R v Keenan

[2008] HCATrans 247

[2008] HCATrans 247

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B4 of 2008

B e t w e e n -

THE QUEEN

Applicant

and

FRANCIS ROBERT KEENAN

Respondent

Application for special leave to appeal

GUMMOW ACJ
HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 18 JUNE 2008, AT 11.01 AM

Copyright in the High Court of Australia

MR R.G. MARTIN, SC:   May it please, your Honours, I appear for the applicant.  (instructed by the Director of Public Prosecutions (Qld))

MR A.J. GLYNN, SC:   May it please the Court, I appear for the respondent.  (instructed by Aboriginal and Torres Strait Islander Legal Services)

GUMMOW ACJ:   Yes, Mr Martin.

MR MARTIN:   Thank you, your Honours.  Before turning to the detail of the central argument in this case, this case involves a point of pure black letter law revolving around five words, deleting presently unnecessary ones, “offence of such a nature”.  The consequences of adopting one interpretation or another are substantial, making the point both, as it were, narrow and deep, and thus an attractive one for the grant of special leave.

The decision of the Court of Appeal is a poor fit with decisions from Western Australia, with the Australian common law, and with cases in New Zealand and Canada derived from similar but not identical statutory provisions.  There is some inconsistency in approach derived by an examination of the Queensland cases.  The Queensland cases I have set out in my written outline, and I will not repeat what I have said there orally.  The case can be cleared of complications because it is tolerably clear that the central point to the case was the reason that a new trial was ordered.  The Court of Appeal ‑ ‑ ‑

GUMMOW ACJ:   What is the relevant provision in the Code?

MR MARTIN:   Section 8 of the Code, your Honour.

GUMMOW ACJ:   Is that treated as including what has been called “extended common purpose” in the common law cases?

MR MARTIN:   It is cognate with the concept of extended common purpose in the common law cases.  It is not identical, there are some points of difference, but the common law doctrine extending common purpose does not seem to extend to the proposition that what has to be foreseen in the common law, a probable consequence in Queensland was the minutia, as it were, of the Act.  I can take your Honours to some support for that proposition in a moment.

It is clear from Keenan that that case now requires directions in section 8 cases to the effect that the Crown must establish that the injury, as it were – and I emphasise these words – by shooting or by stabbing or by garrotting, as the case may be, are necessary, and that emerges from paragraph [45] of the judgment.  The reasoning leading to that conclusion ‑ ‑ ‑

GUMMOW ACJ:   Paragraph?

MR MARTIN:   Paragraph 45 at page 87 in the appeal book.

GUMMOW ACJ:   Yes.

MR MARTIN:   The reasoning in the paragraphs prior to that, which leads to that conclusion, is of general application to all section 8 cases.  The starting point of the Court of Appeal ‑ ‑ ‑

HAYNE J:   Well, the central part of the reasoning is at paragraph [43], is it not?

MR MARTIN:   Yes.

HAYNE J:   In the middle of 43, “the offence . . . of such a nature” is not the generic offence of doing GBH with intent, “It is the act which rendered Spizzirri liable to punishment, namely, discharging a bullet or bullets”.

MR MARTIN:   Yes, that is the central core of the argument.  There are other references to ‑ ‑ ‑

HAYNE J:   Now, what in past decisions on the Queensland Code would support that understanding of section 8?

MR MARTIN:   There are references that the Court relies upon in Barlow, purports to rely upon, and there are references in I think Brien and Paterson to which it relies.  It glosses over some other contrary decisions, such as Jeffrey where the suggestion seems to be that it is murder or manslaughter that determines the nature of the offence.  There are cases such as Johnston which are referred to but do not lead to the conclusion that directions which are said now to be mandatory are indeed mandatory, and that is why I say, and I have just summarised what I said I would not do, I have orally compressed my submissions from the written version.

The starting point was Barlow.  That should be with the bundle which has been supplied to your Honours.  Can I invite your Honours’ attention to page 10 where the central thesis emerges?  I would draw attention, and no doubt my friend can draw attention to other passages – I would draw attention to the last sentence of the paragraph which finishes in the middle of the page:

Thus the unlawful striking of a blow by a principal offender will constitute an offence the nature of which –

So the blow is the offence, and the nature depends on such things as grievous bodily harm, death and specific intent.  From that I would happily draw the conclusion that what has been discussed there are generic issues.  I would also draw comfort from the proposition that in Barlow at page 5 the actual summing‑up, which coincidentally was by the same judge as in the present case, did not refer to the specific cause of death, which in Barlow was the dropping of weights on a prisoner’s head.

So the submission really is that Barlow, or rather attempts have been made to treat Barlow as something of a statute, but it really does not address this issue as helpfully or rather as comprehensively as the Court of Appeal has asserted it does.  The words “of such a nature” imply a level of abstraction or generalisation beyond the particular and full effect has not been given to that.

GUMMOW ACJ:   Has section 8 always been in the Code?

MR MARTIN:   In certainly living memory, your Honour.  It may not have been there at the very beginning, but I am confident that it is – upon reflection it must always have been in some form or other in the Code.

GUMMOW ACJ:   If leave were to be granted we would need to know that.  We would need to know, amongst other things, what Sir Samuel Griffith thought about it, what he was doing.

MR MARTIN:   Yes, I cannot answer that question now, your Honour.

GUMMOW ACJ:   I say that because at the time Sir Samuel Griffith was writing and composing this Code the common law as to common purpose was not as developed as it is now.

MR MARTIN:   Quite so.  Can I turn to another authority for this reason.  There is a very closely related question which emerges in cases of this sort, and it can be expressed in a couple of ways.  Is it necessary for the Crown to prove that a secondary offender knew of the existence of a weapon, or alternatively knew that the weapon was part of the original plan?  Those two concepts may be the same thing, or if not they are very similar.  But they are cognate with the present question, or very similar to it, and if those questions which I have just composed are considered in the context of the Code it would be impossible for the present issue not to emerge as a dominating consideration, yet it seems not to have in Nguyen’s Case in Western Australia.

Can I take your Honours to the Western Australian Court of Appeal’s decision in Nguyen?  That was a case where 11 people involved in a group attack on a house and its occupants included one who claimed not to be aware that relevant members of the group were armed with knives, and that was Nguyen.  If one turns to page 6 of the judgment one can see the argument that was advanced in Nguyen under the words “Particulars”.

GUMMOW ACJ:   Paragraph?

MR MARTIN:   Paragraph [7], I suppose, your Honour, but it is one large paragraph on that page substantially.  There are words that would appear to assist me in subparagraph (a) there because ultimately the Court of Appeal dismissed the appeal.  I find encouragement in the summing‑up at paragraph [32], which is consistent with the summing‑up which appeared in the present case and the Court of Appeal dismissed the appeal.

I find further encouragement in the language used by this Court, including some members of the presently constituted Court, in the High Court special leave application which is attached to the material.  Your Honour Justice Gummow at page 2 of the transcript of the special leave application said, the middle of the page:

Well, “specific method” does not have to be determined upon, does it?  I do not think there was any specific method in McAuliffe, for example.

Your Honour Justice Hayne spoke at the bottom of page 3:

this notion of the implement used to effect an assault really matters to the outcome, seems to deny the capacity of individuals to effect violence with no intervening implement.

Justice Kirby used the expression at the bottom of page 4 of “an air of unreality” about the submissions, and these are the submissions that are against me.

GUMMOW ACJ:   How do you read what seem to be facts in this case on to section 8?  Just looking at the language of section 8, what was the unlawful purpose?

MR MARTIN:   The unlawful purpose was articulated by his Honour to assault seriously.  It will take me a moment to turn it up.  I will struggle to find it in a limited amount of time.

GUMMOW ACJ:   Just tell us.

MR MARTIN:   Broadly speaking, it is a plan to seriously assault or to do so with a bat.

GUMMOW ACJ:   The offence of such a nature?

MR MARTIN:   That is a compound expression comprised in this way; the offence, according to Barlow, is comprised of the actual incident that took place, the shooting, but the words “of such a nature” in my respectful submission are words of abstraction from that…..of the particular, as it were, and what they mean is, in my submission, the unlawfully doing grievous bodily harm with intent to do so.  That ultimately was the way his Honour directed, but it was not found to be accurate by the Court of Appeal. 

Can I turn to the proposition that the Australian common law does not seem to be entirely consistent with the proposition raised here?  If one goes to ‑ ‑ ‑

GUMMOW ACJ:   Well, that would not matter, would it?  Why would that matter?

MR MARTIN:   I am sorry, your Honour?

GUMMOW ACJ:   We are in Code land.

MR MARTIN:   That is true, but it is of some assistance at least to let your Honours know that the decision in this case does not have the advantage of bringing the Code into line with the common law or anything of that sort.  To do that I would draw attention to a passage at page 112 of Markby to 113, which are the central passages of that case where it was suggested at the bottom of 112 to 113:

If however the use of the weapon, even if its existence was unknown to the other party, is rightly regarded as no more than an unexpected incident in carrying out the common design the inactive participant may be convicted of manslaughter.

That does not sit well with the idea that what has to be a probable consequence is the use of the particular weapon involved.  In McAuliffe’s Case at 118 in the top corner of the page this appears:

For these reasons, the trial judge was not in error in directing the jury that if the appellants were engaged in a joint criminal enterprise with Davis, a shared common intention . . . to inflict grievous bodily harm or an individual contemplation of the intentional infliction of grievous bodily harm as a possible incident . . . would be a sufficient intention -

That language is apt to talk about the generic offence as opposed to the particularity of the offence.

The law of Canada and New Zealand is of some assistance.  Can I take your Honours to Vang?  The legislation in Canada is derived from the…..draft and it appears at paragraph [6] at page 36 and contains elements cognate with Queensland’s law, probable consequence.  If one turns to paragraph [16] one sees a passage that strongly supports me.  It is said at paragraph [16]:

I accept the [Crown’s] submission that the appellants assisted the stabber, Nguyen, and each other, three-on-one, in a fight that went beyond a mere “fist fight”.  The specific harm that resulted may not have been foreseeable, but it is clear that, as the trial judge found, bodily harm was objectively foreseeable as a probable consequence of engaging in the fight.

In Vang, Vang claimed he was not aware of the existence of a knife.  New Zealand has a similar approach taken in a case called Tomkins, which is in the material and I will not refer to it in detail, but at page 256 towards the bottom something similar appears.

Can I go back to the local issue?  The Keenan approach, in my respectful submission, leaves a series of unanswered questions.  What degree of specificity is required?  To say by shooting or by stabbing only helps in a simple case.  What of a case where all the parties are aware that the principal offender is armed with a baseball bat but unaware that he has driven a nail through it, as some people do, thus multiplying its capacity to harm?  Death or grievous bodily harm is caused by the penetration of a nail, does the principle in Keenan extend to knowledge of the existence of a nail?  What if the accused was aware that small sticks, billy‑clubs or something of that sort, but not a large stick such as a baseball bat was to be used, to what extent does the principle in Keenan require dissection to that level of particularity?  It is not clear.

Ultimately, there will be cases where it will be necessary to discuss the mismatch, or potential mismatch, between the plan and the outcome, and that was done here by his Honour the Chief Justice at page 26 of the record.  He said at line 30:

Now, you should continually bear this in mind.  In carrying a gun and contemplating firing it, Spizzirri may have independently thought he would depart from any common plan -

and so on.  The law is capable of dealing with that issue without the approach taken by the Court of Appeal in Keenan being necessarily the law.

My friends rely upon Bosworth’s Case, which they have attached to their material.  Respectfully, if anything, Bosworth assists me, and time constraints being as they are I would draw attention to paragraphs 69 and 70 of the decision of Justice Duggan, with whom Justice White agreed.  Passages which are against me in the reasons of Justice Gray were not the majority reasons.  Shortly put, this Court in Barlow determined what the word “offence” means, in Darkan determined what the words “probable consequence” mean, and this Court is now invited in Keenan to reflect upon what “of such a nature” means.

GUMMOW ACJ:   Now, there was an appeal against sentence as well, was there not?

MR MARTIN:   Not by the Crown.

GUMMOW ACJ:   No, by your opponent.  If you are to succeed here, what then would follow?  It would have to go back, would it, for the determination of the sentence appeal?

MR MARTIN:   One of two possibilities emerges.  This Court might simply dismiss the appeal to the Court of Appeal and then it would be sent back to reflect upon the sentence, or this Court might decide to focus more narrowly on the central point in this case and order a retrial, in which case the sentence point would no longer be necessary for consideration.  Those are our submissions.

GUMMOW ACJ:   Yes, Mr Glynn.

MR GLYNN:   Thank you, your Honours.  Your Honours, my first submission is that the issue raised by the Crown here is settled already by the decision of this Court in Barlow.  The second point I make contrary to what my learned friend has made is that in fact this was really an application of Barlow to the facts of this particular case, rather than the Court of Appeal, as it were, setting forth a guideline for application to all cases involving section 8.

The Court of Appeal was concerned with the application of section 8 to the facts of the particular case, both those which were directly proved and those from which a properly drawn inference could be made.  The Court of Appeal, as I have submitted, did not establish any new principle, nor did it assert that an existing principle applied to all cases involving section 8.  Its decision finally on this issue, and its decision against the conviction, was based on a number of grounds, not only this ground, but its decision on this ground was based on the failure of the trial judge to give an appropriate direction on the facts of the case.

At paragraph [42] of the judgment, which is at page 86 of the record, the Court referred to submissions in Jeffrey and said:

It is of no assistance in interpreting s 8 in the present case -.

in other words, plainly, in the application of section 8 to the facts of the present case.  At [45] in dealing with the basis upon which the appeal was allowed on this ground, the Court said that:

The learned primary judge nowhere made clear in the jury directions that, before conviction Keenan of the offence of doing grievous bodily harm with intent by way of s 8, they would have to be satisfied that Spizzirri’s act of shooting causing Coffey grievous bodily harm was the probable consequence of the prosecution of Keenan’s common intention, formed with either or both Booth and Spizzirri, to unlawfully cause Coffey serious harm.

Clearly, again, they were referring to the proper directions to be given on the facts of the case before the jury.

The Crown has sought by way of the identification of the special leave question, and by way of the submissions that my learned friend has made here today, to suggest that the Court of Appeal rule that whenever section 8 is the basis of liability the Crown must prove the mechanism by which the charged offence was committed and it was probably a consequence of the prosecution of the unlawful offence.

GUMMOW ACJ:   Well, paragraph [60], is it not, on page 92?

MR GLYNN:   Yes, that is one of the more significant – and that, your Honour, is not, in my submission, indicating that this is a point of general application, but rather it is indicating that it is the approach to the facts of the particular case.  As with any other provision creating liability ‑ ‑ ‑

GUMMOW ACJ:   They seem to be saying”

There was no evidence of a broad plan to injure Coffey by whatever means any of the participants might find available or bring to hand ‑ ‑ ‑

MR GLYNN:   Yes.  I was going to come to that towards the end of my submissions, your Honour, but what the Court clearly there is saying, that the evidence is to be viewed and section 8 is to be interpreted and applied in the light of the facts in that particular case, or this particular case, not that they were laying down some point of general principle for application by trial judges in the future.

GUMMOW ACJ:   But these words “broad plan” are a gloss on section 8, are they not?

MR GLYNN:   Yes, it is used sometimes to describe the unlawful common purpose, or the agreement, which underlies the unlawful common purpose.

HAYNE J:   And treats it as though it has a degree of specificity and certainty which is often enough at odds with reality.

MR GLYNN:   Your Honour, and that is the point, is that sometimes it does not have that degree of specificity.  In other circumstances, that degree of specificity can be identified.  In other words, what the Court here is saying is that in their view of the facts in this particular case that degree of specificity was apparent, but it is not saying that that is always the approach that is to be adopted.  Nowhere do they indicate that, nowhere do they say anything that does not indicate that this is an application of section 8 as it is interpreted in Barlow to the facts of this case.

GUMMOW ACJ:   Now, do you say anything about the outcome, that it was not a new trial but an acquittal?

MR GLYNN:   I am sorry, your Honour?

GUMMOW ACJ:   What do you say about the outcome in the Court of Appeal?

MR GLYNN:   Your Honour, I am sorry, I had not really thought that I had to address that, because that does not seem to be the special leave point.  But my submission is that the Court of Appeal, on the interpretation of the facts as they found them, were entitled to conclude that there was not a basis upon which a jury could find the extended liability created by section 8 on the facts of this case and therefore were entitled to direct that there be an acquittal.  Now, your Honour, that is really a question of fact in the circumstances.  It is not a matter which, in my submission, could ground a grant of special leave in this case.

HAYNE J:   Does it leave your side of the record in this dilemma?  You say that in this case a very particular form of common purpose was to be identified, is that right?

MR GLYNN:   A more specific common purpose than is always available.

HAYNE J:   Sufficiently specific that you could say that shooting lay beyond it, is that right?

MR GLYNN:   That was the view, yes, your Honour. 

HAYNE J:   But that presents the dilemma that if three men went along with a purpose no more broadly defined than, “We are to do very serious injury to this man”, on that view, whether the injury is done by kicking, punching, assaulting with a club or a firearm, there is a common purpose.  Does that not follow?

MR GLYNN:   If that is the plan that is found, yes, that is true, but, of course, there are many other common purposes that fall short of that.  I mean, otherwise if that is always the common purpose that is identified, then it is identified ignoring the evidence in the particular case.  One has to have regard to the evidence in the case to decide whether or not that is, in fact, the unlawful common purpose and in this case, that is what the Court of Appeal has done.  They have identified a narrower basis for – and in fact it is referred to in the evidence that the idea was to give him a touch up.  Now, your Honour, had the touch up ‑ particularly in light of the fact that the bat, which I gather was not a full baseball bat as I read the decision – had the bat been used to cause the injury, then undoubtedly that would have changed, and the Court of Appeal says so, the outcome of this appeal.  It may have been that a new trial would have been  ordered. 

This is the difficulty that can arise in respect of section 8, is where the violence that becomes the offence of such a nature for the purpose of section 8 escalates far beyond what was in contemplation, then it surely is the case that the common purpose or the unlawful common purpose does not ground the liability of the respondent in this case.  Your Honours, that, in my submission, is what is said in Barlow.  The majority in Barlow found that the term “offence” was clearly used to identify the element of conduct of the primary offender.  I think I am probably running out of time so I will probably have to skip through this very quickly.  That is to be seen at page 9 at about point 5 of the page. Then if you go to page 10 at about point 5, the Court says this, referring to the first part of page 10:

Interpreting s 8 in this way, how does it apply to the facts of the present case?  It was not only the striking of Vosmaer but also the result of Vosmaer’s death, the absence of any justification or excuse for the striking of the blow and the intention to cause death or grievous bodily harm that made the striker of the blow guilty of the offence of murder.  But not all of those facts were needed to give to the striking of a blow the character of an act rendering the principal offender liable to punishment.  Absent the intention to cause death or grievous bodily harm, the striking of the blow without justification or excuse and the resultant death rendered the striker – 

that is the primary offender –

liable to punishment for manslaughter.

Then in particular this passage:

As the striking of that blow was an act that rendered the principal offender liable to punishment, Barlow is deemed to have done that act if the requirements of s 8 are satisfied.  Was the nature of the blow actually struck such that its infliction was a probable consequence of the prosecution of the relevant unlawful purpose?  The jury must be taken to have found that the striking of a blow which was not justified or excused and which caused death was a probable consequence of prosecuting the purpose common to Barlow and the principal offender.

Now, there the Court looks to the very specific act which grounded the liability of the primary offender and invites courts to do so.  Then at page 11 at about point 4 the Court says this which, in my submission, is where they identify the phrase “nature of the offence”, remembering the offence is the act or the conduct:

The criminal liability of the principal offender for the act done –

if I can leave out “omission” –

by him determines the “nature” of the act which the secondary party is deemed to have done . . . only in so far as the act done . . . in combination with (i) the attendant circumstances, (ii) the result of the act  . . . and (iii) the principal offender’s state of mind, was a probable consequence of prosecuting the common unlawful purpose.

It is those features which, in my submission, identify the offence of such a nature that is referred to in section 8.  In other words, it permits of a fair degree of specificity in the appropriate case depending on the evidence.  In fact, it encourages by its use of the term “striking that blow” such specificity.  The decision here, in my submission, is amply justified by what is said in Barlow. 

Your Honours, in some cases identifying the act may be of less significance.  It will vary with the facts of the case.  In this case the facts as found by the Court of Appeal make the identification of the acts, including the weapon used, of significance.  In a case where the agreement is to use “all force necessary”, which is a phrase that is used in a number of the cases, the identification of the act may be of less significance since such an agreement contemplates most forms of violence.  That, with respect, is important.  You have to look to the nature of the agreement to decide on the specificity that is significant in terms of the grounding of secondary liability.  If it is a broad purpose that encompasses the possibility of a very significant degree of violence, then the specificity of the act is of less significance than it would be where the agreement is for a narrower and less violent purpose.

KIEFEL J:   What if the agreement is to do injury by whatever means?

MR GLYNN:   If it is specific as that, your Honour, then one would think ‑ ‑ ‑

KIEFEL J:   Why does that not apply in the present case?  The means were not resolved upon, were they?

MR GLYNN:   No, they were not resolved upon, but the agreement was said to be for a touch up, in other words, contemplating a much lower level of violence than the phrase ‑ ‑ ‑

KIEFEL J:   That is something of a deliberate understatement though, is it not, that expression?

MR GLYNN:   It is not necessarily, your Honour.  It is accepted by the Court of Appeal, however, that it has to be seen in terms of fact of Keenan’s knowledge or apparent knowledge of the presence of a bat. 

GUMMOW ACJ:   And an earlier reference to cracking skulls.

MR GLYNN:   Yes, that is a factor, but of course one has to remember that that was an earlier statement and the weight that you would give to it is probably somewhat less significant than what you would give to what occurred on the morning.

GUMMOW ACJ:   No, but it is reflective of the common sense notion that these things readily get out of hand or might be expected to get out of hand.

MR GLYNN:   With respect, it is the expression of perhaps anger at the time.  It does not mean that these things will get out of hand or even that it would be contemplated that these things would get out of hand.  If one works from the premise that these things could get out of hand is contemplated, then to some degree it undermines the fact finding necessary for the application of section 8, because one does not have to really worry about ‑ ‑ ‑

GUMMOW ACJ:   No, it gives some content to the phrase “touch up”.  That is what we were talking about.

MR GLYNN:   It may, your Honour, but it does not necessarily mean that a touch up goes much beyond an assault and certainly does not contemplate the use of a firearm, which is a significant escalation of violence in anybody’s language.  Your Honours, I rely on the fact that Barlow, in my submission, has dealt with the issues that are relevant and has finally decided them and, therefore, there is no basis for finding that the special leave should be granted.  Those are my submissions.

HAYNE J:   Just before you sit down, can I take you to paragraph [62], page 92?  The court concludes in the second sentence:

On the present evidence, a charge of assault occasioning bodily harm –

as distinct from grievous bodily harm –

whilst armed with a baseball bat and in company under s 339 of the Criminal Code may have been open.

MR GLYNN:   I think they mean bodily harm, not grievous bodily harm.

HAYNE J:   Indeed.

MR GLYNN:   I am sorry.  I thought your Honour said grievous bodily harm.

HAYNE J:   Yes, we know they do.  What I want to ask you is, how is that conclusion consistent with what their Honours had earlier held?

MR GLYNN:   I am not sure that I understand what your Honour is asking me.

HAYNE J:   I am asking how a conclusion that assault occasioning bodily harm whilst armed and in company was open, presumably by application of section 8 ‑ ‑ ‑

MR GLYNN:   That is consistent with the lower level of violence to which I referred rather than with the significantly higher level of violence that is contemplated by phrases such as “using whatever means necessary” or even the approach that his Honour the presiding judge suggested.

HAYNE J:   That tips you over into the proposition that going armed with a baseball bat will not get out of hand, will not lead to grievous bodily harm.

MR GLYNN:   No, I am not saying it will not, and I do not have to.  The question is whether on the evidence in this case it was contemplated that it would.

HAYNE J:   Yes.

MR MARTIN:   Your Honour, my point about Barlow is that it is not a statute and it does not with clarity lead to the conclusion reached by the Court of Appeal.  My second point of two or three is that paragraphs [43] to [45] refer to universal principles derived from Barlow and refer to the absence of directions based on what I would submit are universal principles and, therefore, the point about the mechanism emerges inevitably from the reasoning in paragraphs [43] to [45].  This is not a case dependent upon its specific facts.  That is why we are here. 

Lastly, can I raise an example that is reverse of the case in order to test the proposition in Keenan.  What if everybody had agreed to go and shoot somebody, but unexpectedly somebody pulled out a knife and there was a stabbing?  It would follow from Keenan that since nobody expected as a probable consequence a stabbing in those circumstances, those who had decided to shoot, but the facts overtook things, would not be guilty and that, with respect, seems an extraordinary conclusion, but it follows from Keenan.  Those are my submissions.

GUMMOW ACJ:   There will be a grant of leave in this matter and it will be a one day appeal.

AT 11.38 AM THE MATTER WAS CONCLUDED