Jervis v The Queen

[1992] HCATrans 182

~ ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B40 of 1991

B e t w e e n -

KIM AILEEN JERVIS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J

DEANE J

McHUGH J

Jervis 1 23/6/92

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 23 JUNE 1992, AT 3.35 PM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR S.E. HERBERT, for the

applicant. (instructed by J.A. Hodgins, Director,

Legal Aid Office (Queensland))

MR R.N. MILLER, QC: If the Court pleases, I appear with my

learned friend, MR M.J. BYRNE, for the respondent.

(instructed by D. Field, Solicitor to the Director

of Public Prosecutions (Queensland))

BRENNAN J: Yes, Mr Jackson.

MR JACKSON:  May I hand the Court copies of our outline of

submissions. Your Honours, I should say this is an

application which is out of time.

BRENNAN J:  By how much, Mr Jackson?

MR JACKSON:  Your Honour, by quite some days, in fact. The

application should have been lodged 21 days after

28 August 1991. In fact, the application was not

found until 18 November. There is a further

affidavit which I would seek to file in Court and

read, and may I give Your Honours copies of that.

BRENNAN J: Is this related to the extension of time?

MR JACKSON:	Yes, Your Honour.
BRENNAN J:	We will hear what Mr Miller has to say about

that first.

MR MILLER:  I do not oppose it, Your Honour.

BRENNAN J: Not opposed?

MR MILLER:  No.

BRENNAN J:  We need not trouble you with that, Mr Jackson. There will be an order extending the time.

MR JACKSON:  Your Honours, the issue in the application and

the issue which divided the Court of Criminal

Appeal concerns the operation of the parties

provisions of the Queensland Criminal Code, and

those provisions in sections 7 and 8 make

criminally liable persons other than the person who

did the act or omission which constitutes the

offence.

The issue which arises in this case is whether

a person criminally liable by reason of section 7

or section 8 can be found guilty of an offence

different from that which, I should say, of course,

on the evidence in the case against the secondary party, the principal offender had committed. Now,

Jervis 23/6/92

Your Honours, in the particular case the applicant

was convicted of manslaughter. The evidence made

it apparent that the offence committed by the

principal offender was murder.

Your Honours, the issue arises as I said,

because of the terms of sections 7 and 8.	May I
take Your Honours to those immediately.

BRENNAN J: Section 9 does not arise?

MR JACKSON:  Not for present purposes, Your Honour. I was

going to come to it in just a moment. So far as

section 7 is concerned, Your Honours will see that

it commences by referring to an offence in the

phrase -

When an offence is committed.

The provision then deems each of the persons

specified in the succeeding paragraphs -

to have taken part in committing the offence

and to be guilty of that offence.

Your Honours will see that in the first few lines

of the section. The first few lines also provide

for the person to be charged with that offence.

Now, there is one qualification expressed to that, and that is to be seen in the second paragraph,

that is, the paragraph immediately under (d):

In the fourth case -

that is, counselling or procuring -

he may be charged either with himself

committing the offence or with counselling or

procuring its commission.

That is an exception to the charging provision in

the third line of section 7.

Could I ask Your Honours to note also the last

paragraph of section 7 which deals with cases where

the person who was procured to do an act might not
themselves have been, for example, criminally

responsible. That means the procurer may be

charged and convicted as if the procurer had

himself done the act. Now, Your Honours, there is

nothing in section 7 in its terms to suggest that
the secondary party may be guilty of any offence
other than that which the evidence establishes the

principal offender was guilty of.

Could I go then to section 8, Your Honours.

Jervis 3 23/6/92

BRENNAN J: Should you not go back to section 2 before you

go to section 8?

MR JACKSON:  Your Honour, I am going to come to section 2,

and I shall do it in relation to - but I am happy

to come to it now. What is says, of course, is it

defines an offence as being:

An act or omission which renders the person doing the act or making the omission liable to

punishment.

That is called the offence. Now, Your Honours, may

I return to the particular application of that, but

could I do so first having gone to section 8 and

then coming to the issues a little more precisely.

If one goes to section 8, it may be seen that

it requires that an offence be committed, and

Your Honours will see the words -

and in the prosecution of such purpose an

offence is committed of such a nature -

et cetera. And in relation to it, if the offence

has the nature referred to in section 8, then each

of the persons who formed the common intention -

is deemed to have committed the offence.

Your Honours, I should perhaps add that the ambit

of the concept of counselling in section 7 is

expanded upon by the provision to which Your Honour

the presiding judge, first referred, that is,

section 9, and may I take Your Honours to that. It

says that:

When a person counsels another to commit an

offence, and an offence is actually

committed ..... it is immaterial whether the

offence actually committed is the same as that

counselled or a different one, or whether the

offence is committed in the way counselled, or

in a different way, provided -

et cetera.

Now, Your Honours, as Mr Justice de Jersey said in the Court of Criminal Appeal and, in our

submission, perfectly correctly, the only basis for

criminal responsibility in the case of the

applicant in this case, was by the application of

section 7 or section 8. That appears at page 49 at

about line 44. Your Honours, if I could set out

the submissions, in effect, that we would make

about the operation of those provisions they may be

seen, in our submission, in the approach taken by

Jervis 4 23/6/92

Mr Justice de Jersey in the Court of Criminal

Appeal commencing at page 50 at about line 42, and.

going through to page 52 about line 51.

Now, may I advert to a number of particular

matters in the course of dealing with that passage.

Could I refer particularly to page 50 about

line 50:

In determining the applicability of s 7, one

must first determine what offence has been

committed. It is that offence which is

referred to subsequently throughout the

section.

He refers to that being the murder.

BRENNAN J: Well, that raises the first difficulty, does it

not, because section 7 refers to "an offence" in

terms which echo section 2?

MR JACKSON:  Yes, section 7(a) does, Your Honour.

BRENNAN J: Yes, that is the act or omission, and it is

silent as to the intention or mental state which
accompanies the act or omission, and which may be

an element in a particular crime.

MR JACKSON: Well, Your Honour, that is so in one sense. It

is true to say that section 7(a) echoes in a sense
the language of section 2 but, Your Honour, what

section 2 speaks of, of course, is -

an act or omission which renders the person

doing the act or making the omission liable to

punishment.

Now, the act or omission is not an act or omission

in the abstract, of course.

BRENNAN J:  No.

MR JACKSON:  It is an act or omission which has the

particular quality of rendering the person liable

to punishment. If one took the simplest case of

causing death intentionally, then the act or

omission which renders the person liable to
punishment in that case, we would submit, speaking

of the particular punishment, is causing death with

that intention.

BRENNAN J:  But you have elided the very distinction which

you set out to make, have you not?

MR JACKSON:	I am always doing that.
Jervis	23/6/92
BRENNAN J:	If you say the act or omission which renders him

liable to punishment is the causing death with the

relevant intention, that is true if one takes it as

meaning causing death in circumstances where the

intention also exists. But the act or omission is
the causing of the death, though the particular act

or omission which is necessary to expose to

punishment is one which is accompanied by the

intent. In the same case here, there is a causing

of death being an act or omission, and in one case

there is an intent to kill; in another, perhaps

not.

MR JACKSON:  Your Honour, if one accepts all that and says

that section 7(a) is identifying the person who is

the principal offender as being the person who does
the act or makes the omission which constitutes the

offence, in effect, so be it. But, having done

that, one then has to see what is the offence.

And, Your Honours, it is the offence arrived at by

the application of that to which section 7 applies.

Your Honour, one is looking at the application of

section 7 in circumstances where it says:

When an offence is committed -

and then the following things apply. Now, one

might say perfectly intelligibly that in the case
of murder the person who, as in this case, applied
the 15 knife wounds to the upper part of the body

was the person who did the act or omission.

One might equally say that in the case of

manslaughter the person who did the same things was

the person who did the act or omission. But having

identified the person as section 7(a) does, one

then has to see what the consequence of that is.

The consequence is that if the person has committed

an offence one then looks to see what follows.

What follows is that section 7 says:

When an offence is committed -

the following things occur, and one of the things

which occurs in that sense is that the persons

referred to in (b), (c) and (d) are deemed to have

taken part in committing the offence, which takes

one back to the opening words, and they are deemed
to be guilty of the offence, which is the offence
to which reference has been made earlier.

Your Honour, that is the point of the matter, with respect.

BRENNAN J: Well, I can see the point. Why do you start

with murder and not with manslaughter in

paragraph (a)?

Jervis 6 23/6/92

MR JACKSON: Well, Your Honour, if I can put it this way:

one starts with the act or omission, let us assume,

but the act or omission which constitutes the

offence consists of a particular event that has

happened. Let us assume that it consists for the

moment of the stabbing.	One has to see, though,
what is the offence which occurred.	Now,

Your Honour, if one looks to see what is the

offence which occurred it will be a manslaughter if
it is not murder. But if it occurs in one of the

circumstances contemplated by section 302 it will

be murder; only if it is not will it be

manslaughter. So, Your Honour, the question is,

"Did it occur with or without one of the

accompanying characteristics which would make it

murder?" If it did, the offence is murder. If it

did not, the offence is manslaughter.

BRENNAN J:  And that is the proposition? And the

implication is that it is murder or nothing?

MR JACKSON:	Yes.
BRENNAN J:	In which case Sir Samuel Griffiths produced a

code which is at odds with the common law?

MR JACKSON:  Your Honour, not only in that respect, of

course.

BRENNAN J:	No, of course not.
MR JACKSON:	And, Your Honour, if I may say so with profound

respect, that is one of the purposes of having a

code. Could I just say in relation to that two

things. One is dealing, of course, with a

provision for parties, and one is dealing with it

in circumstances where there is a limited range of

verdicts possible in the case of what used to be

capital offences and what are now simply homicides.

That has a materiality in relation to the matter

Your Honour just put to me because one of the

difficulties which occurs is that if there is a

crime such as murder, it usually occurs in
circumstances where one could further break down

the events which ultimately result in the killing into other offences. Generally speaking, that is

not done, in a sense, making available alternative

verdicts. One reason for doing that, Your Honours,

one might think, is so as not to complicate things

for juries. But one adds to that a complication in

the case of secondary parties by the fact that

their degrees of participation will sometimes be

more and sometimes less blameworthy in the broad

sense than that of the person who falls within

section 7(a).

Jervis 23/6;'92

Now, in those circumstances, one has to have a

provision stated broadly, and the solution which

has been adopted sometimes too benignly, sometimes

perhaps in too Draconian a fashion, is to make each

of those persons someone who is guilty of the

offence. Now, that leaves it, of course, then to a

sentencing discretion if those persons are guilty,

and no doubt judges from time to time have to

remind juries in the case of secondary parties

whose participation is relatively minimal that the

power to impose sentence reposes with the judge,

not the jury, and they should not take that into

account. Now, I am sorry, but that is a long

answer to what Your Honour put to me.

May I simply say, if I could move on, that if

one goes to section 8 it too is founded on "the

offence". I was dealing particularly with what was

said by Mr Justice de Jersey as summarizing the

case that we would put, and in that regard if I
could take Your Honours back to page 51 at the top

of the page, where in the third line having

referred to section 7(a), he said:

Paragraphs (b) and (c) draw in any persons who

may have aided them to commit "the offence",

that is, the murder. By force of the section,

such persons are deemed also to be guilty of

that offence, the murder. Because the section

ties -

and Your Honours will see the remainder of that

paragraph. Then at about line 31 -

Similarly, s 8 requires one to identify the offence actually committed.

And then he paraphrases the section. That, in our

submission, is the precise meaning of the several

provisions.

Your Honours, could I mention also at this

point the other provision of the Code which has

some materiality, and that is section 576 which

deals with the verdicts which are available on an

indictment for murder. May I start, Your Honours,

by referring to section 575. It is the provision which sets out the broad proposition dealing with

circumstances in which there may be convictions on counts other than those specifically stated in the indictment. Section 575 provides:

Except as hereinafter stated, upon an

indictment charging a person with an offence committed with circumstances of aggravation,

he may be convicted of any offence which is

established by the evidence, and which is

Jervis 23/6/92

constituted by any act or omission which is an
element of the offence charged, with or

without any of the circumstances of

aggravation charged in the indictment.

Your Honours will see that it speaks of -

any offence which is established by the

evidence -

and a similar phrase appears in the next section,

section 576 which deals specifically with murder

and manslaughter. Section 576, as Your Honours

will see, in the first paragraph, provides:

Upon an indictment against a person containing

a count of the crime of murder, he may be

convicted -

in effect, of manslaughter. But it goes on to say

that the requirement is that the crime be -

established by the evidence.

Your Honours, in cases where the basis of criminal

liability is section 7 or section 8, then no doubt

section 576 is capable of application, but that

will only be so in a case where the evidence

demonstrates that the principal offender's offence

in terms of section 7 or 8 was manslaughter,

because that is the crime which is established by

the evidence.

Your Honours, that is essentially the argument

for the applicant, of course, on the issue of law

sought to be raised in the application, and as

Your Honours have seen, it is an argument based

~imply on the interpretation of the Code.

Your Honours, could I go then to the reasons

which led the majority to arrive at the opposite

conclusion. There seemed to be two basic
approaches taken.	The first appears in

Mr Justice McPherson's reasons for judgment at

page 13 commencing at line 1 where he set out his

understanding of the submission which was made, and

then he refers in the succeeding pages to some

decisions in England and the United States which,
of course, are not based on Code provisions and then deals with a number of other cases, but in

particular, at the bottom of page 14 refers to the

decision of the Tasmanian court in Murray v Reg and

also to a decision at page 16 to Saunders v Reg.

Could I just say in passing in relation to

those cases, that in Murray v Reg - - -

Jervis 9 23/6/92

BRENNAN J:	Is it right to say that the cases at page 13 are the cases which identify the common law and
identify it accurately?

MR JACKSON:  Common law provision, yes, Your Honour. The

common law position is stated at page 13, and that

goes to the top of page 14, the first half of

page 14, and the United States provisions. Then

His Honour commences to deal with codes or

legislation which are closer to the provisions of

the Queensland Code. Now, Your Honours, when one

comes to the point which is in issue in the present

case, the two Australian decisions which seem to deal with it are Murray v Reg, a Tasmanian case,

and Saunders v Reg.

In relation to Murray v Reg,

(1962) Tas SR 170, the decision of the

Chief Justice on the point appears to have been

based on two related notions, and I will come to

the passage in just a moment; one notion being

that murder and manslaughter were really in a sense

the same offence with murder being an aggravated

form of manslaughter. Now, that puts it slightly

inexactly, but may I take Your Honours to the

passage at page 175 where it was said at about

point 8 on the page by Chief Justice Burbury:

Manslaughter is the unlawful killing of a

person. Murder is the unlawful killing of a person with the addition of malice. "Murder

is an aggravated form of unlawful killing"

(per Philp Jin Reg v Solomon).

Well, Your Honours, that is one way of describing

it, of course, but our submission would be that one

ends up with still two offences.

Then, Your Honours, at page 176 in the

paragraph commencing a little before half-way down

the page, what His Honour said is:  I think the simple answer to this

contention is that in respect of any one of

several persons charged of murder in different

capacities under s 3 ors 4 -

that is, the Tasmanian provision -

it is open to the jury under ss 332 and 333 of

the Criminal Code if on consideration of the

case separately against him they find him not

guilty of murder to convict him of

manslaughter whether or not they convict any

other party of murder.

Jervis 10 23/6/92

Now, Your Honours, the provisions to which

His Honour was referring were the equivalents of

section 576, that is, the provision allowing a

verdict of manslaughter on an indictment for

murder. That seems to be the underlying reason for

His Honour's decision.

The second decision was, as I said, Saunders v

Reg, (1980) WAR 183. That decision appears to be

based on a division of the offence of murder into

its constituent elements. May I take Your Honours

to page 184, the third paragraph in the reasons for

judgment of Chief Justice Burt. His Honour says:

Accepting the decision of the majority of the Court of Criminal Appeal in Borg, that the

word "offence" as it appears ins 7 of the Criminal Code can be read, by applying the

definition of offence ins 2 as meaning "to do

the act which constitutes the offence" ..... to

be correct it would seem to me that

notwithstanding the conviction of Hakala of

murder and the finding that the appellant was

not guilty of that offence the appellant could
nevertheless be found guilty of manslaughter

by the application to him of s 7(c) of the

Code.

Your Honours, that is really the substance of that

case. The proposition is against us, I accept, and

Your Honours will see the facts stated very shortly in the preceding paragraph.

What we would submit, however, in relation to

that is that to treat the offence as limited to the
act or omission and to take no regard of the other

elements which constitute the offence, is to leave

out of account what is in the end an essential

characteristic distinguishing one offence from

another.

Could I take Your Honours in that regard to

what was said by Mr Justice de Jersey. There are

two things: the first is what was said by

Mr Justice de Jersey at page 56 line 20.

Your Honours will see in the passage at lines 20 to

30 that His Honour said, in our submission

correctly:

"the act or omission" rendering Wiggington

"liable to punishment", in terms of s 2, and

constituting her "offence", was killing the

deceased with the requisite intent, not simply

the killing.

Your Honours will see that His Honour referred to

what had been said by Justice Gibbs in Stuart v

Jervis 11 23/6/92

Reg, and may I take Your Honours to that now, which

seems not to be terribly consistent with the notion

relied upon in the West Australian case to which I

referred a moment ago and relied upon also by the

majority in this case to the effect that one can

leave out of account the question of intent. That

decision is (1974) 134 CLR 426, and I wanted to and Mason agreed. At page 440, His Honour was
refer Your Honours to the reasons for judgment of

there dealing with the term "offence" in section 8

of the Code, and in the second new paragraph on the

page he referred - if I go to the second sentence,

he said:

It is convenient first to consider the

submission that the word "offence" where it

occurs ins 8, takes its meaning from the

so-called definition ins 2 which provides -

and he cites it.

It was said that applying this definition the

"offence" within the meaning of s 8 in the

present case was the lighting of the fire and

thats 8 has the effect -

and so on. Now, Your Honours will see a sentence

commencing about three-quarters of the way down the

page -

It is clear from the words of s 8 that when

that section speaks of "an offence" it cannot

mean simply an act or omission viewed in

isolation. In most cases an act or omission

alone does not render a person liable to

punishment; whether it does so may depend on

the quality of the act, the intention which

accompanied it, its consequences or other

circumstances. In the present case, for

example -

and, Your Honours, after referring to the present

case, in the last four lines on that page

His Honour says -

If the word "offence" ins 8 is regarded as defined bys 2 it means an act or omission

done or made in such circumstances as to

render the person doing it liable to

punishment - a punishable act or omission.

And, Your Honours, the tone of that passage which

goes through to the end of that paragraph, is, we

would submit, against the proposition that the

meaning of the term "offence" when used ins 8

certainly, and we would submit also in section 7,

Jervis 12 23/6/92

is to be treated as something constituted only by

the act or omission causing death or the act or

omission which - - -

BRENNAN J: That must be so, that you can treat it as

including other elements apart from the physical

movement or the muscular contraction, no doubt the

surrounding circumstances and its consequences.

And in section 8, for example, let us say the facts
had been that A, Band C agreed that there should

be a robbery and then one of the accused, being

party to that common intention, in the course of

the robbery decides to kill; the question must

remain under section 8 whether the commission of

the murder by one of those parties was or was not a

consequence of the carrying out of the common

intention, even though the common intention at

first did not extend to causing death

intentionally. Well, where is the problem in that?

MR JACKSON: Well, Your Honour, there is no problem, but

what that means is that if one goes, of course, to

section 8 what one sees is that it provides in relation to the offence, murder in the example

Your Honour gave me, it says each of them is deemed

to have committed the offence, the offence being

the murder.

BRENNAN J: Well, why necessarily the murder?

MR JACKSON: Well, Your Honour, because if one applies the

process that Your Honour just referred to, then the

offence, consisting in the last couple of words in

section 8, is the same, in our submission, as the

offence described as "an offence" in the earlier

part of that section.

BRENNAN J:	Why not then "an offence" which exposes the parties to it to a liability to punishment?
MR JACKSON: Well, Your Honour, assuming that it is
BRENNAN J:	And then one might find that there is a variety

of offences to which the section might apply.

MR JACKSON:  I am sorry, Your Honour, I suspect I am at

cross purposes in what Your Honour is putting to

me. But the point I am seeking to make is this, if I may say so, that what section 8 looks to consists

of a number of things. It involves the persons

forming -

a common intention to prosecute an unlawful

purpose in conjunction with one another.

That is the first criterion of operation. The

second criterion of operation is that in the

Jervis 13 23/6/92

prosecution of that purpose, an offence is

committed by one of them. Now, for there to be a

liability one has to look to see whether the

offence was of such a nature that its commission was a probable consequence of the prosecution of

that purpose. It may or may not be. If it is,

each of the persons is deemed to have committed not

any offence, but "the offence", and Your Honours,

the term "the offence" seems inevitably to go back

to the expression "an offence" in the same section.

If that is so, and if the offence is murder, then

the offence of which the other party must be

guilty, must be murder.	Your Honour, that is our
point.

Your Honours, could I just say in relation to the approach taken by the majority in the Court of

Criminal Appeal that if one looks to page 18 in the

reasons for judgment of Mr Justice McPherson, what

one sees in the passage between lines 10 and 42, is

that His Honour discounts the relevance of the

intention on the part of the principal offender.

Now, Your Honours, if one looks at the passage

between lines 10 and 14, it is true, of course,

Equally, in a sense, one might say that in one sense evidence tending to show that the other two women intended to kill did not mean that she too intended to kill, but that was not quite the

that not all the evidence admissible against

question. The question was, "What was the

offence?" And in determining what was the offence,

Your Honours, one had to identify what the state of

mind was or what the circumstances were of the

actual killing. The actual killing was the

offence, and the offence was committed by someone

~lse. In determining what what offence was, it was

quite incorrect, we would submit, for example, to

say as is said in the last two lines of that

passage between lines 41 and 42 that evidence in

any form of intention to kill would have been

inadmissible. It was a critical matter.

His Honour in that passage, with respect, has

identified a criterion which is simply incorrect

because one has to look first to find what is the

offence which is the event which triggers the

operation of both provisions.

The second approach appears in a passage which

Your Honours will see, for example, at page 23

commencing at line 30, where His Honour says:

That unlawful killing by Wiggington must have been found by the jury to be a probable consequence of carrying out the joint purpose

Jervis 14 23/6/92

shared by Jervis, thus rendering her liable to

be convicted of manslaughter.

I will not read the rest of that paragraph, but I

would ask Your Honours to. What that does is

again, with respect, to apply a test which is

incorrect because the question is not to identify
in the first instance what was the unlawful

purpose. The question in the operation of

section 8 is to identify what is the offence which

was committed. Once that has been identified it is

possible then to answer the other questions posed

by the provision.

Now, Your Honours, the third aspect adopted by

the members of the Court of Criminal Appeal appears
to have been, in effect, to adopt what had been
said in Saunders v Reg, that there was really an

offence of unlawful killing, and that there was just a circumstance of aggravation added by the

fact that it was murder.

Your Honours, the terms of the Code militate

against the adoption of that view, in our

submission. There might be some shadow of support

for it if one looked only at section 300.

Section 300 is the provision which says:

Any person who unlawfully kills another is guilty of a crime, which is called murder or manslaughter according to the circumstances of the case.

But, Your Honours, the Code appears to treat those

crimes as being quite separate things. If I could

as~ Your Honours to hold that page, as it were, and

go to section 3 of the Code, which is at page 2072

of the loose leaf volume, it divides offences up,

as Your Honours will see from section 3(2), into -

crimes, misdemeanours and simple offences.

And if one goes back then to section 302, which is

the provision for murder, Your Honours will see it

refers to -

a person who unlawfully kills another under

any of the following circumstances -

then lists it, and it says -

is guilty of murder.

Then section 303, page 4800, speaks of manslaughter

being where there is unlawful killing which is not

murder. Your Honours, section 310 - perhaps I

should ask Your Honours to note in passing

Jervis 15 23/6/92

section 304A(3). Section 304A deals with
diminished responsibility, but subsection (3) deals

with the case where one of a number of persons

charged with one form of unlawful killing has the

benefit of diminished responsibility. Now,

Your Honours, that, we would submit if I could just

say in passing, rather supports the proposition

that we are advancing, that is, the perceived need

to have such a provision. Your Honours, section

310 refers to manslaughter as being a crime, the

crime of manslaughter. And, of course, section 576

itself speaks of them as being two distinct crimes.

Your Honours, the issue, in our submission, is one of considerable importance in the sense that as

is referred to by Mr Justice McPherson at page 5

provisions in identical terms exist in Western

Australia - this is at about line 3 - and in

comparable terms in Tasmania. It is an issue

which, we would submit, is one which merits the

Court's consideration.

BRENNAN J:  Mr Jackson, is it an implication of your

argument that if one of two alleged co-offenders

has one of the intents specified in section 302 and

another has another of the intents specified in
that section, then it would not be open to convict
the second of the same offence if the first of

those offenders was caught by paragraph 7(a)?

MR JACKSON:  I am sorry, Your Honour.

BRENNAN J: If the first of those offenders fell within

section 7(a).

MR JACKSON:. Your Honour, may I say it would depend. One

has to bear in mind that what one is talking about

consists of the circumstances obtaining in the

trial of the secondary party as it were. Now, it

is a question what the evidence is in that case.

If it be that the case does not fall within one of

the exceptions to the construction of section 7

which we have advanced, then the answer is yes.

Your Honour, however, the possibility of that being so has been adverted to, in effect, in the

provisions of the Code. Your Honours have seen,
for example, the last provision of section 7 which

provides for the secondary party in the counselling

and procuring case themselves to be liable for the

offence even if the person who did the act or made

the omission is a person who might not be

criminally responsible. Similar provision is made

in section 304A to which I referred. So the

legislature has taken care of that, has appreciated

the need to do so because, of course, sometimes the

person counselling is far more responsible than the

person doing the act.

Jervis 16 23/6/92

Now, Your Honour, the other feature about it

is that it is quite possible, of course, for

there to be a situation where one verdict is
arrived at in the case of the principal offender;
another verdict arrived at in the case of the
secondary party. But the issue is in the case

against the secondary party, "What is the offence

proved?"

BRENNAN J:  We need not trouble you, Mr Miller. The Court

is of the opinion that the actual decision in this
case is not attended with sufficient doubt to

justify the grant of special leave to appeal.

Accordingly, special leave will be refused.

AT 4.20 PM THE MATTER WAS ADJOURNED SINE DIE

Jervis 17 23/6/92