R v Wood
[1996] QCA 183
•11/06/1996
| IN THE COURT OF APPEAL | [1996] QCA 183 |
| SUPREME COURT OF QUEENSLAND | |
| Brisbane | |
| Before | Macrossan CJ Fitzgerald P Pincus JA |
[R. v. Wood, Paterson, Brien, Peterson]
C.A. No. 168 of 1995
T H E Q U E E N
v.
WILLIAM JAMES WOOD Appellant
C.A. No. 171 of 1995
T H E Q U E E N
v.
KERRY WARREN PATERSON Appellant
C.A. No. 206 of 1995
T H E Q U E E N
v.
GEOFFREY STANLEY BRIEN Appellant C.A. No. 210 of 1995
C.A. No. 227 of 1995
T H E Q U E E N
v.
BARRY ERIC PETERSEN Appellant
Macrossan CJ
Fitzgerald P
Pincus JA
Judgment delivered : 11/06/1996
Separate reasons for judgment of each member of the court, the orders as represented by the majority views outlined hereafter.
Wood
Appeal allowed (with each member of the Court concurring). Conviction of manslaughter set aside and a verdict of acquittal entered (Macrossan CJ and Pincus JA, Fitzgerald P dissenting).
Paterson
Appeal allowed, conviction for murder set aside with an order for retrial for murder
(Fitzgerald P and Pincus JA, Macrossan CJ dissenting).
Petersen
Appeal allowed, conviction for manslaughter set aside and an order made for retrial for manslaughter (Macrossan CJ and Fitzgerald P, Pincus JA dissenting).
Brien
Appeal allowed, conviction for murder set aside and an order made for retrial for murder
(Macrossan CJ and Fitzgerald P, Pincus JA dissenting).
CATCHWORDS: | Murder/manslaughter - conviction - four co-accused - two separate trials, each of two co-accused - intent- unlawful purpose - probable consequence - inconsistencies in verdicts - inconsistent conduct of the prosecutions - misdirections to jury - failure to discharge jury when appropriate - substantial miscarriage of 39 justice - conviction unsafe and unsatisfactory - whether a Weissensteiner direction appropriate - circumstantial evidence - self-defence - ss. 7 and 8 of the Criminal Code. |
| R. v. Jervis [1993] 1 Qd. R. 643 R. v. Hind and Harwood (1995) 80 A. Crim. R. 105 Hughes v. R. (1951) 84 C.L.R. 170 Brennan v. R. (1936) 55 C.L.R. 253 Stuart v. R. (1974) 134 C.L.R. 246 R. v. Tomkins (1985) 2 N.Z.L.R. 253 Mason v. R. (CCA 9 of 1995, unreported, 31 August 1995) Markby v. R. (1978) 140 C.L.R. 108 R. v. Reid (1975) 62 Cr. App. R. 109 R. v. Armstrong (1989) 53 S.A.S.R. 25 R. v. Alexanderson & Ors. (CA No. 369 of 1994, CA No. 367 of 1994, CA No. 370 of 1994, CA No. 356 of 1994) delivered on 8 March 1996 Weissensteiner (1993) 178 C.L.R. 217 | |
| ss. 2, 3(2), 7, 8, 24, 31, 89, 272, 291, 293, 300, 302(1)(a), 302(1)(b), 302(3), 303, 576 of the Criminal Code | |
| s. 66(2) of the Crimes Act 1961 (N.Z.) | |
| Counsel: | J. Jerrard QC for the appellants Paterson, Wood and Brien A. Rafter for the appellant Petersen D. Bullock for the Crown |
| Solicitors: | Legal Aid Office for the appellants Paterson, Wood and Petersen Reidy & Tonkin for the appellant Brien Director of Public Prosecutions for the Crown |
| Hearing date: | 24 July 1995 |
REASONS FOR JUDGMENT - THE CHIEF JUSTICE
Judgment delivered 11/06/1996
The facts and issues involved in these appeals appear in the reasons of the President and Pincus J.A. which I have had the advantage of reading. I shall make further references to facts and issues only to the extent necessary to explain the basis of my own conclusions.
On the Crown cases below, Wood and Paterson were involved with two other persons, Brien and Petersen, in the killing of Kummer. All four were originally charged together but for reasons of its own the Crown chose to split the trials proceeding first against Wood and Paterson. It did this although its allegation was that the two most fully involved in the killing were Brien and Petersen. At times it will be convenient in what follows to call those two persons the principal offenders, and refer to Wood and Paterson as the accessories (in usage adopted in other jurisdictions, Wood and Paterson might have been referred to as principals in the second degree. See Smith and Hogan Criminal Law {7th ed., 1992} at p.123). All appeals were argued together. The cases of the appellants from the earlier trial will be dealt with first.
WOOD AND PATERSON
Neither Wood nor Paterson gave evidence but the fact that they each made statements to police which went into evidence meant that the body of evidence admissible against each of them varied. In general terms and with appropriate emphasis the trial judge made it sufficiently clear to the jury that the case against each of the two appellants had to be determined only on evidence admissible against each.
Kummer had been killed by the use of firearms - his death resulted from wounds caused by use of a shotgun. More than one discharge of the shotgun caused the wounding. Relying on elements sufficiently common to the separate statements of Wood and Paterson, the Crown, while not alleging that either of them had fired the shotgun, was able to suggest that at different times in the relevant episode, both Brien and Petersen had done so. Also on the case that emerged in this fashion, Brien and Petersen were alleged to be acting in very close conjunction in the first part of the attack on Kummer so that if the jury were persuaded that the wounds which caused death were inflicted then, there would be a lesser relevance in the fact that the evidence also suggested that later shots to "finish off" Kummer were fired by Brien alone.
From the point of view of this Court in reviewing the evidence, there is no need to insist on any close distinction between the parts played by Brien and Petersen, the principal offenders, during the first part of the episode. If the jury were persuaded, as they would have been entitled to be on the evidence, that death was caused by the actions taken at this time, then what emerged was a clear case that both of the principal offenders, acting together, caused the death. In these circumstances, the doctrines discussed in R v. Wyles ex parte Attorney-General [1977] Qd.R. 169 have a relevant application. It should be added that on the expert evidence and taking into account the separate admissions of the two appellants there does not appear to be any reasonable basis on which it could be concluded that the death of Kummer was caused not by the first actions occurring on the night, but by Brien's later more independent actions just before the group finally left the scene of the killing.
The directions given by the judge in the trial were long and complex and the jury may at times have found their task, as it was presented to them, a difficult one. But, apart from the matters which should now receive special attention, the general nature of the path which the Crown invited the jury to take in reaching their conclusions was sufficiently outlined by the trial judge in his summing up. In considering whether the summing up contained errors or misdirections, it should be judged as a whole. The question whether there has been a mistrial or whether some miscarriage of justice has occurred will often require taking an overview.
At the trial of the two appellants, Wood and Paterson, the Crown case was that the principal offenders, Brien and Petersen, murdered, by acts which fell within the scope of the code definition in section 302(1)(a) or else by their causing death in circumstances which fell within section 302(1)(b). That is, the Crown allegation was that the principal offenders caused death with the relevant intention of killing or causing grievous bodily harm or they caused death by an act done in the prosecution of an unlawful purpose, the act being likely to endanger life. The case against the two accessories, the appellants, was wholly based on the operation of s.8 of the Code and not at all on s.7.
Under section 8 it was necessary for the Crown to show that two or more persons formed a common intention to prosecute an unlawful purpose in conjunction (the "common intention") and that in the prosecution of that purpose (the action taken under the plan) the offence alleged was committed, it being a probable consequence of the action taken (the "probable consequence" criterion).
The common intention alleged by the Crown was to assault Kummer by threats involving the display or presentation of loaded arms. The Crown said that the two appellants together and as individuals formed a plan with both of the principal offenders, Brien and Petersen. This allegation is supported by the evidence separately admissible against the two appellants including their individual statements to the police. The Crown case was that in the conduct then pursued by the four co-offenders, an offence was committed, which was the murder of Kummer, if his death was caused with the relevant intent (s.302)(1)(a)) or if it was caused by an act done in the prosecution of the unlawful purpose of assaulting Kummer using loaded firearms, the act being the discharge of one of those weapons, the shotgun, in circumstances likely to endanger Kummer's life (the s.302(1)(b) alternative). If the conclusion were not to be reached that one or other of those subparagraphs applied, then the Crown contention was that the two principal offenders caused Kummer's death in circumstances constituting manslaughter.
In the present case there was ample evidence of murder and the jury must have found that one or more of the principal offenders did in fact murder because only on that basis could they have arrived at the verdict of murder against the accessory Paterson. In fact, from the trial judge's report we are aware that the jury found Paterson guilty of murder on the basis that the principal offenders were guilty of murder on the application of the s.302(1)(b) alternative. So far as appears, the Crown put no case at the trial of the two appellants that one only of the principal offenders murdered, i.e. by killing with the relevant intent, while the other principal offender merely caused death without that intent but in circumstances which otherwise constituted murder. On the available evidence pointing to close collaborative action taken by the two principal offenders at the scene, there was no reasonable basis for making any such distinction between them. Further, the fact that, as we now know, the jury relied on subsection (1)(b) as their route to convict Paterson of murder with the implication that they used that subsection to conclude that the principals were guilty of murder rather than because of the existence of any subjective intent, makes for even less ground for distinguishing between the offences committed by the two principals.
The consequence is that in considering the case against Wood on the evidence admissible against him, the jury, having found the principals guilty of murder but the accessory Wood not guilty of that offence, must have gone on to apply the principles of R. v. Jervis [1993] 1 Qd.R. 643 or R. v. Reid (1975) 62 Cr. App.R. 109. The former case should not now be regarded as authority because it allowed manslaughter as a possible verdict against a s.8 accessory when the principal was guilty of murder. The latter case of Reid, a decision given in a common law jurisdiction, permitted the accessory's mental attitude or degree of participation to justify a lesser verdict against the accessory than a murder verdict found against the principal and thus also represents an approach which is not open under s.8 of the Code. Under that section there is a different approach to guilt requiring it to be determined by a consideration of objectively probable consequences of action that has been taken and there is as well the necessity for any guilty verdict against the accessory to correspond with that found against the principal. The jury must have followed the approach permitted by an application of the two cases mentioned because the summing up extended an invitation to them to consider it. However, it was an approach which has now been declared to be erroneous. Consistency in the application of the decisions of this Court means that the Jervis doctrine should no longer be regarded as good law in this State, however geared to general notions of justice and however conformable with the reasoning of certain common law decisions it might be thought to be. For myself, I do not find it necessary to repeat the reasons which I stated in R v. Alexanderson (CA 369/94, 8 March 1996, unreported) for accepting the majority conclusions in R v. Hind & Harwood (1995) 80 A. Crim. R. 105. I adhere to the views I expressed in R. v. Alexanderson. The verdicts available against the alleged accessory under s. 8 must depend upon a probability objectively determined and must either be the same as that found against the principal (or notionally found if the two are not tried together) or else must be not guilty.
The result in the present case so far as Wood is concerned, is that a verdict of not guilty of murder has been found and he cannot be retried on that charge for his part in the episode which resulted in the death of Kummer. The verdict of guilty of manslaughter found against Wood was not available in his trial. That manslaughter verdict should be set aside and a verdict of acquittal entered against him. I do not consider that there should be any order for a retrial in his case. He has been acquitted of murder and the Crown, having contended for and obtained from the jury a verdict in the first joint trial on the basis that the principals were guilty of murder, should not now be permitted to cause Wood to be tried again on the basis that the two principals were guilty only of manslaughter to make theoretically open the possibility of a fresh manslaughter conviction against Wood conformably with the structure of s.8.
On the basis of the matters so far discussed, the verdict of guilty of murder against Paterson should stand. There was ample evidence for the jury to conclude that the principal offenders were guilty of murder on the application of subsection (1)(b).
On the evidence admissible against Paterson with its indication of the existence of a common intention shared by Paterson with at least Brien and Petersen, it was open to the jury to find that the killing of Kummer was a probable consequence of the implementation of their plan. It may be that as the execution of an original purpose of assaulting Kummer by the presentation of loaded arms was carried forward, there was an escalation in the level of violence that had been anticipated and this affected the actions and responses of Brien, Paterson and Petersen. However, it was open to the jury to conclude that none of those three disassociated himself from what was unfolding at the changing scene in the immediate surroundings of the shed. Alternatively, taking a broader view, the jury may have simply concluded that the content of the plan of action represented by the purpose common to Paterson and the two principal offenders was illuminated by the evidence of what transpired when that plan was implemented.
A different conclusion was available to the jury concerning the purpose common to Wood and the two principal offenders, or indeed to Wood, the two principal offenders and Paterson. Having in mind what Wood claimed was his appreciation of the limited purpose of the expedition, his lack of possession of any firearm and his absence from the immediate surroundings of Kummer's shed as the level of violence intensified, the jury could quite justifiably have concluded that the killing of Kummer was not shown to be a probable consequence of the common intention to the extent that Wood shared it. There is no necessary conflict between the verdicts returned in the cases of Wood and Paterson. The jury, acting reasonably, were entitled to make a valid distinction between the factors operating in the two separate cases against Wood and Paterson although they must be taken to have responded to the trial judge's incorrect invitation by bringing in a verdict against Wood that was not open.
| Some additional more particular observations should be made in the case of Paterson where The judge, in speaking of the s.8 component, "the probable consequence", said that the | my conclusion is that the verdict should stand. probable consequence when s.8 came to be applied was to be judged by the jury objectively; at other times he appeared in that same context to turn the jury's consideration to whether Paterson (i.e. that accused subjectively) contemplated that the loaded shotgun would be used to cause Kummer's death. | |
| However, this part of the summing up, if the jury then understood the judge to be inviting them to adopt a subjective approach, occurred where he discussed the test of "probable consequence" and introduced an approach that was unduly favourable to the accused, narrowing the scope of what was probable. In encouraging the introduction of an additional unduly favourable ingredient (a subjective element) into the process of concluding positively on the issue of "probable consequence", there could only have resulted an error of which Paterson is not now entitled to complain. | ||
| In the course of instructing the jury on the applications of subs. (1)(b) of s.302, the judge said that the unlawful purpose had to be different from a purpose of shooting Kummer, a view which strictly speaking was correct enough, (see Stuart v. The Queen (1974) 134 C.L.R. 438 and ff.). However, there is reason to think that in the present context it was an unhelpful distinction and would have burdened the jury with an unnecessary academic consideration. In the course of endeavouring to draw the distinction to the attention of the jury, the judge went so far as to say that the Crown had to exclude beyond reasonable doubt the existence of an unlawful purpose entertained by the co-offenders of shooting Kummer. This, of course, was quite contrary to what the Crown was attempting to establish against the principal offenders on the first alternative advanced under subs. (1)(a). Once again, the effect of this direction would have been to introduce a consideration into the jury's thinking which had a tendency to favour and not disadvantage the accused, Paterson. Further, no objection was made to it below. | ||
| It would have to be expected that in the course of what was obviously a difficult and complex summing up, some lack of clarity might intrude, but as a matter of assessment overall, it should not be concluded that this caused any injustice or disadvantage to the two accused in the first trial and should not now be acted on as a feature impugning the verdict against Paterson. | ||
| An observation should be added concerning the terms of the quotation from R v. Reid which the trial judge gave to the jury on two occasions. On both occasions in speaking of what might happen when an armed group attend upon someone intending to use their weapons to cause fear, he said: "There is always a likelihood that in the excitement and tensions of the occasion one of them will use his weapon in some way which will cause death or serious injury". On the second occasion before reading the passage from Reid the judge said: "I will remind you of a passage that I read yesterday, a principle which you may find helpful." I do not consider that the reference in context to "principle" would have troubled the jury or induced them to think that the judge was at that point giving them a direction of law or withdrawing any factual matter from their consideration. | ||
| He sufficiently emphasised on a number of occasions that all factual matters were for them. When he went on to read to the jury that part of his quotation from Reid which is just referred to above, I consider that he was offering for their acceptance or otherwise a proposition which might be thought to carry some commonsense persuasion. The reference to "likelihood" sufficiently left for the jury's consideration what they might perceive to be a substantial risk of the happening of an event of the kind referred to. None of this, in my view, would have caused any dislocation to the jury's proper and free consideration of factual matters. However, the remainder of the quotation from Reid went on to state a proposition which, because it was contrary to the effect of s.8, should not have been given. | ||
| I turn now to the appeals on behalf of Brien and Petersen resulting from the second trial arising out of Kummer's death. | ||
| BRIEN AND PETERSEN | ||
| In the joint trial of these two accused each had been charged with murder. The jury found Brien guilty of murder and, according to the transcript, Petersen "guilty of manslaughter". In the case of Petersen, the jury are shown as having found in this fashion notwithstanding the trial judge's earlier intimation to them that they would be asked to bring in a specific verdict on the murder count before being asked for any verdict on the alternative available charge of manslaughter. In the circumstances the jury's verdict in the case of Petersen should be taken to be a verdict of not guilty of murder but guilty of manslaughter. | ||
| In the trial of these two accused, the Crown relied upon s.302(1)(a) of the definition of murder but not upon subs. (1)(b). It relied also upon s.7 as well as s.8. The Crown's reliance, clearly enough, is reflected in the overall plan which the judge followed in his summing up. That summing up was lengthy and not devoid of complications. | ||
| Petersen had made a statement to the police which, although it was open to be viewed as designed to minimise the extent of his participation in the episode, nevertheless contained significant admissions. Brien, on the other hand, denied all involvement although it is the case that in the course of doing so he made statements which, on other evidence, were false, such as that he did not know Kummer. | ||
| ||
| WOOD, PATERSON, BRIEN AND PETERSEN | ||
| In the case of Brien it can be expected that the charge in the retrial will be one of murder but Petersen has the benefit of what must be accepted as a not guilty verdict on a murder count and of that he cannot properly be deprived. There is no obstacle in the way of Petersen being charged with manslaughter. | ||
| On any retrial of Petersen, if the Crown contentions remain as they have been and the evidence remains substantially as before, then the trial judge would be obliged to inform the jury that if they are persuaded that Brien is guilty of murder, they are not asked to deliberate further in respect of Petersen, but should find him not guilty. This is because the central allegation in the Crown case has been that there were two and only two principal offenders, Brien and Petersen, acting together in a way which caused the death. If the jury were persuaded that Brien was guilty of manslaughter or they were not persuaded he was guilty of any offence, they would have to decide whether to find Petersen guilty or not guilty of manslaughter. He could be guilty either because of his own direct action or as a result of his involvement with Brien in some action carried out by him. | ||
| Once again on the basis of what has been the Crown case so far, Paterson, who was not alleged to have been a principal offender, could be guilty of murder only if murder were found to have been committed by Brien (it is not open in the case of Petersen) and the jury were satisfied of the necessary level of involvement of Paterson in that offence. Paterson could be found guilty of manslaughter resulting from a level of involvement found to have existed with Brien or Petersen in an offence of manslaughter committed by one or both of them. | ||
| Further consideration of available verdicts in the cases of Brien, Petersen and Paterson should be left for the retrials when attention will be directed to the state of the evidence then presented. | ||
| Some of the restrictions which will affect the further course of these trials result in part from the approach deliberately adopted by the Crown to date but they result also from the fundamental importance of the rules governing proof of guilt and onus of proof and the freedom under the law of accused persons not to incriminate themselves but to leave to the Crown the proof of its own case. These further important considerations have made a contribution to the results so far arrived at in these trials and no legitimate complaint can be made about them. | ||
| It should be added that, although the matter cannot at this point be precisely judged, in any retrial of Brien it may be inappropriate to give a Weissensteiner direction. The state of the parties on that trial and the evidence that will be led cannot be completely predicted. To mention only one possibility, it should not be assumed that Paterson, if called, will again refuse to give evidence. However, if the evidence led against Brien at the retrial is insufficient to lead to an inference that he was present at the scene to the exclusion of other inferences open, his silence could not fill in a gap of that kind in the prosecution case: cf. Weissensteiner v. The Queen (1993) 178 C.L.R. 217 at 228- 229. In making an order allowing these appeals, it is undesirable to add more than has already been said. | ||
| Different views have been arrived at by the members of the Court on the separate appeals. The orders which should be made will reflect what is the majority view in the case of each appellant. It should be ordered in the case of Wood, appeal allowed (all agreed), conviction of manslaughter set aside and a verdict of acquittal entered (Macrossan CJ and Pincus JA, Fitzgerald P dissenting); in the case of Paterson, appeal allowed, conviction for murder set aside with an order for retrial for murder (Fitzgerald P and Pincus JA, Macrossan CJ dissenting); in the case of Petersen, appeal allowed, conviction for manslaughter set aside and an order made for retrial for manslaughter (Macrossan CJ and Fitzgerald P, Pincus JA dissenting); and in the case of Brien, appeal allowed, conviction for murder set aside and an order made for retrial for murder (Macrossan CJ and Fitzgerald P, Pincus JA dissenting). |
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 11/06/1996
These four appeals, which were heard together, arise out of trials at which the four appellants were charged with the murder of Nicholas Michael Paul Kummer. The prosecution deliberately split the trials for tactical advantage. It proceeded first against Paterson and Wood, to enable it to call Paterson, and perhaps Wood, when Brien and Petersen were later tried. At the earlier trial, Paterson was convicted of murder and Wood was convicted of manslaughter. At the later trial before a different judge and jury, Brien was convicted of murder and Petersen was convicted of manslaughter.
The evidence at the earlier trial: Paterson and Wood
All four offenders travelled together, in a motor vehicle driven by Wood, to Kummer’s residence (a large shed on a farming property) at Lower Wonga, near Gympie, on the night of 17 December 1993. Kummer and Petersen had rented the property from the owner some time in 1992. Each of Brien, Petersen and Paterson had a loaded weapon, in Brien’s case a pump-action shotgun, while Petersen and Paterson had .22 rifles, one of which was sawn off. Brien had borrowed the shotgun and four or five cartridges that night, and when it was returned to the owner the following morning it had been fired. One of the cartridges provided to Brien had contained large pellets, while the others contained small pellets. The owner of the property on which Kummer resided found his body on the floor inside the shed against a wall on the morning after Brien had borrowed the shotgun. A loaded shotgun exhibiting small pellet damage which had not been fired recently was found near Kummer’s body, and might have been held by him when he was shot. There were also undischarged shotgun shells under the bed, on the couch and in drawers in the kitchen in the shed.
A forensic pathologist who examined Kummer’s body gave evidence that he had been killed by gunshot wounds which had caused bleeding into internal tissue. There had been two or more shotgun blasts of small pellets and one blast of large pellets. At least one of the blasts of small pellets had come from the front and another had come from the right. The entry wounds of the large pellets ran from right to left. While injuries caused by small pellets were severe, there were no major internal injuries and little or no bleeding associated with the large pellet wounds.
Evidence was given by police officers of separate interviews with Paterson and Wood.
Paterson said that Petersen was upset with Kummer because he was having a sexual relationship with a former girlfriend of Petersen by whom he had fathered a child. On the night of the murder, Brien and Petersen woke Paterson and said “Come on - we’re going to go round and fix him.” When they arrived at the property, lights went on in the shed where Kummer lived and a door opened. Brien, Petersen and Paterson all alighted from the car. Shots were fired, including two shots which Paterson fired into the window of the shed. There was a commotion, and he heard someone shout that Kummer was getting a gun. He saw Petersen shoot Kummer, and Petersen and Brien run into the shed firing shots. Later, Brien went back into the shed and fired more shots.
Wood said that the appellants went to Kummer’s residence, with guns, to collect approximately $170 which Brien claimed Kummer owed him. He said that, while travelling to the shed where Kummer lived, Brien said that he would shoot Kummer if he did not have the money and Petersen said “I probably will too.” They made plans on the way to the shed concerning who would do what; for example, who would go to the rear of the shed. Petersen told the others that Kummer had guns and warned them to be careful. When they got to the shed, the other three got out of the car and, when Kummer opened the door, Brien asked him for money. Petersen said “He’s going for a gun”, a shot was fired, and Kummer fell to the floor. He heard more shots before the others ran back to the car: three shotgun blasts and a number of shots from one or more .22 rifles. After he backed the vehicle and commenced to turn around, the others again alighted from the vehicle and Brien said that he was “going to finish the bastard off” and went back into the shed. Wood then heard two more shotgun blasts.
The evidence at the later trial: Brien and Petersen
Similar evidence was given of the finding of Kummer’s body, what was observed at the scene, and by the forensic pathologist. Evidence was also given that Brien, in company with Petersen, borrowed a shotgun on the night of 17 December 1993, ostensibly to shoot pigs or other vermin. Brien told the person from whom he borrowed the shotgun that he proposed to use it himself. Petersen was present when the shotgun was handed to Brien together with one cartridge containing large pellets and three cartridges containing small pellets. The shotgun had been fired when it was returned the next day.
Brien made no incriminating admissions to police. The remaining evidence against him may be briefly summarised.
About two weeks before Kummer’s death, a witness overheard Brien say that Kummer owed him money and that he wanted it. A week or more later, she again overheard Brien, who was with Petersen and two men whom she did not know, say: “These are my two friends from Melbourne. They have come up to get Nick. He’s fucked this time.”
Another witness heard Brien say to two unidentified men, neither of whom was Wood, that “they were going to teach Nick a lesson”.
Kummer’s girlfriend, who had previously been Petersen’s girlfriend, gave evidence of encountering Brien and Wood in a store on the afternoon of 16 December 1993. Brien, in Wood’s presence, said to Kummer’s girlfriend that Petersen was upset with Kummer. He also told her that Kummer owed him money, and that “he was going to do a run in on him and that he was going to get the last laugh”.
Another witness saw Brien and Paterson together between 8.30 p.m. and 9.00 p.m. on 17
December 1993.
Petersen was located by police at Brien’s residence on the night of 20 December 1993. When Brien was spoken to by police, he denied knowing Kummer and said that he had no knowledge of his murder.
Police located a .22 rifle at Brien’s residence under some logs on 21 December 1993. Further, on 8 February 1994, police found a sawn-off .22 rifle which Brien was known to have possessed some two to three months before Kummer’s death; the rifle was found in a waterhole near Maleny. Neither was shown to have been used on the occasion when Kummer was killed.
Petersen was interviewed by police. He admitted that he was present and fired shots from a .22 rifle “... in the air after a shot came out of the shed ...”. According to Petersen’s recorded statements - which were not admissible against Brien - it was Brien who had the shotgun, and, after Brien went into the shed, Petersen “... heard a few more shots and then we left”. It is unnecessary to refer further to the evidence against Petersen, since his grounds of appeal do not dispute that the evidence against him was sufficient to support his conviction for manslaughter, but raise other matters.
The general statutory context
By s. 293 of the Criminal Code, any person who causes the death of another person directly or indirectly, by any means whatever, is deemed to have killed that person, and, by s. 291, killing is unlawful unless authorised or justified or excused by law.[1] Section 300 of the Code provides that any person who unlawfully kills another is guilty of a “crime”, i.e., a criminal offence (sub-s. 3(2)). By s. 2, an offence is an “act or omission which renders the person doing the act or making the omission liable to punishment”. Section 300 further states that the crime committed when one person unlawfully kills another “is called murder, or manslaughter, according to the circumstances of the case”.
[1] Reference will later be made to self-defence (s. 272 of the Code) in relation to the appeals by
By s. 303, any unlawful killing under such circumstances as not to constitute murder is manslaughter. What constitutes murder is defined by s. 302. It is common ground that the presently material parts of s. 302 are sub-ss. (1)(a) and (b) and (3)2 which provide:
302. Definition of murder. (1) Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say, -
(a)
If the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm;
(b)
If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
...
is guilty of murder.
...
(3) Under subsection (1)(b) it is immaterial that the offender did not intend tohurt any person. ...”
Finally, s. 8 provides:
“8. Offences committed in prosecution of common purposes. 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
Paterson and Wood. There was no other basis on which any appellant contended that the killing of Kummer was authorised or justified or excused by law.
2 These provisions have been renumbered. Sub-section 302(1)(a) was previously sub-s. 302(1), and sub-s. 302(1)(b) was previously sub-s. 302(2).
is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”
The prosecution cases
Before proceeding further, it is desirable to attempt to summarise the bases upon which the prosecution initially placed its cases and now seeks to uphold the convictions. In Marshall (C.A. No. 125 of 1995, unreported, 21 November 1995), I pointed out the risk inherent in cases in which the prosecution seeks conviction on a number of different bases, and the need in such cases to identify the findings which are necessary to convict on each separate basis advanced. The present situation is obviously more complex because of the course adopted by the prosecution; different cases, involving a number of different bases for conviction, were presented against four individuals allegedly involved in a single murder, before two different juries at separate “joint” trials of, in each instance, two of the alleged offenders.
Paterson and Wood
There was no admissible evidence against either Paterson or Wood that he fired any shot or shots which might have killed Kummer; the basis of the prosecution case against each was that he was criminally responsible by the operation of s. 8 of the Code for a murder committed by Brien and/or Petersen.[3] At trial, the prosecutor relied on both sub-ss. 302(1)(a) and 302(1)(b) alleging that the person who unlawfully killed Kummer (by shooting him) - either Brien or Petersen - either (i) intended to kill him or cause him grievous bodily harm (sub-s. 302(1)(a)), or (ii) caused his death by means of an act[4] done in the prosecution of an unlawful purpose,5 which act was of such a nature as to be likely to endanger human life (sub-s. 302(1)(b)). In this Court, all parties accepted that, as a report from the trial judge indicates, the jury convicted on the basis of s. 8 and sub-s. 302(1)(b), not s. 302(1)(a), of the Code.6 However, it remains necessary to record how the trial judge presented the prosecution’s various cases to the jury. His Honour dealt first with the case against Paterson, and then directed the jury with respect to the case against Wood in the same terms except insofar as he included references to different evidence. It is necessary to quote only from the summing-up with respect to Paterson, and then to notice material redirections which were given.
[3] It is unnecessary in this case to consider convictions against Paterson or Wood based on his criminal responsibility under s. 8 of the Code for a possible manslaughter of Kummer by Brien and/or Petersen; e.g., on the footing of criminal negligence in the handling or use of a loaded firearm.
[4] discharging a firearm
In summing-up, his Honour said:
“Each of these two accused men is charged with murder. It is important and essential that you consider separately each case against each accused and the evidence in relation to that case. In the case against each accused the Crown relies on two different definitions of murder found in the Criminal Code. Thus in the case against each accused there are two bases on which the Crown says you will find each accused guilty of murder. The second basis is an alternative to the first, and as I proceed I shall explain each basis to you.
I shall deal first with the case against ... Paterson. The first basis relies on the following definition of murder in the Criminal Code: ‘A person who unlawfully kills another in circumstances where the offender intends to cause the death of the person killed or to do to the person killed some grievous bodily harm is guilty of murder.’ ...
... ‘Any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person’. ... it is unlawful to kill any person unless such killing is authorised, justified or excused by law. ...
Unlawful killing is also called manslaughter. The Criminal Code also provides that any person who unlawfully kills another is guilty of a crime which is called murder or manslaughter, according to the circumstances of the case. ... To determine whether it is murder, that is murder on the first basis on which the Crown relies in its case against Paterson, we go to the definition of murder ... the distinction between murder and manslaughter on this first basis ...is ... the intention to cause the death or the intention to do grievous bodily harm must be present at the time of the killing.
...
In order for you to convict Paterson of murder on this first basis you have, as a preliminary step, first to be satisfied beyond reasonable doubt that Brien or Petersen murdered Kummer. This requires the Crown to satisfy you beyond reasonable doubt of each of the following matters ...
The first matter is that on or about 17 December 1993 Kummer was killed at Lower Wonga. The second, that that killing was not authorised, justified or excused by law. The third matter, that at the time of the killing the killer had at least one of the necessary intents; that is, the intent to cause the death of Kummer or the intent to do him some grievous bodily harm. The fourth matter is that either Brien or Petersen was the killer.
...
If, at the conclusion of your consideration of the evidence against Paterson, the Crown has satisfied you beyond reasonable doubt of every one of those elements, then you have found that Brien or Petersen murdered Kummer. You may indeed have found that each of them murdered Kummer. If, however, you are satisfied beyond reasonable doubt that the Crown has proved elements one, two and four in the list I read out but are not satisfied beyond reasonable doubt that whichever of Brien and Petersen you find killed Kummer had at least one of the necessary intents in element number three, then you will have found that Petersen and Brien or Brien, I should say, have unlawfully killed Kummer. That is, one or perhaps both of them have committed the offence of manslaughter. Further, if, after you have considered all the evidence in the case against Paterson, the Crown has failed to satisfy you that either Petersen or Brien killed Kummer then that will be the end of the matter and you will find Paterson not guilty of the charge of murder and you need not go on to consider the second basis to which I shall later come.
...
Assuming that you find that either Brien or Petersen murdered Kummer or you find that either Brien or Petersen unlawfully killed Kummer, then you go on to consider the next section of the Criminal Code on which the Crown relies to prove its case on the first basis against Paterson. That section is section 8. ... in the present case against Paterson the Crown says, first, that Paterson, Brien, Petersen and Wood formed a common intention to prosecute an unlawful purpose in conjunction with one another and that that unlawful purpose was an unlawful assault of Kummer; secondly, that in the prosecution of that purpose the offence of murder was committed; thirdly, that that offence was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose which was unlawful assault.
...
... an assault is unlawful and constitutes an offence unless it is authorised, justified or excused by law. ... an assault is committed if a person presents a loaded firearm at another person or presents a loaded firearm at another where the person presenting the firearm pretends that it is loaded and does that without the consent of the person to whom he presents the firearm. ... if you are satisfied beyond reasonable doubt the accused man Paterson and at least Brien and Petersen had formed a criminal common intention to prosecute an assault of Kummer in conjunction with one another by presenting a firearm or firearms at Kummer ... such an assault was unlawful in that it was not authorised, justified or excused by law.
... it is not essential for the Crown to prove that all four of these men had formed the criminal common intention to prosecute the unlawful assault of Kummer in conjunction with one another but it must prove that this accused Paterson and at least Brien and Petersen had formed such an intention.
...
... if you are left in any doubt as to whether or not the Crown has proved a common intention by Paterson with at least Brien and Petersen to prosecute an unlawful purpose in conjunction with one another - that is, the unlawful assault upon Kummer - you will find the accused man Paterson not guilty of murder and not guilty of manslaughter.
If the Crown has proved beyond reasonable doubt that there was a common intention by Paterson with at least Brien and Petersen to prosecute an unlawful purpose in conjunction with one another, that unlawful purpose being the unlawful assault upon Kummer, then you will consider the second matter in section 8 and that is proof by the Crown that in the prosecution of this common unlawful purpose the offence of murder was committed.
...
... you of course use your common sense and if you decided that neither Brien nor Petersen had murdered Kummer, but had decided that one or other of them had unlawfully killed Kummer, thereby committing the crime of manslaughter, then you have another task, and that is you must decide whether or not the Crown has proved beyond reasonable doubt that the offence of manslaughter was committed in the prosecution of the common unlawful purpose of unlawfully assaulting Kummer.
I come then to the third matter under section 8 which has to be proved, and that is this: that that offence, that is be it murder or manslaughter, was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose, namely the unlawful assault of Kummer. Assuming that you have concluded that the Crown has proved beyond reasonable doubt that murder or manslaughter of Kummer, as the case may be, was committed in the prosecution of the unlawful purpose, namely the unlawful assault of Kummer, this third matter is concerned with whether the murder or manslaughter is the probable consequence of the prosecution of the unlawful assault on Kummer.
... did Paterson contemplate[7] that in carrying out the common unlawful purpose of unlawfully assaulting Kummer, that Brien or Petersen or one of them would probably use a loaded shotgun with the intention of causing really serious bodily harm?
[7] The test of “probable consequence” is objective, not subjective, and is related to the particular unlawful purpose intended, not such an offence in the abstract: Brennan v. R. (1936) 55 C.L.R. 253, 260-261, 264-265; Stuart v. R. (1974) 134 C.L.R. 426, 438, 442-443. This will again be referred to later.
If you have already decided that neither Brien nor Petersen murdered Kummer, but have decided that one of Brien or Petersen unlawfully killed Kummer and did so in the prosecution of the common unlawful purpose, you then ask yourselves this question, and it is like the first one but I will read it out so you will see the difference: did Paterson contemplate that in carrying out the common unlawful purpose of unlawfully assaulting Kummer that Brien or Petersen or one of them would probably use a loaded shotgun and thereby cause Kummer’s death? You have to decide whichever of these questions you have to consider. When you do that you will consider fully and in detail the following matters. First of all you look at what was the unlawful purpose, as I said, and that is the unlawful assault of Kummer. Next, you will consider what was the nature of the actual crime you have found to be committed, namely murder or manslaughter, as the case may be. You then decide whether that crime was of such a nature that its commission was a probable consequence of the prosecution of the unlawful assault of Kummer.
...
... I will read out to you a principle[8] that you may find is of assistance and it is
this: when two or more men go out together in joint possession of offensive
weapons such as revolvers and knives and the circumstances are such as to justify
an inference that the very least they intend to do with them is to use them to cause
fear in another, there is always a likelihood that in the excitement and tensions of
the occasion one of them will use his weapon in some way which will cause
death or serious injury. If such injury was not intended by the others they must
be acquitted of murder but having started out on an enterprise which envisaged
some degree of violence, albeit nothing more than causing fright, they will be
guilty of manslaughter.[8] Complaint was made of this direction by Wood, as is later discussed.
You may think, and it is a matter entirely for you, that in this case against Paterson on this first basis the prosecution of the common purpose of unlawfully assaulting Kummer envisaged some degree of violence such as to cause fear to or scare Kummer and I say that in the light of the evidence as to the taking of the firearms including the shotgun ...
... when two of more persons embark on a common unlawful design liability of one for acts done by the others or liabilities of some for acts done by one of the others depends on whether what was done was within the scope of the common design. Thus, if two men go out to rob another with the common design of using whatever force is necessary to achieve their object, even if that involves the killing of or the infliction of a grievous bodily harm on the victim, both will be guilty of murder if the victim is killed. If, however, two men attack another without any intention to cause death or grievous bodily harm and during the course of the attack one man forms an intention to kill the victim and strikes the fatal blow with that intention, he may be convicted of murder while the other participant in the plan may be convicted of manslaughter.
The reason why the principal assailant is guilty of murder and the other participant only of manslaughter in such a case is that the former had an actual intention to kill, whereas the latter never intended the death or grievous bodily harm be caused to the victim and if there had not been a departure from the common purpose the death of the victim would have rendered the two participants guilty of manslaughter. Only in some cases, ... the inactive participant in the common design may escape liability either for murder of manslaughter. If the principal assailant has gone completely beyond the scope of the common design and, for example, used a weapon and acted in a way which no party to the common design could suspect, the inactive participant is not guilty of either murder of manslaughter.
...
... when you have considered the evidence and if you concluded that on the first basis on which the Crown relies in this charge against Paterson the Crown has satisfied you beyond reasonable doubt that Brien or Petersen had murdered Kummer and if you concluded that, objectively viewed, the evidence against Paterson satisfied you beyond reasonable doubt that the murder of Kummer was a probable consequence of the prosecution of the criminal common purpose of unlawfully assaulting Kummer, you would find the accused Paterson guilty of murder.
However, if, after objectively viewing the evidence, you concluded the Crown had not satisfied you beyond reasonable doubt that the murder of Kummer was a probable consequence of the prosecution of the common purpose of unlawfully assaulting Kummer, you would find the accused not guilty of murder.
If you reach that conclusion you then ask yourselves, ‘Viewed objectively, has the Crown satisfied us beyond reasonable doubt that manslaughter of Kummer - that is, unlawful killing of Kummer - was a probable consequence of the prosecution of that common plan to unlawfully assault Kummer?’ ... you will reach this same question if, when you are dealing with the preliminary matter, you decided that neither Brien nor Petersen had murdered Kummer but decided that Brien or Petersen had unlawfully killed Kummer and you will then ask yourselves, ‘Well, viewed objectively, has the Crown satisfied us beyond reasonable doubt that manslaughter of Kummer - that is, his unlawful killing - was a probable consequence of the prosecution of the common plan to unlawfully assault Kummer?’ If you are satisfied beyond reasonable doubt the answer to this question is yes then you can find the accused Paterson not guilty of murder but guilty of manslaughter. If you are not so satisfied you will find the accused Paterson not guilty of murder and not guilty of manslaughter.
... I have now come to the second basis on which the Crown says Paterson is guilty of the murder of Kummer. This basis involves a combination of another definition of murder and section 8 of the Criminal Code. However, before I go further I must say that if you have found Paterson guilty of murder on the first basis you will not need to consider the second basis. If you found Paterson not guilty of murder on the first basis but guilty of manslaughter on the second basis you will need to consider the second basis ...
... The definition of murder relied on in this second basis is as follows, and you may wish to write it down because it is different from the other one: ‘A person who unlawfully kills another in the following circumstance is guilty of murder - if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life’. ... On this second basis you begin with an unlawful killing. The Crown case against Paterson is that either Brien or Petersen murdered Kummer and in doing so met all the requirements of the above definition. On this second basis the Crown must first satisfy you beyond reasonable doubt that Brien or Petersen did murder Kummer. In deciding whether the Crown has proved that you ignore the definition of murder relied on in the first basis. As I said, in the definition relied on in this second basis you begin with an unlawful killing of Kummer. I have already explained that unlawful killing means and I tell you now that if the Crown has failed to satisfy you from the evidence in the case against Paterson that Brien or Petersen unlawfully killed Kummer, then you will find the accused Paterson not guilty of murder and not guilty of manslaughter on this second basis.
Assuming that you are satisfied beyond reasonable doubt that Brien or Petersen did unlawfully kill Kummer, then for the Crown to satisfy you beyond reasonable doubt that Brien or Petersen did murder Kummer in accordance with the definition of murder in the second basis, the Crown has to prove each of the following further elements - ... first, that the act which caused Kummer’s death was of such a nature as to be likely to endanger human life. ... The second element is that Kummer’s death was caused by means of an act done in the prosecution of an unlawful purpose. ... Each of these two elements is to be proved beyond reasonable doubt before you can find that Brien or Petersen did murder Kummer according to this second definition of murder.
... in murder, that is the definition of murder on this second basis, there is no requirement to prove either an intent to cause death or an intent to do grievous bodily harm. Indeed, there is no requirement ... that the offender act with any particular intention. ...
...
... The Crown says the unlawful purpose in the second element was the unlawful assault of Brien and/or Petersen on Kummer and that the discharges of the shotgun which caused that death were done in the prosecution of the unlawful assault.
...
If you are satisfied beyond reasonable doubt that that purpose was unlawfully to assault Kummer by presenting firearms at him then you have an unlawful purpose independent of the discharge of the shotgun. ... However, if after you have considered all the evidence against Paterson, you are not satisfied beyond reasonable doubt that the purpose being prosecuted that night was an unlawful assault of Kummer then you would find that this element has not been proved and you would find that neither Brien nor Petersen murdered Kummer in accordance with the definition of murder relied on in the second basis.
... first discharge because Brien thought, in effect, that Kummer should be put out of his misery.
... you may well decide ... that there were two unlawful purposes being
prosecuted that night. One was the unlawful assault of Kummer by presenting
firearms at him simply to scare him. The second was an unlawful purpose being
prosecuted by Brien and Petersen only and that was actually to shoot Kummer
and do him serious bodily harm. It seems to me that there is a third interpretation
open on the evidence but that is a matter for you. It seems to be this: that the
unlawful purpose being prosecuted was that of unlawful assault by presenting
firearms at Kummer simply to scare him and that the first discharges of the
shotgun occurred in the heat or excitement of the moment and not in the
prosecution of an unlawful purpose of actually shooting Kummer. The second
discharges of the shotgun - that is, the two discharges by Brien - were, on... the Crown must exclude beyond reasonable doubt the unlawful purpose of shooting Kummer as the purpose being prosecuted when Kummer was struck by the discharges of the shotgun. I should correct that - by any of the discharges of the shotgun. If the Crown cannot do this you will find that this element is not proven and that neither Brien nor Petersen have murdered Kummer within this second definition of murder. If you are satisfied beyond reasonable doubt that Brien or Petersen did unlawfully kill Kummer, and are satisfied beyond reasonable doubt that the two elements of murder on the second basis are proven, then you will conclude that Brien or Petersen did murder Kummer.
However, if you concluded the Crown have satisfied you only that Brien and Petersen did unlawfully kill Kummer and had failed to satisfy you of either of the elements on the second basis of murder you will conclude that Brien or Petersen did unlawfully kill Kummer; that is, they committed the crime of manslaughter. The unlawful purpose mentioned in the second definition of murder does not necessarily have to be the same as the unlawful purpose mentioned in section 8.
...
..., whatever your conclusion in respect of this second definition of murder be it murder or manslaughter committed by Brien or Petersen you then go on to consider section 8 in relation to this second definition of murder.
...
... I will remind you of what the components and requirements of ... section [8] were, and this applies to the second definition of murder as well. First, there has to be a common intention by Paterson with Brien, Petersen and Wood to prosecute an unlawful purpose in conjunction with one another, that unlawful purpose being an unlawful assault upon Kummer. The second ingredient was that in the prosecution of the common unlawful purpose, namely the unlawful assault upon Kummer, the offence of murder was committed. The third was that the offence committed was a probable consequence of the prosecution of the common unlawful purpose, namely the unlawful assault upon Kummer.
... If the Crown has proved beyond reasonable doubt that Paterson with at least Brien and Petersen had a common intention to prosecute this unlawful purpose in conjunction with one another, namely the unlawful assault upon Kummer, you then go on to consider the second element, which is that in the prosecution of the common unlawful purpose, that is the unlawful assault upon Kummer, the offence of murder was committed.
I reminded you that in considering this second matter you take account of what you found on the preliminary matter concerning proof that Brien or Petersen had murdered Kummer, and this applies to the second basis on which the Crown says the murder occurred. If you have decided that one or other of Brien or Petersen murdered Kummer, you must then decide whether or not the Crown has proved beyond reasonable doubt that that offence of murder was committed in the prosecution of the common unlawful purpose, namely the unlawful assault on Kummer. If you decide that neither Brien nor Petersen murdered Kummer but have decided that one or other of them unlawfully killed Kummer and thereby committed the offence of manslaughter, then you have to decide whether or not the Crown has proved beyond reasonable doubt that that offence of manslaughter was committed in the prosecution of the common unlawful purpose of unlawfully assaulting Kummer.
... the third matter which had to be proved ... was that the offence committed was a probable consequence of the prosecution of the common unlawful purpose, namely the unlawful assault on Kummer. ...
... if you have already decided that one of Brien or Petersen murdered Kummer and did so in the prosecution of the common unlawful purpose of unlawfully assaulting Kummer, you ask yourselves the question: did Paterson contemplate in carrying out the unlawful common purpose of unlawfully assaulting Kummer that Brien or Petersen or one of them would probably use a loaded shotgun with the intention of causing really serious bodily harm?
I went on to say that if you had already decided that Brien or Petersen had unlawfully killed Kummer and done so in the prosecution of the common unlawful plan to unlawfully assault Kummer, then you ask yourselves a slightly different question; namely, did Paterson contemplate that in carrying out the common unlawful purpose of unlawfully assaulting Kummer that Brien, Petersen or one of them would probably use a loaded shotgun and thereby cause Kummer’s death. I told you the matters you had to consider when you decide which of these two questions you have to answer.rem
...
What I will say is this: that if you concluded that on this second basis the Crown satisfied you beyond reasonable doubt that Brien or Petersen had murdered Kummer and if you concluded that, objectively viewed, the evidence against Paterson satisfied you beyond reasonable doubt that the murder of Kummer was a probable consequence of the prosecution of the criminal common purpose - that is, the unlawful assault of Kummer - you will find Paterson guilty of murder, but if, after objectively viewing the evidence, you concluded the Crown had not satisfied you beyond reasonable doubt that the murder of Kummer was a probable consequence of the prosecution of the common purpose of unlawfully assaulting Kummer you would find the accused not guilty of murder and if you reached that result you then ask yourselves, ‘Viewed objectively, has the Crown satisfied us beyond reasonable doubt that the manslaughter of Kummer - that is, the unlawful killing of Kummer - was a probable consequence of the prosecution of that common plan to unlawfully assault Kummer?’
I remind you that you would reach the same question if, when dealing with the preliminary matters, you decided that neither Brien nor Petersen had murdered Kummer but had decided that Brien or Petersen had unlawfully killed Kummer. I said then and I say again that you then ask yourselves this question: ‘Viewed objectively, has the Crown satisfied us beyond reasonable doubt that the manslaughter of Kummer - that is, the unlawful killing of Kummer - was a probable consequence of the prosecution of the common plan to unlawfully assault Kummer?’ If you are satisfied beyond reasonable doubt the answer to this question is yes you will find the accused Paterson not guilty of murder but guilty of manslaughter. If you are not so satisfied, you will find the accused Paterson not guilty of murder and not guilty of manslaughter.
...”
Redirections, so far as presently material, were in the following terms:
“The next matter - and this relates to Paterson’s case - when I addressed you about the first of the matters in section 8; namely, that there was a common intention to prosecute an unlawful purpose in conjunction with one another. ...
... when you are considering this first element - and I am only speaking about the first element - you look subjectively at the evidence relied on by the Crown in the case against Paterson as constituting the common intention unlawfully to assault Kummer. By ‘subjectively’ I mean you look at it through the eyes of Paterson and decide whether or not the Crown has proved beyond reasonable doubt that Paterson and at least Brien and Petersen did form a common intention to prosecute in conjunction with one another an unlawful purpose; namely, an unlawful assault on Kummer.
... The next matter - and this relates to the case against each of Paterson and
Wood based on the second definition of murder.You will recall I told you that the second element was that Kummer’s death was caused by means of an act done in the prosecution of an unlawful purpose. The unlawful purpose there referred to was, the Crown says, the unlawful assault of Kummer by presenting firearms at him.
The final matter relates to the case against Wood and again I am discussing this second element in this case based on the second definition of murder; that being proof that Kummer’s death was caused by means of an act done in the prosecution of an unlawful purpose.
... The Crown says that the unlawful purpose in the second element - and this is the case against Wood - was the unlawful assault by Brien and/or Petersen on Kummer and that the discharges of the shotgun which caused Kummer’s death were done in the prosecution of the unlawful assault.
The Crown in its case against Wood is limited to the evidence in the case against Wood and in that case you have got statements made by Wood to the police in Exhibit 29. In those statements you will read that Wood believed was the purpose being prosecuted on that night.
If you are satisfied beyond reasonable doubt that that purpose was unlawfully to assault Kummer by presenting firearms at him, then you have an unlawful purpose independent of the discharge of the shotgun. However, if, after you have considered all the evidence against Wood, you are not satisfied beyond reasonable doubt that the purpose being prosecuted that night was an unlawful assault of Kummer, then you would find that element had not been proved and you would find that neither Brien nor Petersen murdered Kummer; that is, murdered Kummer in accordance with the definition of murder on the second basis, and the reasons why I say that are these: the discharges of the shotgun which the Crown say are the acts of such a nature as to be likely to endanger human life may have been done in the prosecution of the unlawful purpose of shooting Kummer intending to do him some serious bodily harm. If they were, the unlawful purpose was not independent of the discharge of the shotgun.
That was actually to shoot Kummer and do him serious bodily harm. It seems to me that in Wood’s case if the third interpretation open on the evidence - and that seemed to me to be this, that the unlawful purpose being prosecuted was that of unlawful assault by presenting firearms at Kummer simply to frighten him and that the discharges or the first discharge of the shotgun occurred in the heat of the moment and not in the prosecution of the unlawful purpose of actually shooting Kummer. The second discharges of the shotgun, that is in the case against Wood, appear to have been made by Brien and on the evidence of Wood you may think were deliberate and followed on from the first discharge some time later. It is a matter for you, but you may think that Brien thought in effect that Kummer should be put out of his misery.
... I stress when you are considering this second element the Crown must exclude beyond reasonable doubt the unlawful purpose of shooting Kummer; that is, the unlawful purpose prosecuted by Brien and Petersen of shooting Kummer as the purpose being prosecuted when Kummer was struck by the first of the discharges of the shotgun and, indeed, by the second discharges of the shotgun. If the Crown cannot do this you will find that this element has not been proved and that neither Brien nor Petersen murdered Kummer within the second definition of murder. I went on to say that if you are satisfied beyond reasonable doubt that Brien or Petersen did unlawfully kill Kummer and are satisfied beyond reasonable doubt that the two elements of murder on this second basis are proven, then you will conclude that Brien or Petersen did murder Kummer and that if you concluded that the Crown had satisfied you only that Brien or Petersen did unlawfully kill Kummer and have failed to satisfy you of either of the elements on the second basis you will conclude that Brien or Petersen did unlawfully kill Kummer; that is, they committed the crime of manslaughter. ...”
During the course of their deliberations, the jury sent a note to the trial judge asking him
to “Explain and re-state the law/definition of assault, manslaughter basis one and manslaughter
basis two”. After explaining the legal concepts of assault and manslaughter, his Honour said:
“In your note you have said about manslaughter basis one and manslaughter basis two. I assume by basis one you are referring to the first definition of murder; is that so? Who’s the foreman?
FOREMAN: I am, Your Honour.
HIS HONOUR: Is that so?
FOREMAN: Yes, Your Honour. murder?
FOREMAN: That’s right, Your Honour.”
On analysis of those passages, his Honour first discussed s. 8 in combination only with sub-s. 302(1)(a) - disregarding sub-s. 302(1)(b) - and initially identified only two possible bases for Paterson’s conviction. Necessary to both bases were conclusions that:
(i) Paterson and Brien (or possibly Petersen, depending on who fired the shot or shots which killed Kummer) both intended to assault Kummer, in conjunction with one another, by presenting loaded firearms at him; and
(ii) Kummer was fatally shot by Brien (or Petersen) in the prosecution of that unlawful purpose.
If those requirements were satisfied, Paterson was:
| (a) | guilty of murder if Brien (or Petersen) murdered Kummer by shooting him intending to cause his death or grievous bodily harm and Paterson contemplated that an intentional killing was the probable consequence of the prosecution of the unlawful purpose of assaulting him; or |
| (b) | guilty of manslaughter if Brien (or Petersen) unlawfully killed him by unintentionally shooting him and Paterson contemplated that an unintentional killing was the probable consequence of the prosecution of the unlawful purpose of assaulting him. |
It is obvious that the two alternatives thus far referred to, with their conjunctive requirements, were not exhaustive, and his Honour then moved on to a third possibility arising from the combination of s. 8 and sub-s. 302(1)(a), again disregarding sub-s. 302(1)(b). The jury was told that if Brien (or Petersen) was guilty of murder under sub-s. 302(1)(a), but Paterson contemplated that unintentional unlawful killing, not the intentional unlawful killing which occurred, was a probable consequence of the prosecution of the unlawful purpose of assaulting Kummer, Paterson was guilty of manslaughter, not murder.
The effect of what had been stated was then repeated in summary form. If other requirements were satisfied, Paterson was guilty of murder if Kummer was murdered by Brien (or Petersen) shooting him with an intention to cause death or grievous bodily harm and Paterson contemplated that murder was a probable consequence of the prosecution of the unlawful purpose of assault on Kummer; however, if other requirements were satisfied, Paterson was guilty only of manslaughter, not murder, if he contemplated that unintentional unlawful killing was a probable consequence of the prosecution of that unlawful purpose irrespective of whether Brien (or Petersen) unlawfully killed Kummer intentionally or unintentionally.
The trial judge then proceeded to discuss the “second basis” relied on by the prosecution, i.e., the combination of s. 8 and sub-s. 302(1)(b), and said: “... if you have found Paterson guilty of murder on the first basis you will not need to consider the second basis. If you found Paterson not guilty of murder on the first basis but guilty of manslaughter on the first basis you will need to consider the second basis”.
After identifying the elements of sub-s. 302(1)(b), and pointing out that there was no requirement of an intent to cause death or grievous bodily harm, his Honour turned to the “unlawful purpose” spoken of in sub-s. 302(1)(b). Although I have not fully recorded the passages in the summing-up in which the matter was dealt with, his Honour gave the jury directions that, to prove Brien (or Petersen) murdered Kummer under sub-s. 302(1)(b), “the Crown must exclude beyond reasonable doubt the unlawful purpose of shooting Kummer as the purpose being prosecuted when Kummer was struck by ... any of the discharges of the shotgun. If the Crown cannot prove this you will find that this element is not proven and that neither Brien nor Petersen have murdered Kummer within this second definition of murder.”[9]
[9] This appears to be based on Hughes v. R. (1951) 84 C.L.R. 170, and Stuart at pp. 438-439. The point is again referred to later.
Although I have found some difficulty in the immediately following discussion, it must, I think, be taken to relate to a situation in which the prosecution:
| (a) | proved that Brien (or Petersen) unlawfully killed Kummer by shooting him - an “act ... of such a nature as to be likely to endanger human life” in the “prosecution of an unlawful purpose”; and | |||
| (b) | failed to prove beyond reasonable doubt that the unlawful purpose: | |||
[10] Brien (or Petersen) would have been guilty of murder under sub-s. 302(1)(a) if he had intended to kill or cause bodily harm. |
In those circumstances, the jury was told Brien (or Petersen) was guilty of manslaughter.[11] On the other hand, if, as the prosecution alleged, the unlawful purpose which Brien (or Petersen) was prosecuting when he killed Kummer by shooting him,[12] an “act ... of such a nature as to be likely to endanger life”, was an unlawful assault on Kummer by presenting loaded firearms at him, Brien (or Petersen) was guilty of murder under sub-s. 302(1)(b).
[11] Code, s. 303
[12] For this purpose, it was immaterial whether the shooting was intentional or unintentional.
These alternatives with respect to Brien’s (or Petersen’s) guilt under sub-s. 302(1)(b), manslaughter or murder, were then related to Paterson’s criminal responsibility under s. 8. The jury was directed that the unlawful purposes under sub-s. 302(1)(b) and s. 8 did not “necessarily have to be the same ...”, and the unlawful purpose to be considered in relation to s. 8 was that asserted by the prosecution - unlawful assault of Kummer by presenting loaded firearms at him. Whether the unlawful purpose of Brien (or Petersen) when Kummer was killed was to shoot him or to assault him by presenting loaded firearms at him, the prosecution case was that the common intention of Paterson and Brien (or Petersen) was to prosecute the unlawful purpose of assault, and it was by reference to the unlawful purpose of assault that “probable consequence” fell to be considered.
The subsequent directions given to the jury in relation to the “second basis”, founded on s. 8 and sub-s. 302(1)(b), substantially set out to “remind [the jury] of what the components and requirements of ... section [8] were”, by reminding them of what had been said concerning s. 8 when discussing the first basis, grounded on s. 8 and sub-s. 302(1)(a). For example, his Honour told the jury “... ask yourself the question: did Paterson contemplate[13] in carrying out the unlawful common purpose of unlawfully assaulting Kummer that Brien or Petersen or some of them would probably use a loaded shotgun with the intention of causing really serious bodily harm?”[14]
[13] This again erroneously introduces a subjective consideration into “probable consequence”.
[14] This question also involves a return to an issue which had been raised in relation to the “first basis”, based on s. 8 and sub-s. 302(1)(a), namely, whether unintentional or intentional unlawful killing was a “probable consequence” of the prosecution of the unlawful purpose.
For the most part, however, the remainder of the “second basis” discussion referred to “murder”, “manslaughter” and “unlawful killing”, without further elucidation of the distinguishing factors which were material in that context. If other requirements were satisfied, Paterson was guilty of murder if Brien (or Petersen) murdered Kummer and murder was a probable consequence of the prosecution of an unlawful purpose of assault on Kummer, but guilty only of manslaughter if Brien (or Petersen) either murdered or otherwise unlawfully killed Kummer and only unlawful killing, not murder, was a probable consequence of the prosecution of unlawful assault on Kummer.
It was implicit in those directions that, at least in the present circumstances, the offences of murder and manslaughter were of the same “nature” for the purpose of s. 8, and, indeed, the same “offence” within the meaning of that word where last used in that section.[15]
[15] This is discussed in detail later.
The directions given by the trial judge with respect to Wood were indistinguishable from those given in respect of Paterson, except for references to different evidence; Wood drove the vehicle and did not have a gun, while Paterson had a gun and fired it, although there was no suggestion that he fired it at Kummer or that Kummer was struck by a projectile from Paterson’s gun. The different evidence cannot explain the different verdicts which the jury returned against Paterson and Wood.
Nor can those different verdicts against Paterson and Wood be reconciled on the basis that Paterson and Brien (or Petersen) intended to prosecute a different unlawful purpose in conjunction - intentional killing - from the unlawful purpose intended by Wood and Brien (or Petersen) - unlawful assault. It is true that the trial judge told the jury that, in order to ascertain “the common intention” of Paterson and Brien (or Petersen), it was necessary to ascertain Paterson’s state of mind, and similarly in the case of Wood it was necessary to decide “what Wood believed was the purpose being prosecuted on that night”. Perhaps in an appropriate case, directions based on s. 24 of the Code might be called for, despite the reference to “common intention” in s. 8; for example, if persons intending to kill misled an accomplice into believing that only an assault was intended. However, it is unnecessary to consider that question in this case. The sole unlawful purpose asserted by the prosecution against each of Paterson and Wood as commonly intended by each of them and Brien (or Petersen) was an assault on Kummer.
So far as I can discern, the only possible explanation for the different verdicts against Paterson and Wood lies in the erroneous directions given to the jury to ascertain the “probable consequence” of the prosecution of the unlawful purpose of the assault on Kummer subjectively; the jury must have concluded that Paterson “contemplated” that Kummer would probably be intentionally killed while Wood “contemplated” that he would probably be unintentionally killed.
Brien and Petersen
A different approach was adopted by the prosecution at the later trial. The prosecution did not rely on sub-s. 302(1)(b), but only on sub-s. 302(1)(a).[16] On the other hand, it relied on s. 7, as well as s. 8, to make whichever of Petersen or Brien did not fire the fatal shot or shots which killed Kummer criminally responsible for his murder. In summary, the prosecution alleged at trial against each of Petersen and Brien that either (i) he fired the fatal shot or shots intending to kill or cause grievous bodily harm to Kummer, or (ii) his co-accused fired the fatal shot or shots with that intent and the two:
[16] The prosecution did not present an alternative case based on the premise that the person who fired the fatal shot might have been guilty of manslaughter; e.g., on the footing of criminal negligence.
| (a) | acted in concert (s. 7); or |
| (b) | had a common intention to prosecute an unlawful purpose[17] in conjunction with one another, and, in the prosecution of such purpose, the person who fired the shot or shots which killed Kummer committed an offence of such a nature that its commission was a probable consequence of the prosecution of such purpose (s. 8). |
[17] The unlawful purpose alleged by the prosecution in relation to Brien and Petersen is referred to below.
The different verdicts against Brien and Petersen indicate that the jury concluded that Brien fired the fatal shot or shots intending to kill Kummer or cause him grievous bodily harm; Brien could not have been convicted of murder under either s. 7 or s. 8[18] of the Code (in conjunction with sub-s. 302(1)(a)) since the only other person who might have fired the fatal shot or shots, Petersen, was not guilty of murder. Petersen’s conviction for manslaughter in turn depended on Brien’s conviction of murder under sub-s. 302(1)(a) of the Code, with Petersen’s criminal responsibility dependent on s. 8. The prosecution did not seek to rely on s. 7 against Petersen in this Court, implicitly accepting that s. 7[19] would have required Petersen to be convicted of the same offence as Brien, i.e., murder. On appeal, the foundation of the prosecution argument in support of Petersen’s conviction was a submission, based on its view of s. 8, that the trial judge correctly “... directed the jury that, if they thought that an unlawful killing without intent was a likely consequence then the verdict was manslaughter”. In explaining the prosecution case based on s. 8 and sub-s. 302(1) (a) to the jury, the trial judge stated that it was alleged that Petersen and Brien “... put their heads together and decided that they would go out and put the wind up the deceased ... frighten him and maybe shoot off some of the guns”. The question which his Honour posed for the jury in this context was “... in the prosecution of that purpose was the offence of intentional killing of such a nature that its commission was a probable consequence?” By way of elaboration, his Honour said:
[18] No party sought to argue that s. 8 could produce that consequence, at least in the circumstances of this case.
[19] In another context, to which reference is later made, the prosecution impliedly suggested that this might be an open question.
“... let us assume that at the end of the day you are persuaded on the evidence which is available to you - and I will take you to it - let us assume that you are persuaded that they both decided probably at some stage the night before or after the shotgun and shells were obtained from Mr Dawson, that they would go out and frighten Kummer, well then, the next part of the rule comes in. The prosecution of the unlawful purpose that they had agreed to was together to go out with the other two and put the wind up Mr Kummer with all this weaponry and so on. Then you have got to ask ... in the prosecution of that purpose was the offence of intentional killing of such a nature that its commission was a probable consequence? Let us assume that the plan was that they would go out and one of them would take this shotgun in and start shooting away and then they got there, for one reason or another, and the gun started to be discharged inside or outside or around about, shotguns and .22 rifles and so on, you would ask yourselves, well, was it a probable consequence, was it a likely consequence that somebody doing that would so lose control of himself, particularly the one with the shotgun, that he would point it at the man’s chest and pull the trigger? Is it a probable consequence? Was it a likely consequence?
First of all when you are applying this rule, you would have to have a common intention between the two of them to go out and put fear into this man for section 8 to apply. ... if there is no intention to actually kill, but there is an intention to do things with the shotgun and the rifles and so on or there is an understanding, there is intention to cause fear or terror by discharging these things, then you have got to say, well, was it a probable consequence that one of them, the man with the shotgun, would decide to kill in the heat of the moment and so on? ... As it has been said, in this particular case did the accused, whichever of them this might apply to, did the accused contemplate that in carrying out this unlawful purpose of causing fear with the shotgun, that the person with the shotgun might indeed use it intending to cause serious harm? If it was a likelihood that that would happen in this plan to cause terror or fear, well, if it was a probable consequence, then he must be treated as having agreed tacitly that that was all right. He was quite happy to assist or to be a party to that plan, that common intention.
... You have to start off with the two of them for this to apply, the two of them to commonly intend to go out with the guns and discharge them if necessary in or near the deceased to cause him fear. In the course of that causing fear was an offence committed? That is, was the offence of murder committed? That is the person trying to cause fear, did he become so carried away, instead of just missing the deceased, he intentionally hit him and killed him? Was the whole event in which the killing occurred, the prosecution of a common purpose? That is the intention to kill or to do serious injury. Did that develop in the course of causing fear? That is the question in this case. It must be a probable consequence or a likely consequence. It must have been likely, objectively. You must say, well, it would be a likely thing if somebody was to go in there at that hour of the night and start discharging shotguns in such a way as to put fear into this man, that he might be motivated to try and hit him, to try and do him injury or to try and kill him. You just look at all the facts that have been proved ... and you decide yourselves if it is necessary, whether in the circumstances you can deduce that there was a common - at least a common intention that somebody would go and shoot off their shotgun near the deceased to frighten him and that it was likely that if he did that anything could happen, that he might kill him. ... [if] there was a common purpose, well then, if one of them - and you are not sure which one of them got carried away a bit - instead of just discharging a firearm near this person, he was motivated to shoot him, for whatever reason, then if you are satisfied that that was a likely consequence of implementing this plan, well then, each of them would be guilty of the offence of murder.
It has been said that it is legitimate to have regard to the fact that an accused person has given no evidence or explanation or satisfactory explanation of the Crown case as a consideration making the inference of guilt from the evidence for the prosecution less unsafe than it might otherwise appear.
Obviously, as I keep saying, there are two trials here. In the trial of Brien he has not given evidence and he has not offered any statement to the police at all. There is no explanation coming from him either out of Court or in Court. In the case of Mr Petersen, there is a long explanation offered out of Court and it is before you in his case. The rule that I have just given you does not apply. You must look carefully at the whole of the evidence and - at the whole of the evidence including his explanation. You have got to determine whether you are satisfied beyond reasonable doubt of his guilt. ...”
I find what was said in those passages confusing, and likely to have conveyed to the jury that it could rely on Brien’s silence as indicative of his guilt. In my opinion, there was nothing in the circumstances of the case against Brien which justified use of his silence to found or support an adverse inference, and the directions were impermissible, according to the decisions of this Court which have discussed Weissensteiner v. R. (1993) 178 C.L.R. 217, which the High Court itself considered in G. v. H. (1994) 181 C.L.R. 387. See R. v. Demeter (C.A. 254 of 1994, unreported, 9 February 1995) and Powell v. Smith and Blacker (C.A. 251 and 264 of 1995, unreported, 14 November 1995), and the other cases there referred to in which Weissensteiner has been discussed.
Having regard to the limited nature of the prosecution case against Brien, it is impossible to be satisfied that there has been no substantial miscarriage of justice, and his appeal must be allowed, his conviction quashed and a new trial ordered.
That conclusion necessarily leads to the same outcome for Petersen, since the jury which convicted him under s. 8 of the Code plainly did on the basis of its conclusion - which it is now held must be quashed - that Brien murdered Kummer contrary to sub-s. 302(1)(a).
As Peterson has been acquitted of murder, he cannot be tried again in respect of the murder charge. However, Peterson could be convicted of manslaughter under certain circumstances; i.e., be convicted of manslaughter if Brien and/or Paterson and/or Wood were convicted of manslaughter and neither Brien nor Paterson was convicted of murder. If either Brien and/or Paterson was convicted of murder, then Peterson should be acquitted in accordance with the provisions of s. 8 of the Code.
Conclusion
Even if there is little reason to doubt the appellants’ guilt, the prosecutor’s “tactical” decision to pursue separate “joint” trials and present different cases at each, combined with reliance on Jervis and, it must be said, other errors in the directions given the juries, have resulted in verdicts which cannot be accepted as safe in the administration of justice. All four appeals should be allowed, the convictions quashed and new trials ordered. Obviously, Wood and Petersen can now only be charged with manslaughter, not murder, and can only be convicted of manslaughter in the circumstances earlier described.
ADDENDUM: 1994), which was delivered on 8 March 1996. The principles expounded in Alexanderson in relation to s. 8 of the Code accord with the decision of this Court in Hind & Harwood and accords with the approach I have taken in the present matter.
This judgment was prepared in draft prior to the decision of this Court in R. v. Alexanderson &
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 11/06/1996
The issues which arise in these appeals are explained at length by the President whose reasons, as well as those of the Chief Justice, I have had the advantage of reading.
The trial of Paterson and Wood took place in March 1995 and that of Brien and Petersen concluded on 17 May 1995. Each of the trials came to an end before judgment was given in Hind and Harwood (1995) A.Crim.R. 105, on 30 May 1995. There this Court, not following Jervis (1993) 1 Qd.R. 643, held that in a homicide case in which the Crown relies on s. 8 of the Code to deem a person charged to have committed an offence, the offence which is deemed to have been committed, by force of the section, is either murder or manslaughter, not unlawful killing. The result is that if A and B participate in criminal activity together, in the course of which B kills someone, then the only possible operation of s. 8 on A is to make him guilty of murder if B is guilty of murder, and guilty of manslaughter if B is guilty of manslaughter. Under Jervis it was possible to invite a jury to use a process of reasoning, which I confess to difficulty in following, to make A guilty of manslaughter only, under s. 8, even if B committed murder. The law as laid down in Hind and Harwood has been reaffirmed in Alexanderson et al (C.A. No. 369 of 1994, 8 March 1996).
As has been pointed out in the President’s reasons, there were two trials each of which resulted in one conviction for murder and one of manslaughter. In each trial the Crown relied upon s. 8 of the Code under which, in accordance with Hind and Harwood and also Alexanderson et al (above) the jury should have been told that the law is as set out above. In the second trial, that of Brien and Petersen, the Crown relied on s. 7 as well as s. 8, but on appeal sought to uphold the verdict of manslaughter against Petersen under s. 8 only. However, it was argued on behalf of the Crown before us that we should abandon the interpretation of s. 8 adopted in Hind and Harwood and revert to that set out in Jervis. I do not accept that contention, but find it necessary to discuss the doctrines underlining these authorities to some extent, for the purpose of determining whether any of the appellants has lost a chance either of acquittal or of conviction of a lesser offence by reason of the trial judge having followed Jervis.
It is necessary to consider each trial separately.
Wood and Paterson
There is a report from the trial judge to the effect that the jury found Paterson "guilty on the second basis"; references to transcript were supplied from which it is clear that the jury must have meant that Paterson was convicted by use of s. 302(1)(b) of the Criminal Code, not (a). The report about Wood does not make any similar suggestion, but in his remarks on sentence the judge helpfully explained that he interpreted the verdict as an application of a principle adopted by the High Court in Markby (1978) 140 C.L.R. 108 at 113. This additional information about the bases of the verdicts narrows to some extent the issues requiring examination. As to Paterson, the question is whether he was properly and fairly convicted of murder on the basis of s. 302(1)(b). As to Wood, the basis of the verdict is unknown, but we should proceed, I think, on the assumption (so far as it is favourable to Wood) that he may well have been convicted by use of the principle the primary judge mentioned - that adopted in Markby.
It is convenient to begin with Paterson. On a number of occasions the judge gave the jury instructions about s. 8 which are quite consistent with Hind and Harwood; for example, at pp. 243, 244, 258, 259, 263, 275 and 276. It is enough to set out one of the passages, in part:
". . . if you concluded that on the first basis on which the Crown relies in this charge against Paterson the Crown has satisfied you beyond reasonable doubt that Brien or Petersen had murdered Kummer and if you concluded that, objectively viewed, the evidence against Paterson satisfied you beyond reasonable doubt that the murder of Kummer was a probable consequence of the prosecution of the criminal common purpose of unlawfully assaulting Kummer, you would find the accused Paterson guilty of murder."
The reference to the "first basis" was to s. 302(1)(a) of the Code. It will be noted that in this passage the judge accepts that if the principal offender was guilty of murder and that was a probable consequence of the prosecution of the common purpose, then Paterson is guilty of murder; that direction accords with Hind and Harwood, but not with Jervis. There, McPherson A.C.J., as his Honour then was, decided the case on the basis that the offence which was a probable consequence of the common intention was unlawful killing: see especially the discussion from 653 l. 35, leading to the conclusion at p. 656 l. 12. Shepherdson J, citing the optimistic remark of Gibbs J. about s. 8, that its words are "perfectly clear as they stand" also accepted that s. 8 could make an accomplice guilty of manslaughter, although the principal offender was guilty of murder. In the passage I have quoted from the directions in the present case (given by Shepherdson J.) the matter is placed before the jury on the basis that if the principal offender is guilty of murder and murder was a probable consequence of the prosecution of the common purpose then Paterson is guilty of murder; that is, as I have said, the doctrine of Hind and Harwood.
But the learned primary judge did not leave the matter there. In relation to each of Paterson and Wood his Honour gave the jury an additional test, which most clearly appears at pp. 259 and 312. I quote the former only:
"If you have already decided that one of Brien or Petersen murdered Kummer and did so in the prosecution of the common unlawful plan to unlawfully assault Kummer, this is the question you ask yourselves: did Paterson contemplate that in carrying out the common unlawful purpose of unlawfully assaulting Kummer, that Brien or Petersen or one of them would probably use a loaded shotgun with the intention of causing really serious bodily harm?"
A similar direction (which I shall call "the contemplation direction") was given with respect to Wood, it being I think implicit in the direction that if the jury answered the question "No", then they could not convict Paterson of murder. That is, the judge has in general directed in accordance with Hind and Harwood, on the foundation that the offence first mentioned in s. 8, in a homicide case, is either murder or manslaughter (not unlawful killing), and further that where the section applies to an accused it makes him guilty of that very offence - i.e. of the offence first mentioned. But the judge has, at least implicitly, invited the jury to apply a qualification, so that s. 8 catches Paterson only if he contemplated that in carrying out the common purpose a loaded shotgun would be used "with the intention of causing really serious bodily harm". I think this is equivalent to a direction that the person sought to be made guilty under s. 8 must, in addition to fulfilling the precise requirements of the section, be proved to have contemplated that there would probably be a murder. But I am not quite sure whether this interpretation of the qualification I have mentioned is correct, or not.
In addition to the directions just discussed, the primary judge gave what it is convenient to call the Markby direction, mentioned above. It is convenient to defer further discussion of this topic.
As has been explained, the verdict of murder against Paterson has been entered on the basis that the victim Kummer was killed by means of an act done in the prosecution of an unlawful purpose, which act was of such a nature as to be likely to endanger human life. There was no evidence that Paterson himself shot Kummer, but evidence was admitted against him that Petersen did so and there was also evidence, admissible against Paterson, from which the jury might have inferred that Brien shot Kummer; the details are explained in the reasons of the President. The jury could have been satisfied on the evidence that either or both of Petersen or Brien murdered Kummer. It is puzzling that, in accepting that Kummer was murdered, the jury acted under s. 302(1)(b), rejecting the proposition that there was a murder under s. 302(1)(a). Our attention was directed to the fact that the judge told the jury in effect that they could not find there was a murder under (b) unless they were satisfied that there was no murder under (a). It was suggested during the course of argument that perhaps his Honour gave this direction because he wished to emphasise that for the purposes of (b) the act mentioned must be something distinct from the unlawful purpose in the prosecution of which it is done. But that is by no means the same as saying that para. (a) of s. 302(1) must be negatived; the jury might properly be uncertain whether the intention mentioned in (a) existed, but satisfied of (b). However, although of opinion that the learned primary judge misdirected the jury on this point, I think the error could not have disadvantaged Paterson.
Then it was submitted that the verdicts against Paterson and against Wood are inconsistent, but in my opinion this is not so. The evidence admissible against Paterson tied him closely to whatever mischief Brien and Petersen had in mind. Further, Paterson went to Kummer’s house carrying a .22 rifle; Wood had no weapon. Paterson fired his weapon at the scene of the killing, although there was no evidence that he shot Kummer. The case is not one in which the circumstances relating to each accused were so similar as to require that the verdicts be the same; if there was such a requirement, it stemmed from s. 8 and more particularly from the directions which the judge gave, referred to above, on the basis that if the first offence mentioned in that section is murder, then the second there mentioned must be murder also.
To return now to the problem of the Markby direction, which was given in relation to each of Paterson and Wood, separately. What the judge said has to be set out in full:
"Ladies and gentlemen, I will read out to you a principle that you may find is of assistance and it is this: when two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is always a likelihood that in the excitement and tensions of the occasion one of them will use his weapon in some way which will cause death or serious injury. If such injury was not intended by the others they must be acquitted of murder but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter." (emphasis added)
The Crown submitted here that this was merely guidance on the facts, not a direction as to law. But what was stated was described as a "principle"; the members of the jury were entitled to think it accorded with the law; it does not. There is nothing in the Code which could justify what the jury were told as applying under the law of Queensland; apart from any other difficulty, there is entirely absent from the statement of principle the requirement that the outcome - death or serious injury - was a probable consequence of the carrying out of the common intention. What the supposed principle does is to assert that in certain stipulated circumstances there is "always a likelihood" that one of the two men postulated will cause death or serious injury. It is, with respect, even rather surprising that this is said to represent the general law; the word "always" is the main, but not the only, problem. It is not hard to conceive of practical circumstances in which people, one or more of whom has an offensive weapon, go to frighten another, but the circumstances are such that it is quite unlikely that death or serious injury will be the outcome; as the President says, under s. 8 the jury must decide whether the relevant offence was a probable consequence of the prosecution of the unlawful purpose. Further, it may be unsafe to assume that this principle, which the jury were given twice, was devoid of influence on their thinking, and equally unsafe to assume that the jury took "always" to mean "sometimes".
I have reached the conclusion that neither the verdict of murder against Paterson, nor that of manslaughter against Wood can stand. The erroneous direction taken from Markby seems to me to vitiate Wood’s trial, or at least to render the verdict dubious; there is an evident risk that the jury might have applied the Markby "principle", erroneously, against Wood, convicting him of manslaughter on the basis of his "having started out on an enterprise which involved some degree of violence, albeit nothing more than causing fright". In concluding that the Markby direction may well have influenced the verdict against Wood, I am fortified by the opinion expressed by the primary judge in sentencing Wood. The impact of the Markby direction on Paterson’s case is less clear; the "principle" implies, but does not state, that persons other than the principal offenders will be guilty of murder if, but only if, they intended death or serious injury, and that taken in isolation is favourable to Paterson. For a conviction of murder under s. 8 it is unnecessary that the accused have any such intention; that is so because s. 8 does not require for its operation that each person convicted under it have either the intention to cause death or the intention to cause serious injury. But the earlier part of the principle, setting out circumstances in which it will "always" be likely that death or serious injury will occur, could have had an impact upon the jury’s verdict against Paterson.
More generally, it is my respectful opinion that the jury may have given its verdicts without having derived from the directions any sound and consistent notion of what was required for a conviction under s. 8. They were, as I have pointed out, directed on a number of occasions in accordance with the law as laid down in Hind and Harwood; they were given the "contemplation" direction discussed above, and also the Markby direction, none of these three being consistent with any other.
There were other issues raised which I do not propose to discuss, the chief of them being the submission that the judge’s discussions of what the four men had in mind at various times in relation to Kummer did not sufficiently emphasise that it was necessary, to support a conviction of an accused under s. 8, that a single common intention be identified to prosecute an identified purpose. I have not found it necessary to reach a conclusion on that aspect.
I agree with the President, although not for the same reasons as his Honour gives, that the
appeals by Paterson and Wood must be allowed and the verdicts entered against them set aside.
Brien and Petersen
As the President has pointed out in his reasons, Petersen’s conviction of manslaughter can be upheld only if the conviction of murder entered against Brien stands, so that one must start by considering the murder conviction.
There was a strong circumstantial case against Brien. The evidence was that he told one Mim, about two weeks before the killing of Kummer, that Kummer owed him money; Mim’s response was to offer to pay half of the debt, but Brien refused that offer saying he wanted the money from Kummer. Somewhat later, Brien told one Daltrey, speaking of two other (unidentified) men, "These are my two friends from Melbourne. They have come up to get Nick. He’s fucked this time.". Kummer’s first name was Nicholas. There was evidence that on the day before Kummer was killed, Brien told one Martin that Nick owed him some money and said to tell Nick he was going to do a run-in on him and he was going to get the last laugh. About 9.30 pm on the night Kummer was killed Brien, Brien’s wife and Petersen were at the home of one Dawson at Gympie; Kummer lived not far away. Brien asked to borrow a shotgun to kill some pigs or vermin and Dawson supplied a shotgun together with shotgun pellets in two sizes. Shotgun blasts from pellets of those two sizes caused the death of Kummer. On the following morning the gun was returned to Dawson by Brien and Dawson noticed that it had been fired; Dawson was not given any shells back. When interviewed two days after Kummer’s death by the police, Brien denied knowing Kummer.
This evidence, which was uncontradicted, would certainly lead a jury towards the inference that Brien killed Kummer or at least took part in the killing. Brien gave no explanation of these circumstances and it would have been surprising if the jury had not thought his failure to do so went strongly against him.
The principal argument advanced on behalf of Brien was that the Crown opened as relevant to the case against him a statement said to have been given to the police by Paterson, one of the two appellants dealt with above. The record does not contain an account of what the Prosecutor said, but no doubt it accorded with Paterson’s statement to the police; that statement included that on the night of Kummer’s death, Paterson had been woken by Brien and Petersen who invited him to come with them and said they were "going around to fix him". The party then went, so Paterson said to the police, to Kummer’s shed. All three got out and shots were fired by Paterson, by Petersen and by Brien. Paterson told the police that he saw Petersen shoot Kummer. When called, Paterson said nothing of consequence and the argument was, in effect, that this necessarily vitiated the verdict; of course, the judge told the jury not to use the statement attributed to Paterson which was opened.
When considering this ground it is, I think, desirable to keep in mind that the jury had before them also a version given by Petersen to the police. Petersen told the police in effect that Kummer was shot on a Friday night (that was correct) and that Brien and himself, as well as two people whose names he gave as "Bill" and "Paddo" - presumably Wood and Paterson - were present. Petersen said that he fired a couple of shots in the air after a shot came out of the shed. When asked what led up to the four people "being out there", Petersen explained that Brien "said he had to go up there and see him about something". He gave a further description of shots being fired and discussed the weapons which three of the group - all except "Bill" - had. He also said that Brien walked inside, apparently meaning walked inside Kummer’s shed, and that he, Petersen, "heard a few more shots and then we left".
Petersen’s account had Brien firing the last shots and doing so in Kummer’s shed. In this respect, Paterson’s account coincided with Petersen’s, but an important difference between the two is that Paterson said he saw Petersen fire a shot which he believed hit Kummer in the stomach; he made no claim to that effect about Brien. In that sense, Paterson’s account might have assisted Brien, if any member of the jury was (contrary to the judge’s direction) inclined to consider Paterson’s and Petersen’s accounts in relation to the guilt of Brien.
Counsel for the respondent argued before us that Paterson’s statement to the police was inconsistent with the physical evidence and that is to some extent correct. But it is argued that, nevertheless, Paterson’s statement was important because it was the only material before the jury which put Brien at the scene. That is not so; Petersen’s statement to the police did so, as well. A weakness, as it seems to me, of the appellants’ contention that the opening of Paterson’s statement to the police might have had some significant effect on the jury’s thinking about Brien is that it could only have done so if the jury were prepared to ignore the judge’s firm direction not to consider it; the risk of the jury doing so would have been no more and no less than the risk of their ignoring his Honour’s direction not to use the statement of Petersen to the police against Brien.
We were referred to the South Australian decision in Armstrong (1989) 53 S.A.S.R. 25. The result of that case depends on its own facts; it is my opinion, however, that the opened but not proved fact in that case was of more importance to the prosecution than the corresponding material here. What the Chief Justice described as "an important aid" in making a necessary link in the Crown case was the discovery, with certain stolen property, of a jacket resembling one worn by an occupant of the appellant’s car on the night of a theft which was in question. It appears that the only significant thing about the jacket was that in it was contained a card in the name of Wayne T Wilson, which was admitted to be the name of one of the occupants of the appellant’s car. Further, the jury asked for the opening on the point to be read back to them, reinforcing its importance. I do not find the case of any particular assistance, therefore, in determining how weighty an opened but unproved assertion must be to vitiate the verdict. The Chief Justice remarked that:
"Many, perhaps most, cases in which a supposed fact opened by the prosecution is not proved by evidence, can be dealt with adequately by a direction [such as was given in that case]."
Here, no complaint could rationally be made about the strength of the direction the judge gave and I have come to the conclusion that the opening of Paterson’s evidence did not vitiate Brien’s trial.
It is necessary to add, however, that the course taken, of opening Paterson’s evidence appears to have been taken without due consideration; it was not suggested to us that the Crown had any reason to be confident that Paterson was prepared to give evidence along the lines of the statement he had made to the police. The Crown might have taken comfort from the fact that the statement was electronically recorded and its content was not challenged at Paterson’s trial; but the risk that Paterson would decline to say anything useful about the matter was or should have been obvious.
It does not appear to me, however, that Brien’s conviction should be set aside as a means of punishing the Crown for what I regard as at least an unwise decision, to open Paterson’s evidence. I am therefore in respectful disagreement with the President’s conclusion on this aspect of the case.
It is necessary to deal, in addition to the point just discussed, with a complaint of misdirection; it is said that the judge directed the jury to attach an improper significance to Brien’s silence, faced with the incriminating evidence I have mentioned.
"It is one thing to say that there is a right of silence and another to say that its exercise shall never be permitted to disadvantage those who exercise it.", (Weissensteiner, (C.A. No. 264 of 1991, 22 June 1992). In the passage in which this remark is to be found, I discuss the practicability of adoption as a rule of the statement in the second part of the remark. I there suggest that such adoption is "impossible, in a practical sense".
One illustration may suffice. If the jury were to ask whether Brien not having given any explanation of the incriminating circumstances weakened his position or strengthened that of the Crown, what could a judge sensibly reply? Surely not that this made no difference and left Brien in no worse position than if he had given the jury an innocent and plausible explanation to consider. A jury would think such an answer to be fatuous. An answer more likely to appeal to a jury’s commonsense is to be found in Petty:
"As a matter of ordinary experience, the failure to advance an innocent explanation when an opportunity arises may . . . support an inference that no such explanation is available.": Petty (1991) 173 C.L.R. 95 at 125.
Or that adopted by O’Connor J. in Peacock (1911) 13 C.L.R. 619 at 670, of which I quote part only:
" . . . when . . . the nature of the case is such as to admit of explanation as contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends?"
The principle of Weissensteiner (1993) 178 C.L.R. 217 is of particular importance in dealing with a case of this sort, where there appears to be no-one available to explain the circumstances of a death other than the killer and his associates. Any intelligent jury, left to themselves, would treat Brien’s failure to advance any evidence contradicting that which I have set out, or to give in evidence any explanation of the use to which he put the shotgun and ammunition he got from Dawson, as highly suspicious and as making the inference that he killed Kummer using the shotgun and the ammunition Dawson supplied a safer one.
Kummer being unavailable to give evidence, the only persons likely to be able to explain directly how he died were the persons (or person) who killed him and, presumably, their or his companions. Brien and Petersen gave no evidence; Paterson was called, but would not say anything of consequence. To encourage the jury to take the irrational view that Brien’s not having given any explanation of the incriminating circumstances proved against him, either to the police or in Court, should have no effect upon his chances of acquittal would seem to be an odd course, not calculated to advance the interests of the proper administration of criminal justice; it could properly be described as "an artificial restraint on the jury’s employment of their common sense", to adopt an expression used in a different context by Brennan C.J. (Bulejcik, High Court, 17 April 1996). The learned trial judge told the jury, in effect, in passages set out at length in the President’s reasons, that although there was no obligation on Brien to incriminate himself, his failure to give evidence explaining away circumstances peculiarly within his knowledge indicating guilt might make them feel more comfortable in inferring guilt; in my view that was a proper and a just direction to give. Weissensteiner has now been dealt with in a number of Queensland cases which are discussed in the reasons of Mackenzie J. and my own reasons, upholding a Weissensteiner direction, in Demeter (C.A. No. 254 of 1994, 9 February 1995); some subsequent decisions are dealt with in my judgment in Powell v. Smith and Blacker (C.A. No. 251 of 1995, 14 November 1995). The trend of authority in this State is such as to give support to the course the trial judge took in the present case, of pointing out to the jury in temperate terms the consequence which commonsense would attach to Brien’s silence. For these reasons I do not accept the appellant’s criticism of the primary judge having given the jury a direction, in relation to Brien, of the Weissensteiner type.
| It follows that in my view the appeals of Paterson, Wood and Petersen must be allowed The question is whether any of them should have a new trial; it is necessary of course to apply s. | and their convictions set aside, and the appeal of Brien dismissed. Petersen has been acquitted of murder, there can be no new trial on that charge, which is the only charge which can reasonably be brought if Brien remains convicted of murder, as in accordance with my conclusion he should. It follows that on my view there can be a new trial only in respect of Paterson, for murder; verdicts of acquittal should be entered in respect of Wood and Petersen. |
It does not appear to me that it is necessary to discuss any other point with respect to Brien. Self-defence was mentioned in counsel’s address in this Court, but not pressed, and there is nothing in that.
I would dismiss Brien’s appeal.
The appeal by Petersen must however be allowed. As has been explained above, it was sought to uphold his conviction only under s. 8, under which he must have been convicted of the same offence as Brien - murder - or acquitted.
New Trials
(a) I will refer below to the erroneous use, by both trial judges, of a subjective test of “probable consequence”.
(b) Consideration of Petersen’s conviction might be affected by a decision that Brien was wrongly convicted of murder under sub-s. 302(1)(a) of the Code; one of Brien’s submissions in this Court is that his conviction for murder was unsafe and unsatisfactory because the evidence against him was deficient.
0
0