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

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [1995] QCA 202
Decision Date: 30/05/1995

CaseChat Overview and Summary

In the Court of Appeal case of R v Hind and Harwood, the appellants were convicted of murder and armed robbery. The case involved the unlawful killing of Raymond John Bowering during an attempted armed robbery at the Coach's Inn in Bundaberg. The appellants, Gary Allan Hind and Todd Andrew Harwood, were jointly charged with the crimes. The primary legal issues revolved around the applicability of sections 302(2) and 8 of the Criminal Code in determining the nature of the offence committed and the criminal responsibility of the co-accused.

The Court of Appeal found that Hind's act of pointing a loaded rifle at Bowering without the safety catch on had a sufficiently substantial connection with Bowering's death to justify the attribution of criminal responsibility, satisfying the requirements of section 302(2) of the Code. The Court also concluded that the evidence of the post office robbery, although prejudicial, was relevant and its prejudicial effect was limited.

Regarding section 8 of the Code, which pertains to offences committed in the prosecution of a common purpose, the Court held that Harwood could be convicted of murder on the basis that the killing of Bowering was a probable consequence of the prosecution of the unlawful purpose of armed robbery. The Court rejected the argument that Harwood could be convicted of manslaughter while Hind was convicted of murder, emphasizing that section 8 requires the co-accused to be deemed to have committed the same offence as the actual perpetrator.

Ultimately, the Court of Appeal dismissed both appeals, affirming the convictions of Hind and Harwood for murder and armed robbery. The Court's decision underscored the importance of objective standards in determining the nature of the offence and the criminal responsibility of co-accused under the relevant sections of the Criminal Code.

Orders