SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: I agree with Jerrard JA that the appeal against conviction should be dismissed and with his reasons.

[2]  DAVIES JA: I agree with the reasons for judgment of Jerrard JA and with the order he proposes.

[3]  JERRARD JA: Early in the night of Christmas Eve 2001 Kenneth Walter Doig was murdered in a public park on the outskirts of Helidon and adjacent to a public highway running between Brisbane and Toowoomba.  A short time later and a little distance away his twin brother Brett John Doig and his mother Helen May Doig were both shot, but fortunately were not killed.  On 26 March 2003 the appellant Daniel Michael Hallin was convicted by a jury of the murder of Kenneth Doig and the attempted murder of his brother and mother.  He was also convicted of the unlawful use of a motor vehicle in Kenneth Doig’s possession and of having pointed a firearm at another person on 24 December 2001, a Timothy Rex Barnes, whilst demanding that Mr Barnes get out of his vehicle, which act was likely to cause Mr Barnes to fear bodily harm.  On 28 March 2003 the appellant was sentenced to imprisonment for life for murdering Kenneth Doig and to shorter concurrent sentences for the other offences.  

[4] The prosecution did not allege that Mr Hallin himself actually killed Kenneth Doig or fired the shots which struck Brett and Helen Doig, nor that Mr Hallin was the person who pointed a gun at Mr Barnes in a manner likely to cause the latter fear.  Instead, the prosecution case was that Mr Hallin was criminally responsible, by reason of s 7 and s 8 of the Criminal Code of Queensland, as a party to those offences actually committed by another person, a Peter Noel Stephens.  Mr Hallin’s appeal against those convictions rests on the argument that no properly instructed jury could reasonably have concluded that he was criminally responsible for the commission of those offences, and that the verdicts – except for his conviction for the unlawful use of the motor vehicle which Mr Doig possessed at the time of his death – were unsafe and unsatisfactory.[1]  There is no appeal against the conviction for unlawful aggravated use of a motor vehicle.

[5] Mr Hallin’s grounds of appeal require that this court ask itself in respect of each of the contested verdicts whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that Mr Hallin was guilty as charged.[2]  Regarding the appellant’s complaint that he could not properly have been convicted as a party, Mr Hallin’s grounds of appeal on each conviction focused only on the argument that a properly instructed jury could not have concluded that commission of the offences committed by Mr Stephens was a probable consequence of carrying out an admitted unlawful purpose being prosecuted in common by the appellant and Mr Stephens.  That is, his appeal was restricted to the argument that s 8 of the Criminal Code could not support any of the relevant convictions.  The Crown had relied before the jury on both s 7 and s 8 in respect of the charge of murder, and on s 8 alone in respect of the two counts of attempted murder and the count of doing an act likely to cause (Mr Barnes) to fear bodily harm. 

[6] There is no complaint made on the appeal regarding any of the directions on s 7 or s 8 given with respect to the offence of murder,[3] or the directions given on s 8 with respect to the offences other than murder.[4]  I respectfully agree that those directions could not properly be the subject of any complaint.  

[7] These grounds which were argued require the court to make its own independent assessment of the evidence on each charge.  There was actually very little challenge to the evidence led by the Crown and Mr Hallin’s evidence generally accepted it, while providing an explanation or further information for the jury’s consideration on a number of significant matters.  The bulk of the incriminating evidence in the Crown case was given by one TLC, who was jointly indicted for all relevant offences with Mr Stephens and Mr Hallin, and who pleaded guilty to the offence of murder and was sentenced prior to the commencement of Mr Hallin’s trial.  Ms TLC was 16 at the time of the commission of the relevant offences, and the Crown proceeded against her only in respect of the charge of murder.  Mr Stephens pleaded guilty to murder and to other charges, and he was also sentenced on 28 March 2003.

Ms TLC’s evidence – background matters

[8] This was that she had been living at Mr Hallin’s home for “a few days” before she, Mr Hallin, and Mr Stephens spoke of an intended interstate journey on or about 16 December 2001, with the discussed intention of travelling to see Mr Hallin’s father in New South Wales and then travelling on to Western Australia.  Ms TLC, who had just finished grade 11, had known Mr Hallin for about four years and Mr Stephens for less.  She believed the two men had met when they had both done the same Chubb Security course.

[9] Planning for the journey seems to have been limited.  On or about 18 December 2001 Mr Stephens rang her and said that they were “going today” and she travelled with them in the appellant’s red Ford station wagon to buy a tent.  That night they all three slept in the car in a spot somewhere between Brisbane and Toowoomba. 

[10]  She described Mr Hallin as having a fascination with weapons.  She saw in the car, as they drove around the Toowoomba, Kingaroy, and Nanango areas in the ensuing days, two pairs of hand cuffs which she had previously seen in Mr Hallin’s residence, a sawn-off shot gun, a tomahawk, two knives, and two batons belonging to Mr Stephens.  The shot gun was being carried disassembled (in two pieces) in a bag belonging to Mr Hallin, and she had both seen it at his home a few days before starting on that trip and, at his request, obtained some 12 gauge shells for it from her father and had given those to Mr Hallin the day before they left Brisbane.  She had seen the two knives previously at the appellant’s house; she said that they “all” handled and looked at them when the knives were in the car.

[11]  Ms TLC described having driven around the Nanango area “the next day” after sleeping the previous night beside the road, and then, being the “next day” after that, in Toowoomba.  There she took out $800.00 from her account, the two men apparently having no funds of their own, and that money was used to purchase a scanner and three hand held radio transmitter/receivers (referred to in the evidence as “walkie talkies”).  Mr Stephens explained to her the purchase of the scanner as being because “they wanted to know where police were and – cos we had – they had weapons in the car and they didn’t want to get picked up with weapons in the car.”[5]  No specific reason was given to her for their purchasing the walkie talkies. 

The planned robbery

[12]  She described their then travelling around the Kingaroy area and after that back to Toowoomba.  Wherever and however they journeyed, on 24 December 2001 they had woken up near Helidon “running low on money,”[6] and Mr Stephens told her that “we were going to rob someone”.  The plan described to her by Mr Stephens was that she should drive the two men and stop on the side of the highway across the road from the James Norman Hedges park outside Helidon, and she was to find a position off the highway near the park where she could see the highway in both directions.  She had a walkie talkie with her.  The plan described to her was for both men to be in the park and for Mr Stephens to rob, in the toilets, any single male who used them.  Mr Hallin’s role was to be outside “as a second lookout sort of thing.”[7]  Both men were to be disguised by having their beards darkened with mascara.

[13]  This plan was explained to her while all three were sitting in the vehicle,[8] and as Mr Stephens was telling her the details, the appellant was in the back seat darkening his beard with mascara.  Mr Stephens did the same.  She saw Mr Stephens put some zip ties in a black bag he had, and that each man had armed himself with one of the knives.  Mr Stephens explained he was going to tie any intended victim up with the zip ties and that he would threaten the victim that he would cut the victim’s throat if that person did not provide Mr Stephens with his PIN Number.  “He never said anything – him or Daniel never said anything about seriously injuring somebody.”[9]

[14]  Ms TLC waited in the red Ford for a couple of hours and then took some water to the two men.  She waited another perhaps two and a half hours and then brought three apples, taking two to the men.  She returned to her position and waited again.  She saw a man come into the park and speak to Mr Hallin and Mr Stephens, and that man was later identified as a Mr Tully.  Mr Tully is a community development worker by profession, then out of work and looking for some young green grass to pick for his turkeys.  He saw the two young men and thought they appeared despondent.  They told him they had been hitchhiking and that the people they were hitching with had ended up “taking off with all their gear.”[10]  Moved by sympathy and the spirit of Christmas, Mr Tully went into Helidon and bought some sausage rolls and soft drink for the appellant and Mr Stephens, and brought them back to them.  He then left.  Mr Hallin’s evidence was that Mr Tully was not robbed because “we’d basically been seen with him and – by more than one or two people.”[11]

The robbery which happened

[15]  Eventually evening fell without any robbery having been committed.  Ms TLC rejoined the two men in the park and both men washed off their mascara.  The three would-be robbers then sat in the red Falcon and discussed the possibility of robbing a person at an ATM in Toowoomba.  While they were still in their car Kenneth Doig drove into the park in a silver blue Subaru sedan, and was seen to park it and get out.  Ms TLC’s evidence was that Mr Hallin said “how’s that” to Mr Stephens; Mr Hallin’s evidence was that he could not remember saying those words and he thought that Mr Stephens had suggested robbing Mr Doig.  Mr Hallin’s experienced and competent counsel did not challenge Ms TLC’s evidence that Mr Hallin said the words, and Mr Hallin did not challenge the proposition that whoever said them, they were a suggestion that Mr Doig be robbed.

[16]  By then it was dark, except to the extent of lighting in the park area and from Mr Doig’s vehicle.  Mr Doig had the opportunity to observe the red Falcon station wagon, which was a rather distinctive vehicle, being an older model Ford in apparently good condition.  He may also have noticed the number and gender of the occupants.  By that time neither Mr Stephens nor Mr Hallin were disguised.

[17]  Ms TLC’s evidence was that Mr Stephens and the appellant spoke quietly together outside the car and that Mr Stephens had a map and a torch with him on the bonnet of the appellant’s car.  Mr Stephens then told her that it was agreed that the two men would approach the man at the Subaru and pretend that they were lost and ask for directions.  She saw that Mr Stephens armed himself with a replica pistol which she had also previously seen at Mr Hallin’s residence, but had not previously seen in the vehicle in the course of their journey together.  She saw that Mr Stephens put a knife (the one with which she had seen him arm himself earlier that day) into the back of his jeans, and Mr Stephens told her that the plan was that the appellant would follow Mr Stephens over to the man at the Subaru.  Mr Stephens also told her that Mr Hallin would tell her – by walkie talkie – when she should leave the park and go and wait at Postman’s Ridge Road, that being a spot previously agreed upon earlier in the day, to which she should drive if advised that a robbery was underway.  The original plan for a daytime robbery as described by her was that the men would meet her at Postman’s Ridge Road after they had successfully robbed someone.  She did not explain how they were to travel to her position; Mr Hallin said in evidence they were going to walk towards her (after a day time robbery) and call her up to come and get them. (AR 410)

[18]  She saw Mr Stephens walk over towards Mr Doig, and Mr Hallin then took a black bag from the Ford car and joined the other two men.  All three stood at the boot of the Subaru looking at a Refidex.   She did not see Mr Hallin arm himself with any weapon.  She did see Mr Stephens pull out the replica fire arm and heard him tell Mr Doig to get on the ground.  At that stage Mr Hallin spoke to her on the walkie talkie telling her to “go”, and she did.  The last she saw was that Mr Doig was kneeling on the ground with his hands behind his head. 

After the robbery

[19]  She drove away to the pre-arranged spot approximately one kilometre away and waited for perhaps 15 minutes.  She then drove back and stopped near the park and Mr Hallin drove up beside her, driving Mr Doig’s Subaru vehicle.  Mr Stephens was in the passenger seat.  He wound his window down and told her that they had to get out of there, and she followed them along the highway towards Toowoomba, then into Postman’s Ridge Road, and then into Murphy’s Creek Road.  Mr Hallin then stopped Mr Doig’s vehicle and she drove up behind it.  Mr Stephens wanted her to move the Falcon closer behind the Subaru to disguise the Subaru’s number plate, but she did not grasp what he wanted.  Mr Hallin got in the Falcon to move it forward and as he did so two vehicles approached; and Mr Stephens told her there was a body in the boot of the Subaru.  Ms TLC, Stephens and Hallin all went to the side of the road and into the dark as the cars passed, but both vehicles stopped about 200 metres up the road.  Each turned around and drove back towards them, stopping on the other side of the road. 

[20]  In what seems an extraordinary coincidence but which is explained in part by these events occurring in a semi rural and rural area, Brett Doig was driving one of those cars with his mother Helen Doig as passenger and Robin Doig, Brett and Kenneth’s father, was driving the other.  Robin and Helen Doig lived on a property some 10 miles from Crows Nest and Brett Doig, who worked at Woolworth’s in Brisbane where he lived, was coming home to spend Christmas with his parents.  Kenneth Doig lived in Toowoomba and worked at a bakery.  Brett Doig had worked long hours on Christmas Eve and had rung his parents and arranged to meet them in Gatton, as he wanted some company for the remainder of the drive.  Those three people met at the BP Service Station at Gatton and started off for Crows Nest.  The shortest way was via Murphy's Creek Road.  Thus a little after 10.30 p.m. that night they passed the spot where the red Falcon and Subaru were parked, and Brett Doig recognised his brother’s car.  Accordingly, he stopped his vehicle and came back to find out what was happening, and his father, who had not recognised Kenneth’s car, simply followed Brett Doig without understanding what he was doing.

[21]  The evidence of what occurred next was given by Ms TLC, Brett Doig, Helen Doig, Robin Doig, Timothy Barnes (who was driving a Mitsubishi Pajero station wagon along Murphy’s Creek Road in the direction of Helidon and who came up and stopped on the road behind Robin Doig’s vehicle, which in turn had been following Brett Doig’s car back towards the Subaru and Falcon), his wife Frances Barnes and Mr Hallin.  The area was of course dark, lit in parts only by the headlights of the vehicles.  What is now described is a composite of those accounts.

The attempts to murder

[22]  Brett Doig got out of his car and spoke to Mr Hallin somewhere in the middle of the roadway.  Mrs Doig had also alighted from Brett Doig’s car but that seems to have been unnoticed by anyone else, except perhaps Mr Stephens.  He had acquired possession of the assembled shotgun and cartridges, at a time and in a manner not explained by the evidence.  He, Mr Hallin and Ms TLC had been in the darkness and probably lying down on their side of the road as Brett and Robin Doig slowed down and stopped.  When Brett Doig got out of his car, he asked if Mr Hallin was ok and was told “yes”; and then asked where the driver of the other car was, meaning his brother.  Mr Hallin said “what do you mean?” and Brett Doig said “that’s my brother’s car”.  Mr Hallin turned and walked back to where Mr Stephens was, saying words to the effect “Peter, its all turned to shit”, and Brett Doig – who did not hear those words – heard a rattle of twigs and a bang, and realised he had and been shot on his arm and side.  Both his father and mother heard the shot and saw in the available light that Brett had been hit, and Mr Barnes heard the shot.  Brett Doig attempted to make his way to his father’s car, but Robin Doig unsuccessfully attempted to drive his vehicle onto and over the person who had fired the shot, failing when that person took evasive action.  The Crown case was that it was Stephens. 

[23]  Robin Doig then drove away from the scene and stopped over the brow of a hill, using a mobile telephone to contact the police.  Before leaving he had heard a voice call out “stop all the cars and everybody out”, or words to that effect (apparently spoken by Mr Stephens); and after contacting the police Robin Doig drove to Withcott where he waited for them.  When they arrived he returned and attempted to locate the place where he had last seen his wife and son Brett.  He came across the red Falcon some further distance along Murphy’s Creek Road, saw that it had crashed but recognised the vehicle, and eventually located Brett and Helen Doig at the Toowoomba Hospital.

[24]  What had happened to them in the meantime was that Brett Doig, failing to make the safety of his father’s car, had continued running wounded down the road in the dark, and had then heard another shot fired.  He realised that had probably been fired at his mother and made his way back to his car, where he was able to locate her injured.  He had been passed by the Subaru and Falcon, which had continued to drive in their original direction.  After Mr Stephens had shot Brett Doig and after he had ordered the occupants of all vehicles to alight, (“get out of the car or I’ll shoot you”)[12], Mr Barnes, who had seen the wounded Brett Doig staggering and falling, accelerated his vehicle away and drove to a well lit farm house, where the Barnes’ also raised the alarm.  Mrs Doig, who had seen her son shot had gone back to his car and gotten into the driver’s side, then heard a movement at the driver’s window, and then she too was shot by Mr Stephens, on her right hand side.  She fell out of the car and onto the ground and heard the other cars all leaving.  Her next recollection was the return of her son Brett.  Brett then drove his car to a farm where he got help, and an ambulance arrived there to take them to the Toowoomba Hospital. 

The offenders escaped

[25]  After the second shooting, Mr Stephens told Ms TLC to get into the Falcon, so she got into the passenger side and Stephens drove the red Falcon away from the scene, following the Subaru driven by Mr Hallin, and leaving behind Brett Doig’s vehicle and the two people Mr Stephens had shot.  After they had driven for a few minutes Mr Stephens overtook the Subaru, on its incorrect side, and his driving caused the red Falcon to roll over and crash.  Mr Stephens gave Ms TLC the shot gun and, “they” gave her Kenneth Doig’s wallet of which he had been robbed,[13] and all three then got into the Subaru.  Mr Hallin drove it along Murphy’s Creek Road for a further two minutes, and then saw what all three thought might be a police car ahead at an intersection.  He turned the Subaru into a driveway and the three fugitives decamped from it and ran across the road and into the bush.  After some 10 minutes they stopped at Mr Stephen’s prompting, and located the scanner amongst the property they were carrying.  Mr Hallin listened on it and told the other two that the police were organising dog squads and search parties to locate them.  Thereafter the fugitives hid in the bush land for a number of days. 

[26]  Ms TLC’s evidence was that on one occasion during that period Mr Stephens had said that he had put an axe through Kenneth Doig’s head, and it was amazing that he was still alive after that; and that he (Mr Stephens) had had to cut Kenneth Doig’s throat to “shut him up”.[14]  She heard Mr Hallin agree that it was amazing that Mr Doig did not die from the axe blow, and Mr Hallin also said that it was “pretty messy”.  There was discussion of Ms TLC’s potential criminal responsibility, with Mr Stephens saying that he had done everything and that he thought the two people he had shot were dead; Mr Stephens considered Ms TLC would “get done” as an accomplice to three murders.  He predicted she would “do about 12 years inside and do the first half in juvenile detention” before being moved onto a women’s prison.[15]  He advised her and Mr Hallin “not to say anything because we haven’t done anything and that he would own up to everything”.[16]  She did not describe any discussion about the appellant’s criminal responsibility.

[27]  By New Year’s Eve 2001 Ms TLC was “very worn out”,[17] she not having eaten since Christmas Eve, and Mr Stephens agreed to go with her to find a road and hitchhike to the nearest town.  She described Mr Hallin as being unable to move because he was in a very bad way and he was left “there up on the mountain”.  The other two intended to hitchhike to the nearest town, buy some food, steal a car, return and collect Mr Hallin.  Ms TLC’s evidence was that Mr Stephens had convinced himself that there was no way the police could have obtained a picture of him or Ms TLC, and that they were still unidentified as offenders, whereas they realised Mr Hallin’s car would have identified Mr Hallin.  In fact her evidence described how the occupants of every car from which they attempted to obtain a lift realised who they were, and police very soon arrived.  Unknown to Mr Stephens, the crashed red Falcon had had in it two Health Care cards of his, giving his full name and address; and his Commonwealth Bank key card.  It also had Kenneth Doig’s wallet, containing his Drivers’ License with a photograph; and Centrelink papers giving Mr Hallin’s name and Brisbane address.  Mr Hallin was found in a very dehydrated state and arrested in a bush area on 2 January 2002, he having been located by mounted police who were in part directed to where he was by Mr Hallin’s communication with a police officer by use of one of the walkie talkies.

[28] A strong feature of Ms TLC’s evidence was the extent to which it was supported by the evidence of the other witnesses and the extensive forensic examinations conducted.  The jury were entitled to accept that Ms TLC gave truthful evidence, and that evidence clearly identified Mr Stephens as the only person who actually used any weapon to cause harm.  It did identify Mr Hallin as a party to the planned robbery of Kenneth Doig, in circumstances in which the jury could safely conclude that threatening to kill Mr Doig by cutting his throat with a knife Mr Stephens clearly possessed was the planned method of obtaining his PIN Number.  Ms TLC’s evidence also showed that Mr Stephens and Mr Hallin had no expectation of getting money at that time by any lawful means, and that they had been carrying a large number of weapons appropriate for use in an armed robbery, and additionally had bought the walkie talkies which they did use. 

Mr Hallin’s evidence

[29]  Mr Hallin swore that he had found the shotgun used to shoot Brett and Helen Doig in a creek near his residence about two months before the trip began, and that he had given it to Mr Stephens about three days before they began their journey.  It had been kept in a maroon bag in Mr Hallin’s car, and had been taken because it was intended to use it for executing wounded animals, such as kangaroos which might be injured if Mr Stephens and Mr Hallin became roo-shooters in Western Australia.  Mr Hallin explained that he expected to either borrow or buy a rifle if they decided to follow that calling.  The jury were entitled to notice that if the two men did become kangaroo shooters they would need not just rifles, but a different vehicle, ammunition, and other equipment.  Mr Hallin agreed in cross-examination that his account showed he knew the shotgun worked.

[30]  He explained that he had taken a pair of handcuffs on the journey because they were his, and he was really taking with him all of the property that he had.  The other handcuffs were Mr Stephens’.  Mr Hallin was hoping to get work in the security field in Western Australia.  The replica pistol was his, used by him to shoot rubber darts, and had been taken simply because he had left it in his car when he had moved to his previous address.  He took the tomahawk because it would be useful for camping, and the knife that he had intended to use in any daylight robbery for the same reason – that is, for camping purposes.  His evidence at first acknowledged that both the knife with which Mr Stephens had armed himself on the day and later the evening of Christmas Eve 2001 was Mr Hallin’s; when cross-examined, he was uncertain whether he actually owned that knife.  He certainly owned the one with which he had armed himself during the day.

[31]  He swore that the scanner had been purchased because he had no driver’s license and wanted to avoid police.  He agreed he had not challenged Ms TLC’s evidence, that the stated reason was because of possession of so many weapons.  He swore that the walkie talkies had been bought with an intention to use them in the future in security work.  He was entitled to have the jury consider his explanations for possession of that variety of weapons and instruments appropriate for criminal and non-criminal conduct. 

[32]  Mr Hallin swore that his understanding of the planned day time robbery was that the victim would be tied up, threatened, and a PIN Number obtained.  He was to play the role of lookout, and the reason he carried a knife on his person on that day was because he “always pretty well had a small knife”.[18]  He admitted when cross-examined that the knife he had carried that day was not a small one. 

[33]  He described having coloured his beard black for the planned robbery, as did Mr Stephens; and having changed his clothes in preparation for that robbery.  When that plan was abandoned late in the afternoon he washed his face and changed back into other clothing.  On his account he divested himself at that stage of the knife he had been carrying, which knife Ms TLC had identified as the one which was exhibit 93 at the trial.  That knife was eventually located being carried by Mr Stephens when the latter was arrested.  The knife that Mr Stephens had had throughout that Christmas Eve had been found in a bag in the Subaru. 

Kenneth Doig’s Murder

[34]  Regarding Kenneth Doig’s robbery, Mr Hallin swore that he was to be the lookout again, and that Mr Stephens had asked him to grab and bring with him to Mr Doig the black bag, which Mr Stephens had had with him all day.  He described having walked over to where Mr Stephens was to join him and Mr Doig perhaps five seconds after Mr Stephens approached Mr Doig; in cross-examination he said he thought Mr Stephens wanted that bag because it had the zip ties in it with which Mr Stephens would tie up Mr Doig. 

[35]  His evidence was that in fact Mr Stephens took some handcuffs out of that bag while Mr Doig, as instructed by Mr Stephens, lay on the ground with his hands behind him.  Mr Stephens handcuffed Mr Doig and took Mr Doig’s car keys and obtained access to the Subaru, stealing Mr Doig’s wallet.  Stephens then demanded Mr Doig’s “fucking PIN Number” which Mr Doig gave to him, and Mr Hallin’s evidence continued:

“Pretty well straight after that Peter was standing straight over Mr Doig and he took a step back with his right foot and reached into the black bag and he picked something out it, and at the time I didn’t see it, ‘cause it was really dark and it did it really quickly, and then he hit in the back of the head with it and when he hit him with it I realised he’d hit him with the axe because I heard it go into his head and I went to take a step towards him but he’d already pulled it out and hit him again and that’s when I – I walked away from him, and I thought to myself, ‘oh, my god, he just killed him’”.[19]

[36]  Mr Hallin swore that he thought those two blows had killed Kenneth Doig.  His evidence was that for some seven to 15 minutes he had physically separated himself from the murder scene, at first going down a creek bank and then sitting down at a picnic table.  Then Mr Stephens called to him for help, and as Mr Hallin came to give assistance Mr Stephens moved Mr Doig’s car, and Mr Hallin could see a lot of blood on the ground.  He could see only Mr Doig’s feet, as Mr Stephens had wrapped the upper part of Mr Doig’s body in a garbage bag.  Curiously, that garbage bag had previously been in Mr Hallin’s car, and he did not explain how it had travelled from there to Mr Doig’s body.  He helped Mr Stephens put Mr Doig’s body in the boot of the Subaru, and on Mr Stephens’s instructions, he drove that car down to the spot in Postman’s Ridge Road where they expected to find Ms TLC, and then back again to the park, where they did locate her.

[37]  Subsequent forensic examination showed that Kenneth Doig had been brutally murdered, as well as needlessly, senselessly, and cold bloodedly.  In addition to two scalp wounds to the top of his head caused by blows from the tomahawk, each breaking the skull bone in the depths of those wounds, he had a 90 millimetre long laceration to the right side of his neck cutting completely through the right carotid artery through to the back of the throat, damaging the spine, and cutting partly through the carotid artery on the left side of the body.  Considerable force had been used to inflict that wound.  He also had other separate and clear stab wounds.  There was one just above the main neck wound, a wound over the right side of the chin, another across the tip of the chin, a single stab wound on the left side of the neck, a stab wound on the right side of the back of the neck, and a shallow stab wound over the right temple area.  Additionally, there were three stab wounds roughly in a line over the back of the neck and a gaping stab wound further down the back of the neck.  However, the forensic pathologist opined that some of those wounds may have been exit wounds.  Even if they were, it is clear that Kenneth Doig was repeatedly stabbed in the neck and face and the forensic evidence was that those injuries were inflicted while he lived.  The jurors were entitled to be sceptical of Mr Hallin’s evidence that he had not heard and was not aware of any of this until told by Mr Stephens, days later when on the run and in Ms TLC’s presence, that Mr Stephens had stabbed Mr Doig as well as hitting him with the axe.

[38]  His evidence described his continuing to act under Mr Stephen’s direction, including when he got into his own car to move it closer to the Subaru in Murphy’s Creek Road as the other members of the Doig family were approaching.  He conceded in a searching and very effective cross-examination that when, according to him, he learnt in Ms TLC’s presence for the first time that Kenneth Doig’s throat had been cut, he had said nothing to her about his only then learning of that fact, nor had he said that he had nothing to do with killing Kenneth Doig at all.  He justified his own fleeing from the police as being because he “really didn’t know what was going on very much at all”.[20]  He admitted that neither he nor Mr Stephens could have any expectation of receiving any Centrelink payment until some days after Christmas 2001, that by 24 December they had not enough money to buy themselves a meal, and that they had not asked anyone during their travels about the possibility of employment.

[39]  That cross-examination also demonstrated how poorly thought-out the proposal for a day time robbery was, and the real possibility that had one eventuated it would have resulted in the use of actual and serious violence.  For example, Mr Hallin considered the original plan was that Mr Stephens would force the intended victim into a toilet cubicle, tie him up, and gag him; Mr Hallin expected that that gagged victim would simply be left there uninjured in the cubicle if another vehicle entered the park.  He simply hoped that the bound victim did not get out in time to raise the alarm or identify the red Falcon, which would have been summonsed to collect the two robbers; and he had not foreseen at all the possibility that the intended victim might well prove a good match for Mr Stephens unless a weapon was used by Stephens.  Nor had forethought been given to how any third person arriving to use the toilet could be prevented from doing so without suspicion, while the robbery was occurring.  Mr Hallin relied solely on his understanding that Mr Stephens was an instructor “in about six different martial arts”[21] for the latter to overcome all foreseeable difficulties.

Section 8 Liability for the murder

[40]  Section 8 of the Criminal Code upon which the Crown relied in the alternative, and which reliance is the sole basis for the appeal against the murder conviction, reads as follows:

“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.”

That section has received authoritative interpretation in Stuart v R (1974) 134 CLR 426 and R v Barlow (1997) 188 CLR 1.  Subject to one matter, no relevant construction of the section is raised in this case.

[41]  That one matter is the remark by this court, admittedly obiter, in R v Georgiou [2002] QCA 206 at [60], that a person in the position of (Mr Hallin) is not criminally responsible under s 8 for the murder committed by (Mr Stephens) unless he knew that Stephens probably meant to kill or do grievous bodily harm.  The judgment cites R v Barlow, but the remark appears contrary to decided authority.  I respectfully observe that in Stuart v R the judgments of the High Court established that the test under s 8, as to whether the nature of the offences committed was such that its commission was a probable consequence of the prosecution of the common unlawful purpose, is an objective one.[22]  The judgments of Gibbs J (and Mason J) specified that it is necessary for a jury to consider fully and in detail what was the unlawful purpose and what its prosecution was intended to entail and what was the nature of the actual crime committed, and then to decide whether that crime was of such a nature that its commission was a probable consequence of the prosecution of that purpose.[23]   As expressed by Jacobs J, a great deal depends on the precise nature of the common purpose in the light of the circumstances of the case, particularly the state of knowledge of the (person in Mr Hallin’s position).  Jacobs J held (at CLR 454) that the probable consequence is the consequence which would be apparent to an ordinary reasonable person in the position of (Mr Hallin) with (Mr Hallin’s) state of knowledge, and the test was not whether (Mr Hallin) recognised the probable consequence.  His Honour had earlier held (at CLR 453) that the probable consequence must be considered at the time when the common purpose is formed.

[42]  In R v Barlow (1996-1997) 188 CLR 1 the joint judgment of Brennan CJ, Dawson and Toohey JJ held that the state of mind of the secondary party (Mr Hallin) determines the content of the “common intention to prosecute an unlawful purpose”, which common intention prescribed any restriction on the nature of the acts done or omission made which the secondary offender is deemed to have done or made.[24]

[43]  This court plainly followed the requirement of an objective test in R v Pascoe [CA No 242 of 1997, unreported] in the judgment of McPherson JA at page 9 thereof (“….it was not necessary for the prosecution to establish that the appellant himself realised or foresaw that an assault with intent to do grievous bodily harm was contemplated or intended by....the appellant’s associates), and by Davies JA at page 13 of his judgment (“…it is not necessary that these consequences were intended or foreseen by the secondary offender”).  Pincus JA relevantly agreed with Davies JA.

[44]  In this case the trial judge directed the jury, correctly in my opinion and in a direction about which there is no complaint, that the question was not whether Mr Hallin recognised the probable consequences of prosecuting the unlawful agreement to rob Mr Doig in those particular circumstances, but what would be apparent to an ordinary reasonable person in the position of Mr Hallin, that is, with Mr Hallin’s state of knowledge.  As to that, Mr Hallin certainly must have been very well aware of Mr Stephen’s wish to avoid identification, which Mr Hallin clearly shared, and Mr Hallin had already agreed to the victim being threatened with death from a knife wound.  Even if Mr Hallin did not grasp the fact, it would have been obvious to any ordinary person with Mr Hallin’s knowledge, that if Mr Doig was robbed and lived he could identify his attackers. 

[45]  The jury were entitled as against Mr Hallin to have regard to his having carried across the bag, which Mr Hallin agreed in evidence had clearly contained the tomahawk used to attack Kenneth Doig from behind.  The bag was unframed and unstructured and made of lightweight thin black nylon-type fabric[25]; the tomahawk was about 30cm long, with a 13cm wooden handle and a metal axe-head about 17cm long.[26] It was open to the jury to conclude that Mr Stephens was certainly aware then that the axe was in that bag, although Mr Hallin denied on oath that he realised that.  Carrying that bag to Mr Stephens was an important part of Mr Hallin’s role in that robbery and murder. 

[46]  Mr Stephen’s shooting Brett and Helen Doig showed how determined he was to avoid identification and capture, and to that same end he and Mr Hallin had earlier made elaborate plans to avoid that during their proposed day time robbery.  The jury were entitled to take the fact those earlier plans were made into account, as well as Mr Stephen’s murderous actions that same night and very soon after towards other members of the Doig family, committed with the sole object of escaping punishment.  It was open to the jury to conclude from proof of that object and how powerfully it was held not simply that Kenneth Doig’s intentional death after he was robbed was a probable consequence of carrying out the hastily formed plan to rob him, but that it was an almost inevitable one.  Relevant to this appeal, it was open to the jury to be satisfied beyond reasonable doubt that the intentional death by murder of Kenneth Doig was a probable consequence of, and was committed in the prosecution or furtherance of, the common unlawful purpose of robbing him while armed with lethal weapons and undisguised, and when intending to avoid identification.  Section 8 makes Mr Hallin guilty of that murder and his conviction must stand.

The attempted murder convictions

[47]  The offences of attempted murder were committed in a continuing effort to escape apprehension and punishment.  The Crown submitted before the jury that those offences were committed in the prosecution of the unlawful purpose of using the deceased’s vehicle and disposing of his body; and further that they were committed in the ongoing prosecution of the offence of robbery[27], since the offenders might still have been intending at that time to use Mr Doig’s PIN Number if they could.  The jurors would also have been entitled to consider whether those offences of attempted murder were committed in the prosecution of the unlawful purpose of each offender aiding the other to escape punishment for the murder which had occurred.[28]  Given that a murder had just happened, that the murderers were armed and in the very process of using the victim’s car to help them dispose of his body being carried in it, and that they desperately wanted then to escape prosecution, it was readily foreseeable that Mr Stephens at least would be prepared to use lethal force on any innocent citizens who might obstruct him at that time. 

[48]  It is an admittedly significant step from that conclusion to the next, namely that the offences of attempted murder committed by Mr Stephens were a probable consequence of, and committed in the prosecution of, the unlawful purposes described, but a step which it was open to the jury to take after considering the careful directions they were given. The jurors were entitled to be satisfied that Mr Hallin had not made any sufficient withdrawal from the prosecution of any criminal purpose in common before Mr Stephens shot Brett and Helen Doig.[29]  It was not argued on the appeal that there had been any withdrawal or countermand, rather that Mr Stephens simply fired without prior warning or agreement.  The problem with that argument is that simply agreeing, by words and conduct, to help the murderous Mr Stephens dispose of the body and the car was an agreement the execution of which carried plainly foreseeable and probable consequences of intentional injury to any other persons whose conducted impeded the escape.  One can reflect on the fact that had Mr Stephens not crashed the red Falcon, it is possible that the three offenders may have entirely escaped punishment, depending on whether that car identified them.  Mr Hallin had agreed by his words and actions upon the unlawful purposes in the prosecution of which those shootings occurred.  They were shootings which, in the circumstances, the jury could conclude were a probable consequence of prosecuting those purposes.  Mr Hallin’s convictions for attempted murder should be affirmed.

[49]  The only challenged conviction remaining is that for threatening injury with a firearm and causing fear to Mr Barnes.  Conduct of precisely that sort was readily foreseeable as a consequence and in furtherance of effort to help Mr Stephens at least to escape.  That conviction, and the convictions for attempted murder, were just as much reasonably open to the jury even if Mr Hallin had not been guilty of Kenneth Doig’s murder, as they were when he was.  That is, if Mr Hallin was engaged in assisting Mr Stephens to avoid punishment when the latter was guilty of murder to Mr Hallin’s knowledge, but Mr Hallin was not, it should have caused no surprise at all to Mr Hallin, and the jury could consider it probable, that a murderer attempting his get away would violently attack anyone standing in the way.

[50]  I would dismiss all the appeals against conviction.