The Queen v Keenan [2009] HCA 1 2 February 2009 B23/2008
1.Appeal allowed.
2.Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 11 December 2007 and, in their place, order that the appeal against conviction to that Court be dismissed.
3.Remit the matter to the Court of Appeal of the Supreme Court of Queensland to determine the application for leave to appeal against sentence.
On appeal from the Supreme Court of Queensland
Representation
W Sofronoff QC, Solicitor-General of the State of Queensland with R G Martin SC for the appellant (instructed by Director of Public Prosecutions (Qld))
B W Walker SC with A J Kimmins for the respondent (instructed by Potts Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v Keenan
Criminal law – Criminal responsibility – Criminal Code (Q), s 8 provided that, where common intention to prosecute unlawful purpose, and in prosecution of such purpose offence committed of such a nature that commission was a probable consequence of prosecution of unlawful purpose, each person deemed to have committed offence – Meaning of "offence … of such a nature" – Whether "offence … of such a nature" limited to precise acts committed.
Criminal law – Criminal responsibility – Nature of connection between unlawful purpose and offence ultimately committed – Determination of unlawful purpose – Relevance of means by which offence committed – Whether purpose may be infliction of level of harm – "Probable consequence" as objective test – Distinction between offence of such a nature that commission was probable consequence of prosecution of unlawful purpose, and precise acts that parties to common intention foresaw might be committed.
Criminal law – Practice and procedure – Directions to jury – Directions required in connection with charge under s 8 – Identification of real question for jury – Relevance of R v Barlow (1997) 188 CLR 1 – Whether directions given gave rise to miscarriage of justice.
Criminal law – Practice and procedure – Directions to jury – Whether circumstances required direction that jury can only find, by inference, element of offence charged if no other inference favourable to accused reasonably open on facts – Standard of proof.
Criminal law – Practice and procedure – Directions to jury – Whether circumstances required that alternative charge of grievous bodily harm simpliciter be put to jury – Whether failure to put alternative charge to jury constituted miscarriage of justice.
Criminal law – Practice and procedure – Where alleged miscarriage arising from jury direction – Appropriate course on appeal – Whether Court of Appeal should have ordered new trial rather than entering verdict of acquittal.
Words and phrases – "common intention", "common purpose", "offence of such a nature", "probable consequence", "unlawful purpose".
Criminal Code (Q), ss 2, 7, 8, 10A.
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Keenan [2009] HCA 1
Case
[2009] HCA 1
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the Crown against the decision of the Court of Appeal of Queensland, which had allowed an appeal by the respondent, R v Keenan, against his conviction. The case concerned the application of section 8 of the *Criminal Code* (Qld), which addresses criminal responsibility where there is a common intention to prosecute an unlawful purpose and an offence is committed as a probable consequence of that purpose.
The central legal issues before the High Court were the interpretation of section 8, specifically the meaning of "offence ... of such a nature that the commission was a probable consequence of the prosecution of the unlawful purpose," and whether this phrase was limited to the precise acts committed. The court also had to determine the nature of the connection required between the unlawful purpose and the offence ultimately committed, the relevance of the means by which the offence was committed, and whether the "probable consequence" limb of section 8 involved an objective test. Furthermore, the court considered the adequacy of jury directions in relation to charges under section 8, the relevance of *R v Barlow* to such directions, and whether a failure to direct the jury on specific inferences or to put an alternative charge of grievous bodily harm simpliciter constituted a miscarriage of justice.
The majority of the High Court, in allowing the appeal, reasoned that the phrase "offence ... of such a nature" in section 8 was not confined to the precise acts that the parties to the common intention foresaw might be committed. Instead, it referred to the nature of the offence itself and whether its commission was a probable consequence of the prosecution of the unlawful purpose. The court held that the "probable consequence" test was an objective one, focusing on what a reasonable person in the position of the accused would have foreseen. The majority found that the jury directions given in the trial court, when viewed in their entirety and in light of the evidence, did not give rise to a miscarriage of justice. Consequently, the High Court set aside the orders of the Court of Appeal and reinstated the respondent's conviction, remitting the matter to the Court of Appeal to determine the application for leave to appeal against sentence.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 11 December 2007 and, in their place, order that the appeal against conviction to that Court be dismissed.
3. Remit the matter to the Court of Appeal of the Supreme Court of Queensland to determine the application for leave to appeal against sentence.
(Majority decision, members of the majority agreeing with the orders and reasons of Kiefel J; Kirby J allowed the appeal, but would have set aside order 2 of the orders of the Court of Appeal and ordered that a new trial of the respondent be had on counts 2 and 3 of the indictment)