counterpart of the case against Hind, it also follows that the appellant could be convicted of manslaughter only if Hind were convicted of manslaughter and only on the same basis. Moreover and, presumably, because of the counterpart nature of the cases against Hind and the appellant, no instruction was given to the jury on the question whether, if Hind were convicted of murder, Harwood could be convicted of the lesser offence of manslaughter. And no such direction was requested by the appellant's counsel.The decision of the Court of Appeal The question whether, if Hind were convicted of murder, the appellant could be convicted of manslaughter arose in the Court of Appeal. It was held, by majority (Fitzgerald P and Pincus JA, McPherson JA not deciding), that s 8 of the Code precluded that possibility[4]. In this regard, the Court of Appeal declined to follow its earlier decision in R v Jervis[5].[4]Hind and Harwood (1995) 80 A Crim R 105 at 136 per Fitzgerald P, 141 per Pincus JA.[5][1993] 1 Qd R 643. Subsequent to the Court of Appeal's decision in this matter, this Court held in R v Barlow[6] that Jervis was correctly decided and that s 8 does not preclude a person deemed guilty by reason of common unlawful purpose from being convicted of a lesser offence than the principal offender. Further, it was expressly said in Barlow that the view taken by the Court of Appeal in the present matter was wrong[7]. Following that decision, the appellant sought and obtained special leave to appeal out of time to this Court.[6](1997) 188 CLR 1.[7](1997) 188 CLR 1 at 11 per Brennan CJ, Dawson and Toohey JJ.The issues The first question that arises in this appeal is whether the jury should have been instructed that, if Hind were to be convicted of murder, the appellant could, nonetheless, be convicted of manslaughter. If that question is answered in the affirmative, the further question arises whether, in the circumstances, the failure to instruct the jury in that way resulted in a miscarriage of justice. In this Court, the only basis upon which it was put that Hind might have been convicted of murder and the appellant convicted of manslaughter was that, although Hind had deliberately fired the gun, the probable consequence of the prosecution of his and the appellant's unlawful purpose did not include an intention to cause death or grievous bodily harm. That, of course, is the factual basis which, the prosecution suggested after the jury retired, would permit of a finding that the appellant was guilty of murder. At the relevant time the Code defined murder to include "death ... caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life"[8]. The deliberate discharge of a gun at or near a place such as that which was the target of the planned armed robbery is an act which the jury might well have found "likely to endanger human life" – a finding which would have exposed the appellant to conviction for murder on a basis additional to those already left to the jury, as prosecuting counsel suggested after the jury retired. Only if the jury failed to be satisfied that the discharge of the gun was an act likely to endanger human life could the appellant have been convicted of manslaughter.[8]Section 302(2).

Ratio Decidendi

Legal Principle Established

Established by: HUGH, HAYNE AND CALLINAN JJ

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