- Unreported Judgment
- Appeal Determined (QCA)
 QCA 104
SUPREME COURT OF QUEENSLAND
SC No 90 of 2011
Court of Appeal
Appeal against Conviction
20 April 2012
23 March 2012
McMurdo P, Muir JA, Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the order made
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SUMMING-UP – where the appellant was found guilty after trial of manslaughter, two counts of assault occasioning bodily harm whilst armed in company and common assault – where at the time of offending the appellant was 15 years of age – whether s 8 of the Criminal Code necessitates a consideration of whether or not an ordinary reasonable person in the position of the appellant would have realised that the offences committed were a probable consequence of the prosecution of the unlawful purpose – whether age should be imported into an objective ordinary reasonable person test in the third limb of s 8 of the Criminal Code as it is in cases involving the provocation defence under s 268 and s 304 of the Criminal Code – whether the trial judge erred in not giving the jury directions about factors such as the appellant’s age and life experience in relation to the third limb of s 8 of the Criminal Code
Criminal Code 1899 (Qld), s 8, s 268
R v Keenan (2009) 236 CLR 397, cited
R v Pascoe  QCA 452, cited
Stingel v The Queen (1990) 171 CLR 312, cited
Stuart v The Queen (1974) 134 CLR 426, cited
A Glynn SC for the appellant (pro bono)
T Fuller SC for the respondent
No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent
 MARGARET McMURDO P: I agree with Dalton J that the appeal against conviction should be dismissed.
 The sole ground of appeal is that the primary judge erred in directing the jury as to the operation of s 8 Criminal Code 1899 (Qld). The appellant was a 15 year old schoolboy with limited life experience at the time of the killing. The argument is that the judge should have directed the jury to take into account the characteristics of the ordinary reasonable person in the position of the 15 year old appellant when considering whether murder or manslaughter was a probable consequence of the common intention to prosecute an unlawful purpose formed by the appellant in conjunction with one or more of his co-offenders. This follows, the appellant's counsel contended, from the approach taken by courts when directing juries on the partial defence to the offence of murder, provocation, under s 304 Criminal Code as discussed in Stingel v The Queen and R v Mogg.
 The test as to whether under s 8 a defendant commits an offence of such a nature that its commission was a probable consequence of the common intention to prosecute an unlawful purpose formed by the defendant in conjunction with another or others is entirely objective: R v Keenan. By contrast, the relevant focus in s 304 is on whether an ordinary person reacting to the alleged provocation could suffer a similar loss of control to that allegedly suffered by the defendant. That is an objective test with some relevant subjective considerations. The age and personal characteristics of a defendant may be relevant in determining under s 8 whether a defendant formed a common intention to prosecute an unlawful purpose in conjunction with another or others, and in determining the scope of that intention. But age and other personal characteristics cannot be relevant in determining under s 8 whether any offence committed in the prosecution of that purpose was of such a nature that its commission was a probable consequence of prosecuting that purpose. That can only be an entirely objective consideration. It follows that the appellant's contention that the judge erred in her directions on s 8 is not made out.
 I agree with the order proposed by Dalton J.
 MUIR JA: I agree that the appeal should be dismissed for the reasons given by Dalton J. I also agree with the President’s observations.
 DALTON J: The appellant was convicted after a 31 day trial on one count of manslaughter (as an alternative verdict to murder); two counts of assault occasioning bodily harm whilst armed in company, and one count of common assault. He appeals against all those convictions. He raises only one point: the directions given by the trial judge about the operation of s 8 of the Criminal Code 1899 (Qld). In my view that point must fail and the appeal should be dismissed.
 The appellant was 15 years old at the time of the offending. He had been out to a function at a city high school which ended at about 9.30 pm. He then spent some time with a group of friends of similar age. They ended up in the early hours of the morning walking home through a park on Ewing Road, Woodridge. There was a group in the park who had been drinking. Some members of this group approached the group of schoolboys and subjected them to a verbal and physical assault. The boys left the park. The appellant telephoned a friend whom he knew to be with a group of 17 year old boys. He asked that friend to bring his group down to the park to seek revenge on the assailants. The group of older boys arrived at the park to assist. One carried a hammer, one carried a spanner, and others carried fence palings. The appellant was not armed. In total there were nine schoolboys who went to confront the group in the park. The two or three men, who had attacked the group of 15 year olds earlier, ran away soon after the group of nine approached. The group of schoolboys then attacked three men who remained near a picnic shelter in the park.
 It seems the group of schoolboys first attacked a man named Bond. The appellant admitted in a record of interview that he kicked Mr Bond in the ribs and in the head. The group then attacked a man named Willis. There was no evidence that the appellant was involved in that assault. The third man attacked was Mr Saunders, who later died from his injuries. There was no evidence that the appellant was involved in assaulting Mr Saunders. After the assault on Mr Saunders, three of the schoolboys, not including the appellant, went back to the car they had arrived in. The other schoolboys pursued the men who had initially run away when the schoolboys approached. They were unsuccessful in finding them. They returned to the area of the picnic shelter shed where Mr Willis was assaulted for a second time before all the schoolboys left the park. There was no evidence that the appellant assaulted Mr Willis on the second occasion.
 The appellant was at all times unarmed. The charge in relation to the assault on Mr Bond was one of assault occasioning bodily harm whilst armed and in company. There was no evidence that the appellant actually assaulted Mr Saunders or Mr Willis. It seems therefore that the jury must have convicted the appellant on the basis of the party provisions, most likely s 8 of the Criminal Code.
 Section 8 of the Criminal Code provides:
“8Offences committed in prosecution of common purpose
When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”
 There can be no doubt that the inquiry as to whether or not accused persons have formed a common intention to prosecute an unlawful purpose is an inquiry as to the actual common intention of those accused persons. The second limb of s 8 requires that, in the prosecution of that purpose, an offence is committed. It is the third limb of the section which is the focus of this appeal. For the accused person to be liable for the offence actually committed, that offence must be of such a nature that its commission was a probable consequence of the prosecution of the purpose.
 No complaint is made as to the primary judge’s directions as to the first two limbs of s 8. But it is said that in directing the jury as to the third limb, her Honour erred because she failed to give the jury directions about factors such as the appellant’s age and life experience, which bore upon whether or not an ordinary reasonable person in the position of the appellant would have realised that the offences actually committed were a probable consequence of the prosecution of the unlawful purpose.
 Her Honour’s direction to the jury (in respect of the murder charge) was in these terms:
“… you must ask yourself if you are satisfied beyond reasonable doubt that the offence, that is unlawful killing with intent, was committed in the prosecution or furtherance or carrying out of that purpose. If you are so satisfied then considering whether you are satisfied beyond reasonable doubt that the nature of the offence committed was such that its commission was a probable consequence of the prosecution or furtherance or carrying out of the common unlawful purpose, the probable consequence is a consequence which would be apparent to an ordinary reasonable person in the position of the defendant, with the defendant’s state of knowledge at the time when the common purpose was formed. That test is an objective one and it is not whether the defendant himself recognised the probable consequence or himself realised or foresaw it at the time the common purpose was formed.
A probable consequence is more than a mere possibility. For a consequence to be a probable one it must be one that you would regard as probable in the sense that it could well have happened. …” (my underlining)
 This part of the summing up, including the underlined part, is substantially in accordance with the Benchbook. The appellant says that the primary judge ought to have elaborated that part of the summing up which is underlined and referred to the appellant’s age and lack of life experience. The appellant relied on cases dealing with provocation, such as Stingel v The Queen and R v Mogg.
 Provocation is defined at s 268 of the Criminal Code:
(1)The term provocation, used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, … to deprive the person of the power of self-control, and to induce the person to assault the person by whom the act or insult is done or offered.
 In Stingel v The Queen the High Court described the requirement that the wrongful act or insult be of such nature as to deprive an ordinary person of the power of self-control as “an objective threshold test.” The judgment goes on to say:
“While personal characteristics or attributes of the particular accused may be taken into account for the purpose of understanding the implications and assessing the gravity of the wrongful act or insult, the ultimate question posed by the threshold objective test … relates to the possible effect of the wrongful act or insult, so understood and assessed, upon the power of self-control of a truly hypothetical ‘ordinary person’. Subject to a qualification in relation to age (see below), the extent of the power of self-control of that hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused.”
 In relation to age the High Court said that, “considerations of fairness and common sense dictate that, in at least some circumstances, the age of the accused should be attributed to the ordinary person of the objective test.”
 Section 304(1) of the Criminal Code makes provision for provocation in the context of a murder charge:
“When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool, the person is guilty of manslaughter only.”
 Section 304(1) does not expressly refer to a requirement that an ordinary person would react as the accused did. Nonetheless, it has been accepted that, “provocation in section 304 of the Code bears the common law meaning as expounded from time to time”: R v Buttigieg. In that case the Court of Appeal gave emphasis to those passages in Stingel to the effect that the objective threshold test, based on the reactions of an ordinary person (expressly mentioned in s 268, but not s 304) was part of the common law defence of provocation. It was accepted in Buttigieg that much of what was said in Stingel was applicable to s 304 of the Queensland Code. In particular those parts of Stingel extracted above were cited in Buttigieg as being applicable to a defence of provocation raised under s 304 of the Code. The same approach was taken in the later Court of Appeal case of R v Mogg, again particularly in relation to the passages extracted from Stingel, above.
 As to s 8 of the Code, the appellant acknowledged that an objective test applied in determining whether or not the offence actually committed, was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose. But it was argued that, in the same way that youth and immaturity are imported into the objective, ordinary person test, in provocation cases, so they should be imported into the test relevant to the third limb of s 8. The appellant acknowledged that there was no authority to this effect. The authority concerning the third limb of s 8 all tends, in my view, to the opposite conclusion.
 In R v Keenan Kiefel J said:
“The purpose of s 8 is to extend the criminal responsibility of the parties to a common purpose to an offence other than that which was intended to be committed. The section limits the extension of that responsibility by requiring that the nature of the offence committed be such as to be a probable consequence of the common purpose. The test of probable consequence reflects the historical approach of the common law. … Responsibility does not depend upon the foresight of the parties to the common purpose. Although the common law has come to embrace such a test, the test in s 8 is an objective one.”
 Further at p 434 of that judgment Kiefel J said:
“Further, the test to be applied under s 8 is as to the probable consequences of the common plan, not what the parties might have foreseen. Even if the respondent had not anticipated that a gun might be used, he may nevertheless be held criminally responsible where it was used and caused the very level of harm that had been intended. In a case involving an objective of this kind the means actually used may not assume importance in the determination of probable consequence.”
 Justice Kiefel cited Stuart v The Queen as authority in this regard. In Stuart Gibbs J, with whose reasons Menzies J agreed, said:
“Finally it was submitted that it was not open to the jury to find that the murder committed by Finch was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose of extortion. To consider this submission it is first necessary to decide whether, as was submitted on behalf of the applicant, ‘a probable consequence’ within s 8 is a consequence which the accused was aware was likely to follow from the prosecution of the purpose, i.e. whether the words of s 8 referring to ‘a probable consequence’ import a subjective test. Clearly, in my opinion, they do not. The question posed by the section is whether in fact the nature of the offence was such that its commission was a probable consequence of the prosecution of the common unlawful purpose and not whether the accused was aware that its commission was a probable consequence. This was recognized by all the members of this Court in Brennan v The King. Starke J said:
‘A probable consequence is, I apprehend, that which a person of average competence and knowledge might be expected to foresee as likely to follow upon the particular act; though it may be that the particular consequence is not intended or foreseen by the actor.’
Dixon and Evatt JJ said:
‘The expression “offence … of such a nature that its commission was a probable consequence of the prosecution of such purpose” fixes on the purpose which there is a common intention to prosecute. It then takes the nature of the offence actually committed. It makes guilty complicity in that offence depend upon the connection between the prosecution of the purpose and the nature of the offence. The required connection is that the nature of the offence must be such that its commission is a probable consequence of the prosecution of the purpose.”
 In R v Pascoe this Court dealt with a case which was factually similar to the one before us. Pascoe was one of four men charged with murder. The four men had beaten their victim because he repudiated a promise to supply them with marijuana. McPherson JA said:
“As a further alternative to criminal responsibility under s 7(c), a verdict of murder could also be sustained against the appellant under s 8 of the Code on the basis that the four of them had formed a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence had been committed of such a nature that its commission was a probable consequence of the prosecution of such a purpose. In the context of what happened here, the nature of the offence was murder; that is, killing Timms with the intention of causing his death, or at least of causing him grievous bodily harm. The unlawful purpose which it was their common intention to prosecute was assaulting their victim. If, then, the murder of Timms was a probable consequence of carrying out that assault in conjunction, the appellant could be found guilty of murder under s 8. For that result to follow, it was, again, not necessary for the appellant himself to have intended to cause death or grievous bodily harm. It was enough that, given that common intention to assault their victim and the prosecution of that purpose, it was, objectively considered, a probable consequence of carrying it out that Timms would be murdered.”
 In that case Davies JA said:
“On behalf of Pascoe and Donald it was submitted that, for a person to be liable for murder under s 8 it was necessary to establish that he realized or foresaw that at least an assault with intent to do grievous bodily harm was contemplated or intended by one or another of his associates; and that each of the learned trial Judges failed to give this direction. On Jeffrey’s behalf it was contended that, for him to have been liable under s 8, it was necessary to prove that he intended to kill Timms or to do him grievous bodily harm; and there was no direction to that effect.
Neither of these submissions is, in my view, correct. Each misunderstands the construction placed on s 8 in the joint judgment in Barlow. The relevant common intention contemplated by s 8 in this case, in order to found a verdict of guilty of murder, was one to commit an assault of sufficient seriousness that an intention to cause death or grievous bodily harm on the part of the principal offender was a probable consequence of the prosecution of that purpose. If that probable consequence was absent but the assault the subject of the common intention was nevertheless of sufficient seriousness that death was a probable consequence, and it occurred, the proper verdict was manslaughter. But it is not necessary in either case that these consequences were intended or even foreseen by the secondary offender.”
 In my opinion the appellant’s point is misconceived. The purpose of the objective ordinary person test in provocation is to measure the actual reaction of the accused against an objective standard, that of the ordinary person. To a limited extent the law, as explained in Stingel v The Queen, allows that ordinary person to assume some of the characteristics of the accused. But, turning to the third limb of s 8 of the Criminal Code, in deciding whether or not the offence actually committed was a probable consequence of the unlawful purpose, there is no resort to the views of any person, ordinary, reasonable or otherwise. The matter is simply to be determined as a matter of fact, objectively. This is most clearly expressed in the line of cases in the High Court – Brennan, Stuart and Keenan. The determination required by the third limb of s 8 of the Code is a conceptually different task from the task involved in assessing whether the recipient of provocation has reacted as an ordinary person would.
 What is, in any given case, a probable consequence of the common unlawful purpose must depend on all the factual matters which are proved to be comprehended in that common unlawful purpose. In looking to establish the actual common intention regard will be paid to what the defendant actually knew. However, in my view the underlined part of the direction to the jury (extracted above) was, as is the Benchbook, slightly more favourable to a defendant than the law allows. To avoid a jury reasoning, impermissibly, that the defendant before them must have appreciated or foreseen that the offence actually committed was a probable consequence of the unlawful purpose, it might be better to modify the Benchbook direction to omit the passage underlined in the quotation above.
 The appeal against conviction ought to be dismissed.
 (1990) 171 CLR 312, 329-332.
 (2000) 112 A Crim R 417, 424-425 -.
 (2009) 236 CLR 397, 428, 434 (Kiefel J).
 (1990) 171 CLR 312.
 (2000) 112 A Crim R 417.
 (1990) 171 CLR 312, 324.
 Ibid, 327.
 Ibid, 329.
 (1993) 69 A Crim R 21.
 (2000) 112 A Crim R 417, 424-425, -.
 (2009) 236 CLR 397, 428.
 (1974) 134 CLR 426, 441-442.
  QCA 452.
 Ibid, -.
  QCA 452, 31.
- Published Case Name:
R v AAP
- Shortened Case Name:
R v AAP
- Reported Citation:
 QCA 104
McMurdo P, Muir JA, Dalton J
20 Apr 2012
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|Appeal Determined (QCA)|| QCA 104||20 Apr 2012||-|