R v Keenan
[2008] HCATrans 347
[2008] HCATrans 347
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B23 of 2008
B e t w e e n -
THE QUEEN
Appellant
and
FRANCIS ROBERT KEENAN
Respondent
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 1 OCTOBER 2008, AT 10.16 AM
Copyright in the High Court of Australia
MR W. SOFRONOFF, QC (Solicitor‑General of the State of Queensland): May it please the Court, I appear with my learned friend, MR R.G. MARTIN, SC, for the appellant. (instructed by Director of Public Prosecutions (Qld))
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR A.J. KIMMINS, for the respondent. (instructed by Price & Roobottom Solicitors)
KIRBY J: Yes, Solicitor.
MR SOFRONOFF: May it please the Court, what I propose to do, if it is convenient to the Court, is to go firstly to some passages in the transcript, appreciating that your Honours are no doubt cognisant of the facts of the case, and then to go to the sections, chapter 2 of the Code and to analyse. After looking at that, I wish to make some submissions about the construction that we advocate of section 8 and the overarching principle that we will submit supports that construction, and then to take your Honours to the cases in an endeavour to demonstrate that the construction that we advocate is consistent with authority in this Court and elsewhere.
KIRBY J: Will you at some stage, particularly for those from non‑Code States, take us, as was suggested in the special leave hearing, to the history of the Code?
MR SOFRONOFF: I will do that, your Honour. The history was covered comprehensively in the decision of this Court in Darkan, and I will take your Honours to the passages in that.
KIRBY J: I am not suggesting that be done now. You do it in your own time and the right space. That is something we will need to have in our minds.
MR SOFRONOFF: Yes, I will deal with that, your Honour. Then finally, your Honours, after going to the authorities I will go to the reasons of the Court of Appeal in this case and take your Honours to the passages that we contend are erroneous. Could I take your Honours to volume 1 of the appeal book firstly. As your Honours are aware, the facts of the case began when a Mr Coffey agreed to deliver a parcel for the respondent, Frank Keenan, whom he had known for some time, and having delivered the parcel he was to receive some money for it and give the money to Keenan. Instead of delivering the money to Keenan he decided to keep the money and he and his partner Vonda Muir then began to live in various places. We can pick up the story, your Honours, with the evidence of Vonda Muir. I am looking at the pages at the foot of the book, page 234 of the transcript, page 154 of the appeal book.
KIRBY J: There is no contest to the basic facts in the case. I think the respondent accepts your statement of them.
MR SOFRONOFF: Yes.
KIRBY J: They are a little complicated, but when you get them in your mind it is not so difficult to understand what happened.
MR SOFRONOFF: They are essentially simple. At page 234, having taken the money, then Uncle Frank, who is the respondent, from time to time rang his niece, Vonda Muir, and left messages and she describes the kind of messages that he left her. In relation to Coffey, at line 30:
he was going to hurt him, was going to cave his skull in and stuff.
Over at page 235 at about line 30:
Just that he was – it’s a small world. I can’t really remember too much, sorry.
Then we can go to page 292 ‑ ‑ ‑
KIRBY J: Who was Mr Vasta appearing for?
MR SOFRONOFF: He was the Crown Prosecutor.
KIRBY J: I see.
MR SOFRONOFF: At page 292 evidence was given by a Mr Jupp. Mr Jupp was an accomplice. There were four of them who ultimately went to where Coffey and Muir lived. Jupp was one of them but he gave evidence for the Crown. At line 45 on page 292 he described what happened after he had informed Keenan through Spizzirri that he had located where Coffey lived. At about line 45:
Frank Keenan had said that he would drive down and pull up in his silver WRX and let out his passenger –
Could I pause there. The passenger was identified as a person called Booth, and I will call him Booth ‑ ‑ ‑
KIRBY J: Can I just ask you to pause there for a little logical query that I have in my mind. Booth and Spizzirri were acquitted?
MR SOFRONOFF: Yes.
KIRBY J: By the verdict of the jury. We are proceeding on an assumption that the facts are that they performed the acts which lead to the debates in our Court. Is that inconsistent with the jury’s acquittal on them?
MR SOFRONOFF: No, your Honour.
KIRBY J: Can we proceed on that footing?
MR SOFRONOFF: Yes, for two reasons. On the facts of this case, Booth, it seems, was acquitted because the defence of Booth involved a challenge to his identification. Booth was not known previously to Jupp, the person who identified him. Booth was only seen relatively fleetingly by Jupp. There was a challenge made to that identification. It formed a focal part of Booth’s defence and Booth was acquitted and, one infers, because of that.
KIRBY J: He was acquitted and therefore there is a verdict of the jury acquitting him. I just have a sense of anxiety that we are proceeding and may say things which reflect on the jury’s verdict.
MR SOFRONOFF: I am going too quickly, your Honour. I understand. Booth was acquitted, but there was no doubt that there was a person, whatever his name was, on Jupp’s evidence and on Coffey’s evidence and on Vonda Muir’s evidence, we will call him Booth, but whoever he was, there was a person who accompanied Keenan in his car, who had a bat, who used the bat and who later decamped with them. The issue is whether it was the accused, Booth, or whether it was somebody else. So when one looks at the transcript, there is no challenge to Vonda Muir’s evidence that there was a man with a bat, said to be Booth, that was in contest. No question that there was a man with a bat.
CRENNAN J: But she had some bruises, did she not, in relation to the bat?
MR SOFRONOFF: She had bruises. She was hit by the man with the bat.
CRENNAN J: Hit by the bat, yes.
MR SOFRONOFF: So there is no doubt there were three people. There is no doubt that Keenan was one of them. That is not in issue. What was in issue was whether Booth was one of them and whether Spizzirri was one of them. Now, Spizzirri was known to Jupp over the course of a long time, so identification was not in issue. What was in issue was whether Jupp was lying about Spizzirri being the gunman. It was put to Jupp over a lengthy cross‑examination that he was lying. There was evidence also that he was a drug user and that his mind might have been affected in terms of memory and so on. But the substance of the defence of Spizzirri, as I understand it, was to attack Jupp’s credit directly on the footing that he was not telling the truth, he having turned police informant.
Spizzirri was not convicted at that trial; the jury could not reach a verdict. He was later retried and acquitted. Now, that is what actually happened, so in terms of considering the facts, I will keep calling them Booth and Spizzirri just as a matter of convenience, but really they are Mr X and Mr Y.
KIRBY J: I raised it because you will remember we had to consider it recently, what Chief Justice Barwick said, that courts must be, in a sense, consistent with and respectful of the verdicts of juries and not by what they do cast doubt on jury verdicts. It may just be a way, in the matter, of expressing the problem, because neither party raised this, but I just felt a little anxious about proceeding on an exposition of facts which might appear to be inconsistent with the jury verdicts.
MR SOFRONOFF: It is a peculiar case because there is no doubt that Coffey was shot and rendered paraplegic. There is no doubt that three men were involved, indeed four, because Jupp admits that he was one of them. There is no doubt about this because Vonda Muir gave evidence about there being three men and also entirely independent witnesses – names of which escape me at the moment, they are in the transcript – neighbours saw all this happening. They were not called to identify anybody, but they were called to describe what had happened. So there is no doubt that four men appeared. There is no doubt that one of them was Jupp. There is no doubt that one of them was Keenan. The identity of the other two is a mystery, but that there were those two other men and that one of them carried a bat and used it and one of them carried a gun and used it is also not in doubt.
KIRBY J: But we can work on the assumption that whoever it was it is not suggested that it was Mr Keenan who shot the victim.
MR SOFRONOFF: Quite. That is right. Yes, Keenan did not carry the gun or shoot it. Keenan did not carry the bat or use it.
CRENNAN J: And was never charged as a principal?
MR SOFRONOFF: Spizzirri was charged as the party under section 7(1) as the person who did the act of shooting causing grievous bodily harm. The other two were charged by virtue of section 8. There was some discussion of the parts of section 7, aiding, but ultimately it was a section 8 case.
HAYNE J: But that is the matter of presentation. It is not the matter of indictment?
MR SOFRONOFF: Correct, that is right.
HAYNE J: The indictment is standard form.
MR SOFRONOFF: The indictment charges them as principals, that is right.
KIRBY J: Well, charged them with an offence.
MR SOFRONOFF: That is right, as the committers of the offence. Your Honours will find the indictment at page 1.
KIRBY J: It is 1A actually.
MR SOFRONOFF: Page 1A and B, yes. So, your Honours, if you go then to page 292 in volume 1, we can see where Jupp, having described how he had come to see that Coffey was living at a particular place, informed Spizzirri. Spizzirri then directed him to attend at a meeting. Keenan was at the meeting. At page 292, having each of them driven to a meeting in their respective cars, line 45:
Frank Keenan had said that he would drive down –
to where Coffey was living –
and pull up in his silver WRX and let out his passenger who would then go and beat Darren Coffey and Dion –
that is Spizzirri –
and I in the red Commodore would be sitting behind five metres away waiting for the passenger in the silver WRX to hop in after he’d finished beating up Darren Coffey.
If your Honours go to 294, they then pull up outside Coffey’s house and at the top of page 294 Jupp says:
I saw Frank’s passenger –
Frank Keenan –
get out of the car and run around the back of the white van.
Coffey and Vonda Muir were living in a white van parked in front of somebody’s house –
From then I couldn’t really see much at all.
He is asked the question:
He was holding a bat of some sort . . . Looked like a bit of wood, turned wood.
Your Honours, that bat must be here somewhere, but we will obtain it in due course.
HAYNE J: I assume it is in the post pack which sits above the trolley.
MR SOFRONOFF: Could I see it, your Honours?
KIRBY J: Yes. Show the bat to the Solicitor. The Court of Appeal remarked that they saw this instrument.
MR SOFRONOFF: Yes.
KIRBY J: What is the purpose of your investigation of it?
MR SOFRONOFF: Your Honour, it is material in considering whether the offence of grievous bodily harm with intent was a probable consequence of the prosecution of the common purpose to appreciate that which was ‑ ‑ ‑
KIRBY J: Show it to the Solicitor. There is no contamination by DNA being added to the bat?
MR SOFRONOFF: No, your Honour. DNA was found on cigarette butts but not on the bat. So that was the instrument, or one like it, that Mr Jupp saw.
KIRBY J: How do you interpret what is said at 294, because there was at least some suggestion that the bat was or might have been found in the caravan and that when they were going to beat up the victim, that at least might be consistent with an intention at the outset to use their fists?
MR SOFRONOFF: Yes. I will take your Honours through these passages of the transcript which will answer your Honour’s question, but in summary, Jupp says he saw Booth – I will keep calling him Booth, your Honours – get out of Keenan’s car with this bat. Jupp saw Booth run towards Vonda Muir with this bat. He tried to hit Coffey with it. She stood between them and she got hit herself. Later, after the events, Booth got into Keenan’s car with the bat and Jupp saw the bat being flung out of the window of the car and later police recovered this bat. Your Honours, the bat is relevant ‑ ‑ ‑
KIRBY J: Do you understand there to be any dispute now in this Court that the bat was taken to the scene by a Mr Booth?
MR SOFRONOFF: Your Honour, we can put it this way. The evidence from Jupp was that the bat was taken to the scene because Booth got out of the car with it. The evidence of Muir, to which I will come, was that she first saw the bat in Booth’s hand and does not know where it came from. It could have come from the van. So she does not assert the contrary.
The bat is relevant for two reasons. The first is that there was evidence available to the jury from which they could conclude that Keenan knew of the intended use of the bat to carry out the beating and the second is that, looking at the size of it, one can understand the inference that was before the jury that Keenan must have known of the presence of the bat because his passenger had it in his car and it is difficult to understand how the bat could have been invisible in the car. Your Honours, if you then go back to page 294, Jupp describes it, Booth has the bat, and then at line 30:
it was more to where the Daihatsu is –
he is looking at a photograph –
where he come from, around the back of the Daihatsu, around the tree and around the back of the van . . .
I could only see his arm drawn back and swinging . . .
I started to hear a female scream. She was screaming, “No.” a lot, pretty loudly.
If your Honours go to page 295, at line 40, Jupp then hears the shots. He sees Coffey running, hears the shots and sees Coffey fall to the ground. At 296, just below line 30, he sees Keenan and his passenger – that is Booth – run back to the silver WRX. Over on page 297, just to finish the story from Jupp’s point of view, at line 30, he gets back in the car and there is a verbal exchange between him and Spizzirri.
KIRBY J: What do you take that to mean, “I never miss a whole clip”?
MR SOFRONOFF: It is a particularly stupid comment, your Honour, meaning that when he has a whole clip of ammunition, which on the evidence might contain anything between 10 or more rounds, when he uses them all he tends not to miss what he is aiming at. That is all.
HEYDON J: “I never miss with a whole clip”?
MR SOFRONOFF: Yes. Your Honours, at page 298 line 20, Jupp:
Saw a bat get thrown out the passenger window out of the silver WRX –
and then there is evidence later that the police found the exhibit. If one then goes to ‑ ‑ ‑
KIRBY J: Your theory of the case would result in Mr Keenan being convicted by dint of section 8, while Mr Spizzirri and Mr Booth walk away?
MR SOFRONOFF: No, your Honour, that is not my theory. My theory would result in the conviction of all three of them, but the identification evidence was weak and so Booth escaped, and Jupp’s credit was impugned and so Spizzirri escaped, but there is no doubt that there were two other guilty men, whoever they were, and as your Honour would ‑ ‑ ‑
KIRBY J: They could only have been, in that there were only four men, Mr Jupp himself, or somehow the victim conspiring in his own shooting, or one or other of Mr Booth or Mr Spizzirri.
MR SOFRONOFF: Your Honour, the essential facts are not in dispute, that there were four men, that Keenan and Jupp were there ‑ ‑ ‑
KIRBY J: I just call to your attention that the outcome for which you argue is one which – it may be required by law, but it is a slightly disturbing outcome.
MR SOFRONOFF: No, your Honour, with respect, we are dealing here with the construction of section 8 and what it means for Mr Keenan’s complicity. Mr Keenan’s complicity assumes the guilt of the shooter. That Spizzirri was acquitted was not due to any construction of section 8. Spizzirri was charged as a principal offender under section 7(1) as the person who did the act, which was either attempted murder or an attempt – with intent to cause grievous bodily harm, doing grievous bodily harm. Spizzirri’s acquittal did not depend upon any construction of section 8.
KIRBY J: I realise the logic of it, but from the very beginning of common purpose liability it can throw a blanket which picks up people whose moral culpability, though perhaps existing, is not as great?
MR SOFRONOFF: That is not this case, your Honour.
KIRBY J: Anyway, it is really irrelevant, but I just call it to your notice.
MR SOFRONOFF: Could I draw this to the Court’s attention? If the identity of the shooter and the man carrying the bat was unknown – entirely unknown – and nobody had been arrested, but Keenan had been, then upon proof of these facts at his trial alone Keenan could have been convicted, assuming the law, as we advocate it and so on. So it does not depend upon the justice or injustice of his two accomplices being convicted or not convicted. They might be acquitted because of the poverty of identification evidence. They might never be charged because they are never found and it makes no difference, as long as Keenan is culpable by virtue of his own conduct.
The law now, your Honour, as it has been since I think the Accessories Act of 1863 in England, does not require the conviction of the principal offender in order to support the conviction of an accessory. Of course, it is unfortunate, to put it at its least, that where undoubtedly Coffey was shot by a person and undoubtedly there was an assister there, another accomplice with a bat, those two offenders have not been convicted, whoever they are, but we have Keenan here, and it is his case with which we are concerned there being no doubt that the other events occurred.
If your Honours would then go to the evidence of Muir at page 237, which now links in with Jupp’s evidence. At the top of page 237 she and Coffey had been asleep in the van, she decided to get up, and at line 10, she:
Got out of the van and closed the van door and opened the front door up of the van . . .
Then a man came around, like around the back of the van to me.
She had never seen him before. If you go down to line 30:
He just asked if I was going inside to have a shower.
and she gave a non‑committal reply –
Then after he said that, he’s opened up the side of the van . . .
And looked in and seen Darren in there, and then he had a bat.
Now, what sort of bat was that?-- It was a wooden bat. I’m just not sure like where he got the bat from, if he already had it or it come from in like the van . . .
Then once he had the bat, he went for Darren but I stood in the way of the man and Darren . . .
He didn’t want to hit me but he did hit me just couple of times on my left shoulder . . .
With a wooden bat.
Over the page, she is trying to defend Darren, and your Honours can read down to line 20 where Uncle Francis comes and pushes her out of the way. His purpose in so doing was a matter for the jury, whether he was, as the defence contended, trying to protect her or, as the prosecution contended, trying to assist Booth. Then over at page 239 Coffey has run away and, just below line 1 on page 239, she hears five pops. They are the shots. Then at line 20 she is on the ground having been knocked there by Keenan. Line 20:
I just remember being on the ground and hearing the pops and jumping up.
At line 30, she saw Uncle Frank in his car, Subaru, that is the WRX. Just below line 30:
Now, what, if anything, has he done as you’ve seen him in the car?‑‑ He smiled at me and took off.
She describes a kind of smile and then she ran to Darren Coffey. If your Honours then go to page 211, there he gives the evidence about the delivery of the package and getting the money. At line 40 he describes that he decided to keep the money for himself.
If your Honours then go to page 214, just below line 10 – after Vonda Muir goes out of the van that morning, he looks up to see what was happening. Just below line 10, he slid the door open –
I realised he had a baseball bat. He slung it a few times at me -
suggests that he had the bat outside the van and could not have got it from inside the van, if that matters -
I am not sure if it connected – I can’t remember, as this is all in seconds. I perhaps would have seen – like, and as that happened Frank came around from the back of the van and grabbed Vonda and pulled her out of the way . . .
after the baseball bat and seen Frank pull Vonda out of the way, I thought it was time to get out of there, so I was going to run through the inside of the house –
That is the house in front of which they are living – decided not to do that. Then line 30:
I opened the door and I saw, as I stepped out, whoever it was was swinging the baseball bat, so I am not sure if I got hit or I managed to kick it out of his hands, or I am not quite sure. So I was - I was pretty much in flight the minute I hit the ground . . .
And where was the person with the baseball bat? . . . Oh, stepped out of the van and if I was to look to the house, just to the left‑hand side . . .
Then if your Honours would go to page 216, he runs away, and at the top of page 216:
I remember hitting the ground and, ah, realising that I was sort of stuck, I couldn’t move.
That is because his spinal cord had been injured. So that was the core of the evidence. None of that was very controversial. What was controversial was what Keenan’s involvement was. Was he there trying to help Vonda Muir or get her out of the way so that the attack could be effected? Of course, there was a dispute about whether it was Spizzirri and whether it was Booth.
Could I take your Honours then to Chapter 2 of the Code and to section 7? Section 7, your Honours, first takes a particular offence that has been committed and then binds in the people who are criminally responsible for committing that offence. So first it is the doer of the act, and there are six categories of people referred ‑ ‑ ‑
HAYNE J: Well, that is to be understood, is it not, in light of the definition of “offence” in section 2?
MR SOFRONOFF: Yes.
HAYNE J: You have to begin in 2, do you not?
MR SOFRONOFF: One begins with the definition in 2, yes.
HAYNE J: Which is:
An act or omission which renders the person doing the act or making the omission ‑ ‑ ‑
MR SOFRONOFF: Yes.
HAYNE J: Yes.
MR SOFRONOFF: In section 7 then, one takes the relevant act or omission which gives rise to criminal liability, and section 7 brings in a set of six categories of people who are parties as principal offenders. First, in (a), the doer of the act – I will stick with “act”, your Honours, and ignore “omission” because it is the act that is relevant in this case; secondly, an enabler to commit the offence – and would your Honours notice the word “to”; thirdly, an aider to commit the offence; fourthly, an aider in the commission of an offence. The distinction between (b) and (c) is probably this, that an enabler or aider to commit need not be present at the offence whereas an aider in committing usually would be. An enabler or aider might be somebody who provides the equipment or the necessary information, for example.
HAYNE J: How?
MR SOFRONOFF: I am sorry?
HAYNE J: The aider or enabler in (b) again requires identification of the doing or omission to do any act. It hinges about act.
MR SOFRONOFF: Yes, and then in (d) counsellors or procurers to commit the offence are brought in. Subsections (2) and (3) then are procedural in the sense that they do not draw in any other persons and we can pass over them. Subsection (4) brings in another category of person, a procurer, but a procurer of a person who might be an innocent agent. Subsection (4) relates to:
Any person who procures another to do . . . any act –
and if the act were done by the procurer the procurer would be “guilty of an offence”. The agent might be innocent. Compare 7(1)(d) procuring a person to commit an offence where the procurer and the person procured are each – I will start again - where the person procured commits the offence, himself or herself, rendering the procurer equally liable.
So the effect of section 7 is to take an offence by reference to the doing of an act or making of an omission. In (c) and (d) the expression used is “in committing the offence” and “to commit the offence”. It renders those people liable in the commission of that offence. It can be said then that the section categorises the people liable for a stated offence and that it is dealing with offences that are intended to be committed by all of the parties referred to in section 7. Section 8 is concerned with ‑ ‑ ‑
KIRBY J: Your predecessor was asked whether there had been any amendments to the sections in this chapter in the history of the Code. Are there any relevant amendments to section 7?
MR SOFRONOFF: There have been, your Honour. Not relevantly, that is to say, for example ‑ ‑ ‑
KIRBY J: Just draw any amendments to our notice as you go through this.
MR SOFRONOFF: I will bring any relevant ones, your Honour, but there are not any relevant ones except for section 10A, I think which does not bear upon this case. But section 7, for example ‑ ‑ ‑
KIRBY J: Section 10A is not in this? Yes, there it is.
MR SOFRONOFF: No, it is in this pile.
KIRBY J: Yes, we have it.
MR SOFRONOFF: If your Honours go to section 8, section 8 takes persons and brings in offences and the offences it brings in are offences which might not have been intended to be carried out, but were in fact carried out in the circumstances described in the section. What it requires is for the Crown in prosecuting a person by virtue of that section to establish an unlawful purpose, a common intention on the part of two or more persons to prosecute that purpose, to do so in conjunction that as a consequence an offence is committed and the offence committed is of such a nature that its commission was a probable consequence. The offence that is committed is of such a nature that its commission was a probable consequence.
So section 8 directs attention away from what might have been the intended offence which might be armed robbery – it is usually armed robbery or assault, they are the most common offences to which section 8 is applied. It catches the parties who will be liable for the directly unintended consequences.
Now, some of the people who will be caught by section 8 will be people referred to in section 7, thus procuring an offence to be committed by another person would usually, one would think, involve the forming of a common intention to prosecute an unlawful purpose. So if the offence procured is committed then section 7 makes both of them liable and if an unintended offence is committed section 8 makes both of them liable, not just the actor but also the procurer.
But a procurer of an innocent agent, under section 7(4), would not have a common intention with the person procured because the person procured, being innocent, would have no intention to prosecute an unlawful purpose. So some but not all of the section 7 offenders might be caught by section 8 if an unintended offence is committed. An aider to commit an offence might not have a common intention to prosecute an unlawful purpose; the purpose might be the immediate one to sell a weapon to be used in an offence, but the seller, the aider, or enabler, to commit an offence might have no interest in prosecuting any purpose and the interests of that person might cease upon the sale of the weapon. An aider in committing an offence would usually have a common intention but need not.
So if a different offence is committed by a party than that which had been procured or aided or enabled, but for section 8, the procurer, aider or enabler would not be liable for the commission of the unintended offence. Section 8 renders that person liable, notwithstanding that an offence different from that intended by procurement, aiding or enabling was committed.
Now, a counsellor is in a different category. If we go to section 9, a counsellor is a person who, according to the long‑stated policy of the law, instigates an offence and ought be responsible not only for the offence committed but for the probable consequences of it. A counsellor will usually – it is hard to think of cases where a counsellor who is not also an aider would be liable under section 8, because a counsellor would, in general, counsel the offence but would not be a party to a common endeavour of prosecuting the unlawful purpose, hence the necessity for section 9.
One can think of an example where a gang member counsels another gang member that is a matter of pride - A counsels B that B, as a matter of pride, really must take revenge and assault C. A has no interest in pursuing the common endeavour, has no interest in aiding or assisting, is merely counselling, would be liable for the assault but, if an incidental offence is committed, section 8 would not apply because there is no common intention to prosecute an unlawful purpose. Section 9 does the work, as long as the facts constituting the offence actually committed are a probable consequence of carrying out the counsel. It does not matter if a different offence is committed and it does not matter if the offence was committed in the way counselled or in a different way.
The policy that we submit underlies sections 8 and 9 is that which was set out in the old work of Foster to which we have referred in our outline and which was referred to at length in Darkan, a decision of this Court. The policy was stated in these terms:
The advice, solicitation, or orders in substance were pursued, and were extremely flagitious on the part of A. The events, though possibly falling out beyond his original intention, were in the ordinary course of things the probably consequences of what B did under the influence, and at the instigation of A. And therefore, in the justice of the law, he is answerable ‑
Now, against that description of how sections 7, 8 and 9 interlock, could I take your Honours back to ‑ ‑ ‑
HAYNE J: Before you do that, how does 10A fit in, 10A(2) particularly?
MR SOFRONOFF: Would your Honour read me 10A(2)?
HAYNE J: “Under section 8, a person’s criminal responsibility extends”, ex cetera. Do you have that?
MR SOFRONOFF: Yes, thank you, your Honour.
HAYNE J: How does that fit in?
MR SOFRONOFF: That section was inserted, I think, after this Court’s decision in Barlow – I am sorry?
KIEFEL J: No, I think it was before. As a result of Jervis, I think, Mr Sofronoff.
MR SOFRONOFF: That is right. It was done as a result of dicta of the Court of Appeal which were rendered redundant after this Court decided Barlow.
HAYNE J: But it goes in 1997, I think, does it?
MR SOFRONOFF: In 1997, your Honour, yes.
HAYNE J: So it is in force at the time of these events and these proceedings, is it not?
MR SOFRONOFF: It was, your Honour.
HAYNE J: What is 10A(2) saying about how you approach 8?
MR SOFRONOFF: I will come back to that, your Honour.
HAYNE J: When you do, bear in mind, does 10A(2) provide support for the view that focus of 8 is upon acts or omissions rather than upon legal categories of offence.
MR SOFRONOFF: Your Honour, we will not submit that the focus of 8 is not upon acts and omissions. So if that is a matter of concern, it need not be because our submissions do not depend upon advocating a view different from that which was determined in Barlow in that respect. I will come back to 10A(2), if I may, your Honour?
KIRBY J: So you do not seek any refinement or re‑expression of what the majority of the court held in Barlow?
MR SOFRONOFF: No, your Honour. Could I say this about Barlow just by way of introduction?
KIRBY J: The joint reasons were written by Justices Brennan, Dawson and Toohey, two of whom, Justices Brennan and Toohey, were Code State lawyers?
MR SOFRONOFF: Quite right, your Honour, yes. Your Honour, could I say this about those cases. Barlow was concerned with the meaning in section 8 of the word “offence”. Darkan, the recent decision of this Court, was concerned with the meaning in section 8 of the word “probable”. This case, as we would wish to develop our submissions, will be concerned with the words in section 8 “of such a nature” which have not been the subject of any direct consideration by this Court.
KIRBY J: Well, on one view Barlow necessarily required consideration of what “of such a nature” meant.
MR SOFRONOFF: Of course it did, your Honour. That is right, it did and I will come to the ‑ ‑ ‑
KIRBY J: Justice de Jersey had been the trial judge in Barlow. He did not seem to think very well of our handiwork there, having regard to his article 71 ALJ 716 which I keep very close by me at all times.
MR SOFRONOFF: I take responsibility for my submissions, your Honour. But section 8, as your Honours see, contains with it words which contain within them a great deal. That must be so because Chapter 2 of the Code, like Chapter 5 are the two chapters of the Code upon which everything else hangs. They contain provisions of general application - Chapter 2 relating to parties, Chapter 5 relating to criminal responsibility, which must do work in an infinite varieties of factual circumstances and must work with respect to every offence in Queensland.
KIRBY J: But is not the big issue in this appeal whether or not – as I understood you to be contending – the focus of attention in section 8 is upon what has been called the generic offence, the category, or is upon the acts and omissions, picking up section 2 and Barlow elected by majority for the latter view?
MR SOFRONOFF: That way of looking at the problem appealed to the members of the Court of Appeal. In our respectful submission, the error that their Honours made in the Court of Appeal was not to consider the meaning and effect of the words “of such a nature”. Could I develop that, your Honours, it is a little difficult to ‑ ‑ ‑
KIRBY J: But that is of such a nature as the offence and that takes you back. Is the offence talking of the category ‑ ‑ ‑
MR SOFRONOFF: Of course, your Honour.
KIRBY J: ‑ ‑ ‑ the legal classification or is it talking of the actual acts and omissions by which the legal category was effected? That seems to be the big debate and was the debate in Barlow and there are arguments both ways. But Barlow determined that if because of section 2 you pick up the actual acts and that has the advantage of not stretching or pushing further the blanket which is thrown over common purpose.
MR SOFRONOFF: I do not want to argue that Barlow in that respect was wrong or put a gloss on it or anything of that kind. I want to direct the Court’s attention to the words “of such a nature” and make some submissions about them because, in our respectful submission, what the Court decides about the meaning and effect of those words in that section will determine the outcome for this case, whichever way it might be.
Could I go directly to that. Section 8 makes complicity in an offence depend upon the connection between the prosecution of the unlawful purpose and the nature of the offence that was committed for which liability is sought to be ascribed. Section 8 makes complicity depend upon the connection between the prosecution of the purpose and the nature of the offence. Those words are not mine. They are the words of Justices Dixon and Evatt in Brennan in a passage to which I will come.
One sees that it is important in any case in which section 8 is sought to be engaged to consider what is the nature of an offence. Sometimes the nature of the offence will depend upon the type of offence committed, that is to say, to take the usual kind of case where section 8 is sought to be engaged, two people decide to commit a robbery. They will each be liable as parties under section 7. But in the course of a robbery another offence is committed. The other offence might be deprivation of liberty. That is a type of offence. It might be an assault. That is a type of offence. It might be a rape, which is a type of offence. The nature of the offence will then assist in determining whether an offence of that nature “was a probable consequence” of the plan to prosecute the unlawful purpose of committing a robbery. Deprivation of liberty, yes; assault, yes; rape, probably no, depending upon the facts of the case.
Secondly, in our submission, the nature of an offence might depend upon a state of mind, so that, again, to take the unlawful purpose of committing a robbery, an assault would be a type of offence that would be a probable consequence. But an assault might give rise to the doing of grievous bodily harm, and that might be an offence – or a killing. The nature of that offence will differ, depending upon the state of mind of the actors. So the state of mind might determine the nature of the offence and furnish the connection or determine the absence of a connection giving rise to liability or no liability.
KIEFEL J: Mr Sofronoff, do you approach section 8 to determine the nature of the offence as a stand‑alone question, or do you approach it bearing in mind the facts relevant to the common purpose so that effectively you know what you are looking for in the nature of the offence?
MR SOFRONOFF: One determines the nature of the offence as a stand‑alone question because it is the matter that one needs then to put alongside the prosecution of the unlawful purpose and the facts surrounding that in order to see if an offence of that nature was a probable consequence of the prosecution of that purpose. But until one has determined the nature of the offence, one has nothing to work with.
KIEFEL J: Does it not work the other way as well – unless you know what the common purpose is?
MR SOFRONOFF: Quite. One needs both. One needs to determine the scope of the purpose and one needs to determine the nature of the offence and then to apply judgment – the jury will apply the judgment – in determining whether the commission of the offence of that nature was probable, as that word “probable” was interpreted by this Court in Darkan.
KIEFEL J: I am taking it a little bit out of sequence, but where do you say essentially the Court of Appeal went wrong?
MR SOFRONOFF: They did not consider the nature of the offence.
KIEFEL J: At all, just the act.
MR SOFRONOFF: They looked at the act, and I will come to that. If one goes further, the nature of the offence might depend upon the consequence or the outcome or, as section 23 puts it, the event. So to stick with robbery, the outcome might be grievous bodily harm, the outcome might be a killing, and the prosecution of the common purpose of robbery might have involved an assault but it might not have involved an assault with the consequence of doing grievous bodily harm or, in the more common case, it might not have involved the consequence of killing, which would involve the participants in liability for manslaughter or, as the case may be, murder if the other element, intention, is also there.
The nature of the offence I do not submit is limited to those matters, but it certainly depends upon a consideration of the offence in question, the acts that comprise the offence and whether the nature, given the type of offence or the state of mind, if that is the relevant matter, or the outcome, if that is the relevant matter, gives rise to a conclusion when one places the offence against the unlawful purpose and asks the question, was the commission of that offence, an offence of that nature, a probable consequence of the prosecution of the unlawful purpose?
HAYNE J: That is a single complex question which, in hindsight, might be analysed into a series of separate parts, but it is important, is it not, not to let the subsequent analysis into parts mask the fact that you are concerned with a single complex question of relationship between the offence committed and the prosecution of the common purpose?
MR SOFRONOFF: Between the nature of the offence committed and the prosecution.
HAYNE J: I put it as I did to connect the offence that is committed with the prosecution of common purpose, to put together the elements of nature and probable consequence as together identifying the conjunction or connection that must be identified. You are seeking, as I understand this branch of the argument, to push nature aside. Let us identify nature in all its pristine beauty, and then let us consider the connection that is encompassed by probable consequence. The point I am putting to you for your consideration is that nature, probable consequence are themselves bound up as a singular connecting factor.
MR SOFRONOFF: I respectfully agree with your Honour if what your Honour is putting to me is that section 8 involves a compound consideration of the facts and circumstances arising from the plan, its pursuit, what is known to the parties and the nature of the offence that is committed, the acts and circumstances – as was put in Barlow, the state of mind, the acts and the circumstances. Ultimately it is a compound judgment, but that does not deny, we respectfully submit, the necessity, in considering criminal responsibility of a person under section 8, to give consideration to its components before ‑ ‑ ‑
HAYNE J: What I am putting to you, Mr Solicitor, can be put this way. Is a trial judge going to be telling the jury ultimately, did the accused do something which happens to be a punishable offence, a punishable piece of conduct, that was a probable consequence of the common purpose these people had agreed on. It is a simple question, and convey it to a jury. It is not a great piece of sophisticated analysis. What did the accused do? Did what the accused do amount to a probable consequence of what they had agreed upon?
MR SOFRONOFF: Yes, but one would need to say a little bit more than that, in my respectful submission. One would have to tell the jury to look at what the principal actor did and to give consideration to what was done and to ask whether something of that nature that was done was a probable consequence of what was known or taken to be known by the parties at the time that they were doing the things that were done and whether as a consequence the commission of that offence was a probable consequence of the prosecution of that purpose.
So I would not shy away from any – or wish the Court not to think that I am submitting that a jury would be instructed to break things into its component parts and to approach it as though section 8 were a formula, but nevertheless, in this Court’s consideration of this case, our complaint is that when the Court of Appeal looked at the matter, it failed to consider what was the nature of the offence that Spizzirri committed in determining whether Keenan was responsible because that was an offence that was committed as a probable consequence of the carrying out of their plan.
HAYNE J: What do you say in this case was the relevant nature of the offence?
MR SOFRONOFF: The degree of force applied, that is to say, force sufficient to break a man’s spinal cord.
KIRBY J: But it is unlikely, is it not, that the degree of force that would be applied, say, by hands or fists or even by the baseball bat is going to have the consequences that were inflicted on the victim?
MR SOFRONOFF: That is not what the Court of Appeal thought, your Honour, and one only has to feel the bat to see that the nature of the injuries that the wielder of the bat, at least, was willing to risk causing, if not intend causing, would have encompassed a broken spinal cord, and we are all familiar with cases of assault which kill people, so it is not by any means a stretch to submit that this was not a case where they were going to hit him with fists. This is a case where they all went with a view to Booth hitting him with the bat, and one of them did something else, and the question is whether the degree of violence which resulted in the consequence was something that was comprehended by the plan.
KIRBY J: I suppose behind the purpose of the Code and, indeed, the common law doctrines is the fact that when people go out to do violent things, the experience of humanity is that things often get out of hand?
MR SOFRONOFF: That is, with respect, precisely right, your Honour, and that is why there are dicta in English cases that when you know somebody has a pistol – the typical case of an armed robbery with a pistol – despite the fact that there is a tacit or express agreement not to use it except to threaten, we know that things get out of hand and that people become frightened or nervous and they come to be used.
KIRBY J: On the evidence here, one possibility at least is available, and that is that those who went into it went into it with a view to dusting‑up the victim, but that out of his pocket came Mr Spizzirri’s sawn‑off rifle – that that was, as it were, escalating the offence that was committed.
MR SOFRONOFF: One view ‑ ‑ ‑
KIRBY J: There was no evidence at all, was there, that the other participants knew that Mr Spizzirri had a gun?
MR SOFRONOFF: That is right. So one possibility for the jury to consider was that Spizzirri was on a frolic of his own and deviated largely from the plan – and that was before them.
KIEFEL J: Remind me, please, Mr Sofronoff. There was evidence connecting Spizzirri to the common unlawful purpose?
MR SOFRONOFF: Yes.
KIEFEL J: He was part of the discussion.
MR SOFRONOFF: Yes. He was the one whom Jupp telephoned first to say, “I found Coffey”. Spizzirri said, “I’ll get back to you”. He rang him back in five minutes and said, “Come to Keenan’s house”. Jupp went to Keenan’s house and met Spizzirri there. They went from there to meet Keenan at another place. Keenan was in his WRX Subaru. There they made the plan to drive past Coffey’s premises, then come back, and then Booth would get out and beat him up. As Jupp explained, he got out with a bat to beat him up and Vonda Muir saw the bat.
Your Honours, could I go back to the path of my submissions? I submitted that when one looks at the nature of the offence that was committed, one might be looking at the kind of offence, whether it is a sex offence or an offence of violence or an offence of deprivation of liberty – and section 8 must apply throughout Code land, as it were. So it might apply to treason, sedition or any possible offence. So the type of offence itself may be a factor to consider in determining whether the offence is of such a nature that its commission was a probable consequence.
State of mind might be, and that was considered in Barlow. As your Honour, Justice Kirby put to me, in Barlow the Court had to consider the nature of the offence in considering the matter that was the centre of gravity of the case. Intent was an issue as a factor – and I have put it as a consequence, as the third aspect of the nature of an offence that might arise. But sometimes one might think of it as the degree of violence. So the fact that a pistol is brought signifies that the degree of violence which would render an offence of such a nature that its commission was probable will be high, that is to say, one can take ‑ ‑ ‑
KIRBY J: That is true, but they are not the facts here.
MR SOFRONOFF: Can I come back to the facts here, your Honour?
KIRBY J: Yes, because here at least, arguably the four, except for Mr Spizzirri, went into the enterprise intending to punch him up, dust him up, use violence, use a bat, but not to use a gun and that the introduction of the gun by Mr Spizzirri, at least arguably on the evidence, was an unexpected and gross escalation. This is not the armed robbery where people go in with a gun not intending to use it but do. This is a case of dusting‑up that is escalated by Mr Spizzirri’s individual action. That, at least, is one interpretation.
MR SOFRONOFF: Granted that the gun was unexpected – as we must accept because there is no evidence anybody knew he had it, but the other part that your Honour put to me whether Spizzirri was responsible for an escalation of violence beyond that which was probable, that was a matter for the jury, and it was open for them to conclude, as they must have concluded, that having regard to a number of things - and the two obvious ones are Keenan’s threats – “I’ll cave his skull in” – and the known presence of the bat as the means by which he was to be beaten - there was no escalation of violence. Certainly the method employed was unexpected, and the injury suffered was idiosyncratic in the sense that it was a bullet that pierced his spinal cord.
But the gravity of the injuries occasioned – it was open to the jury to conclude, as they must have done, that that was something that was probable. The nature of the offence, the causing of grievous bodily harm by some means which would render Coffey paraplegic or fracture his skull if that had happened or fracture his knees and elbows if that had happened – whether the bat was used as intended or whether some other instrument was taken to hand or was brought along was something that was likely to happen.
HEYDON J: Mr Sofronoff, there is one factor you have not mentioned. In volume 2, page 538, the first two sentences, Chief Justice de Jersey in his remarks on sentence says:
This conviction has the very disturbing stench of gangland retribution. You were powerful enough to organise others to inflict the blows and wounds.
Is that an exaggeration or is it supportable in the evidence? Because on one view, if you read the evidence, it looks as though there are some people who ended up behaving very badly, but they were, as it were, amateurs, innocent people to begin with, not likely to know about other people having guns or being probable that other people would have guns. But if those hired were actually part of the gangland, it is common for people who are within the gangland to have guns.
MR SOFRONOFF: Well, it was a justifiable statement by his Honour, if one relies only on these things and we will look for some others. But, firstly, a package was delivered in return for which six or $7,000 was to be received and handed in cash to Keenan, which is an unusual transaction. Secondly, the failure of Coffey to return to deliver the money resulted not in threats to collect the debt or threats to sue or threats to sell the chose in action to a factoring agency, but threats to cave his skull in, which is remarkable. Thirdly, as soon as Jupp helpfully told Spizzirri where Coffey was, it was possible to arrange for four people on the instant to attend to do and assist in doing violence. Fourthly, the violence that was to be done was not just fisticuffs, it involved the use of a weapon capable of killing. Fifthly, there is this passage, for what it is worth, from Mr Jupp’s evidence at page 286 in volume 1.
KIRBY J: Page 286?
MR SOFRONOFF: I am sorry, 205 in the top right‑hand corner, your Honour. I keep wrongly using the transcript pages. He just informed Spizzirri that he knew where Coffey was and in the middle of the page Spizzirri said “I’ll ring you back”:
When he told you this, what sort of tone of voice was it?-- He was pretty quick, pretty rushed about it.
Then he rings back five or 10 minutes later, line 40:
He told me to get up to Frank Keenan’s house which was the one next to Dean Spizzirri’s ASAP, basically.
Okay. What, if any , reason was given that you had to go there?‑‑ To – to – well, let them know where it was at that time.
Meaning, where Coffey was –
Okay. Now, tell me this: did you feel as though you could just ignore what was being requested of you?‑‑ No, they’re not the type of people that you just ignore. Basically when they tell you to do something, you do something.
So it would not have been open to his Honour to conclude that this was a gang enterprise and retribution for frustrating a gang enterprise, but it was open for his Honour to conclude that it had a gangland stench about it because, indeed, it did have a gangland stench about it. One can understand anybody of a violent disposition being upset by having, in effect, the $6,000 stolen and one can ‑ ‑ ‑
KIRBY J: Chief Justice de Jersey, at 537 of the record, in sentencing said:
The only explanation for what occurred was your vengeful motivation to teach Coffey a serious lesson for having had the audacity to betray you.
MR SOFRONOFF: Yes.
KIRBY J: So that was the view that he took of the motivation. But it is one thing to be – after all, this man was living with his niece; the amount of money was not huge.
MR SOFRONOFF: I do not know, your Honour.
KIRBY J: Seven thousand dollars. We are talking in the world’s terms of several hundred billion dollars. Seven thousand dollars is not a lot of money.
MR SOFRONOFF: We are not talking about that world, your Honour, we are talking about this world. It is not that so much as the insult, whether it is $10 or $7,000.
HEYDON J: Can one take into account the respondent’s criminal record or was that excluded from evidence at the trial proper; manslaughter and assault on a prison officer?
MR SOFRONOFF: Your Honour, the criminal record was not led at the trial.
KIEFEL J: But when his Honour is speaking on sentencing, he has already read it.
MR SOFRONOFF: He is aware of it by then.
KIEFEL J: He is aware of it and that probably conveys something of the hugely violent background of the person.
MR SOFRONOFF: Quite, yes.
KIEFEL J: That might convey something about the world in which he operates.
MR SOFRONOFF: Yes, although that was not before the jury.
KIEFEL J: No. But the Court of Appeal did not cavil with his Honour’s directions to the jury that the common purpose involved the infliction of serious harm.
MR SOFRONOFF: No, and nor, as I understand it, was that a matter of complaint on the appeal.
KIRBY J: But the question is whether that was a correct direction and then a next question is, whether, if it was not, the correct answer in this case was to order that a correct direction be given to a jury and the matter retried.
MR SOFRONOFF: That is a different question, your Honour.
KIRBY J: You have to get to that in due course, not with too much time, I hope.
MR SOFRONOFF: I will move on, your Honour. Your Honour, could I just say this then before going to the cases. When one is considering the nature of the offence and one is giving consideration to an offence that involves as part of its elements a consequence, a death or killing or the infliction of grievous bodily harm, then one can either regard the consequence dictated by the Criminal Code as bearing upon the nature of the offence or, as is often done as a proxy for that, one has regard to the degree of violence apprehended by the parties as bearing upon the nature of the offence. So that the greater degree of violence apprehended by the parties, as might probably be employed, will tell us something about the nature of the offence, which could be a probable consequence of the prosecution of the unlawful purpose.
When one then looks at the cases – and I will put this proposition which we would seek to sustain by an examination of the cases – when one has regard to the cases dealing with offences of violence, one sees that the courts deciding those cases often examine the degree of violence apprehended by the parties as might be employed, one sees the court having regard to the state of mind of the parties which might bear upon the nature of the offence, but one does not see importance being attached to the method by which the violence is administered to the victim.
KIRBY J: Are you talking about cases under the common law or Code cases?
MR SOFRONOFF: Principally Code, but both, your Honour, both.
CRENNAN J: Brennan’s Case was certainly an example of your first proposition, I think, was it not?
MR SOFRONOFF: As was Barlow, to which I will come. I will go to the cases, your Honours, but my purpose in taking your Honours to them is to demonstrate to your Honours that when courts speak of section 8 and whether an offence is or is not a probable consequence, the aspect that they look at in connection with offences of violence is the degree of violence, not the method by which it might be administered.
The method by which it might be administered, a pistol, will indicate the degree of violence. I think an example we give in our written outline is, assume you go into a bank with a loaded pistol and it fails to discharge, it misfires, and something else is taken up to subdue the resistor, the presence of the pistol will tell us the degree of violence that was to be employed and will determine the nature of the offence that was a probable consequence. Now, it would not be a defence to say that a typewriter was used to beat the victim into submission or the gun itself.
So could I take your Honours to the cases in chronological order and firstly to Brennan (1936) 55 CLR 253. If your Honours are looking at our book of authorities, it is in tab 6. Brennan was a decision under the Western Australian Criminal Code. Two men called Flynn and Walsh ‑ ‑ ‑
HEYDON J: We do not have a book of authorities, if it matters. We have the authority.
MR SOFRONOFF: It does not matter, your Honour. I will refer to the tab in case anybody does. In Brennan, three men, Flynn, Walsh and Brennan decided to rob a jewellery store. Flynn and Walsh were going to go into the jewellery store. It was known that there was a caretaker in there and the plan was that they would go in there, overpower the caretaker, gag him, tie him up and steal the jewellery. Brennan was to watch outside. The caretaker was killed during the execution of the robbery and the jury convicted all three of manslaughter. If your Honours go to page 263 of the report, at the foot of the page, Justices Dixon and Evatt said:
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.
Then their Honours spoke about homicide and the nature of homicide.
KIRBY J: Is the form of the Western Australian Code, or was it at the time, the same as the Griffith Code?
MR SOFRONOFF: I think the answer is, yes, your Honour. It is set out in Justice Starke’s reasons. Your Honours will see it relevantly in the headnote at page 253:
“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 –
et cetera.
HAYNE J: Now, do I understand your case, in effect, to be a simpler case than Brennan’s? In Brennan the common purpose was theft or robbery or some offence of dishonesty with respect to property. Do I understand the common purpose alleged here to have been the common purpose of infliction of actual bodily harm?
MR SOFRONOFF: Serious harm.
HAYNE J: At least some form of harm?
MR SOFRONOFF: Yes.
HAYNE J: Thus, do I understand your case to be that the infliction of grievous bodily harm by whatever means was the probable consequence of the carrying out of a purpose to inflict harm?
KIRBY J: Would you put it on the record now?
MR WALKER: Yes, [2008] 3 WLR 264. In our submission, but for a very important matter, we could call that in aid very strongly. We can, we think, consistent with principle, simply draw it to your Honours’ attention in case the policy of the very current common law in England and Wales strikes your Honours as providing a satisfying explanation of the purpose or intent, the real meaning, of the words used 100 years ago in section 8. Now, that is a difficult connection to draw. We do not join with our learned friend with the proposition, “It would be nice if the common law is the same as the Code” because there is more than one common law and it changes with time, as well as differing from place to place.
KIRBY J: Yes. Whose decision was that? Was that the Court of Appeal or the House of Lords?
MR WALKER: It is the House of Lords.
KIRBY J: I see.
MR WALKER: All the opinions, with great respect, of their Lordships are important. Lord Bingham might be called the leading opinion, but there are very important comments by the others.
KIRBY J: Yes. We will have a look at that, of course. Thank you very much, Mr Walker.
MR WALKER: There are differences among their Lordships, but I stress it is common law. May it please the Court.
KIRBY J: Yes. Anything in reply, Solicitor?
MR SOFRONOFF: Very briefly, your Honours. On the topic of inferences, if your Honours would go to appeal book 2, page 648.
KIRBY J: Yes.
MR SOFRONOFF: As appears from the passage from the Chief Justice at the top of page – I am sorry, at page 459, your Honours, the top right‑hand corner. As appears from the passage of the transcript at the top of the page, the Chief Justice had his summing‑up typed out in draft and given to the legal representatives for their perusal and comment before he delivered it.
That perusal then took place over the course of the next few pages when each counsel said one or two things about it. Nobody complained to his Honour that his Honour was not putting competing reasonably open inferences to the jury that ought to be put. In particular, if one takes the two examples that were relied upon by our learned friend - if your Honours would go to page 567 of the record, paragraph [48] of the reasons of the Court of Appeal, their Honours were of the view that:
An alternative rational inference open –
as to the plan to take the van was that it would be taken –
in satisfaction of Coffey’s debt to Keenan.
The judge did not mention it. The reason the judge did not mention it is that nobody else mentioned it, it was not considered ‑ ‑ ‑
KIRBY J: Yes, well, you made that point in your written submissions.
MR SOFRONOFF: Yes. So with respect to the inferences argument, his Honour put the inferences that were open to be drawn by the jury. The fact that the accused did not give evidence did not assist in raising any opposing explanations for inferences. That is to say, there was a void there. So when the inferences consistent with guilt appeared there was simply nothing which could be raised against it and nobody at the trial suggested that there could in the respects now complained about.
As to the reasons of Justice Gibbs in Stuart, his Honour mentioned that one has to consider section 8 not in the abstract but in respect of a particular case, and so it might be said that murder by arson is not a probable consequence in the abstract of the unlawful purpose of extortion, but it was in that case on the facts there. So the question in every case is whether the unintended offence was a probable consequence of the prosecution of the unlawful purpose on the facts of that particular case.
As to paragraph [60], in our respectful submission, paragraph [60] contains a great deal of reasoning which, with respect, is part of the jury’s function and not part of the function of the court. If one goes from six lines from the top of paragraph [60] on page 571, the alternative rational inferences outlined there that the common plan was only to engage in:
“fisticuffs” or, at its highest, with a baseball bat –
was, of course, a matter put by the Chief Justice and was considered by the jury and evidently rejected by it. It is said there was no evidence of a broad plan to injury Coffey by whatever means any of the participants might find available. Those means are summarised by reference to his Honour’s summing‑up in our paragraph 66. In support of a submission along those lines our learned friend made the statement that Jupp was the only source of evidence of the plan. That, with respect, is not correct. Jupp was the source of evidence of his understanding of the plan. The other source of evidence of the plan, that is to say, evidence from which the plan might be inferred, was the evidence of Vonda Muir who gave evidence about the threatening text messages. The evidence of the presence of the bat in Keenan’s car, given its size and quality and the unlikelihood that it was hidden, all of those matters that of course his Honour put to the jury for their consideration.
We would wish to remind your Honours of what was said in Darkan, Darkan being a case where the second appellant, a woman, wanted her husband “fixed up” was the expression. The plan was to fix him up. In Darkan 227 CLR 373 at 404, in considering the effect of the proviso, their Honours drew attention to some observations made by Justice Keane in the Court of Appeal.
In that case she wanted him fixed up. He was lured to a garage where somebody picked up an available pick handle and beat him ultimately to death with it. There was also kicking. There was no evidence that the procurer of this offence, the second appellant, had directed the use of the pick handle or any particular weapon. But what bore upon her guilt was that the beating was administered in her presence proceeding to her satisfaction. A compelling case that the beating administered proceeded to her satisfaction his Honour was correct. At about line 10 of paragraph 104:
There was uncontradicted evidence that she was there at the start, because she arrived with the deceased. She was there when the punching started, she was there when Bowen saw her watching the deceased being hit on the legs with the pickaxe handle, and she was there at the end when she drove away. It may be presumed that she remained at the site in the intervals between these points. There is no evidence that she did not . . . She could infer their propensities –
the assailants –
from the fact that they were prepared to beat up a stranger for money. While she was at the site she would have learned more about their propensities, their footwear and the pickaxe handle.
Similar considerations arise here, and I need not repeat them because they are obvious, completed by the evidence of Vonda Muir that upon the sudden departure her Uncle Keenan, the respondent, gave her what she called a cheeky smile.
Now, it was said against our case that they left on the sudden and it might be that they were shocked. Indeed, all of them might have been shocked by what they had accomplished. Indeed, all of them might not, as a matter of fact, have foreseen the dreadful nature of the injury and the way it was carried out in the event. But the test is an objective one based upon the subjective plan that they entered into, and the fact that, as a matter of fact, they did not appreciate that such a consequence could have occurred and were shocked when it did is, in our respectful submission, beside the point.
So when one looks at all of the evidence relating to the plan, not only Jupp’s evidence but also the facts from which it can be inferred, including Keenan’s conduct while the offence was being carried out and his last gesture as he left, in our respectful submission, there is evidence of the kind
of a plan which would support the probability of the consequential offence for which we contended. Those are our submissions, your Honour.
KIRBY J: Yes, thank you, Mr Solicitor.
MR SOFRONOFF: I am sorry, your Honours. My learned friend, Mr Martin, reminded me to give your Honours a reference to this case – Nguyen v The Queen [2001] WASCA 176, a decision in June 2001, which concerned section 8 and was a case where there was a fight, some people bringing chair legs and sticks and some people bringing knives and baseball bats. It raised the question whether those who brought chair legs and sticks, the lesser weapons, were going to be liable for the consequences of the actions of those who brought knives, and it would bear upon this case.
KIRBY J: Yes. Thank you all for your assistance to the Court. The Court will adjourn, reserving its decision in this matter. We adjourn until 10.15 tomorrow morning in Court No 1.
AT 4.20 PM THE MATTER WAS ADJOURNED
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