R v Hind and Harwood

[1995] QCA 202

IN THE COURT OF APPEAL [1995] QCA 202

SUPREME COURT OF QUEENSLAND	C.A. No. 424 of 1994 C.A. No. 419 of 1994
Brisbane
Before	Fitzgerald P. Pincus J.A. McPherson J.A.

[R. v. Hind and Harwood]

T H E Q U E E N

v.

GARY ALLAN HIND
and

TODD ANDREW HARWOOD (Appellants)

FITZGERALD P.
PINCUS J.A.

MCPHERSON J.A.

Judgment delivered 30/05/1995

SEPARATE REASONS FOR JUDGMENT OF FITZGERALD P., PINCUS J.A. AND

M CPHERSON J.A., CONCURRING AS TO THE ORDER MADE.

BOTH APPEALS DISMISSED.

CATCHWORDS: CONVICTION - UNLAWFUL KILLING- whether co-

accused guilty of murder or manslaughter

MURDER - CAUSATION - what was the cause of the deceased's death - whether the accused's act of pointing a rifle at the victim without the safety catch on had a sufficiently substantial connection with the victim's death for the jury to conclude that that act caused the victim's death; ss. 302(2), 291, 293 Criminal Code (Qld.)

ACCIDENT - s. 23 Criminal Code - whether the death of the victim

was caused by accident

S. 302(2) - whether the accused's act in pointing the rifle at the victim without the safety catch on was of such a nature as to be likely to endanger human life - question of the test of "likely"

EVIDENCE - whether evidence of the post office robbery was prejudicial in that it constituted evidence of another serious crime

CO-ACCUSED - s. 8 Criminal Code - whether a co-accused can be convicted of manslaughter on the basis of s. 8 although the person who carried out the unlawful killing was guilty of murder - question of the test of "possible"

Counsel:	T. Rafter for the Appellants D. Bullock for the Respondent
Solicitors:	Legal Aid Office for the Appellants Queensland Director of Public Prosecutions for the Respondent

Date/s of Hearing:10 March 1995

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 30/05/1995

On 12 September 1994, an indictment was presented against the

appellants, Hind and Harwood, in the Trial Division at Bundaberg. Each was charged with murdering Raymond John

Bowering at Bundaberg on 16 February 1994 and pleaded not

guilty. They were also jointly charged with armed robbery in company at Bundaberg on 17 February 1994, and each pleaded guilty. Convictions were entered on the armed robbery count,

and further proceedings on that count were adjourned. The jury was then empanelled and the murder counts proceeded, resulting in convictions on 15 September. These appeals have been brought

against those convictions.

There is little dispute concerning the basic facts.
At about 11.00 p.m. on 16 February 1994, the appellants went to
the Coach's Inn, a bus depot at Bundaberg, intending to rob the

cafeteria. Hind was, to Harwood's knowledge, armed with a sawn- off .22 calibre rifle, which was to be used in the robbery "as sort of a persuader". Harwood told the police that he did not know whether the rifle was loaded, although he knew that that

might be the case. He also said that he did not know what Hind would do if anyone resisted or refused to cooperate: "You can't really plan what is going to happen."

The deceased, Bowering, was sitting outside the cafeteria.

While Harwood stood nearby, Hind went over and sat beside

Bowering and told him to move. Hind pointed the rifle at

Bowering, with its muzzle against his clothing. There was a

bullet in the chamber, the bolt was closed, the safety catch was

off and Hind's finger was probably on the trigger. Bowering, who did not move as directed, was shot and killed by Hind. The only possible explanation, other than a deliberate killing, was a suggestion that Bowering had pushed Hind, causing the rifle to fire. On later testing, it was established that the rifle

discharged with a trigger pressure of 1.1kg., at the bottom of,

but within, the range of "safe" trigger pressures for general

firearm usage.

After the shooting, the appellants ran off, and, at about 10

a.m. the following morning, they robbed the Bundaberg Post Office. The rifle was used on that occasion, but no shot was

fired at any person. However, in an attempt to calm or discourage a dog, Hind struck it while holding the rifle, and a

bullet discharged and lodged in the ceiling.

After they were arrested the following day, the appellants were

interviewed by the police and evidence of their statements,

which included admissions, was given at their trial.

The jury was instructed that there were two bases on which the appellants could be convicted of murder, and the matters of which it needed to be satisfied beyond reasonable doubt before it could convict were separately listed for them in the

following terms:
"FIRST BASIS TO PROVE MURDER

Hind1.That Hind voluntarily pulled the trigger causing the

gun to discharge.

2.That Hind intended to cause death or grievous bodily

harm.

Harwood1.That Harwood and Hind formed the common intention to prosecute the unlawful purpose of armed robbery.

2.That Hind voluntarily pulled the trigger causing the gun

to discharge.

3.That Hind intended to cause the death of Bowering or

grievous bodily harm.

4.That the killing of Bowering in this way was a probable consequence of the prosecution of the unlawful purpose.

SECOND BASIS TO PROVE MURDER
Hind1.That Hind held the loaded cocked gun without the safety catch on in the direction of Bowering.
2.The death of Bowering was caused by means of Hind holding

the gun in this way.

3.That the death of Bowering by means of Hind holding the gun in this way could have been foreseen by an ordinary person in the position of Hind.
4.That Hind held the gun in this way in the prosecution of the unlawful purpose to rob the Coach's Inn.

5.That the holding of the gun in this way was an act of such a nature as to be likely to endanger human life.

Harwood1.That Hind and Harwood formed the common intention to prosecute the unlawful purpose of robbery.

2.That Hind held the loaded cocked gun without the safety
catch on in the direction of Bowering.

3.The death of Bowering was caused by means of Hind holding

the gun in this way.

4.That the death of Bowering by means of Hind holding the gun in this way could have been foreseen by an ordinary person in the position of Hind.
5.That Hind held the gun in this way in the prosecution of the unlawful purpose to rob the Coach's Inn.
6.That the holding of the gun in this way was an act of such a nature as to be likely to endanger human life.

7.That the killing of Bowering in this way was a probable consequence of the prosecution of the unlawful purpose."

Manslaughter was also left to the jury, which was told that, if it did not convict of murder, it could convict of manslaughter

on the following basis.
"MANSLAUGHTER

HIND1.That Hind had under his control a thing of such a nature that in the absence of care or precaution in its use or management, the life, safety or health of any person may be endangered, namely a firearm.

2.That Hind was criminally negligent in his failure to use reasonable care or take reasonable precaution in his handling of the firearm.

3.Hind's failure to use reasonable care or take reasonable precaution in the handling of the firearm resulted in the death of Mr Bowering.

HARWOOD1.That Hind and Harwood form the common intention to prosecute the unlawful purpose of robbery.

2.That Harwood knew Hind had a firearm and was reckless as

to whether it was loaded or not.

3.That Hind had under his control a thing of such a nature that in the absence of care or precaution in its use or management, the life, safety or health of any person may be endangered, namely a firearm.

4.That Hind had the firearm under his control in the prosecution of the unlawful purpose to rob the Coach's Inn.

5.That Hind was criminally negligent in his failure to use reasonable care or take reasonable precaution in his handling of the firearm.
6.Hind's failure to use reasonable care or take reasonable precaution in the handling of the firearm resulted in the death of Mr Bowering.

7.That the killing of Bowering in this way was a probable consequence of the prosecution of the unlawful purpose."

By s. 293 of the Code, any person who causes the death of

another person directly or indirectly, by any means whatever, is deemed to have killed that person, and, by s. 291, killing is

unlawful unless authorised or justified or excused by law. For present purposes, the only "excuse" which needs be noted is that

provided by s. 23 of the Code which, so far as material,

provides that "a person is not criminally responsible ... for an

event which occurs by accident".

Section 300 of the Code provides that any person who unlawfully

kills another is guilty of a 'crime', i.e., a criminal offence

(sub-s. 3(2)). By s. 2, an offence is an "act or omission which

renders the person doing the act or making the omission liable to punishment". Section 300 further states that the crime

committed when one person unlawfully kills another "is called murder, or manslaughter, according to the circumstances of the case".

Any unlawful killing under such circumstances as not to constitute murder is manslaughter by s. 303 of the Code. What constitutes murder is defined by s. 302. It is common ground that:

(i)the first basis left to the jury for a conviction of murder

depended on sub-s. 302(1) of the Code; i.e., that Hind

unlawfully killed Bowering intending to cause him death or

grievous bodily harm; and

(ii)the second basis for murder depended on sub-s. 302(2) of the

Code which, so far as presently material, provides:

"302. Definition of murder. ... a person who unlawfully kills another under any of the following circumstances, that is to say -
...
(2) If death is caused by means of an act done in the

prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;

...
is guilty of murder.
...

... it is immaterial that the offender did not intend to

hurt any person.

..."

By virtue of s. 23 of the Code, on the second basis the

prosecution was also required to prove that Bowering's death did

not occur by accident.

The prosecution and Harwood also agreed that his guilt, on all

bases, depended on s. 8 of the Code, which provides:

1. "Offences committed in prosecution of common purpose. 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."

The unlawful purpose in relation to both sub-s. 302(2) and s. 8 was robbery, i.e., stealing with actual or threatened violence: Code, s. 409. (The present case does not involve an issue which, as was noted by McPherson A.C.J. in R. v. Jervis [1993] 1 Qd.R. 643 at pp. 649-650, has been the subject of dispute in

other jurisdictions, namely, whether s. 8 can operate if the intended unlawful purpose was the commission of the offence in

relation to which it is sought to apply s. 8. See also Hughes v. R. (1951) 84 C.L.R. 170; Stuart v. R. (1974) 134 C.L.R. 426, pp. 438-439, 447-449; and Ross v. R. (1979) 141 C.L.R. 432, 438-

439.)

Hind did not dispute that there was evidence upon which the jury could have convicted him on the first basis (sub-s. 302(1) of the Code), but argued that the jury's verdict might not have not been based on sub-s. 302(1) but on sub-s. 302(2), and that the

evidence could not support such a verdict. He also argued that evidence of the post office robbery ought not have been admitted and that the trial judge's direction to the jury concerning the permissible use of such evidence was deficient. Hence, he

submitted that his conviction should be set aside and a new trial ordered. Harwood argued that he could not properly be

convicted on either basis; in addition to the arguments relied on by Hind, Harwood submitted that the prosecution had failed to establish the matters required by s. 8 of the Code.

1.Code sub-s. 302(2) and s. 23: both appellants

(a)causation

The prosecution case based on sub-s. 302(2) of the Code (second basis) was that the act which caused Bowering's death was Hind

pointing the loaded rifle at Bowering without the safety catch

on. The appellants submitted that Bowering's death was not "caused by means of" Hind's act of pointing the loaded rifle at him without the safety catch on but by the discharge of the

rifle. The complexity of the situation lies in the circumstance that there were two acts, occurring sequentially, which, in

combination, resulted in Bowering's death; the loaded rifle was (i) pointed at Bowering and (ii) discharged. Bowering would not

have been killed if the rifle had been pointed at him but not

discharged, or if it had been discharged when not pointed at

him. Nothing is sufficient for the prosecution's case based on

sub-s. 302(2) except a conclusion that, irrespective of what caused the rifle to discharge, Bowering's death was "caused by means of" Hind's act of pointing the loaded rifle at him.

The appellants conceded that the decision of the Court of

Criminal Appeal in Cronau (1980) 3 A.Crim.R. 460 is against

them. On a quick perusal, Lucas A.C.J., who delivered the

leading judgment, followed the judgment of Barwick C.J. in R. v. Ryan (1967) 121 C.L.R. 205 on this point. On closer reading,

the reference to Ryan in Cronau related to a different issue,

namely whether pointing the loaded rifle was a dangerous act, on the assumption that, if the rifle then discharged, pointing it

was the cause of death. However, Ryan itself accepts that, in circumstances such as the present, a conclusion that pointing the loaded rifle caused death is open, but, as Lucas A.C.J. pointed out in Cronau at p. 463, Ryan was decided under

different statutory provisions. See also R. v. Butcher [1986]

V.R. 43, 55-56; R. v. Demirian [1989] V.R. 97, 109 ff.

Perhaps because of their view of Cronau, the appellants' counsel

did not advert to later authority on the issue of causation,

including the decision of the High Court in Royall v. R. (1990)

172 C.L.R. 378. (See also McAuliffe v. R., in which special leave was granted on 7 December 1994: The Legal Reporter, Vol.

16 (1995) No. 1, page C4). Royall concerned sub-s. 18(a)(a) of the Crimes Act 1900 (NSW) and, more particularly for present purposes, the requirement that an act of the accused caused the

death of the deceased. One basis relied on by the prosecution

was that the deceased was killed jumping from the window of her sixth floor flat because of a well-founded and reasonable apprehension of life-threatening violence from the accused. It was held that the jury could conclude, on those facts, that the act of the accused caused the deceased's death: see per Mason C.J. at pp. 385 ff; Brennan J. at pp. 398 ff; Toohey and Gaudron

JJ. at pp. 420 ff; McHugh J. at pp. 440 ff.

Mason C.J. (p. 387), Deane and Dawson JJ. (pp. 411-412); and Toohey and Gaudron JJ. (pp. 423 and 425) approved the statement of Burt C.J. in Campbell v. R. [1981] W.A.R. 286, 290 that it is "enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a

question to be determined by them applying their common sense to

the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter": cf. per McHugh J. at p. 441.

Brennan J. at p. 398 stated that the "basic proposition relating

to causation in homicide is that an accused's conduct, whether

by act or omission, must contribute significantly to the death

of the victim", citing for that proposition R. v. Pagett (1983) 76 Cr.App.R. 279 at p. 288. Deane and Dawson JJ. at p. 411 also

referred to Pagett, stating:
"... there may be no simple cause of the death of the

deceased, but if the accused's conduct is a substantial or significant cause of death that will be sufficient ... to sustain a conviction for murder. It is for the jury to determine whether the connexion between the conduct of the accused and the death of the deceased was sufficient to attribute causal responsibility. ..."

McHugh J. also cited Pagett with approval: pp. 441 and 449. At

p. 441, his Honour said:
"Causation is a question of fact: Reg. v. Evans & Gardiner

[No. 2] [1976] V.R. 523 at p. 527; Reg. v. Pagett (1983) 76 Cr.App.R. 279, at pp. 290-291. To constitute a cause for the purposes of the criminal law, it is not necessary that an act or omission be the sole or main cause of a wrong: Pagett. But, as I have indicated, the purpose of the legal doctrine of causation is to attribute legal responsibility, not to determine the factors which played a part in the happening of an event or occurrence. It is for this reason that the common law doctrine of causation has not accepted that a person is criminally responsible for an event or occurrence simply because his or her act or omission was a causa sine qua non of that event or occurrence. If, as a matter of commonsense, an ordinary person would not hold an accused's act or omission to be a cause of the event or occurrence, it is irrelevant that it was a causa sine qua non of that event or occurrence: cf. Campbell v. The Queen [1981] W.A.R. 286, at p. 290; ...

In most criminal cases, the issue of causation is not controversial. If an accused's act or omission is causally linked with the event or occurrence, it is always only one of the conditions which were jointly necessary to produce the event or occurrence. Ordinarily, however, the application of the commonsense test of causation is enough to determine whether the accused's act or omission was sufficiently significant to make him or her 'causally responsible' for the event or occurrence in question."

It is necessary to quote only one further passage from Royall.

At p. 423, Toohey and Gaudron JJ. said:
"... the jury must be told that they need to reach a

conclusion as to what caused the deceased's death. That does not mean that the jury must be able to isolate a single cause of death; there may be more than one such cause: Reg. v. Butcher ([1986] V.R. 43 at pp. 55-56); Reg. v. McKinnon ([1980] 2 N.Z.L.R. 31, at p. 36). In that event it is inevitable that the jury will concentrate their attention on whether an act of the accused substantially contributed to the death."

According to their terms, ss. 293 and 302(2), taken in conjunction, are satisfied if an act which is of such a nature as to be likely to endanger human life is done in the prosecution of an unlawful purpose and directly or indirectly

causes the death of another person by any means whatever. Nonetheless, the reasoning underlying Royall suggests that the

act relied on by the prosecution must have a sufficiently substantial connection with the death which followed to justify the attribution of criminal responsibility. Here, there were

two closely connected sequential acts, pointing and discharging

the rifle, which together resulted in death. In my opinion,

Hind's act in pointing the rifle at Bowering without the safety

catch on had a sufficiently substantial connection with Bowering's death for the jury to conclude that that act caused Bowering's death within the meaning of sub-s. 302(2).

(b) - prosecution of an armed robbery

The appellants' submission that Hind's action in holding the

loaded rifle with the safety catch off in the direction of

Bowering was not done in prosecution of the unlawful purpose of

an armed robbery of the Coach's Inn cafeteria depended on the hypothesis that, at the time when Bowering was killed, the

appellants had not, or might not have, commenced to prosecute that purpose, but were, or might have been, merely considering

whether or not to do so, or planning or preparing to do so. The sole foundations for this hypothesis were a somewhat equivocal statement by one of the appellants when speaking to the police after arrest, and the fact that the appellants did not proceed with the robbery but decamped after the killing.

The most obvious answer to this submission is that the trial

judge's directions, although not entirely clear on the point,

indicated to the jury that it ought not convict unless satisfied that the appellants were not merely "'sussing out' the place and

considering robbery as an option" when Bowering was killed, and there was ample evidence for the jury to conclude that Hind shot and killed Bowering in the prosecution of an unlawful purpose of an armed robbery of the Coach's Inn cafeteria. In any event, as they conceded, the trial judge's direction was too favourable to the appellants according to the decision of the Court of

Criminal appeal in R. v. Stuart and Finch [1974] Qd.R. 297; see,

for example, per W.B. Campbell J. at pp. 352-354. The submission that the act which caused death in that case, lighting a fire, was not done in prosecution of the unlawful

purpose, extortion, does not appear to have been pursued in the

High Court, which refused special leave: (134 C.L.R. 426). However, at least Jacobs J. considered that an act "preliminary

to" the unlawful purpose was done in prosecution of that purpose

(p. 449). See also R. v. Phillips and Laurence [1967] Qd.R.

237, where each member of the court treated what was done in

"furtherance of" the unlawful purpose as done in prosecution of it: Mack C.J. at p. 247; Hanger J. at p. 258; Hart J. at p. 284.

(c)act ... likely to endanger human life/death did not occur by

accident

To satisfy sub-s. 302(2), Hind's act in pointing the rifle at Bowering without the safety catch on had to be "of such a nature

as to be likely to endanger human life". The test is wholly objective: Stuart (134 C.L.R.) at p. 438, per Gibbs J. with whom Menzies and Mason JJ. agreed. To negative s. 23, the

prosecution also had to prove that the death of Bowering, the

person at whom Hind pointed the rifle without the safety catch

on, did not occur by accident.

In Stuart (134 C.L.R.), Gibbs J. said at p. 438 that "the

apparent severity of the operation of sub-s. 302(2) is mitigated by the provisions of the first paragraph of s. 23, since if ...

death was a consequence which ... would not reasonably have been

foreseen by an ordinary person ..., the accused will not be

criminally responsible". Sub-section 302(2) requires only that the act be "likely to endanger human life", not that it be

likely to cause death: contrast Boughey v. R. (1986) 161 C.L.R.

10. It is presumably for that reason that, in some

circumstances, an ordinary person might reasonably not have foreseen death as a consequence of an act although that act was

of such a nature as to be objectively likely to endanger human

life; i.e., to place human life in danger.

As Boughey demonstrates, there can be considerable difficulty in

deciding the test of what is "likely"; the meaning of the word

can be influenced by the context, and even its "ordinary" or "natural" meaning is a matter of dispute. Thus, in their joint judgment in Boughey, Mason, Wilson and Dawson JJ. said at p. 21

that the "ordinary meaning [is] to convey the notion of a substantial - a 'real and not remote' - chance regardless of whether it is less or more than 50 per cent ...". On the other hand, Gibbs C.J. at p. 14 said that the "natural meaning" of

"likely" is "probable" and not "possible", which, without more, does not necessarily fully resolve all difficulties since,

according to Mason, Wilson and Deane JJ. at p. 20, the meaning of "probable" is also "liable to vary according to the context ...". However, it seems clear enough from the judgment of Gibbs C.J. that his Honour considered that "likely" meant more

probable than not: cf. R. v. Crabbe (1985) 156 C.L.R. 464. That

was also the opinion of Brennan J. in Boughey: see pp. 40ff.

In this case, it is unnecessary to analyse the operation of the

word "likely" in sub-s. 302(2) of the Code: objectively, whatever the test, Bowering's life was endangered by Hind pointing the loaded rifle at him without the safety catch on;

that was an act which, of its nature, inevitably endangered

Bowering's life.

It remains necessary to consider whether the prosecution

excluded s. 23; i.e., whether it was proved that Bowering's

death did not occur by accident.

In Van den Bemd (1994) 68 A.L.J.R. 199, a majority of the High

Court accepted as correct the decision of this Court in that

case, reported (1993) 70 A.Crim.R. 489, dealing with the operation of s. 23. Unfortunately the test was there stated in two different ways. In the first (incomplete) paragraph on p. 493, the Court said: "The test thus appears to be one of

foreseeability of the happening of the consequence as a matter

of probability or 'likelihood'." In the next paragraph, it was said: "The test ... is ... whether death was such an unlikely consequence of that act an ordinary person could not reasonably have foreseen it".

While the first of those tests could be taken to indicate that a

death did not occur by accident only if an ordinary person would

have foreseen that death was a probable or likely consequence of

the act which caused death, on the second test, death did not

occur by accident if an ordinary person would have foreseen that death was not an unlikely consequence of the act which caused

death; that test would be satisfied if an ordinary person would have foreseen death as a real or substantial, as distinct from a

remote, possibility: cf. Koufos v. C. Czarnikow Ltd [1969] 1 A.C. 315. Overall, the terms of this Court's judgment in Van den Bemd suggest that it was the second test which was intended

in that case. See also per Gibbs J. in Kaporonovski v. R.

(1975) 133 C.L.R. 209, 232.

The arguments in favour of the first test, which were

substantially raised in the judgments of Gibbs C.J. and Brennan J. in Boughey, did not find favour with the majority in that

case despite the support those arguments draw from Crabbe. In the latter case, the High Court was concerned with the question

whether, at common law, "the knowledge which an accused person must possess in order to render him guilty of murder when he lacks an actual intent to kill or do grievous bodily harm must

be a knowledge of the probability that his acts will cause death

or grievous bodily harm ... or whether knowledge of a possibility is enough" (p. 468). In a joint judgment, five members of this Court held that knowledge of a probability of death or grievous bodily harm was necessary. After referring at

p. 468 to the opinion of McTiernan and Menzies JJ. in Pemble v.

R. (1971) 124 C.L.R. 107, at pp. 118-121 which used the words

"probable or likely (both expressions are used)", the Court said
at p. 469:
"The conclusion that a person is guilty of murder if he

commits a fatal act knowing that it will probably cause death or grievous bodily harm but (absent an intention to kill or do grievous bodily harm) is not guilty of murder if he knew only that his act might possibly cause death or grievous bodily harm is not only supported by a preponderance of authority but is sound in principle. The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. ... If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word 'probable' means likely to happen. That state of mind is comparable with an intention to kill or to do grievous bodily harm. There is a difference between the case in which a person acts knowing that death or serious injury is only a possible consequence, and where he knows that it is a likely result."

Nonetheless, in light of Boughey, I consider that I should adopt

the second test expressed in Van den Bemd. Once it is accepted

that the question is whether an ordinary person would reasonably

have foreseen that there was a real possibility that Hind's act

in pointing the rifle at Bowering without the safety catch on

would cause death, it becomes plain that it was open to the jury

to answer that question in the affirmative.

2.Evidence of the post office robbery: both appellants

A further joint argument by the appellants related to the evidence of the post office robbery and the appellants' actions on that occasion.

Although, at trial, the appellants' counsel initially objected to such evidence, it is not clear that the objection was maintained. Similarly, although the reception of the evidence was a ground of appeal, the difficulty of maintaining that position, especially in light of what had occurred at trial, was

frankly acknowledged during the hearing in this Court. In the
circumstances, the point need not be discussed at length.
The appellants seemed not to dispute that the evidence

concerning the post office robbery was relevant, and did not merely establish the commission of another offence or a propensity to offend by the appellants; for example, it was

material that, in the post office robbery, the rifle was again loaded, and, conversely, that no attempt was made to shoot any

person present. The objection in this Court to the evidence of the post office robbery, to the extent it was pressed, was that

it was prejudicial because it constituted evidence of another
serious crime.

However, the trial judge was not asked to exclude the evidence of the post office robbery on the basis that its probative value was outweighed by its prejudicial effect (Harriman v. R. (1989) 167 C.L.R. 590), and it was not demonstrated that, had he been asked, or without being asked, he should have done so, especially since the evidence was of some potential assistance to the appellants. For example, the incident involving the dog

during the post office robbery and the absence of any shot at

any person on that occasion were relied on before the jury by the appellants as indicating that the discharge of the rifle

when the deceased was killed might have been involuntary. Further, in the unusual circumstances of this case, the

prejudicial effect of the evidence was limited to an inference of callousness which might be drawn from the brief period between the killing and the post office robbery. That the appellants were armed robbers conducting, or planning or preparing for, a robbery when the deceased was killed was not a

matter on which the jury could have had any reasonable doubt.

The appellants' remaining joint argument related to the omission by the trial judge to give the jury careful directions concerning the use they might make of the evidence of the post office robbery. There is no suggestion that any attempt was made by the prosecution to use the evidence for an impermissible purpose. His Honour reminded the jury of all the appellants' submissions on the issue. No redirections were sought by the experienced counsel who represented the appellant at trial. They might well have considered, probably correctly, that their

clients' causes would not have been advanced by any further

reference to the matter.

3.The appeals

(a)Hind's appeal

It follows from what has been said that Hind's appeal must be

dismissed.

(b)Harwood's appeal

Harwood's appeal necessitates consideration of the operation of

s. 8 of the Code.

The prosecution sought to prove two additional matters against

Harwood on both the first and second bases for murder, namely,

that:
(a)the appellants' common intention was to prosecute the

unlawful purpose of armed robbery; and

(bthe killing of Bowering by Hind

(i)voluntarily pulling the trigger causing the rifle to

discharge intending to cause death or grievous bodily

harm to Bowering (first basis); or

(ii)holding the loaded rifle, without the safety catch on, in

the direction of Bowering (second basis);

was a probable consequence of the appellants' prosecution of
their unlawful purpose of armed robbery.

Paragraph (a) also formed part of the prosecution case against Harwood for manslaughter, and, for present purposes, it is

sufficient to describe the remainder of the manslaughter case as

an expansion of the conduct relied on in para. (b)(ii).

4.Code s. 8

(a) - common intention

Clearly, the jury was entitled to conclude that the appellant's common intention was to prosecute an armed robbery of the Coach's Inn cafeteria in conjunction with each other; cf. the other finding which it was held above was open to the jury, namely, that the killing of Bowering by Hind was done in the prosecution of that purpose.

(b) - probable consequence

The test of whether an offence of the nature of the offence

committed was a probable consequence of the prosecution of the unlawful purpose which Hind and Harwood intended is objective, and is related to the particular armed robbery intended, not such an offence (armed robbery) in the abstract. See, generally, Brennan v. R. (1936) 55 C.L.R. 253, 260-261, 264-265;

Stuart v. R. (134 C.L.R.) at pp. 438, 442-443; Jervis at p. 648.

It was not argued for the appellants that the identity of the

deceased is a material factor in determining what was a probable

consequence, and that implicit concession was, in my opinion,

correctly made.

(i) - probability

While what has been said in relation to sub-s. 302(2) and s. 23 indicates the difficulties and potential ambiguities associated

with the word "probable", the overall effect of Crabbe and Boughey is that the ordinary meaning of "probable" is "more

likely than not". However, Brennan indicates a different

meaning for "probable" in s. 8 of the Code.

Section 8 of the Western Australia Criminal Code, which is in

identical terms to s. 8 of the Queensland Code, was considered

by the High Court in Brennan, in which Brennan and his two co-

accused were acquitted of wilful murder but convicted of manslaughter. It will be necessary to discuss that case in more detail later, but for the moment it is sufficient to notice

passages from each of the two judgments delivered which deal

with what is a probable consequence for the purpose of s. 8.

Starke J. said, at pp. 260-261:
"A probable consequence is, I apprehend, that which a

person of average competence and knowledge might be expected to foresee as likely to follow upon the particular act; though it may be that the particular consequence is not intended or foreseen by the actor.

This is not a definition, but 'only a guide to the exercise of common sense'. Now if a person commits manslaughter who brings about the death of another by some unlawful act, then it must be taken, I think, that death is treated in law as a not improbable consequence of such an act, either because of the definition of the crime or because experience has established that such a result ought to be foreseen and expected. Under a proper charge, therefore, a verdict of manslaughter against the prisoner Brennan could upon the evidence be supported." (Underlining added)

The overall effect of the passages underlined is that it is

sufficient to satisfy s. 8 if a consequence was a real or substantial possibility; indeed, the second passage appears to assert that probability can be proved by linking cause and effect.

In their joint judgment at p. 264, Dixon and Evatt JJ. said that "death can be considered the probable consequence of the prosecution of the purpose if the purpose in which [Brennan]

concurred made it likely that his confederates would, if necessary, use violence and such a kind or degree of violence as would probably cause death. The fact that, according to the verdict, they must be taken to have used an amount of force, less than might have been contemplated by them, would not make

the death, which ordinarily would not, but actually did, result

from such a use of force, too remote a consequence for the

prosecution of the purpose". (Underlining added).
Again, the tenor of these statements is that it is sufficient to
satisfy s. 8 if there was a real possibility that an offence of

the nature of the offence committed would be committed.

Indeed, what was said by Dixon and Evatt JJ. might go further;

on one view at least, it ignores the degree of likelihood of circumstances occurring which would make it "necessary" (in this case) for Hind to shoot. Once it is concluded that Hind would shoot, if necessary, whether there was a real possibility that he would shoot depends upon the degree of likelihood that a

person encountered in the prosecution of the robbery would

resist or refuse to cooperate or otherwise make Hind consider shooting necessary; however, what was said by Dixon and Evatt JJ. in Brennan seems to indicate that, however unlikely such

occurrences, the question is whether Hind would shoot if one of them did occur. (Compare Markby v. R. (1978) 140 C.L.R. 108, 112-113 in relation to the common law.)

The first part of the passage from the joint judgment of Dixon and Evatt JJ. in Brennan at p. 264 was cited with approval in the joint judgment of Mason, Murphy and Wilson JJ. in Johns v. R. (1980) 143 C.L.R. 108 at pp. 128-129, and Johns was, in turn,

affirmed in Mills v. R. (1985) 17 A.Crim.R. 411. The same statement by Dixon and Evatt JJ. in Brennan has also been cited with approval in the Court of Criminal Appeal: e.g. R. v. Solomon [1959] Qd.R. 123, 135-136 per Mack J. See also Murray

v. R. (1962) Tas.S.R. 170.
The facts in Johns were again broadly similar to the present

case, so far as presently relevant, but Johns' culpability depended on the common law. It was held that, for that purpose,

it was not necessary that the unlawful act which caused death

was probable in the sense of more likely than not.

Mason, Murphy and Wilson JJ. said at p. 131:
"The narrow test of criminal liability proposed by the

applicant is plainly unacceptable for the reason that it stakes everything on the probability or improbability of an act, admittedly contemplated, occurring. Suppose a plan made by A, the principal offender, and B, the accessory before the fact, to rob premises, according to which A is to carry out the robbery. It is agreed that A will carry a loaded revolver and use it to overcome resistance in the unlikely event that the premises are attended, previous surveillance having established that the premises are invariably unattended at the time when the robbery is to be carried out. As it happens, a security officer is in attendance when A enters the premises and is shot by A. It would make nonsense to say that B is not guilty merely because it was an unlikely or improbable contingency that the premises would be attended at the time of the robbery, when we know that B assented to the shooting in the event that occurred."

There is a passage in the judgment of Stephen J. in Johns at pp. 120-121 in which, in discussing references to probability in

this area of the common law, he suggests that "probable" may

bear a variety of meanings and even, in some cases, be satisfied

by anything more than a bare probability. However, overall,

both Barwick C.J. (at p. 113) and Stephen J. (pp. 118-119) in

Johns accepted and emphasised the difference between probability

and possibility. Indeed, Stephen J.'s judgment recognises that an occurrence dependent on unpredictable events cannot be described as probable according to its ordinary meaning. At pp. 118-119, his Honour said:

"... if, in carrying out that contemplated crime, another crime is committed there arises the question of the complicity of those not directly engaged in its commission. The concept of common purpose provides the measure of complicity, the scope of that common purpose determining whether the accessory before the fact to the original crime is also to share in complicity in the other crime. If the scope of the purpose common both to the principal offender and to the accessory is found to include the other crime, the accessory will be fixed with criminal responsibility for it. In determining scope, it may either be restricted to what the accessory regarded as probable consequences of the criminal venture or may be extended to include what he regarded as possibly involved in the venture. To apply to such a situation a criterion of what is probable, as contrasted with what is merely possible, seems singularly inappropriate. The commission of that other crime will not have been the prime object of the criminal venture; it will in all probability have been committed as a reaction to whatever response is made by the victim, or by others who attempt to frustrate the venture, upon suddenly being confronted by the criminals. There will usually be a variety of possible responses to the criminal act. With each of these contingencies the criminals will have to reckon, if they are at all to plan their future action. What they conceive of as contingent reactions to each possible response will have, interposed between these reactions and the planned crime, at least one and perhaps a whole sequence of spontaneous and relatively unpredictable events.

In those circumstances it is understandable that criminal liability should be made to depend upon the jury's assessment of whether or not the accessory before the fact must have been aware of the possibility that responses by the victim or by third parties would produce the reaction by the principal offender which led to the other crime. In such a speculative area, it would be remarkable were the accessory's liability for the other crime to depend upon the jury assessing, in terms of 'more probable than not', the degree of probability or improbability which the accessory attached to the happening of the particular reaction by the principal offender which in fact occurred, itself dependent upon the intervening uncertain responses of victim or third parties. Yet that is what would be required were an accessory's responsibility to depend upon such a criterion of probability, necessarily involving a balancing process and often a nice assessment of odds. I have spoken of intervening contingencies dependent upon human responses; however to these must be added those contingencies which may arise without any human intervention.

Another and perhaps more substantial objection to the suggested criterion of probability lies in the standard of blameworthiness and responsibility which it presupposes. If applied, it would mean that an accessory before the fact to, say, armed robbery, who well knows that the robber is armed with a deadly weapon and is ready to use it on his victim if the need arises, will be no criminal responsibility for the killing which in fact ensues so long as his state of mind was that, on balance, he thought it rather less likely than not that the occasion for the killing would arise. Yet his complicity seems clear enough; the killing was within the contemplation of the parties, who contemplated 'a substantial risk' that the killing would occur: Howard, Criminal Law, 3rd ed. (1967), p. 276."

In Stuart (134 C.L.R.), both Finch, who lit the fire, and

Stuart, who with Finch was party to a plan to use the fire for

the purpose of extortion, were convicted of murder. At p. 441,

referring to ss. 8 and 302(2) of the Code, Gibbs J., with whom

Menzies and Mason JJ. agreed, said:
"... The two sections are not in conflict and have the

combined effect that when two persons form a common intention to prosecute an unlawful purpose, and in the prosecution of that purpose one does an act which is likely to endanger human life, and in fact causes death, and the nature of that crime was such that its commission was a probable consequence of the prosecution of the purpose, the other is deemed to have committed the offence of murder."

At p. 443, his Honour added:
"... Under s. 8 it is necessary for the jury to consider

fully and in detail what was the unlawful purpose and what its prosecution was intended to entail and what was the nature of the actual crime committed, and then to decide whether that crime was of such a nature that its commission was a probable consequence of the prosecution of that purpose. In the present case there was evidence on which the jury could have been satisfied that the murder committed was of such a nature that its commission was a probable consequence of the prosecution of the purpose which Finch and Stuart had in common; it was open to them to infer that Stuart and Finch formed a common intention that Finch should light the fire in the night club at the time when he did light it and when people were known to be in it. ..."

And, at p. 445, he distinguished that case from cases, which he

considered difficult, "in which the principal offender went beyond the instigation of his confederate, or departed from a

pre-arranged plan, and used more violence that had been agreed".

While there is nothing in what Gibbs J. said in Stuart (134

C.L.R.) which suggests that he considered "probable" meant anything other than more likely than not, it was unnecessary in that case to consider whether a lower standard would have

sufficed; the higher standard - more likely than not - was

satisfied on the facts of that case.

McTiernan A.C.J. and Jacobs J. delivered separate concurring

judgments in Stuart. It is unnecessary to discuss the judgment

of McTiernan A.C.J. The statements of Jacobs J., who discussed s. 8 at some length, give no support to a proposition that, in that section, "probable" requires more than a real possibility.

I can find nothing in the authorities which could justify this Court adopting a meaning for the word "probable" in s. 8

different from that adopted in Brennan.

(ii) - offence of such a nature

The prosecution had to prove against Harwood that the "offence" which Hind committed by killing Bowering in the prosecution of the armed robbery was "of such a nature" that its commission was

a probable consequence of the prosecution of the armed robbery.
The prosecution case against Harwood, i.e., each of the two

bases for murder and the basis for manslaughter, proceeded on

the footing that he could only be convicted under s. 8 if a

killing of Bowering by Hind in the manner specified in that

basis, i.e., by reference to the specific matters listed, was a

probable consequence of the appellants' prosecution of their

armed robbery at the Coach's Inn; further, as the prosecution case was presented, Harwood could only be convicted of manslaughter if Hind was convicted of manslaughter, not murder.

The propositions on which the prosecution case was based were

that Harwood:

(i)could be convicted of murder on either basis only if a murder

by Hind (in the manner specified in that basis) was the

probable consequence of the armed robbery, and

(ii)could be convicted of manslaughter only if an unlawful

killing by Hind (in the manner specified) - which did not

amount to murder - was a probable consequence of the armed

robbery.

While that approach was, in some respects, more favourable to

Harwood than was required by the decisions of the Court of

Criminal Appeal in Solomon and Jervis, that is now unimportant

since Harwood was convicted. However, it is necessary to decide whether, in putting the case to the jury on that basis, the trial judge deprived Harwood of the chance of a conviction of manslaughter, not murder, despite Hind's conviction of murder. Consideration of that issue requires analysis of the decision in

Jervis.

Jervis was one of a group of four young women charged with

murder after the brutal slaying of a man in a Brisbane park. One was acquitted. Another, Wiggington, who inflicted the knife

wounds which caused the death of the deceased, pleaded guilty to murder shortly before the trial. A third, Ptaschinski, was found guilty of murder. Jervis was acquitted of murder, but

found guilty of manslaughter. The Court of Criminal Appeal

dismissed an appeal by Jervis, and the High Court refused

special leave to appeal.

The presently material facts may be briefly stated, by quoting

the following two passages from the judgment of McPherson

A.C.J., the first from p. 645 and the other from pp. 649-650:
"The evidence at trial disclosed that Mr Baldock's death

was associated with circumstances of peculiar horror and cruelty. In the days before he was killed the four women had been discussing a plan put forward by Wiggington. She claimed to be a vampire who needed to drink human blood to survive. The plan was to use Ptaschinski's car to drive around the city to locate some unsuspecting victim. He, or possibly she, would be lured into the car, and taken to a place where Wiggington would be able to 'feed' on his blood. In the police interviews of the women that followed there are suggestions that a willing victim might be found.

If the plan was to be taken seriously, no one could genuinely have believed that a person would submit voluntarily to treatment of that kind. If Wiggington's proposal was to be carried into effect the very least that could have been intended was a wounding of the victim."

...

"Apart from her knowledge, so far as it went, of Wiggington's plan before the Saturday night in question, the single most incriminating fact in the Crown case against her was that she handed over her knife to Ptaschinski shortly before the stabbing took place. After luring Mr Baldock into the car driven by Ptaschinski in which they were all travelling, the women took him to the park at West End. When Wiggington led him to the river bank the others remained in the car. Some time later Wiggington returned and said that she needed help and was going to 'kill the bastard'. These remarks were addressed to Ptaschinski, who then left the car and accompanied Wiggington back to the river bank. Ptaschinski returned to the car on one or more occasions, on one of which she asked for and received from Jervis the knife that she was known to have with her. It was primarily upon this act of the appellant that the prosecution founded its case of murder against Jervis. ... In fact there is some evidence that, in the event, Wiggington took this knife from Ptaschinski and used it together with her own to wound and kill her victim.

Ptaschinski played a part in the killing, which is reflected in the verdict of guilty returned against her, if only by accompanying Wiggington back to Mr Baldock and placing herself in front of him while Wiggington stabbed him from behind. Jervis herself remained in the car some distance away while the killing took place. ..."

It is essential to an understanding of McPherson A.C.J.'s

judgment in Jervis to note his Honour's rationalisation of the

jury's verdicts that she was not guilty of murder but guilty of

manslaughter. His Honour proceeded on the basis that Wiggington's guilt of murder was based on sub-s. 302(1) of the Code (unlawful killing with an intention to cause death or grievous bodily harm). Then, at p. 650, he stated a number of

propositions, including:
(i)Jervis might have been convicted of murder under s. 8 "if the

unlawful killing accompanied by an intent [by Wiggington] to kill or cause grievous bodily harm was found to be the probable consequence of carrying out together a common intention shared by Jervis that Mr Baldock should be wounded in order to take his blood"

(ii)"The verdict of not guilty on the charge against Jervis of murder shows that the jury were not satisfied that by the time the knife was handed over she realised that Wiggington intended to kill Mr Baldock or to do him grievous bodily harm. ... It necessarily ... disposed of the case [i.e., for murder] against her founded on s. 8 of the Code. For if she did not realise that Wiggington intended to kill or do grievous bodily harm, Jervis could not have been party to the intention of doing so, which by s. 8 was required to be a 'common' intention."

(iii)[the jury] must have been persuaded that death was, within the terms of s. 8, a probable consequence of a common intention of carrying out together the unlawful purpose of wounding or of causing some other injury or hurt falling short of death or grievous bodily harm".

It is difficult to reconcile proposition (ii) with propositions (i) and (iii), both of which assume that an unlawful killing,

although unintended by Jervis, might have been "a probable consequence of ... causing some ... injury or hurt [to Baldock] falling short of death or grievous bodily harm".

Earlier, at p. 647, his Honour had said that the "fundamental

question ... is whether ... a person may be guilty of an

offence, different in law but constituted by the same act as, the offence committed by the other person ... with whom he joins in committing that offence". At the foot of p. 650 to p. 651,

he said:
"It is to the correctness in law of the verdict of

manslaughter that the present appeal is directed. It is not the form of the summing up that is challenged, but the proposition that such a verdict was available at all. The submission ... for the appellant is that ... [s.] 8 extend[s] criminal responsibility to an assistant or a confederate, but ... only as regards the offence 'actually committed' and not some other offence whether more or less serious. Hence, if in killing Mr. Baldock, Wiggington committed murder, Jervis could in law be convicted of murder but not of any other offence such as manslaughter. Having been found not guilty of murder, it followed according to this thesis that she could not, in reliance on ... [s.] 8, be convicted of manslaughter."

Although not entirely clear, it seems that the setting for the

question identified by McPherson A.C.J. was that, although

Wiggington had murdered Baldock, the jury in Jervis' trial had concluded that an unintentional unlawful killing, but not an intentional unlawful killing, was a probable consequence of

Wiggington and Jervis' common intention of "wounding or of

causing some other injury or hurt falling short of death or grievous bodily harm". Because of the hypotheses on which

McPherson A.C.J.'s judgment in Jervis, proceeded, which were shaped by the jury's verdicts that she was not guilty of murder but guilty of manslaughter, it is his Honour's reasoning, rather

than the actual decision in Jervis, which is of principal

importance in the present case.

There are two aspects of that reasoning which were material at

Harwood's trial, one of which remains important in his appeal.

McPherson A.C.J.'s judgment in Jervis involves propositions that (i) an offence of unlawful killing is of the same nature as an

offence "of wounding or of causing some other injury or hurt falling short of death or grievous bodily harm" (p. 650) and

(ii) unlawful killing can be a probable consequence of an

offence "of wounding or of causing some other injury or hurt falling short of death or grievous bodily harm". This aspect

need not be further considered, since the jury was not instructed that it could convict Harwood of manslaughter on that

basis, and, in any event, it did not convict him of

manslaughter, but murder.
The aspect of Jervis which remains of importance in the present

appeal is the conclusion that a person can be convicted of manslaughter on the basis of s. 8 although the person who carried out the unlawful killing was guilty of murder.

Commencing at p. 651 in Jervis, McPherson A.C.J. referred to a

number of factors which led him to reject the appeal against Jervis' conviction for manslaughter. I will mention each of

those matters, and discuss some of them briefly.

A. "The trend of authority at common law is opposed to the

appellant's submission on this point" (p. 651). Reference was made to English, Victorian and United States' decisions, including a decision of the Supreme Court of Appeals of West

Virginia (Moore v. Lowe 180 S.E. 1. (1935) which accepted "that an accessory, or principal in the second degree, or an aider or abettor, in a homicide may be found guilty of murder in a higher or lower degree than the actual perpetrator, or may be convicted of murder though the perpetrator has been convicted of manslaughter, or of manslaughter though the perpetrator has been guilty of murder".

However, as de Jersey J. in his dissenting judgment in Jervis pointed out at pp. 670-671 and 673, it is impermissible to use

these authorities in construing s. 8 of the code, the words of

which are "perfectly clear as they stand": Stuart (134 C.L.R.)
at p. 441.
Further, it might be a necessary consequence of the view of the

majority in Jervis that a person convicted under s. 8 could, theoretically at least, be convicted of a more serious offence

than the principal offender; for example, if a plan to rob

involved an intent to kill or cause grievous bodily harm by one

offender shooting, say, a security guard but, before that was done, the armed offender shot the guard in circumstances

amounting only to manslaughter, the majority view in Jervis might have implicit in it, although certainly it was not expressly stated, that although the principal offender was guilty only of manslaughter, the person charged under s. 8 could

be convicted of murder. In my opinion, such an outcome cannot

be accommodated to either the language or apparent purpose of s.

8; and see Stuart (134 C.L.R.) pp. 438-440.

B. McPherson A.C.J. also pointed out in Jervis that most

decisions in jurisdictions with statutory provisions comparable to s. 8 of the Code favour the view that a person charged under

that section can be convicted of manslaughter although the

principal offender was guilty of murder. Decisions suggesting

the contrary to which reference was made are R. v. Malcolm

[1951] N.Z.L.R. 470, 473 and R. v. Simpson (1983) 6 C.C.C. (3d)

516, 528. Decisions in other jurisdictions which favour the majority view in Jervis are Murray, Imiyo Wamela v. The State [1982] P.N.G.L.R. 269 (see also Willy Kelly Goya v. The State

[1987] P.N.G.L.R. 51); and Saunders v. R. [1980] W.A.R. 183.

Solomon is also in accordance with that view. See also R. v.
Hartley [1978] 2 N.Z.L.R. 199, 203.
In Jervis, McPherson A.C.J. discussed Murray and Saunders in

more detail, and quoted passages from Imiyo Wamela and Stuart (134 C.L.R.) at pp. 654-655. de Jersey J. also considered

Murray and Saunders (and referred to Imiyo Wamela and Stuart

(134 C.L.R.)) at pp. 673-674. I do not think it is necessary to

repeat the respective views expressed or to agree with all de Jersey J.'s observations to conclude that the cases from other

jurisdictions discussed in Jervis support, but do not provide

compelling reasons for acceptance of, the majority view.

C. At p. 652, McPherson A.C.J. noted that "the strength of the appellant's submission ... lies in the underlying compulsion to treat the word 'offence' as referring to the same offence

throughout s. ... 8". His Honour then continued at pp. 652-654:
"A possible escape from the difficulty may lie, as I

foreshadowed earlier, in reading the word 'offence' in the light of the definition in s. 2 of the Code to mean 'an act or omission which renders the person doing the act or making the omission liable to punishment'. ... A submission along these lines was presented in Stuart v. The Queen ((1974) 134 C.L.R. 426, 440-441), where Gibbs J. said that if the word 'offence' in s. 8 is regarded as defined by s. 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'. His Honour, whose reasons were concurred in by Menzies and Mason JJ., did not finally reject the submission; but he went on to say that an attempt to expand the test of s. 8 by reading into it the description of 'offence' contained in s. 2 'tends to obscure rather than illuminate its meaning'. His Honour was speaking with reference to the particular facts of the case before him, which involved the combined effect of s. 8 and s. 302(2). The same criticism does not necessarily apply to the facts of this case, where Wiggington's 'punishable act' may be seen simply as the unlawful killing of Mr Baldock.

A cognate solution, which may be preferable, is to analyse the series of acts and events that occurred, without immediately deferring to the consideration that both Wiggington and Ptaschinski were convicted of murder, the latter by a verdict of the same jury who found the appellant guilty of manslaughter. It is true that in one sense the convictions of Wiggington and Ptaschinski may be treated as demonstrating that murder was the offence 'actually committed'. But in law those convictions and the verdict of guilty against Ptaschinski proved nothing at all against Jervis. It is also true that the evidence on which Ptaschinski was found guilty was for the most part also the evidence in the prosecution case against Jervis. But although they were tried jointly on the same indictment, not all of the evidence admissible against Ptaschinski was admissible against Jervis in what were in law two separate trials proceeding concurrently. Evidence tending to show that the other two women intended to kill or do grievous bodily harm was not relevant to proof of the charge against Jervis of murdering Mr Baldock unless ... for the purpose of s. 8, that it was a common intention which she shared with Wiggington. Once the jury failed to find these matters proved against Jervis, and instead returned in her favour a verdict of not guilty of murder, evidence of the intention of the other woman, or either of them, to kill Mr Baldock ceased to be of any relevance. Indeed, if Jervis had been tried alone on an indictment charging her only with the manslaughter of which she was ultimately convicted, evidence in any form of intention to kill would have been inadmissible at her trial.

Murder is a form of unlawful killing. A person who unlawfully kills another is, as we have seen, guilty by virtue of s. 300 of a crime, which is called murder or manslaughter according to the circumstances of the case. Murder is a compound offence comprising in circumstances like these three elements, which are the event of death, which must be caused by the act of the accused (s. 293), done with the intention of killing or doing grievous bodily harm: s. 302(1). It is the third of these elements, comprising intention, that constitutes the 'circumstances of the case' which convert the unlawful killing into a murder. If the unlawful killing takes place without that circumstance it amounts to manslaughter, because by s.303 'a person who unlawfully kills another under such circumstances as not to constitute murder' is guilty of manslaughter. Both murder and manslaughter nevertheless are and remain, particular forms of what is viewed by s. 300 as a single 'crime' of unlawfully killing another.

Despite s. 300, it must be conceded that the Code is not completely consistent in viewing murder and manslaughter simply as branches of a single crime. Section 576 provides that upon an indictment charging a person with the 'crime' of murder he may be convicted of the 'crime' of manslaughter, if that crime is established by the evidence. But if this be thought to raise a degree of inconsistency between s. 300 and s. 576, there is no compelling reason for preferring the latter."

At pp. 654-656, his Honour added the following statements:

"The conception of murder as an aggravated form of the offence of unlawful killing was adopted in this court in R. v. Solomon ([1959] Qd.R. 123, 131-132). Philp J., with whom Mansfield C.J. agreed, said that after acquittal on a charge of murder the appellant could be found guilty of manslaughter, for the reason that 'every murder involves an unlawful killing'... .

...

Likewise, in Stuart v. The Queen ((1974) 134 C.L.R. 426, 453), in which convictions for murder were upheld in the case of both accused one of whom instigated the other to light a fire in a nightclub that caused the death of the deceased, Jacobs J. plainly treated the responsibility under s. 8 of the confederate as resting upon the circumstance that the unlawful killing was the probable consequence of setting the fire. He accepted that a person sharing a common purpose to commit an assault, from which death resulted as a probable consequence, 'would be guilty of manslaughter even though not guilty of the murder of which his confederates might be found guilty' (133 C.L.R. 426, 453-454). His Honour's statements on this subject were adopted by both Burt C.J. and Brinsden J. in Saunders v. The Queen ([1980] W.A.R. 183, 184, 189), in holding that under s. 8 the confederate could in law be convicted of manslaughter in relation to the same killing with respect to which the perpetrator had been found guilty of murder at the same trial. Such a conclusion can only have been reached on the basis that under s. 8 the 'offence' was the unlawful killing, and that the circumstance that the perpetrator possessed an intention to kill or to do grievous bodily harm which rendered him guilty of murder was, legally speaking, no longer relevant to the criminal responsibility of the confederate once he was found not guilty of murder.

... That unlawful killing by Wiggington must have been found by the jury to be a probable consequence of carrying out the joint purpose shared by Jervis, thus rendering her liable to be convicted of manslaughter.

So far as Jervis was concerned, the offence which by the operation of s. 8 she is deemed to have committed was the crime of unlawful killing of Baldock perpetrated by Wiggington. The appellant's responsibility under the Code stopped at that point, regardless of whether murder was also committed, of which offence she was acquitted by verdict of the jury."

The foundation of de Jersey J.'s disagreement with the majority view in Jervis is encapsulated in the following passage from p. 671:

"... s. 8 requires one to identify the offence actually committed. Provided the commission of that offence was the probable consequence of the prosecution of an unlawful purpose, which two or more persons agreed to prosecute in conjunction, then the section deems each of those persons to have committed 'the offence', that is, the offence which 'is committed'. Again, because in this case the offence actually committed was murder, a conviction of the appellant for manslaughter could not be justified by reliance on this section."

Later, at p. 673, his Honour said that he did not regard the

Code definition of offence as an answer to the problem.
"... In this case '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. I agree with what Gibbs J. said in this regard in Stuart v. The Queen at 440-441. (I note that in Imiyo Wamela v. The State [1982] P.N.G.L.R. 269, the Supreme Court of New Guinea sanctioned a similar disparity by regarding the 'offence' as a bare unlawful killing, an approach with which I would therefore disagree.) Brinsden J. in Saunders (at 191- 192) draws heavily on the position in England, which is in my opinion simply unhelpful to the construction of these clear provisions of the Code. He also relied (at 189) on what was said by Jacobs J. in Stuart v. The Queen at 453; but Jacobs J. was not there dealing with the possibility of a conviction of, say, the aider of the confederate, for an offence different from that committed by the actual perpetrator of the crime."

Then, at p. 674, he added:
"I should add that ss. 300, 302 and 303 of the Code, read

in conjunction, plainly establish that murder and manslaughter, although respectively examples of unlawful killing, are distinct offences. The 'offence committed' (cf. s. 8) here by Wiggington and Ptaschinski was not unlawful killing, or manslaughter, but murder; that is unequivocally established, not by the convictions, but by the undisputed facts of the case. To suggest that although there was a murder, there was also a manslaughter caught up with it, would be to ignore the structure of the Code, and one obviously would not expect the draftsman of [s.] ... 8 to have done that. If the legislature were to consider that the application in this case of the plain language of [s.] ... 8 produced a socially undesirable result, then the solution would be amendment, such as might bring the Code into accord with the common law ... . As to s. 576, which authorises a conviction for manslaughter on an indictment charging murder, that may occur if manslaughter 'is established by the evidence'. In this case, the evidence did not establish guilt of manslaughter, because the appellant did not kill the deceased. That is, of course, why the Crown sought to rely on the deeming provisions of [s.] ... 8. In my opinion the conviction for manslaughter could not in this case be justified by resort to s. 576."

There are a number of matters discussed in the passages which I

have extracted from the judgment of McPherson A.C.J. in Jervis

at pp. 652-656, which I will comment on as briefly as possible.

1. As McPherson A.C.J. might have accepted, the importation

into s. 8 of the definition of "offence" in s. 2 of the Code

does not lead to a conclusion that manslaughter and murder are

the same offence. Indeed, the definition is against the

majority view in Jervis; the offence committed by Wiggington in Jervis, (and for present purposes accepted as having been

committed by Hind in this case) was murder, which, so far as presently material, involved both conduct and intention; that is

not the same as an unintentional, negligent killing: cf. McPherson A.C.J. at p. 653 where he describes murder as "a

compound offence comprising in circumstances like these three elements, which are the event of death which must be caused by the act of the accused (s. 293), done with the intention of killing or doing grievous bodily harm: s. 302(1)". See also per

de Jersey J. at p. 673.

2.    In the "cognate solution" introduced by McPherson A.C.J. at

p. 653, his Honour pointed out that, although Wiggington and

Jervis were tried jointly on the same indictment, there were, in law, two separate trials proceeding concurrently, that there

were potential differences in the evidence admissible against each, and the irrelevance, or perhaps limited significance, of Wiggington's conviction to the guilt or innocence of Jervis.

Nonetheless, Wiggington's guilt, and the offence of which she

was guilty, had to be proved against Jervis for s. 8 to operate, and, under that section, an offence of the "nature" of Wiggington's offence had to be a "probable consequence" of the

prosecution of Wiggington and Jervis' unlawful purpose. The

matters to which his Honour made reference do not seem to me to
determine what is involved in these requirements.

3. The statement (at p. 653) that, unless Wiggington and Jervis shared a common intention that Wiggington should kill or

do grievous bodily harm, the evidence that Wiggington had that

intention "was not relevant to proof of the charge against

Jervis of murdering Mr Baldock" seems to me incorrect; Wiggington's intention was relevant to a charge of murder

against Jervis at least if it was the prosecution case that an unlawful killing by Wiggington with intention to kill or cause grievous bodily harm was a probable consequence of the

prosecution of their unlawful purpose.

4. At p. 653, McPherson A.C.J. stated that "murder and

manslaughter ... are and remain, particular forms of what is viewed by s. 300 as a single 'crime' of unlawfully killing another". And, at p. 654, his Honour adopted Philp J.'s description of murder as "an aggravated form of unlawful

killing" (Solomon p. 131), and his Honour's statement in that

case at p. 132 that "every murder involves an unlawful killing".
(Cf. Andrews C.J.'s dissenting judgment in R. v. Boney ex parte
Attorney-General [1986] 1 Qd.R. 190, 198.) Then, after

reference to the judgment of Jacobs J. in Stuart (134 C.L.R.) - which is further referred to below - McPherson A.C.J. said in Jervis at p. 656 that "the offence which by the operation of s.

8 [Jervis] is deemed to have committed was the crime of unlawful

killing of Baldock perpetrated by Wiggington".

Insofar as these statements might suggest that, for the purpose

of s. 8, murder and manslaughter are the same "offence", de Jersey J.'s response at p. 674 seems to me persuasive. This

critical issue is further referred to below.

5. At p. 655, McPherson A.C.J. said that statements by Jacobs J. in Stuart (134 C.L.R.) at p. 453-454, which had been adopted by both Burt C.J. and Brinsden J. in Saunders at pp. 184, 189,

supported his opinion that Jervis could be convicted of manslaughter although Wiggington was convicted of murder. Despite de Jersey J.'s view (in Jervis) at p. 673, I think that McPherson A.C.J.'s opinion of what Jacobs J. said in Stuart (134

C.L.R.) was correct. Nonetheless, it is questionable whether what Jacobs J. said was correct. Indeed, it is not clear, to me at least, what Jacobs J. meant. His Honour's statements seem to derive from, and be dependent on, a consequence which he

considered followed from the reasoning of Dixon and Evatt JJ. in

Brennan but which I cannot discern in that judgment.

One of the complaints made on behalf of Stuart was that "the

jury ought more clearly been told that they might have found

[Stuart] guilty of manslaughter only, and not murder, if they

took the view that a prosecution of the unlawful purpose by the

common intention under s. 8 had a probable consequence of the commission of the offence of manslaughter by Finch and not of murder". The trial judge directed the jury that, even if on the evidence admissible on [Stuart's] case it should find that Finch was guilty of murder under s. 302(2), nevertheless it should find [Stuart] not guilty of either murder or manslaughter unless

it should find the offence of unlawful killing of Jennifer Davie

a probable consequence ... of the prosecution of the unlawful purpose ...": p. 451. Jacobs J. considered that direction "in

one sense unduly favourable to [Stuart]" (p. 453) and that there was no miscarriage of justice (pp. 455-456). In the course of arriving at his conclusion, he explained the relationship between ss. 8 and 302(2) of the Code by contrasting what was

required for a conviction for murder on that basis with what was required for a conviction for manslaughter. At pp. 453-454, his Honour said:

"... Even if the probable consequence of the ... common purpose was not the offence of murder of which Finch was on the hypothesis guilty nevertheless the probable consequence of the ... common purpose might well be found to be the unlawful killing of Jennifer Davie in circumstances amounting to manslaughter.
... If ... the probable consequence of the setting fire to the premises which was ... planned was not a likely endangering of human life, nevertheless the ... common purpose may have had as its probable consequence the unlawful killing of some person. The apparent contradiction is not a real one when the distinction between murder under s. 302(2) and manslaughter is borne in mind.
It appears to me that what I have said follows from the reasoning of Dixon and Evatt JJ. in Brennan v. The King (1936) 55 C.L.R. 253, at pp. 263-265, though it does not follow from the decision itself. If, differently from the facts as found by the jury in that case, the actual assaulters of the night-watchman had used more force than was contemplated in the common purpose, if, let us say, the common purpose involved no more than simple assault, the fact that a probable consequence of prosecution of the common purpose was not the likely death of the night-watchman would not have the result that the look-out man was not at all guilty of the unlawful killing. He would ... be guilty of the unlawful killing if the probable consequence of the common purpose was the possibility of death occurring as a result of simple assault. The probable consequence was this possibility but not the likelihood of endangering human life. He would be guilty of manslaughter even though not guilty of the murder of which his confederate might be found guilty.

...

So in the present case, if the ... common purpose did not have the probable consequence that by the arson the life of a person, ... was likely to be endangered, nevertheless if the common purpose had the probable consequence that by the arson the life of a person might be endangered and that thereby that person might be unlawfully killed, [Stuart] would be guilty of manslaughter. ..."

His Honour's opinion, as it emerges from those passages, is not

reflected in the other judgments in Stuart. Nor does it seem to me to follow from either the decision or the reasoning of Dixon and Evatt JJ. in Brennan, to which further reference is now appropriate.

Brennan was complicated by what had occurred at trial.

According to the evidence, Brennan had kept watch while two

other men broke into a jeweller's shop. A caretaker inside the shop, who struggled, was killed during the struggle. All three were charged with wilful murder but convicted of manslaughter. The Western Australian Court of Criminal Appeal dismissed

Brennan's appeal, but the High Court granted special leave,

allowed the appeal and ordered Brennan's retrial on a charge of manslaughter. By the time the matter was considered by the High Court, it was impossible for Brennan to be convicted of murder:

cf. Jervis.

Further, s. 8 of the Western Australian Code had played little

part in Brennan's trial, at which the case against him was

based, principally at least, on s. 7. The trial judge, and it seems the Court of Criminal Appeal, proceeded on that basis. The trial judge incorrectly told the jury that, if satisfied that Brennan was a party to the robbery, he must be convicted of

whatever offence those who killed the caretaker committed. While that was plainly incorrect, the Western Australia Court of

Criminal Appeal dismissed Brennan's appeal, holding that,

because there was "... no doubt that violence was intended to be used ...", "Brennan was equally a party to the committing of a crime of violence as to robbery; and such violence resulted in the death of [the caretaker]". Brennan's appeal was allowed by the High Court on the basis that the issue whether violence was

part of the joint plan had not been left to the jury. However,

a retrial on the charge of manslaughter was ordered.

One difficulty in ascertaining exactly what Brennan is authority

for is that there is little or no examination of the bases on

which those who entered the jewellery store could have been convicted of murder; that had ceased to be directly relevant because all had been acquitted of murder; nonetheless, the

omission to analyse that possibility, as it originally existed, limited the identification of the matters of which the jury must not have been satisfied, to the requisite standard, to acquit of murder. Secondly, there was no reference to the Western Australia equivalent of s. 23 of the Code. Thirdly, at a number

of points it is impossible to tell whether or not statements which were made were referable to s. 8 of the Code; e.g., nothing Starke J. said until he set out s. 8 at the foot of p. 260 seems to refer to that section. Fourthly, the judgments do not directly deal with the argument based on s. 8 which was presented by counsel for Brennan (Mr Barwick).

The argument for the prosecution did not address any

difficulties associated with a verdict of manslaughter against

Brennan based on s. 8. The prosecution's primary argument (p. 256) was that the "trial judge was right in confining himself to sec. 7 of the Criminal Code, to the exclusion of sec. 8 ...". Its later assertion, based on sec. 8, was restricted to a

submission that there had been no miscarriage of justice because the evidence disclosed that, in point of fact, the common

Deane J., dealing with the provisions of the Customs Act 1901

(Cth) which were material in that case, said at pp. 320-321:
"At the end of the day, one is left with the question

whether the various combinations of primary conviction and additional ingredients which attract much higher maximum punishments under pars. (c) and (d) of s. 235(2) are, as a matter of substance, the same offence as the bare primary offence punishable under s. 235(2)(e). It appears to me that the answer to that question is that they plainly are not. The offence punishable under s. 235(2)(e) is the simple offence of which the elements are set out in s. 233B(1)(cb). The offences in respect of which punishment is provided by para. (c) and (d) of s. 235(2) are offences including the additional elements of commercial quantity or traffickable quantity and prior conviction or traffickable quantity alone. It would be to confound substance with form to say that an offence with respect to a very small quantity of a proscribed drug for personal use which was punishable under s. 235(2)(e) with a maximum penalty of a fine of $2,000 and imprisonment for two years was the same offence as an offence with respect to a traffickable quantity of that proscribed drug committed by a person with a relevant prior conviction which was punishable under s. 235(2)(c)(ii) and in respect of which the maximum penalty was imprisonment for life. The offence for which the applicant was punished under s. 235(2)(c)(ii) involved two essential elements which were not elements of the primary offence under s. 233B(1)(cb). The distinction between that primary offence and an offence punishable under s. 235(2)(c)(ii) is of the kind referred to by Lord Diplock, in a judgment with which the other members of the House of Lords agreed, in Reg. v. Courtie:

'My Lords, where it is provided by a statute that an accused person's liability to have inflicted upon him a maximum punishment which, if the prosecution [is] successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another.'

The conclusion that the offences punishable under s. 235(2)(c) and (d) of the Act are, as a matter of substance, different offences and with different elements from the bare primary offence punishable under s. 235(2)(e) effectively disposes of the issue in the present case. ..."

The principle stated in Courtie and accepted in Kingswell

suggests that, prima facie, murder and manslaughter are different offences, although that would yield to a sufficient

indication to the contrary in the Code. However, in my opinion,

the material provisions of the Code support the view that murder

and manslaughter are separate offences; although unlawful killing is the basis of both murder and manslaughter, the other

provisions relevant to each, both in the essential circumstances

and the difference as to penalty, tend to that conclusion. Further, that is consistent with, although not dictated by, the

language used in the relevant sections of the Code.

In any event, the question whether Harwood could be convicted of manslaughter when Hind was convicted of murder does not seem to me to depend on whether murder and manslaughter are the same offence.

It is necessary to return at this point to the terms of s. 8. I

propose to take as a starting point a statement in Brennan by

Dixon and Evatt JJ. at pp. 263-264:
"The expression 'offence ... of such a nature that its

commission was a probable consequence of the prosecution of such purpose' fixes on the purpose which there is a common intention to prosecute. It then takes the nature of the offence actually committed. It makes guilty complicity in that offence depend upon the connection between the prosecution of the purpose and the nature of the offence. The required connection is that the nature of the offence must be such that its commission is a probable consequence of the prosecution of the purpose."

Section 8 is founded on the premise that one (the "actor") of a number of persons involved in a joint plan has, in the circumstances specified, committed an offence. The section does not provide that, in those circumstances, each of the other parties to the plan has separately committed an offence created

by s. 8. Instead, it proceeds on the basis that only a single

offence, that of the actor, has been committed. Section 8 makes each of the other parties to the plan criminally responsible for the actor's offence by deeming them "to have committed the

offence". If the actor has committed murder and the specified circumstances are met, the other parties to the plan are also "deemed to have committed the offence" of murder committed by the actor.

In my opinion, therefore, Harwood could not properly have been

convicted of manslaughter when Hind was convicted of murder. Harwood could only have been convicted of manslaughter if a

merciful verdict of manslaughter had been returned, despite his legal guilt for murder under s. 8. Accordingly, notwithstanding

Jervis, the trial judge did not err in failing to leave that

possibility to the jury.

It remains to be considered whether Harwood was properly

convicted of murder on the basis of s. 8. One of the specified circumstances by reference to which s. 8 operates is that an offence of the "nature" of the offence committed by the actor must have been a "probable consequence" of the prosecution of the unlawful purpose intended by the actor and the other parties

to the joint plan. It is in that context that it becomes necessary to consider not whether manslaughter is the same offence as murder but whether manslaughter and murder are, either generally or in the particular circumstances, of the same "nature". As I have earlier stated, in determining whether an offence of the requisite nature was "probable", the test to be applied is that adopted in Brennan.

Because of the manner in which the case against Harwood was

presented - which was unduly favourable to Harwood - the jury could have only convicted Harwood (as the case was put to them) on either the first basis or the second basis.

If Hind was convicted on the first basis, i.e., that he shot Bowering intending to cause death or grievous bodily harm, the

case against Harwood on the first basis depended on a conclusion that it was a real possibility that, in the prosecution of the

armed robbery, involving Hind's use of the rifle, he would shoot some person, intending to kill or cause grievous bodily harm, and that he would do so if necessary. In my opinion, that conclusion was open to the jury.

That being so, it is plain that it was also open to the jury to be satisfied that Harwood was guilty of murder on the second

basis, if it was on the second basis that it convicted Hind of

murder.

In my opinion, therefore, Harwood's appeal also fails.

In summary, both appeals should be dismissed.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 30/05/1995

I have had the advantage of reading the reasons of the President.

The President has come to the conclusion, in section 1(a) of his reasons, that Hind's act in pointing a rifle at Bowering without the safety catch on could properly be found by the jury to be the cause of Bowering's death; substantially for the reasons his Honour gives, I agree. I also agree that it was proper for the jury to conclude that Hind's act was done in the prosecution of the unlawful purpose of armed robbery; see section 1(b) of the reasons. Further, I agree with the President's reasons with respect to the evidence of the post office robbery; see section 2 of the reasons.

The next question requiring consideration is whether Hind's act was such as to make him guilty of murder. The act alleged against Hind had to be "of such a nature as to be likely to endanger human life", to satisfy subs. 302(1)(b). The use of the word "likely" in a similar context has been discussed by the High Court in Boughey (1986) 161 C.L.R. 10. That case concerned the construction of s. 157(1) of the Tasmanian Criminal Code, the relevant part of which reads as follows:

" Subject to the provisions of section 160, culpable homicide is murder if it is

committed -

(a)with an intention to cause the death of any person, whether of the person

killed or not;

(b)with an intention to cause to any person, whether the person killed or not, bodily harm which the offender knew to be likely to cause death in the circumstances, although he had no wish to cause death;

(c)by means of any unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person. " (emphasis added)

The language used differs in important ways from that of s. 302(1) of our Code; in particular, our s. 302(1)(b) requires that the act in question be of such a nature as to be likely to endanger human life, whereas in Tasmania the corresponding provision, s. 157(1)(c), requires proof that the offender knew or ought to have known that the act was likely to cause death. It should also be noted that the decision in Boughey depended partly (see p. 21) on other Tasmanian provisions dealing with homicide which have no close counterpart in our Code. Nevertheless, the conclusion at which the court arrived as to the meaning of the word "likely" in the Tasmanian context appears to me to be one which should be applied here. The court took the view that the word is used in the relevant Tasmanian provisions -

"... with what we apprehend to be its ordinary meaning, namely, to convey the notion of a substantial - a 'real and not remote' - chance regardless of whether it is less or more than 50 per cent..." (21)

A slightly different formulation appears in the following passage, commenting upon the

summing-up:
"His Honour's comments clearly and properly made the point that, whatever may

be the difficulties of precise definition, the expression 'likely to cause death' in s. 157(1) is an ordinary expression which is meant to convey the notion of a substantial or real chance as distinct from what is a mere possibility: 'a good chance that it will happen'; 'something that may well happen'; something that is 'likely to happen'." (22)

Views may differ on the question whether holding the loaded cocked gun in Bowering's direction created a "real and not remote" chance that Bowering would be shot and killed; but the jury was entitled to take into account the evidence of the circumstances in which this occurred. The rifle was not just any rifle, but a sawn-off weapon, intended to be used in a robbery "as a sort of persuader". Bowering was a person thought by Hind to be a possible obstacle to the purpose the two appellants had of robbing the cafeteria outside which Bowering was sitting; that may reasonably be inferred from the fact that Hind told him to move, reinforcing that demand by pointing the rifle at him with the muzzle against his clothing. As the President mentions, there was a suggestion that perhaps Bowering moved, causing Hind to pull the trigger; but whatever the precise means of his death, the jury was in my opinion entitled to find that what Hind was doing was fraught with risk for Bowering, the risk being that he might be shot. Applying the interpretation of the word "likely" adopted by the High Court in Boughey, I have concluded that it was open to the jury to convict on the basis that the conduct attributed to Hind was extremely dangerous and such as could well cause the result which in fact ensued.

The likelihood of the outcome is made relevant, as the President points out, not only because of the terms of s. 302(1)(b), but because of those of s. 23 of the Code. In Van den Bemd (1993) 70 A.Crim.R. 489 it was held that in a homicide case the test of criminal responsibility under s. 23 is whether death was such an unlikely consequence of the act alleged that an ordinary person could not reasonably have foreseen it. In my respectful opinion, on the reasoning I have expressed with respect to s. 302, it was quite open to the jury to take the view that s. 23 was excluded. Indeed, if the jury were satisfied that Hind's act was "of such a nature as to be likely to endanger human life", it would have been perverse of them to hold that Bowering's death was nevertheless so unlikely a consequence that an ordinary person could not reasonably have foreseen it.

I think Hind's conviction of murder should stand, on the basis I have explained. As is mentioned in the reasons of the President, Jervis [1993] 1 Qd.R. 643 is authority for the view that, although Hind has been convicted of murder, s. 8 may operate so as to make Harwood guilty of manslaughter only. Such a result, making the perpetrator's associate guilty of a lesser offence than the perpetrator himself, may often be a just one and that is an attraction of the view taken in Jervis. Another is that the decision in that case was arrived at after a thorough examination of the authorities. It appears to me that this Court should depart from views of the law deliberately adopted in the Court of Criminal Appeal only for good reason.

It is convenient to refer to the killer as the perpetrator and to the other party involved as the associate; the descriptions principal offender and accessory may not be strictly appropriate in s. 8 cases.

Further, the use of these terms is convenient in discussion of s. 8, because it helps to keep in the forefront of one's thinking that a person made guilty by s. 8 need not be present when the offence is committed, need have no specific foreknowledge that it will be committed, indeed, need not find out about it until some time after its commission; such a person might not in ordinary usage necessarily be called an accomplice or accessory. Further, the use of the "perpetrator" and "associate" terminology helps to remind one that s. 8 liability is a concept quite distinct from liability under s. 7.

Jervis decides that in homicide cases "the offence" mentioned at the end of s. 8 may be unlawful killing, contrary to the view of de Jersey J. who thought that "the offence" must be one of the two specific varieties of unlawful killing - i.e. either murder or manslaughter. The result of the majority view in Jervis is that the perpetrator and the associate may be guilty of different specific offences - the former of murder and the latter of manslaughter, or perhaps vice versa. The basis of the view of de Jersey J., on the other hand, is that one must first consider whether the nature of the offence committed is as described in s. 8, and for that purpose murder by, for example, intentional killing is to be regarded as an offence of a nature different from manslaughter by accidental killing - a proposition I find attractive.

But it is not that proposition which has principally caused me to arrive, as I have, at a respectful opinion that Jervis should not be followed; what has brought about that result is that if one assumes that the process of identification of the nature of the offence, under s. 8, does not require one to discriminate between the two varieties of homicide, then there is nothing else in the Code which enables one adequately to do so.

If the result of the application of s. 8 in homicide cases is to deem the associate to have committed the offence of unlawful killing, then one must look to s. 302 to determine whether the unlawful killing of which he is guilty is murder or manslaughter. At first sight the tests set out in s. 302(1), or some of them, seem up to the task, for one finds in all but one of the paragraphs in s. 302(1) reference to intention or to purpose or to both; so the possibility arises that one can test the associate's liability by asking whether, for example, he intended "to cause the death of the person killed or that of some other person", a test in para. (a).

But the difficulty is that the five paragraphs of s. 302(1) appear to be concerned with the characteristics of the act causing the death - as to para. (a) and para. (c), with the killer's intention at the time of the killing. If that intention was not such as to make the killing a murder, then (if the view in Jervis is correct) one must test the associate's liability quite separately, presumably by inquiring what was in his mind when the victim was killed; so that if the associate then desired the death of the victim he might be guilty of murder, although the killer was guilty of manslaughter only. It does not appear likely that s. 302 was designed to be used in this way. The intentions and purposes mentioned there are those of the perpetrator - or perpetrators, if more than one. If the appellant in Brennan (1936) 55 C.L.R. 253, who was alleged to have been outside the shop in which the killing occurred, knew nothing of it until later, it would make no sense to ask whether his intention was to cause the death of the person killed, or some other intention set out in s. 302(1). If s. 302(1) is to be used in s. 8 cases to determine whether the associate has such an intention as to be guilty of murder, that can only be done rationally if the associate happens to be present at the scene of the killing and observes it happening, and of course only if one assumes that s. 302(1) tests were intended to be applicable to persons other than participants in the killing. Under Jervis, the jury would presumably have to be told that in a case like Brennan, the associate's guilt - of murder or manslaughter - would depend on his intention at the time of the killing; but that would be odd because Brennan apparently did not know then that the killing was happening.

I also note that paras. (d) and (e) of s. 302(1) are not so framed as to enable one to discriminate between murder and manslaughter, with respect to the guilt of a s. 8 associate. It is hard to see how, if Jervis is right, the jury could be directed on the criminal liability of the associate, in a case falling under these paragraphs.

The way in which the problem is dealt with under the general law is not quite clear; the Court of Appeal in Tomkins (1985) 2 N.Z.L.R. 253 appeared to be uncertain of the basis on which the associate might be held guilty of manslaughter, the perpetrator being guilty of murder (255). The Court there seemed to prefer the theory implicit in the view that:

"If such injury was not intended by the [associates], they must be acquitted of murder; but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter":

That requires the jury to decide what was the original common purpose and whether murder, or manslaughter only, could be taken to be encompassed by it; that is, it must be determined, to use the language of s. 8, whether the "offence committed is of such a nature" that "its commission was a probable consequence of the prosecution of" the parties' unlawful purpose. It does not appear that, under that principle of the general law which most closely corresponds to s. 8, the criminal liability of (for example) a person in the position of the appellant in Brennan is to be tested by asking what his intention was when the killing was done, as one would have to do if s. 302(1) were applied. In Varley (1976) 51 A.L.J.R. 243, where the victim was killed by the (perhaps unexpected) use of a baton, the High Court looked, not to what was in Varley's mind at the time when the baton was used by another, but to the scope of the original purpose, to whether the use of the baton "was not in all the circumstances within the scope of the common design to beat or 'rough up' the deceased" (246); Varley is the only High Court case which clearly lays down the approach to be adopted under the general law of homicide, in such matters.

I favour the view that the proper operation of s. 8 is, where a murder has been committed, to require consideration of whether that murder, not a hypothetical unlawful killing, is an offence of such a nature as the section mentions. I am thus of the respectful opinion that Jervis should not, insofar as it holds the contrary, be followed. If Hind is guilty of murder, then the only possible operation of s. 8 is to make Harwood guilty of murder, not of manslaughter. It should be added that if, contrary to my view, Harwood could have been convicted of manslaughter (Hind being guilty of murder) then Harwood's conviction could not stand because the jury was not told that this was a possible way of dealing with the case.

The remaining question is whether it was open to the jury to find on the evidence that the murder of Bowering was a probable consequence of the prosecution of the purpose of Hind and Harwood. The authorities relevant to this subject are discussed in the reasons of the President; I propose to state my view rather briefly.

I have already set out my reasons for holding that "likely", in s. 302(1)(b), conveys the idea that the act in question created a substantial or real chance of danger to human life, regardless of whether that chance was more or less than 50%.

The question is whether a similar meaning should be ascribed to the word "probable" in s. 8; I am of opinion that it should. In Crabbe (1985) 156 C.L.R. 464, in considering the common law notion of malice aforethought, in so far as that notion corresponds (roughly) to that in s. 302(1)(b), the Court discussed whether knowledge of a probability that the act contemplated will cause death or grievous bodily harm is necessary, or whether knowledge of a possibility is enough (468). The Court held that probability is necessary, but said that:

"If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word 'probable' means likely to happen". (469)

In Boughey (above) Gibbs C.J. equated "likely" and "probable" in relation to the relevant provisions of the Tasmanian Criminal Code, discussed above, and the principal judgment in Boughey pointed out that in Crabbe "probable" and "likely" were on a number of occasions used as synonyms; the judgment discouraged use of the notion of "more probable or likely than not" (19). The point is important here, for I would find it difficult to accept that, given the plan, it was more probable than not that someone would be shot, let alone killed.

In Brennan (1936) 55 C.L.R. 253, as the President points out, Dixon and Evatt JJ in discussing s. 8 adopted the test whether the purpose concurred in "made it likely that [Brennan's] confederates would, if necessary, use violence and such a kind or degree of violence as would probably cause death" (264) (emphasis added). The notion that one is entitled to add a contingency ("if necessary") which may not itself be probable is implicit in this passage. And in Stuart (1974) 134 C.L.R. 426, Gibbs J rejected the notion that the question is whether "viewed a priori, murder is a probable consequence of extortion". His Honour went on:

"It is not uncommon for deaths to occur when a fire breaks out in a building containing people" (emphasis added) (443).

This language is consistent with an equation of "probable" with "likely" and with the notion that each implies that there is a substantial or real chance.

The result is that one must, in my view, consider whether it was open to the jury to accept that a murder was an offence of such a nature that there was a substantial or real chance of its occurrence, as a consequence of the prosecution of the parties' purpose; this formulation gives the word "probable" a broad or popular meaning as indicated in the High Court cases to which I have referred. Applying that test, it appears to me, on the facts as set out in detail in the reasons of the President, that the Harwood verdict was one which was open to the jury and a safe one.

In the result, I would dismiss the appeal of Hind and that of Harwood.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 30th day of May 1995

In my respectful opinion it was open to the jury to conclude that Hind's act, in the circumstances in which he did it, of pointing a sawn-off loaded rifle at Bowering at very close range and with the safety catch off, was an act of such a nature as to be likely to endanger human life. That being so, it would have been perverse of the jury to decide that the death of Bowering which resulted from that act was a consequence so unlikely that an ordinary person would not have foreseen it (van den Bemd (1993) 70 A.Crim.R. 489).

Because it was also open to the jury to find that the act

in question was done by Hind in the prosecution of an unlawful

purpose within the meaning of s.302(2) of the Code, it follows

that Hind was properly found guilty of murder and that his

conviction should stand.

On any view of the matter, the criminal responsibility of

Harwood for the murder perpetrated by Hind depends ultimately on

the operation of s.8 of the Criminal Code. That remains so

whether Hind was found guilty because he formed an intention, within the meaning of s.302(1) of the Code, of killing Bowering; or whether, under s.302(2) of the Code, because he caused his death:

"... by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life."

Section 8 of the Code provides:
"Offences committed in prosecution of common purpose. 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.

There is a considerable area of overlap between the provisions

of s.8 and s.302(2). In a case like the present both sections require that the unlawful killing should have been done "in the prosecution of an unlawful purpose". Section 302(2) speaks of

an "act done" in the prosecution of that purpose. In s.8 it is "the offence" that must be so committed; but, under s.2 of the Code, an act which renders the person doing it liable to

punishment is called an offence. If this provision can be

called in aid in relation to s.8, then there is in this respect little difference between these two elements of s.8 and

s.302(2). See Stuart v. The Queen (1974) 134 C.L.R. 426, 440- 441 where an offence was said to be simply "a punishable act or

omission"; and R. v. Jervis [1993] 1 Qd.R. 643, 652-653.

Turning to the other elements of ss.8 and 302(2), there are some differences of a slightly more significant kind. In the case of s.8, responsibility in the circumstances disclosed here depends on whether the killing was an offence of such a nature

that it was "a probable consequence of the unlawful purpose".

In the case of s.302(2) the death must be caused by means of an act of such a nature "as to be likely to endanger human life".

It was, as I have said, open to the jury to find that the act of Hind in pointing a loaded firearm at a person at close range in the circumstances in which he did here was capable of being considered an act of such a nature as to be likely to

endanger human life. There is little if any difference in this context between the use of the word "probable" in s.8 and the word "likely" in s.302(2). The critical distinction is, however, that it is enough in the case of s.302(2) if death is

caused "in" the prosecution of the unlawful purpose. In the case of s.8, it must also have been a probable consequence of prosecuting the unlawful purpose.

It is settled that under s.8 the question whether or not an event is a probable consequence of prosecuting an unlawful purpose falls to be determined according to objective standards: see the authorities collected in R. v. Jervis [1993] 1 Qd.R. 643, 648-649. However, as was suggested in that case, a

subjective element tends to creep in through the medium of the "common intention" and "purpose" required by that section. Under s.8, criminal responsibility for the act of another arises

only if and to the extent that the relevant intention and purpose are common to both the perpetrator, who in this case was

Hind, and the confederate or co-conspirator, who was Harwood.

Intention and purpose involve subjective states of mind. Section 8 operates only to the extent that the same purpose or

state of mind is common to two or more persons.

The extent to which s.8 imposes criminal responsibility on a confederate who is not the actual perpetrator of the offence depends on how the relevant intention and purpose are formulated

in the circumstances of the particular case. The purpose may be

defined broadly, or it may be defined precisely. Here the

common purpose was stated by the learned trial judge to be armed robbery. There is no doubt that there was an intention to commit an armed robbery, and that that intention was shared by both Hind and Harwood. It is in my opinion also clear that the

killing occurred in the prosecution of that unlawful purpose, or

at least that the jury were justified in finding that to be so.
On his own admission Harwood knew his companion had the gun
with him at the time, and he knew there was ammunition available
in the car from which to load it. The use of violence, or at

the very least, the making of a threat of violence, was thus an

element of the common intention and the purpose in which Harwood

concurred.

The only remaining question therefore is whether the

killing of Bowering was an offence of such a nature that its

commission was a probable consequence of the prosecution of that common purpose. Bowering was, it seems, shot because he refused to move away from the seat in front of the office of Coach Inn

in which it was intended to commit the robbery. He presented,

or it may be inferred that Hind believed he presented, an apparent obstacle to effective prosecution of the robbery plan.

As matters turned out, shooting him frustrated the common
intention or purpose of robbing the Coach Inn. Both appellants

ran off after the shooting took place. That might suggest that from Harwood's standpoint it was, considered subjectively, an unintended, or at least an unexpected, consequence of prosecuting the common purpose. But the question was one for

the jury to decide on an objective assessment. In considering the criminal responsibility of someone who had kept watch while

his confederate ransacked a jeweller's shop, and in doing so killed the caretaker, Dixon and Evatt JJ. in Brennan v. The King

(1986) 55 C.L.R. 253 said (at 264):
"Thus, to establish under s.8 that the applicant was guilty

of manslaughter, it must appear that among the probable consequences of prosecuting the unlawful purpose upon which the prisoners had resolved was the death of the caretaker, or of a person chancing to be in the way ....".

Here Bowering was a person who chanced to be in the way.

In Brennan the actual perpetrators of the killing were

found guilty only of manslaughter. After noticing that the

verdict necessarily implied that the violence used (which in the event proved fatal) was of such a nature as to be antecedently likely to cause death, their Honours went on:

"It therefore raises the question whether the death which ensued from the force employed can without inconsistency be considered as a probable consequence of carrying out the unlawful purpose in which the applicant is taken to have participated. Our answer to that question is that, notwithstanding the implications of the verdict, the death can be considered the probable consequence of the prosecution of the purpose if the purpose in which the applicant concurred made it likely that his confederates would, if necessary, use violence as would probably cause death".

It is true that, in later discussion of the matter their Honours

(at 265) spoke of an assault upon the caretaker "or other person

within the building"; but they were there considering the responsibility of the applicant under s.7 of the Code. In relation to s.8, they considered he would be guilty of manslaughter only "if the plan was of such a nature that the use of enough violence to cause death appeared a probable consequence of carrying it out".

Tested by this criterion, it seems clear that the jury in

this case were entitled to find, as they must in fact have done,

that the death of Bowering was a probable consequence of the

common intention to carry out an armed robbery at the Coach Inn.
The fact that the killing did not take place inside that
establishment itself but outside it, and that it took the life
of someone who was quite unconnected with that business, does
not mean it was an offence of such a nature that its happening
was not a probable consequence of the common plan or intention
to stage an armed robbery at that place. The jury were entitled
to find that it was inherent in the common plan or intention
that armed violence would "if necessary" be used against someone

who presented an impediment to the success of the robbery. The fact that, in the event, the killing put an end to the plan to

carry out the robbery does not mean that the killing was not a probable consequence of the common intention to prosecute the

plan. Even if the death of Bowering was something that neither

Hind nor Harwood had specifically had in mind when they formed

their purpose or common intention to prosecute the armed

robbery, Bowering's death was a consequence that, considered objectively, was within the scope of the enterprise of carrying out or putting into effect the common intention to carry out an armed robbery.

Some reference to R. v. Jervis [1993] 1 Qd.R. 643 seems to

be called for, although it was not mentioned on either of the

two occasions on which this appeal was argued or, so far as can

be gathered, relied on at the trial. The reason why in that

case Jervis was criminally responsible, not for the murder perpetrated by Wiggington in that case, but only for the

manslaughter, turned on the nature and extent of the common intention shared by those two accused. It was possible there to

conclude that Wiggington had the intention of killing the victim or at least of causing him grievous bodily harm. She pleaded guilty at or before the trial of Jervis. It was open to the

jury to find, as they evidently did, that Jervis did not share Wiggington's intention in that respect. At the same time, it

remained possible to conclude that she had in common with Wiggington an intention at least that the victim be wounded,

which was an unlawful purpose; and also that the killing of the victim was under s.8 a probable consequence of the prosecution of that limited purpose.

That being so, Jervis would under s.8 be deemed to have committed "the offence". The offence committed by Wiggington was unlawful homicide, "which is called murder or manslaughter according to the circumstances of the case": see s.300 of the Code. For her offence to be called murder, the circumstances of

the case must be such as to bring it within one of the

categories specified in s.302 of the Code. Wiggington had an intention to kill or do grievous bodily harm within the meaning

of s.302(1); but her intention to that effect was not shared by Jervis. Section 302(2) was not relied on in Jervis, so that the question now being considered here did not arise in that case.

That left open a possible verdict of manslaughter, which is what unlawful homicide is, under s.303, "called" if it does not constitute the form of homicide called murder under s.302. That the offence is a form of unlawful homicide "called"

manslaughter, rather than being a quite separate offence as such, is supported by the form of indictment in the Schedule to the Criminal Practice Rules 1900, where the form given is simply

that the accused "unlawfully killed one E.F.". That is the form

in which an accused person is arraigned and so is necessarily

also the offence of which the accused is found guilty, if at all, by the verdict of the jury, and convicted. The offence is unlawful homicide even if there are different degrees of it which are "called" by different names. Jervis was criminally responsible for the unlawful killing because it was of such a nature as to be the probable consequence of prosecuting the unlawful purpose of wounding which she shared with Wiggington.

But I do not consider that any question of that kind arises

for decision in the present case. Here the appellant Harwood

was found guilty of the form of unlawful homicide called murder by virtue of the operation of ss.8 and 302(2) of the Code. On

the view I have expressed about the meaning and effect of s.8 in

the present case, it was, on the available evidence, open to the

jury to return such a verdict against Harwood.

It may not be inappropriate to add that, in my respectful opinion, the time has come to reconsider the retention of sub-ss.(2) to (5) of s.302. Those provisions survive as codified relics of the old felony-murder rules, which have no useful place in a modern system of criminal jurisprudence. In practice they tend to be resorted to only where the prosecution

is doubtful whether the evidence will succeed in establishing an

intention to kill or to do grievous bodily harm in terms of

s.302(1). The result becomes even more artificial where the provisions of s.7 or, as here, s.8 are superimposed on s.302(2).

Sections 7 and 8 are, in my view, plainly also in need of

legislative attention.

The appeals should be dismissed.