Harwood v the Queen B49/2001

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B49 of 2001

B e t w e e n -
TODD ANDREW HARWOOD
Appellant
and
THE QUEEN
Respondent

GLEESON CJ
GAUDRON J
McHUGH J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 16 NOVEMBER 2001, AT 10.21 AM

MR A.J. RAFTER: May it please the Court, I appear for the appellant. (instructed by Legal Aid Queensland)

MS L.J. CLARE: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

GLEESON CJ: Yes, Mr Rafter.

MR RAFTER: Thank you, your Honours. Your Honours, the transcript of the police interview with the appellant which was taken on 18 February 1994 and which is contained in the appeal book from pages 9 to 32 is not the actual transcript that was before the jury, because the original exhibit and the actual transcript used in the trial was not able to be located. The transcript in the appeal book is a transcript of the master tape and it does contain some prejudicial material the jury did not actually have before it. Obviously it is not material to the Court’s consideration of this case. The relevant passages are mainly concerned with break and enter offences and so forth.

The jury did have before it all relevant admissions concerning the shooting at the Coaches Inn and the admissions concerning the robbery at the North Bundaberg Post Office the next day, because the judge had specifically admitted that evidence. The relevant passages concerning the shooting at the Coaches Inn are contained in the interview, firstly at page 16 of the appeal book, commencing at line 40, where the police officer introduces the topic of the shooting at the Coaches Inn and the appellant explains, commencing at line 50:

Well, Gary and I went down the bus depot on Wednesday night because we were looking at doing the cafeteria there in the bus depot. Yeah, but then something happened and we went away and come back. Then we walked around the front, walked up the front of the steps to the bus depot, then it goes into the cafeteria or out where the buses are. I stood at the drink machines in the front foyer there ‑

and it continues.

On the top of page 9 the appellant explains that the co‑offender, Hind, just sat down beside him, that is, the man who was shot, and said”

something like, “You have got to move”, or something, and this bloke has turned around and said, “I am not going nowhere.”, or something like that and then all I heard was the gun shot.

The appellant explains that then the co‑offender, Hind, came running towards him.

If I could continue the references to the police interview at appeal book page 18, commencing at line 40, the appellant explains that Hind was holding a cut-down 22. He said he was not carrying a firearm, he was not armed in any way at all. He said he was about five to six metres away from where the shooting took place, at line 45, and at line 50 he was asked:

What was your purpose for standing that distance – what were you going to do there?-- I was standing there because I thought we were going to stick up the cafeteria.

And then:

You said before the reason Gary went over to this fellow sitting down on the ground was to move him on?-- Yeah, to move him away from the front of the cafeteria.

In answer to the next question:

Because Gary thought we couldn’t do it there while he was sitting out the front? I don’t know.

The questioning continues on page 19. I will not read all of that out, but the salient passages probably commence in about line 10, the question:

When you went there and Gary had this sawn‑off 22 did you know if the gun was loaded?-- No, I didn’t know it was loaded. There was shells in the car but I didn’t know there was one in the ‑ actually in the chamber.

HAYNE J: Was the weapon a single shot weapon or was it a magazine weapon? What sort of weapon was it?

MR RAFTER: I cannot immediately answer that, your Honour. If I could perhaps come back to that later on. Next question:

Did Gary ever tell you what he was going to do if anyone challenged you while you were robbing the place or anything like that?-- No, not really.

He explained, just below line 20, when asked what the reason was for taking the weapon, he said:

Just as a sort of persuader, that is what I thought, just - I don’t know.

Next question:

In your opinion, Todd, what do you think would have happened if anyone would have challenged either you or Gary while you were doing that hold-up?-- Well, if they had challenged me nothing would have happened because I wasn’t holding no gun, so if they had challenged Gary, I don’t know. I can’t really tell you. I don’t know.
Now, those are the more critical passages of the interview concerning the shooting. There are some others perhaps I will come to a little bit later on. The questions for the jury are contained in exhibit No 71 which is in the appeal book at pages 33 to 35. I should indicate that the additional three pages following that, that is from 36 to 38, are draft questions that were the subject of legal argument during the course of the trial but the actual questions the jury had are contained in exhibit 71 at 33 to 35.

If I could go to what is described as the first basis to prove murder, on page 33. That basis of liability, as it is set out against the appellant, depended on the combined operation of sections 8 and 302(1)(a). If I could just indicate there. Item 2 against the appellant is that Hind voluntarily pulled the trigger causing the gun to discharge. So this basis of liability depended on a voluntary discharge of the weapon, with the relevant intention, as item 3 makes clear in the case against the appellant.

So far as the second basis to prove murder is concerned against the appellant – that is contained on the next page, at page 34, and it depended upon the combined force of sections 8 and 302(1)(b) of the Queensland Criminal Code. If I could just very briefly, at this stage, go to items 2 and 3 to make clear that in the way the case was left for the jury to consider this basis of liability depended upon the non‑intentional discharge of the weapon. Your Honours will see that item 2 says:

That Hind held the loaded cocked gun without the safety catch on in the direction of Bowering.
3. That the death of Bowering was caused by means of Hind holding the gun in this way.

So, as the judge later explained to the jury, this depended on the non‑intentional discharge of the weapon.

The case of manslaughter was put to the jury but only on a single basis depending upon the combined force of sections 8 and 289 of the Queensland Criminal Code, which is the criminal negligence provision, and the relevant questions for the jury are contained in exhibit 71 at page 35. I will not go through all of those at this particular stage.

The summing up contained directions concerning the specific case against the appellant from pages 141 to 146, commencing at 141 line 40. Having summarised the case against Hind, his Honour then said:

This brings me to the case against Harwood –

and his Honour directed the jury relevantly on the aspects of the interview that required consideration. His Honour did not repeat directions that his Honour had already given to the jury in considering the case against Hind, but, of course, his Honour was required to, and did, direct the jury specifically on the effect of section 8 of the Criminal Code, which was relevant to a consideration of the case against the appellant.

The defence submissions on the matter were summarised by his Honour, although his Honour made clear he was not purporting to put everything before the jury, but the defence submissions are summarised from pages 147 to 149. The jury did, during the course of their deliberations, request summary directions, one of which may be pertinent here. The relevant redirection is from pages 157 to 159. The second question asked by the jury concerned the second basis for murder against the appellant and this is one of the directions that made absolutely plain it was put on the basis of a non‑intentional discharge of the weapon.

So, the only basis for considering murder against the appellant was based upon a deliberate discharge of the weapon, with, of course, the first basis to consider murder under sections 8 and 302(1)(a). One of the complaints here is that manslaughter was also open by that route if a deliberate firing of the gun, absent the intention to kill or do grievous bodily harm, was present, then manslaughter was available by that route.

GLEESON CJ: Can you say that again, please? If?

MR RAFTER: If an intentional discharge of the weapon, absent an intention to cause death or grievous bodily harm, was a probable consequence of the plan that the appellant aligned himself to then manslaughter was a verdict available to him.

GLEESON CJ: Now, what would be the intention, absent an intent to kill or cause grievous bodily harm?

MR RAFTER: It could be an intention to frighten, scare off, or whatever. There would be a variety of other intentions available.

McHUGH J: That case was never asked for, was it?

MR RAFTER: No, it was not specifically asked for, your Honour.

McHUGH J: Is there any basis in the evidence for it?

MR RAFTER: I have taken your Honours to most of the critical passages concerning the interview that the appellant had with the police. On those admissions that he made, I ‑ ‑ ‑

HAYNE J: Is all the material suggestive of the fact that the gun was held either against or so very close as to amount to being against the victim?

MR RAFTER: It was very close to him. The evidence certainly suggested that.

HAYNE J: And no evidence other than that about the way in which the gun was presented?

MR RAFTER: There is no evidence to the contrary. Having made that concession, my submission, though, is that there was no plan before they went there, or certainly no evidence before the jury that the plan was to shoot anybody, and one might have thought that ordinarily moving on a person outside the premises to be robbed by actually shooting them would be an unexpected event more likely to impede the progress of the robbery than actually to advance it and to be in the prosecution of the common purpose of actual robbery, so that ‑ ‑ ‑

CALLINAN J: Did your client not say the gun was taken as persuader?

MR RAFTER: As a persuader.

CALLINAN J: That rather suggests some sort of prior common plan.

MR RAFTER: Well, a gun can be used as a persuader whether it is actually fired or not. The idea is ‑ ‑ ‑

GLEESON CJ: But this was going to be a stick-up.

MR RAFTER: Exactly.

GLEESON CJ: So they agreed that there would be an armed robbery?

MR RAFTER: Yes, that is accepted. They did not agree that the gun would be fired. In fact, the appellant seemed to remain ignorant as to whether or not the weapon was actually loaded.

GAUDRON J: But they did not have to agree that it would be fired, did they?

MR RAFTER: No, I am not suggesting ‑ ‑ ‑

GAUDRON J: All they had to agree was that if certain events happened, it would be fired, or even that it could be fired.

MR RAFTER: Yes, your Honour, I accept that. I am not putting forward that to be convicted it would have to be part of the plan. It would actually be fired. I am just trying to put the nature of the actual plan into context.

GLEESON CJ: That is what felony matters are all about, is it not?

MR RAFTER: Precisely.

GLEESON CJ: So that if a group of bushrangers hold up a stagecoach and a gun goes off, one of the persons charged with murder cannot say, it was a blue-tailed fly that bit the horse.

MR RAFTER: Yes, but this particular case was put forward as murder on two bases: the felony murder basis in subparagraph (1)(b) and an intentional killing basis under (1)(a). It follows from the (1)(a) basis, in my respectful submission, and this Court’s decision in Barlow, that manslaughter was an available verdict in the circumstances of this particular case.

GAUDRON J: But not on the felony murder basis.

MR RAFTER: Well, the provision contained in (1)(b) only creates the offence of murder.

GAUDRON J: Yes. Well, I am wondering how real is your – well, whether you can say in these circumstances that the accused was deprived of a chance of acquittal of murder.

MR RAFTER: I will perhaps try to demonstrate that the case of manslaughter that I am putting forward was not a fanciful case.

McHUGH J: But I am not sure ‑ how does this submission fit in with the fact that under the Code:

if death is caused by means of an act done in the prosecution of an unlawful purpose –

and the –

act is of such a nature as to be likely to endanger human life –

then it is immaterial, is it not, that the offender did not intend to hurt any person?

MR RAFTER: Yes, that is correct, your Honour.

McHUGH J: So you can be convicted of murder in those circumstances, even though you did not intend to hurt any person and even though the gun went off, with an absence of intent to kill or cause grievous bodily harm. So how do you reconcile manslaughter with the Code definition of “murder”, having regard to the way you want to put manslaughter?

MR RAFTER: Well, this case might be different, and I perhaps would have no argument whatever if the case went forward solely under section 302(1)(b). The difference is it went forward on two bases, one of which had, as an available underlying alternative verdict manslaughter, and that was not specifically put to the jury.

GAUDRON J: But let me ask this question. Let us look at Mr Hind. If the jury found Mr Hind guilty on an intentional killing basis, they would also necessarily find him guilty on the felony murder basis, would they not?

MR RAFTER: Yes, one would expect so, your Honour.

GAUDRON J: And therefore they would find Mr Harwood guilty of murder on the felony murder basis as well. So what I am asking is, was there ever a chance of acquittal of your client of murder, such that he might be convicted of manslaughter? I would have thought not.

MR RAFTER: Your Honour, my submission is that there was a basis for that there, and can I rely upon the observations ‑ ‑ ‑

GAUDRON J: It could only be on the basis that surely Mr Harwood was convicted on the basis of intentional homicide, but would not have been convicted, could not have – well, would not have been convicted on the felony murder basis. It seems to me to be very fanciful.

MR RAFTER: One difficulty, of course, is in the absence of any special verdict, we do not know precisely which path to conviction the jury took. Not that one would expect a special verdict on the facts of this type of case and it would be open to ‑ ‑ ‑

GAUDRON J: I would have thought one does not need a special verdict in this case, because if Mr Hind was found guilty on the basis of intentional killing, he would not necessarily have been found guilty of murder on a felony murder basis as well.

MR RAFTER: One would expect so ‑ ‑ ‑

GAUDRON J: I would have thought necessarily, and if you come to the view that he was necessarily found – would necessarily have been found guilty on felony murder, then so would Mr Harwood.

MR RAFTER: To answer your Honour, can I say that whilst one would probably expect Mr Hind to have been convicted on the second basis if the jury had concluded he was guilty under the first basis, the actual findings necessary are markedly different and we really do not know precisely ‑ ‑ ‑

GAUDRON J: I would have thought they must have, must have. Once they accepted that it was an intentional killing in the course of an armed hold-up, you automatically – and they must have accepted that to convict Mr Harwood – they must have accepted the latter to convict Mr Harwood. So you necessarily, in the facts of this case, must conclude guilty also on the basis of felony murder.

MR RAFTER: Your Honour, Mr Justice Pincus in the Court of Appeal thought that the failure to specifically put the case of manslaughter for Harwood, on the assumption Jervis was actually correct, which his Honour concluded ‑ ‑ ‑

GLEESON CJ: He said, on the bottom of page 240 at line 55, that:

the jury was not told that this was a possible way of dealing with the case.

But I think what we are asking you about is what was that possible way of dealing with the case.

MR RAFTER: Yes. My answer to that, your Honour, is under the first basis to convict for murder, if an unlawful killing, absent the intention to kill or do grievous bodily harm, was a probable consequence of the plan, then that is the means of arriving at a manslaughter verdict. Could I attempt to demonstrate that perhaps by reference to the decision of Queensland Court of Appeal in R v Brien and Paterson [1999] 1 Qd R 634.

In that particular decision, at 638, the then President of the Court of Appeal of Queensland set out the necessary elements for a finding of murder based upon the combined operation of the same provisions applicable here, 302(1)(b) and section 8. Looking at those seven matters listed by his Honour on page 638, the first four concern 302(1)(b) and items (5), (6) and (7) concern section 8.

A distinguishing feature about Brien and Paterson is that it was a case concerning only 302(1)(b). The case did not go to the jury under (1)(a). If I could go to the following page his Honour says that:

Both ss 8 and 302(1)(b) are concerned with the nature of the Act which constituted, or was an element of, the offence charged. However, the former is concerned with whether the nature of the act was such that its commission was a probable consequence of the prosecution of the common unlawful purpose, while the latter is concerned with whether the nature of the act was such as to be likely to endanger life.

That material difference between those requirements had not been brought home to the jury in that particular case and the appeal was allowed and a new trial ordered. His Honour goes on to say at about line 38:

If all seven were not established by the prosecution, Paterson and Brien could be convicted of manslaughter if, and only if, the requirements stated in paragraphs (1), (2), (5), (6) and (7) were established. Requirement (4) is materially indistinguishable from requirement (6)(a). The hypothesis that Paterson and Brien could be guilty of manslaughter but not murder is dependent upon the premise that all other requirements can be established without satisfying requirement (3).

Now, just going back to that earlier passage, requirement (3) was the “dangerous act” requirement and looks at the matters listed on 638:

an act of such a nature to be likely to endanger human life -

one of the requirements of section 302(1)(b).

GLEESON CJ: Now, why is that absent here?

MR RAFTER: It is not that it is absent. It was a matter for the jury, properly directed, about all alternative avenues to conviction. I am not suggesting it is completely absent, your Honour.

GLEESON CJ: But it is the absence of factor (3) that is necessary for the finding of manslaughter, is it not?

MR RAFTER: That is right. Now, in this particular case, Brien and Paterson, the facts were a common plan to go to the home of the deceased, to assault him by threatening him with a loaded gun. That was the plan that all the participants were a party to. In some respects, it is a worse case for the appellant than the present one because part of the actual plan was to threaten with a loaded gun. That was not part of the plan here although the possibility of that occurring is, of course, a live possibility and it was an appropriate matter for the jury to consider.

I perhaps need to continue on because his Honour makes plain at 637 that:

Manslaughter is any unlawful killing “under such circumstances as not to constitute murder”.

Provided by section 303 of the Queensland Criminal Code. At 640, after the passage that I went to just before, his Honour did say:

In the present case, it is not easy to discern how all other requirements could be satisfied without satisfaction of requirement (3).

His Honour did say that but I emphasise that this was not a case that was put on the basis of sections 8 and 302(1)(a). As for the possibility, in such circumstances, of having a manslaughter verdict, the outcomes of the four cases that actually underlay Brien and Paterson – there were four accused, initially – it is perhaps helpful if one looks at 641 in the President’s reasons.

At about line 25, the court says that one of the co‑offenders who was a party to this plan, Petersen, was acquitted “of murder but convicted of manslaughter”. His Honour said “seemingly by reference to s. 302(1)(a) and s. 8”. The earlier trial had been conducted on a 302(1)(a) footing and his Honour explains:

The foundation for the jury’s verdicts with respect to Peterson appears to be conclusions that Brien intentionally killed Kummer but an unlawful killing, without an intention to kill or cause grievous bodily harm, was, and/or was considered by Peterson to be, a probably consequence of the prosecution of a common intention to unlawfully assault Kummer by threatening him with a loaded firearm.

If manslaughter was an available verdict on the facts of that particular case, I submit it must be available in the circumstances of this case.

At an earlier trial involving the same accused a co‑offender, Wood, was acquitted of murder but convicted of manslaughter although, on appeal, that conviction itself was set aside and he was acquitted by the Court of Appeal but the President explained that manslaughter verdict at the top of page 642, about line 3. His Honour says:

Wood was acquitted of murder but convicted of manslaughter, seemingly on the footing that he considered that an unintentional unlawful killing was a probably consequence of the prosecution of a common intention to unlawfully assault Kummer ‑ ‑ ‑

HAYNE J: Does the conviction of some of the co‑offenders in the Brien and Paterson Case of manslaughter have significance? That is, a differentiation by the jury that has considered the cases, does that take on any significance?

MR RAFTER: Only in so far as it demonstrates that in a case where loaded weapons are being used and the plan encompasses using them, sometimes a jury will take the lesser option if it is available to it. That is really all I attempting to demonstrate and to explain the Court of Appeal’s rationale of those verdicts because it really is that reasoning that partly explains, or underlies, the decision of this Court in Gilbert ‑ ‑ ‑

HAYNE J: Just before you come to Gilbert, you have stated this, I suspect more than once, and forgive me for having you go back to it, but given the conviction of the co‑accused, Mr Hind, or murder, what is the path of reasoning that you say was open to the jury to lead to the manslaughter conviction of your client?

MR RAFTER: Your Honour, my answer to that is under the first basis to convict for murder if one takes out of that the intention to cause death or grievous bodily harm, one is left with factual findings that would lead to a manslaughter verdict.

GAUDRON J: You extract that from the section 8 consideration, not from the Hind consideration, do you, as it were?

MR RAFTER: That is right, your Honour. In this case, what I am attempting to argue is that such a path of reasoning was not fanciful, especially in this particular case where there was evidence that Hind was affected by drugs and the judge correctly put to the jury issues of intoxication. The appellant told the police ‑ perhaps if I could take the Court to some of the passages that indicated that in the interview with the police at page 20 of the appeal book, commencing about line 35, the appellant is specifically asked whether or not he had taken drugs or alcohol prior to the night, and he said:

Pills, Valiums, both me and Gary. Gary was drinking.

He said he did not drink.

What sort of effect do they have on him?-- Valium with alcohol, it is a pretty toxic state.

The judge specifically directed the jury in the summing up on issues of intoxication at page 133 of the appeal book and intoxication, under section 28(3) of the Criminal Code, is relevant where in cases where a specific intention to bring about a particular result is an element of the offence, as it was here. The judge’s direction to the jury was quite correct, but so far as that affects the appellant’s position here, I submit it is another factor that can be put into the equation to explain why manslaughter was a possible outcome. That is why an intentional discharge of the weapon, without any intent to cause death or grievous bodily harm was a possible consequence or, as section 8 requires, “a probable consequence” that should have been specifically put to the jury.

I was going to go to the Court’s decision in Gilbert v The Queen (2000) 201 CLR 414. In the joint judgment of your Honour the Chief Justice and Justice Gummow at 421, your Honours make reference to the Canadian decision of Jackson and, your Honours, in paragraph 17 in the final sentence your Honours say:

To adapt the words of Fullagar J, a jury may hesitate to acquit, and may be glad to take a middle course which is offered to them.
The Supreme Court of Canada in R v Jackson, a case with factual similarities to the present, declined to apply the proviso where a jury, having been inadequately directed on manslaughter, but correctly instructed on the elements of murder, convicted the accused of murder.

A passage from Justice McLachlin’s judgment is there set out and the other member of the majority in Gilbert, your Honour Justice Callinan, said at page 441 paragraph 101:

It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of choices offered, particularly when, as here, a particular choice was not the only or inevitable choice.

GLEESON CJ: Could I just stand back from the particular legislation at the moment. Is the effect of the Code in Queensland, as you submit, that if two people embark together on an armed robbery, one of them with a loaded gun, and the one with the loaded gun intentionally kills a victim in the course of the robbery, there is a certain state of mind in the other that can produce the consequence that whilst the former is guilty of murder the other is guilty of manslaughter? What exactly is that state of mind?

MR RAFTER: It depends on what bases the case is put forward. If it is put forward under section 302(1)(b) then the specific state of mind of the secondary party may not be important, so long as all of the critical findings required by section 8 and paragraph (1)(b) of section 302 can be established. But, if the case is put forward, as this one was, under section 302(1)(a) as well, then the findings required are simply that an intentional killing, in the sense by the intention to kill or do grievous bodily harm, must be a probable consequence of the carrying out of the prosecution of the unlawful purpose.

GLEESON CJ: I was intending to put the question another way. Just putting it positively, what is the state of mind or state of affairs that might produce the result that one offender is guilty of murder and the second is guilty of manslaughter? What is the view of the facts that the jury might take that would lead to that consequence?

MR RAFTER: In this particular case?

GLEESON CJ: In Queensland.

MR RAFTER: In Queensland. In a robbery situation, the jury’s focus is on the intention of the actual perpetrator of the shooting, not on the intention of the secondary party. So if one is looking at a deliberate shooting under section 302(1)(a) and trying to bring in the secondary party by operation of section 8, then the requirements under section 302(1)(a) must all become a probable consequence of the carrying out of the plan before the secondary party can be convicted.

Now, Mr Justice Pincus in Brien and Paterson, the case I was talking about earlier, discussed those different requirements and that was the explanation that his Honour gave. One sets out the requirements for basis of conviction of the actual perpetrator of the offence, whether it is under (1)(a) or (1)(b), and then one says, “All of those constituent elements are a probable consequence under section 8”, and that is the way the verdict is arrived at.

CALLINAN J: Mr Rafter, do you accept Justice Fitzgerald’s analysis in Brien and Paterson that you referred us to, the seven propositions?

MR RAFTER: Yes, I do, your Honour. I hope I have given a satisfactory answer to your Honour the Chief Justice’s question to me and it may be helpful to go back to Brien and Paterson [1999] 1 QR 634, to Mr Justice Pincus’ judgment to see the way his Honour explains the relevant requirements. Justice Pincus’ judgment is at 643. His Honour was concerned about the effect of this Court’s decision in Barlow and what his Honour saw as two possible applications of the majority judgment and his Honour called these “Barlow One” and “Barlow Two”.

McHUGH J: What do you say is the correct interpretation of Barlow?

MR RAFTER: Your Honour, my submission is that the “Barlow One” that the Court of Appeal favoured in Brien and Paterson is the relevant one. What the Court was talking about in Barlow at pages 13 and 14, which Justice Pincus says is “Barlow Two”, was dealing, I submit, with quite a separate type of factual situation which might arise in some particular circumstances. The passage in Barlow 188 CLR 1 that Justice Pincus had in mind – the relevant passages are at 13 to 14 and his Honour explains the two possible approaches. But my submission is the passages at pages 10 and 11 are the relevant ones here.

At page 14 of Barlow, in the joint judgment about five lines from the top of the page, one sees that their Honours said:

If, at the time that the act was done or the omission was made, the secondary party had a state of mind which, in combination with an act or omission of the nature which s 8 deems him to have done or made, renders him guilty of a more serious offence than the offence of which the principal offender is guilty, the secondary party is liable to conviction for the more serious offence.

That is what section 8 does, is to deem the secondary party to have committed the relevant act. Their Honours go on to explain:

Thus the mastermind who, having greater knowledge of the circumstances or the likely result of a minor criminal offence which he and a comparatively innocent principal offender agree to commit, or who has an evil intent not shared by the principal offender, will be liable according to his (the secondary party’s) state of mind, although the common plan was merely to commit the minor offence.

Now, one can envisage some circumstances where that type of approach would be required, because of the circumstances that the Court explained.

GLEESON CJ: At page 645 in Brien and Paterson, Justice Pincus summarises what he calls the relevant parts of “Barlow One” in paragraphs (A), (B) and (C), do you see that?

MR RAFTER: Yes, your Honour.

GLEESON CJ: And in paragraph (C) he says:

To convict the secondary party of the same offence as the principal offender, nothing less will do than a finding that all the elements of the principal offence were probable; but that finding is enough –

so it is both necessary and sufficient.

MR RAFTER: Yes.

GLEESON CJ: Well, on the facts of the present case, what element of the principal offence was not probable?

MR RAFTER: All elements were open for the jury to decide in favour of the Crown. I am not suggesting otherwise, your Honour. My complaint really is, as in Gilbert, a possible route to manslaughter was not actually put to the jury for their consideration.

GLEESON CJ: But let us work out what exactly the route was. What element might the jury reasonably have found was not probable?

MR RAFTER: Well, the intention to kill or do grievous bodily harm under the first basis to commit murder. That, I submit, was a live issue for the jury when considering this appellant’s case.

GLEESON CJ: You are referring to the intention of Mr Hind?

MR RAFTER: Correct.

GLEESON CJ: So the jury might reasonably have found, looking at it from the point of view of your client, that it was not probable that Hind would intentionally shoot anybody?

MR RAFTER: Yes, would intentionally shoot somebody with the intention of causing death or grievous bodily harm, and if the jury were left in a state of reasonable doubt on that, but nevertheless satisfied that a deliberate firing of the gun, without the relevant intention, was a probable consequence, that was a possible route towards manslaughter.

GLEESON CJ: Now, on the felony murder aspect of the case, why would the jury have had to find the probability of an intention to kill or inflict grievous bodily harm?

MR RAFTER: Under the felony murder basis that did not arise for consideration, your Honour.

GLEESON CJ: Well, having regard to what actually happened, if it be the case that the jury must necessarily have found Hind guilty on a felony murder basis, where does that leave your client?

MR RAFTER: It leaves him in the position where he has not had an additional basis of manslaughter put to the jury for their consideration, and he ought to have had that. Only one path to that verdict was put based upon criminal negligence and section 8. An additional basis for a manslaughter verdict was the combined operation of section 8 with all of the elements set out under the first basis to commit murder, minus the intention to cause death or grievous bodily harm. My submission is it is immaterial that the findings, that would be inherent in a verdict of manslaughter under that basis, have similarities to a 302(1)(b) and section 8 case, because the findings, although similar, by no means identical - as Justice Fitzgerald’s analysis of what is required for a felony murder conviction as set out in those seven points in Brien and Paterson that I referred to earlier, demonstrates.

I have taken the Court to some passages in Gilbert and one of the decisions referred to in the joint judgment is the Canadian decision of R v Jackson (1993) 4 CSCR 573. I think copies of that decision have been made available to your Honours. In that particular case which, as your Honour said in the joint judgment, bore some similarities to the facts in Gilbert, but some material comparisons can be made to this case as well. One sees that, although the case is indexed as R v Jackson, the actual person, the subject of the appeal, was a man named Davy, the secondary party. One of the bases of murder put forward by the Crown in his case was reliant upon section 21(2) of the Canadian Criminal Code which bears some similarities but of course it is not identical to section 8 of the Queensland Code.

As appears from page 580 of the judgment of Justice McLaughlin, who delivered the judgment of the court, the trial judge had directed the jury on both the law of murder and of manslaughter. Furthermore, the judge had emphasised that the jury should consider each accused’s liability independently and set out a number of plausible scenarios, and stated what the liability of each would be under each of those provisions. The Court of Appeal had set aside the conviction and directed a new trial, on the ground that the judge’s charge did not adequately deal with the possibility that Davy might be convicted of manslaughter. One sees that at the foot of page 580.

At this point, it is perhaps helpful to look at the actual facts of the case. I will not refer to them extensively, but Davy’s actual account, which one sees in her Honour’s judgment at 579, commencing at the top of the page, was that his story was very different to that of the co-offender. He had driven Jackson to the place where the killing occurred and, as appears on the second line:

Jackson had talked on the way to Bobcaygeon about killing Rae, although Davy took this to be a joke. Upon their arrival in Bobcaygeon, they parked the car across the street from the Raebenloft. Jackson got out, carrying a hammer, balaclava and gloves, and ordered Davy to follow -

and the rest of the facts are set out in that passage. I am referring to that because this is a case where the possibility of killing the deceased was actually mentioned on the way to the site of the offence, and the co‑offender went out with a weapon; a hammer. The directions to the jury did encompass murder and did encompass manslaughter.

At 591 in the final paragraph on that particular page, her Honour says:

At no point did the trial judge expressly tell the jury that it was open to it to find Jackson guilty of murder and Davy guilty of manslaughter. In the scenarios which he outlined for the jury, none of the possible verdicts for Davy were manslaughter. Furthermore, and most telling, the trial judge stated: “It may be unlikely in this case that Davy would be guilty of manslaughter.”

Now, that is not a consideration here but it is, perhaps, the rationale of this particular case that led Mr Justice Pincus to make the observation that he did, that if, contrary to his view, Jervis was actually correct, then there should be a new trial for this appellant because the jury had not been specifically told that this was a way of possibly dealing with the case. That was the remark that his Honour made and which is relied upon here and it is, perhaps, this sort of rationale that led his Honour to reach that conclusion. I appreciate, of course, his Honour did not elaborate and explain the precise route, but it was obviously a view that his Honour formed.

The importance of leaving all possible routes to manslaughter, if they are available, is, I would submit, an important consideration here. I am not submitting that in every case all alternative verdicts have to go before the jury, but the special position with respect to murder and manslaughter has been noted in a couple of cases. One is R v Willersdorf [2001] QCA 183. I will not read out passages from this, but Mr Justice Thomas noted that in Willersdorf at page 6 paragraph [19]. There were similar observations made in a Victorian case, R v Kane [2001] VSCA 153 an unreported decision of 7 September 2001.

Now, if I could perhaps go to that very briefly, to the judgment of Mr Justice Ormiston, and although these are dissenting reasons, I submit the observations that his Honour made at page 2 paragraph 3 are pertinent to this case. His Honour said:

For present purposes I accept that so far as the verdicts of murder and manslaughter are concerned, courts in this state are bound by High Court authority and recent authority of this Court to leave to the jury the alternative verdict of manslaughter on any murder trial where the facts leave such a verdict open. One can understand why the courts have wished to leave open to the jury the possibility of acquitting on a count of murder where the facts are consistent with their bringing in a verdict on the lesser charge of manslaughter, even though counsel for prosecution and defence had not sought to raise the possibility of such a verdict during evidence and addresses. The rule was devised when the only sentence for murder was hanging and was further developed largely during a period when the only sentence was life imprisonment. Moreover, the earliest cases where the principle was laid down arose out of circumstances where there was a failure to leave to the jury the “defence” of provocation –

My submission is the same approach is applicable now and in the circumstances of this particular case. In Queensland the penalty for murder was, at the time of this trial, and still is, a mandatory life sentence. There is no distinguishing between an offender who plays a lesser role. There is no distinguishing between an offender who does not actually carry the weapon or fire the shot. There is no distinguishing between an offender who has a significant criminal history and an offender who has only a minor history. It, perhaps, does not matter a great deal, but in this case Hind, for example, had prior convictions for manslaughter and robbery. The appellant’s record was not considered greatly relevant when it came to the imposition of sentence.

So because of the impact of a conviction for murder, requiring as it does a mandatory life sentence, it is, I submit, very important that the jury have all available possibilities left to them for consideration and I rely strongly on Mr Justice Pincus’ observation that because the case was not specifically left to the jury in the way I have attempted to put forward now,

the appellant’s conviction ought to be set aside and a new trial ordered. Those are my submissions, your Honours.

CALLINAN J: Mr Rafter, just before you sit down, could you help me – at page 149, line 41, there is a reference to a:

fact set out in paragraph 7 under the heading “Harwood – Manslaughter” –

Was some document put before the jury which set out facts or questions or something?

MR RAFTER: Well, I think the only document was exhibit 71 that I went to earlier. The document under discussion there may have been – it certainly was not that particular document which was not actually completed until just before the summing up, as I read the transcript. It may have been either the document at pages 36 to 38 or another version of it. There seemed to be a number of draft questions and so forth. So I think that may be the type of document under consideration.

CALLINAN J: I think Ms Clare is going to tell you.

MR RAFTER: I think exhibit 71 became exhibit 71 just prior to the addresses to the jury, but ‑ ‑ ‑

CALLINAN J: Now, exhibit 71 is at page?

MR RAFTER: Pages 33 to 35.

CALLINAN J: Was that actually given to the jury, was it?

MR RAFTER: Yes, as I understand it, your Honour. The judge makes reference to it in the course of his summing up and says these are the matters that require attention and consideration. As I said earlier, those additional pages at 36 to 38 are not the actual questions before the jury. They were one of the earlier draft versions prepared by the Crown Prosecutor to assist the judge in putting the case before the jury in the summing up.

GLEESON CJ: Thank you, Mr Rafter. Yes, Ms Clare

MS CLARE: It is my submission that the appellant cannot succeed on any level, either legally, factually certainly because any verdict other than murder in this case would have been perverse. The appellant cannot complain about the deprivation of the so-called right to a merciful verdict because, in fact, of course, manslaughter was left as an option to the jury. They were properly instructed as to the law in relation to murder itself and in those circumstances, it is submitted, there could be no unfairness to the appellant at all. There has never been any challenge to the correctness of the directions in relation to murder, either in this Court or below.

The only complaint now is that manslaughter should have been left by a different route or by an additional route as an unintended killing. That type of verdict was not sought at the trial, nor was it sought in the court below. It is only some five years later before it has become an issue in relation to this particular case. One might think that the reason that up until this point the appellant and his legal representatives have not sought to raise it as a matter for argument is because of the very real difficulty in how it could be put without, in fact, defining murder itself.

My learned friend here says that he relies upon the lack of intent and that would the additional basis. The matter is problematic for him when a specific intent is not a necessary element of murder. It certainly is irrelevant to section 302(1)(b), the felony murder provision. There was, in my submission, no additional basis for manslaughter to be left because any such compilation using section 8 would have to amount to murder and if it amounted to murder then by virtue of section 303 it could not be manslaughter.

In my submission, that is perfectly consistent with the approach of the whole Court in Gilbert and it is consistent – it is seen in the approach of the subsequent decisions of the State courts in cases like Phan, Williamson and Floyd. Here I go further in my submission than simply saying that there was no unfairness in this case. My submission is where liability for homicide is based upon section 8 of the Code there is no scope for a manslaughter verdict either in law or in fact. I make that submission because of the interaction between section 8, section 302(1)(b) and the accident provision in section 23, that is, the provision which excuses liability for “an event which occurs by accident”.
For a section 8 prosecution for an unlawful killing, which is what is being asked for here, section 8 and section 23 both need to be overcome before criminal responsibility for the death is made out by the prosecution. It is my submission that together section 23 and section 8 satisfy all the requirements of section 302(1)(b), that is, that when those two provisions are met by the Crown there is no issue in respect to the unintended murder provision of section 302.

Both section 8 and 302(1)(b) impose liability for unintended but objectively not unexpected results that are “done in the prosecution of an unlawful purpose”. They clearly overlap and on their face the only additional requirement for murder is that the act that causes death, the lethal act, be an act which is likely to endanger human life. Section 8 refers to a probable consequence of the unlawful plan. “Likely” in section 302, the murder provision, and “probable” in section 8 mean the same thing. They both require the same degree of objective foreseeability.

HAYNE J: Just before you go to develop that, was it suggested at trial that the evidence of, or the conclusions that might be drawn about the probable consequences of carrying out the common purpose of effecting an armed robbery, differed in any respect as between the accused?

MS CLARE: Sorry, that the probable consequence differed between the accused?

HAYNE J: Yes. Did the accused seek to differentiate themselves in any way, whether by reference to differences in the evidence or otherwise, about the probable consequences of carrying out the armed robbery?

MS CLARE: My short answer to that would be no, but I have to preface it with the acknowledgment that it was freely put that the evidence, in relation to each case, had to be on the evidence admissible against that party, and that was ‑ ‑ ‑

HAYNE J: Just so. There were separate trials. I understand that.

MS CLARE: That is right. But as to the common plan, the unlawful plan, the evidence in relation to this appellant, to Harwood, was stronger as to the nature of the plan than it was against Hind. So in relation to Harwood, he had made admissions about the reason that they were at the scene, that there was to be an armed robbery, that the gun was to be used as a persuader and so on. So in terms of the evidence of what the common plan was from Harwood’s perspective, the evidence was less strong in relation to Hind, but, for these purposes, perhaps not relevantly so.

Barlow establishes, of course, that the nature of the offence in section 8 refers to that combination of both the unlawful act, together with whatever specific intent and other circumstances, the result and so forth, that relate to the principal offender, and it is that which has to be a probable consequence of the plan. That would mean that here, in section 8, if we take only the unlawful killing without intent, which is what is now contended for, section 8 would require that the unlawful act which caused the death, and the death itself, be probable consequences of the commission of the unlawful purpose. If that is so, in my submission, it follows that the fatal act has to be foreseeable, has to be probable, which makes the nature of that act one which is likely to endanger human life, that is, meets the requirement of section 302(1)(b).

If that is applied to this scenario, in this case, under section 8 the Crown had to prove that the killing by the pointing of the loaded gun at close proximity to the deceased was a probable consequence of the joint plan. Once that was proved, the pointing of the loaded gun was an act of a nature likely to endanger human life. That minimum requirement to attract liability at all for death under section 8 covered the requirement, both as a legal principle and in fact, under section 302(1)(b) for the act being of such nature as to endanger life.

My learned friend put a proposition that the focus could be put differently: rather than the pointing of the gun, it could be reframed for a scenario of a deliberate discharge of the weapon. But, in my submission, that simply cannot assist the defence at all. It makes the position worse rather than better, because the deliberate discharge would still have to be in the other circumstances, which were uncontested, unchallenged, of a pointing of the gun at close range and so on.

The deliberate discharge would still have to be, in the other circumstances which were uncontested, unchallenged, of a pointing of the gun at close range, and so on. If one adds in the additional admission by the appellant that he knew that Hind, with the gun, had been in a toxic state because of his ingestion of alcohol and Valium, again, it can only aggravate his position rather than improve it. It makes the dangerousness of this activity all the more probably in relation to the common plan.

McHUGH J: Pardon my ignorance, but why does the combination of alcohol with Valium make somebody more dangerous?

MS CLARE: For some people it might make them less so, your Honour, I concede that. In the circumstances of this, on the admissions of Harwood himself, they seemed to suggest that this man was more dangerous, he referred to it as a “toxic state”. They had taken the Valium to give them courage, he said, but he recognised that for Hind that combination with the alcohol, was toxic. That is certainly a view the jury could have taken. It is not necessary for my argument, but my point is that it simply refutes the point made by my friend.

There is another point in relation to accident which I would make. For a prosecution, even for manslaughter, the Crown would have to exclude the possibility that the event occurred by accident, that the death occurred by accident, under section 23. My submission is that once “accident” is negatived the fatal act, under section 301(2)(b), must have been of a nature which would endanger life. I refer the Court to, just on that point quickly, Stuart v The Queen, (1974) 134 CLR 426, to the judgment of his Honour, Mr Justice Gibbs as he then was, at page 438, where his Honour was talking about the harshness of liability for an unintended killing under this felony murder provision in the Queensland Code, and how it was offset by the application of accident under section 23.

In particular, I draw the Court’s attention to the bottom of the first paragraph, it occurs in about the middle of the page, the last sentence:

However, the apparent severity of the operation of s. 302(2) is mitigated by the provisions of the first paragraph of s. 23, since if the death is an event which occurs by accident – that is, if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person – the accused will not be criminally responsible.

That passage, in my submission, suggests that section 23 is more onerous on the prosecution, that it limits liability for a killing.

McHUGH J: But after Barlow, that point is rather immaterial, is it not?

MS CLARE: In my submission, no, because ‑ ‑ ‑

McHUGH J: I mean, immaterial in terms of seeing 302 as having a draconian operation.

MS CLARE: In my submission, Barlow does not advocate that manslaughter must always be left, in every case, but simply, that where there is a basis for manslaughter, it should be left and that it is not a proper basis on which to deprive an accused of a right or of the option of a manslaughter verdict by tying his responsibility so closely to the principal that it is the murder or nothing. The distinction between the foreseeability in section 23 and in section 302 is that section 23 requires foreseeability of death itself, whereas under section 302 it is only foreseeability about the danger to life.

If I could just refer to Brien and Paterson where a manslaughter verdict was not left at all, in any form. If that case is authority for the proposition that a manslaughter verdict should have been left in that case, then, in my submission, in so far as it decides that, it is, with respect, wrong. The directions to the jury that were given are not specifically set out in any of the judgments, but there is reference to an abbreviation of the requirements, the legal requirements for murder, and reference to a misunderstanding of the nature of the offence as referred to in section 8. There is reference to it being put to the jury as an unlawful shooting in any other circumstances that the jury should think relevant, rather than going through the process of referring to the particular circumstances of the principal’s conduct which made it an offence.

Those points of attack have not been made, as I understand it, in relation to these directions, but if I can speak more generally in relation to Brien and Paterson, the two judgments in that case were written by the two judges who reconsidered Jervis in the Court of Appeal below in this case. It seems clear from their judgments in Brien and Paterson that there is still some confusion about what this honourable Court meant in Barlow.

My learned friends referred to the passages in Mr Justice Pincus’ judgment. That has some uncertainty about what he referred to as “Barlow Two”. The president at the top of page 640 raised some question about whether or not Barlow determined that manslaughter should always be left, regardless of whether or not there was a proper foundation for it or not.

The President also considered this question of whether or not, when section 8 is used in combination with felony murder, there is in fact any scope for manslaughter. He raised that question without actually answering it at page 639. On that page, at about lines 25 to 30, he gives an example of where a section 8 killing does not amount to murder. In my submission, the example that he gives is not particularly helpful in this case because the example does not amount to manslaughter either. He raises an example where the act might be a probable consequence of the plan, and that act might cause a death, but the death itself is not a probable consequence; it is a surprise.

HAYNE J: Apropos of that, can I take you back to the written directions that were given in the case, to just see if I understand the way in which they worked.

MS CLARE: In this case?

HAYNE J: In this case, 33 to 35. Focusing entirely on Harwood’s position, of course.

MS CLARE: Yes.

HAYNE J: The directions at 33 seem to be, with the combination of item 4 and what goes beforehand, that intentional killing with intent to kill or do GBH “was a probable consequence”. At page 34 we have death occurring because of presentation of the firearm as it was, was “probable consequence”. See paragraph 7:

That the killing of Bowering in this way was a probable consequence of –

in effect, the way Hind held the gun.

MS CLARE: Yes.

HAYNE J: Page 35 we have item 7, “probable consequence” was manslaughter-type killing, that is killing by criminal negligence. Now, what item is omitted from that universe of discourse? The allegation against you in the written submission is, at paragraph 5.8 of the appellant’s written submission:

manslaughter was an available verdict if the jury was satisfied that an unlawful killing –

without specific intent –

was a probable consequence ‑ ‑ ‑

MS CLARE: Yes.

HAYNE J: Now, can I just ask you to step back a moment and tell me what is the item, or the combination of provisions if you like, that is omitted from the universe that we have in pages 33, 34 and 35?

GAUDRON J: There is one, is there not, but it would only be reached if Harwood were acquitted on the three bases therein specified?

MS CLARE: Yes.

GAUDRON J: That is to say, as I understand what has been put against you, you could say a fourth possibility which would include 1 ‑ ‑ ‑

MS CLARE: Sorry, 1 of which page?

GAUDRON J: Of page 33, 1, 2, 3. The killing of Bowering in this way was not a probable consequence, but it was a probable consequence that Hind would pull the trigger not intending to cause death or grievous bodily harm. But that, it seems to me, which is the reason why I am inclined at this stage to think it is largely a textbook exercise rather than a practical one, is that would only be considered by the jury if it acquitted Harwood on each of the three bases that are therein specified, which we know it did not.

MS CLARE: Yes. Further to that, if I can make this point, that if the distinction therein relied upon is the probability of an intention on the part of the principal actor, Hind, to shoot with intent, the replacement is the second path to murder.

GAUDRON J: As I understand it, all that it would do, if you postulated it in the way Mr Rafter suggests, is minimise the risk of acquittal.

MS CLARE: I would not want to dissuade your Honour from that view but ‑ ‑ ‑

GAUDRON J: I may well be wrong but Mr Rafter might be able to dissuade me.

MS CLARE: But I go further and say that it simply was not permissible to put because it is not a permissible option. I maintain my submission that any of those permutations do not deviate in essence from the elements of the second basis for murder that was put.

There was reference to the Canadian case of Jackson which concerned the Gilbert scenario. Although there was a direction as to the option of manslaughter it seems – for example, at page 588 – that the jury were told, as in our own case of Gilbert, that they could not find the accessory guilty of manslaughter if they found the principal guilty of murder. That in itself, like Gilbert and Barlow, would be a basis, would be a basis for quashing the conviction. Manslaughter was available on an evidentiary basis. The facts left manslaughter open but there was no direction about the possible scenarios that were open which would amount to manslaughter. It was said at page 587 that manslaughter was open on the evidence in the context of aiding an intentional killing, which is the equivalent of our sections 7 and 302(1)(a) – or on the second basis for Jackson being a party to the common unlawful purpose.

That would be a case against me if the Canadian law in respect of homicide on common unlawful purpose were identical to our own but it is not. Page 586 makes clear that manslaughter – I will just find the judgment. I am sorry, I have lost my copy of the judgment, but at 586 it is clear that manslaughter under Canadian law does not require foreseeability of death, only that harm be foreseeable. That of course is quite different from the operation of our own section 23, which requires that death be foreseeable here, that liability is excused for death which occurs by accident. That, in my respectful submission, is a very real distinction of that case from the present.

Perhaps the only other matter that I would allude to is the reference to a merciful verdict and, in particular, the citation from cases, the cases referred to by my friend. In my submission, in the context of those cases, those cases were talking about cases where manslaughter was a real option, a legitimate legal option where there was a basis for manslaughter. A merciful verdict or the deviation from proper direction on law cannot, in my submission, be sanctioned by the court in the summing up. The court cannot mislead a jury into thinking that it can give a verdict contrary to the evidence. Those things seem trite to say but, in my respectful submission, a

misdirection would be the result if manslaughter was simply left to the jury because it enabled them to exercise compassion when manslaughter was not open in law. Those are my submissions.

GLEESON CJ: Thank you. Yes, Mr Rafter.

MR RAFTER: Your Honours, just very briefly, could I answer the question your Honour Justice Hayne asked me earlier concerning the weapon. The material is not in the book itself, but from the trial transcript, a ballistics expert who testified, Scientific Officer Keller, explained that the rifle he inspected was a bolt action .22 calibre long rifle, it was sawn off at both the butt and the barrel and then he went on to explain its operation by saying, in original condition, it would have had a tubular magazine running beneath the barrel, so I gather that there was no magazine. He explained that would have held the rounds of ammunition to operate the rifle and the person, having loaded the magazine, would then draw the bolt to the rear and the gun could be fired in that manner.

HAYNE J: As presented, it was a single shot weapon.

MR RAFTER: Exactly. He went on to say without the magazine, each round would have to be placed individually into the firing chamber, so that seems to be the way the weapon was when it was located and that is the way he described it.

The only other point, if I could briefly make this, is that under the three cases that went forward of murder and manslaughter, each case required a different finding as to the cause of death. The first basis required a finding of deliberate discharge of the weapon, that was one of the requirements at least. Under the second basis for murder, it was an unintentional discharge of the weapon. Under the third basis, the manslaughter case was put forward on the basis, item 6, that by reason of the failure to use reasonable care and precautions, the criminal negligence basis.

GAUDRON J: And then what would it do?

MR RAFTER: And then, if they decided the other matters, if one looks at first basis to prove murder, if they decided items 1, 2 and 4 against the appellant, they would convict him of manslaughter, unless they could be satisfied beyond reasonable doubt of everything listed under the second basis to convict for murder.

GAUDRON J: Well, as I understand it and please correct me if I am wrong, you, in fact, accept that in a real sense your scenario is subsumed in the second basis? That is to say, you accept, I think, that had Mr Hind discharged it intentionally, but it was nevertheless a probable consequence that he simply would discharge it, you would still fall in 2.

MR RAFTER: Well, not on the case actually presented, I would submit, your Honour, because items 2 and 3 were that he held the loaded cock gun without the safety catch on; and thirdly ‑ ‑ ‑

GAUDRON J: Well if he had fired it deliberately he would have held it without the safety catch on.

MR RAFTER: Certainly, but death was caused by means of holding it in that way.

GAUDRON J: Well, it would have been.

MR RAFTER: And in the redirection the trial judge gave to the jury, what his Honour distinguished between were the two positions of, firstly, a deliberate discharge of the weapon and, secondly, a non-deliberate discharge of the weapon. So under the second basis to prove murder, the jury really was focusing on a non-deliberate discharge.

GAUDRON J: So, it seems to me, all that has happened is you have been deprived of a chance of conviction on a basis that was fairly open, which, ordinarily, is not a ground of appeal.

MR RAFTER: No, and denied significantly of a chance of conviction of manslaughter, in the appellant’s submission.

GAUDRON J: If, it seems to me, Mr Rafter, to get to the proposition you put, the jury would have to have acquitted your client on the 1, 2 and 3 cases, in which event you would have got a not guilty verdict. Whereas, on your argument, instead of getting a not guilty verdict, they might have considered whether you could be found guilty of manslaughter on an alternative basis.

MR RAFTER: I am submitting that having been denied that the conviction should be set aside but it is not to the point, I submit, that the murder case under the second basis ‑ ‑ ‑

GAUDRON J: Where is the injustice in that? Where is the injustice in the proposition that if I had been acquitted - well not acquitted – “If the jury had failed to find me guilty on any of the bases left to them, I could have been found guilty on a basis which was not left to them.”?

MR RAFTER: It was not the case presented for the jury’s consideration.

GAUDRON J: No, I know it was not, but it seems to me to have been to the benefit of your client that it was not, and it seems to me once you accepted the jury did convict on one or other of the first two bases left, that is the end of the matter.

MR RAFTER: For obvious reasons, I an reluctant to accept that proposition ‑ ‑ ‑

GAUDRON J: I know you are but what I am asking you is, can you tell me where I am wrong in that analysis? I am not saying it to you simply to tyrannise you, if I am wrong, I want to know where I am wrong.

MR RAFTER: I understand that, your Honour. My argument - I am probably starting to become a little bit repetitive but it really is to say that, if one looks at the first basis to convict Harwood of murder and one takes out item 3 and says that it was open to the jury to be satisfied of 1, 2 and 4, then that is a path to manslaughter not put. That is the argument in response to your Honour’s proposition. I understand the point that your Honour is putting to me and that is the extent of the answer that I am in a position to make.

GAUDRON J: Thank you, Mr Rafter.

HAYNE J: Now, again, forgive me if I just detain you a moment further. You distinguish between the three cases as - page 33 - deliberate discharge with intent, page 34 – how do you characterise 34?

MR RAFTER: That is a non‑deliberate discharge of the weapon with the other requirements necessary to satisfy the provisions in (1)(b) and section 8.

HAYNE J: And 35?

MR RAFTER: That is the criminal negligence provision in section 289 combined with section 8. That is the cause of death was the failure to use reasonable care or take reasonable precautions in the handling of the weapon.

HAYNE J: Now, is that consistent with both deliberate and non‑deliberate pulling of the trigger?

MR RAFTER: It could, perhaps, be subsumed by either of those.

HAYNE J: That is, is there a fourth integer that is not covered by all three? At the moment I must say to you that it does not seem to me that there is.

MR RAFTER: Because of the different requirements set out in items 1 to 7 for the criminal negligence finding, recklessness and having under‑controlled a dangerous item and so forth, because of the different findings, I submit, there is that fourth requirement.

HAYNE J: Yes, but the undeniable facts were the gun discharged because the trigger was pulled. This was not said to be a firearm, was it, that discharged on dropping or anything else?

MR RAFTER: It had a fairly light pressure, I think.

HAYNE J: Hair‑trigger, no doubt.

MR RAFTER: But it was within acceptable limits, although at the lower end, I think, your Honour.

HAYNE J: Yes, and it discharged because the trigger was pulled and, no doubt, distinctions can be made according to the intention of the shooter: intend to kill, intend to do GBH, intend to frighten, but, so far as probable consequences are concerned, I wonder whether there is truly a fourth element or fourth way of putting it.

MR RAFTER: Well, that is one of the questions for decision. Can I just answer it briefly in this fashion, that, let us assume the case was put forward only on the basis of section 302(1)(a) in combination with section 8, that is the robbery was not being progressed at that particular point in time, my submission would be that, in a case that was as clear as that, it would be absolutely necessary for the jury to be directed of the requirements of murder, including intentional killing, and, in the alternative, the position with respect to manslaughter, if an unintentional killing eventuated. The jury might then have a second path to conviction of manslaughter based upon criminal negligence. This case has the complication of section 302(1)(b). I accept that that does not necessarily mean that the additional avenue of manslaughter should not have been put. Thank you, your Honours.

GLEESON CJ: Thank you, Mr Rafter. We will reserve our decision in this matter and we will adjourn until 9.30 am in Sydney on Tuesday.

AT 11.56 AM THE MATTER WAS ADJOURNED

[2001] HCATrans 578

16 November 2001