Criminal law—Criminal Code (Q) ss 2, 8, 300, 302(1), 302(2), 303 and 576—Common intention of several parties to attack victim—Resultant death of victim unintended by the respondent as part of the common plan—Whether respondent could be convicted of manslaughter if unlawful killing was a probable consequence of the plan to which the respondent was a party but co-accused were convicted of murder—Whether party to an offence by reason of s 8 can be convicted of an offence not possessing all of the elements of the offence of which the principal offender has been convicted—Interpretation of "offence" in s 8.
Orders
Order
1. Appeal allowed.
2. Set aside the order of the Court of Appeal of Queensland and in lieu thereof dismiss the appeal to that Court.
3. Remit the matter to the Court of Appeal of Queensland for the determination of any further orders which may be required.
On appeal from the Supreme Court of Queensland
Decision
BRENNAN, DAWSON AND TOOHEY JJ
1. The respondent and five other persons were charged on indictment before the Supreme Court of Queensland with the murder of Bart Hans Vosmaer. Two of the accused pleaded guilty and were sentenced to life imprisonment. The jury convicted Barlow's other three co-accused of murder. Barlow was acquitted of murder and found guilty of manslaughter.
2. Vosmaer died as the result of injuries inflicted upon him in a prison gymnasium by Barlow's co-accused who were all, at that time, prisoners at the Sir David Longlands Correctional Centre. The case against Barlow was based on circumstantial evidence which, in the submission of the prosecution, established that Barlow was party to a common plan to kill Vosmaer. The prosecution relied, inter alia, on ss 7 and 8 of The Criminal Code (Q)[1] ("the Code") to sheet home liability to Barlow. Those sections read as follows:
" 7. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say - a) Every person who actually does the act or makes the omission which constitutes the offence; b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; c) Every person who aids another person in committing the offence; d) Any person who counsels or procures any other person to commit the offence. ..." " 8. When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Barlow [1997] HCA 19
Case
[1997] HCA 19
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the Crown against the acquittal of the respondent, Barlow, of murder. The dispute concerned whether Barlow could be convicted of manslaughter when the death of the victim was unintended by him as part of a common plan to attack the victim, and his co-accused were convicted of murder.
The central legal issue before the High Court was the interpretation of section 8 of the *Criminal Code* (Qld) concerning parties to an offence. Specifically, the Court had to determine whether a party to an offence, by reason of section 8, could be convicted of an offence that did not possess all the elements of the offence of which the principal offender had been convicted. This involved considering whether the "offence" referred to in section 8 encompassed a lesser offence than that committed by the principal offender, even if the unlawful killing was a probable consequence of the common plan.
The High Court reasoned that section 8 of the *Criminal Code* (Qld) establishes a form of constructive liability, allowing a person to be held liable for an offence committed by another if they were a party to an unlawful purpose and that offence was a probable consequence of that purpose. However, the Court held that section 8 does not permit a conviction for an offence that is fundamentally different in its essential elements from the unlawful purpose to which the party agreed. In this instance, the Court found that the respondent could not be convicted of manslaughter if the principal offenders were convicted of murder, as manslaughter required a different mental element (recklessness as to causing death) than murder.
The High Court allowed the appeal, set aside the order of the Court of Appeal of Queensland, and remitted the matter to that Court for further determination.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Appeal of Queensland and in lieu thereof dismiss the appeal to that Court.
3. Remit the matter to the Court of Appeal of Queensland for the determination of any further orders which may be required.