R v Deemal-Hall[2005] QCA 206

SUPREME COURT OF QUEENSLAND

1. WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Keane JA.  The relevant evidence is fully set out therein and there is nothing that needs to be added thereto.  I agree fully with the reasoning of Keane JA in rejecting the grounds of appeal argued on behalf of each appellant.

2. On the evidence the prosecution case against Deemal-Hall was primarily based on s 302(1)(a) and s 7(1)(d) of the Criminal Code 1899 (Qld) and the case against Darkan and McIvor on s 302(1)(a) and s 7(1)(a) and (c).  The jury was adequately instructed with respect to those provisions of the Code and indeed it could be said that the case against each appellant based on those provisions was overwhelming.

3. In my view it was unnecessary for the prosecution to rely in the case against Deemal-Hall (and more so the other appellants) on s 302(1)(b) and s 8 of the Code. As was said by this Court in R v Georgiou, Edwards & Heferen (2002) 131 A Crim R 150 at 161: "The application of s 8 to a murder charge under s 302(1)(b) presents greater difficulties partly because there is a considerable degree of overlapping between those two provisions.  In both, the relevant homicidal act must have been done in the prosecution of an unlawful purpose, and in both, the act or its results must be of such a nature as to be a probable consequence of the prosecution of that purpose (s 8); or be of such a nature as to be likely to endanger human life (s 302(1)(b))."

4. Because of the difficulties in applying those provisions discussed by the court in that case and by Keane JA in this case the prosecution ought not, in my view, rely on a combination of s 302(1)(b) and s 8 to secure a conviction of murder where the case can be presented by relying on s 302(1)(a) and s 7. Only in the rare cases where that path to conviction was not open should there be recourse to s 302(1)(b) and s 8.

5. Ultimately I agree with Keane JA that there was no risk in this case of the jury convicting in the absence of their being satisfied beyond reasonable doubt that it was probable that, in carrying out the joint assault on the deceased, the deceased would be fatally injured by one or more of the actual assailants and that one or more of the actual assailants would form an intention to do grievous bodily harm to the deceased or kill him.

6. It follows that I agree that each appeal should be dismissed.

7. KEANE JA:  On 6 September 2004, each of the appellants was convicted of the murder of Kalman Toth ("the deceased").

8. The Crown case at trial was that the appellant Deemal-Hall, who was the former de facto wife of the deceased and who had a grievance against him, recruited the services of the appellants Darkan and McIvor and the witness Bowen to give the deceased "a touch up".  Deemal-Hall contrived to lure the deceased to Bicentennial Lakes Park, Mareeba on the evening of 13 January 2003.

9. There he was assaulted ferociously. He was 58 years of age. He died as a result of the aspiration of blood due to the facial injuries which he sustained.

10. The nature and extent of the injuries inflicted on the deceased do not need to be set out in detail. They were such that the jury were entitled to conclude that whoever inflicted the injuries did so with the intention of at least doing grievous bodily harm to the deceased. That conclusion was not only open but compelling.

The evidence

11. Bowen was the principal Crown witness. His evidence was that on 13 January 2003 he was approached by Darkan and Deemal-Hall with the suggestion that in return for money from Deemal-Hall they should give the deceased a "touch up".

12. In the early evening of 13 January, Deemal-Hall drove Bowen, Darkan and McIvor to the park in a white van belonging to the deceased. According to Bowen, as she was driving, she said that the deceased was "giving her a 'hard time'" and that she "just wanted someone to get into him". Deemal-Hall dropped the three men off at the park. They waited near a shed. She drove off to get the deceased.

13. Deemal-Hall returned in the van with the deceased. She alighted and came over to where Bowen, McIvor and Darkan were. The deceased alighted and followed her. After about 20 minutes the deceased returned to the van. Deemal-Hall got in and drove the van down to where the shed was. The deceased and Deemal-Hall got out of the van and everybody sat down. Darkan asked the deceased whether he had a problem and, after some conversation, Darkan punched the deceased in the face. The deceased got up and he and Darkan had a fist fight.

14. While this fist fight progressed McIvor struck the deceased on the back of the head with a pick handle or "stick". The deceased fell down and covered his face. Darkan and McIvor then kicked him with the steel-toed boots which they were wearing. Darkan then took the stick off McIvor and started hitting the deceased. At first he hit the deceased around the ankles before working his way up the body of the deceased. The deceased cried for help. While this was happening Deemal-Hall, according to Bowen "was just standing up watching".

15. Bowen's evidence was that after a couple of minutes he took the stick from Darkan and gave it to McIvor, but Darkan took it back, and began to beat the deceased around the head.

16. Bowen described Darkan's hits to the head of the deceased as going on "for a good while". The hits were hard "like he really meant it this time". The deceased was still calling for help. Darkan stopped hitting him. Then they all ran to the van in which Deemal-Hall had driven them to the park. Deemal-Hall was already in the van and had started it up when Bowen got into the vehicle. Bowen said that he told Deemal-Hall "to get help" for the deceased; but she made no reply. She dropped him off at his house and gave him $50. She said she would come back in the following week to fix them all up.

17. In cross-examination, Bowen agreed with counsel for Deemal-Hall that the plan was to give the deceased "nothing more than a touch up". Bowen did not see from where McIvor had obtained the stick. Bowen agreed that he did not see where Deemal-Hall was between the fist-fight between Darkan and the deceased started and when he saw her in the van at the end. Counsel for Deemal-Hall established that, in his statement to the police, Bowen had described Darkan as "going berserk".

18. In cross-examination, counsel for Darkan suggested to Bowen that he had sought to play down McIvor's involvement, seemingly to the detriment of Darkan.

19. Darkan and McIvor, when interviewed by police, gave statements in which each sought to blame the other for the use of the stick.

20. McIvor admitted to his de facto wife who also gave evidence that he had "bashed this guy in the park". He showed her a $50 note and the stick, which had a lot of blood on it. She recognized the stick as belonging to her mother. There was also the evidence of a forensic scientist that the blood of the deceased was found on McIvor's boots.

21. At about 10.30 pm in the evening Deemal-Hall drove in the van to the BP service station at Mareeba and told the console attendant, Julia Parsons, that she was looking for her husband who had left their room, gone for a walk and had not returned. She said she was looking around the parks. She returned at 11.00 pm and told Parsons that her husband had been on medication and she was worried he might be in danger if he cut himself because the tablets he took thinned his blood. At 11.50 pm she returned and asked for the number of the police station. She said she was going to call the police.

22. Between 10.00 and 11.30 pm that evening, Deemal-Hall rang the Mareeba Police Station and told Sergeant Lesic that she had to leave Mareeba to go to Cooktown. She asked that, if the police had any contact with the deceased, would they tell the deceased that she had left town. She told Sergeant Lesic that she last saw the deceased at a hotel speaking to two others she believed were Hungarians. After this she went back to the petrol station and told Parsons she had a meeting the next day, which her husband knew about, and she was going back to Cooktown.

23. On 14 January, Deemal-Hall made a number of self-serving phone calls to the motel in Mareeba where the deceased had stayed to suggest that she was worried about him. Deemal-Hall was interviewed by the police on the evening of 14 January after the body of the deceased had been found. She pretended to have no knowledge of the circumstances in which he had died.

24. The Crown Prosecutor did not invite the jury to infer that Deemal-Hall's elaborate lies and false trails were eloquent of a consciousness of guilt of the murder of the deceased. What is relevant for present purposes is that it is clear that at no stage has Deemal-Hall made the suggestion that she had not intended the deceased to receive the ferocious bashing which endangered his life and, indeed, caused his death.

The Criminal Code

25. It is convenient to set out the material provisions of the Criminal Code 1899 (Qld) before proceeding to discuss the issues raised by each of the appellants.

26. Section 300 of the Criminal Code provides:

"Any person who unlawfully kills another is guilty of a crime, which is called murder, or manslaughter, according to the circumstances of the case."

27. Section 302 provides relevantly as follows:

"(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 endanger human life;

…

is guilty of murder."

28. Section 1 defines the term "grievous bodily harm" to mean:

"(a)the loss of a distinct part or organ of the body;  or

(b)serious disfigurement;  or

(c)any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health;

whether or not treatment is or could have been available."

29. Section 7 provides relevantly as follows:

"(1)When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -

(a)every person who actually does the act or makes the omission which constitutes the offence;

…

(c)every person who aids another person in committing the offence;

(d)any person who counsels or procures any other person to commit the offence."

30. Section 8 provides:

"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."

31. Section 9 provides:

"(1)When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled, or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel;

(2)In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by the other person."

The appeal by Deemal-Hall

32. The appellant Deemal-Hall argued the following grounds of appeal which were added by leave to her notice of appeal:

1. that the learned trial judge erred in directing the jury as to the applicability of s 302(1)(b) of the Criminal Code;

2. that the learned trial judge erred in directing the jury that, for the purposes of s 8 or s 9 of the Criminal Code, a "probable consequence" meant one that was a "real possibility";

3. that the learned trial judge erred in failing to grant a separate trial;

4. that the verdict of the jury was unreasonable.

I shall deal with these grounds in turn.

Section 302(1)(b) of the Criminal Code

33. As to the first of these grounds, the appellant's complaint is focussed on the directions the learned trial judge gave the jury as to the combined effect of s 8 and s 302(1)(b).  In particular, the appellant draws attention to the following passage in the learned trial judge's summing up to the jury:

"Our law provides that if an unlawful killing is caused by 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, that killing is murder.  So an act done in the prosecution of an unlawful purpose.  To unlawfully assault someone is an unlawful purpose.

Now the liability for killing in those circumstances extends to all persons who form that common intention - to do the assault - and that conduct which resulted in the killing was likely to endanger human life, and was a probable consequence of the prosecution of the unlawful purpose."

34. This direction was said by the appellant to involve a misstatement of the combined operation of s 8 and s 302(1)(b) of the Criminal Code.  It was said to be all the more potent as an invitation to error because it adopted the approach put to the jury by the Crown Prosecutor which was in the following terms:

"If you come to the view that Deemal-Hall, Darkan and McIvor, firstly entered into a joint criminal enterprise to assault Mr Toth … it's quite clear that they all joined together in a joint criminal enterprise to assault Mr Toth.  Now, it's been variously described as a 'touch up', a 'seeing' and 'a bashing', but it will be a matter for you to determine what that term means, simply a matter for you what you think a 'touch up' is.  Please understand that quite often people in the criminal classes, who are referring to assaults, use understatement.

Secondly, Mr Toth's death was caused 'by means of an act done in the prosecution of that unlawful assault.'  Well, that's another overwhelming obvious contention.  In the course of assaulting Mr Toth, which is what they all agreed to do, his death was caused, but the difficult area is the third point and that is, 'Was this assault of such a nature as to be likely to endanger life?'  Now, if you accept the Crown's proved to you beyond a reasonable doubt that it was likely that the assault on Kalman John Toth was likely to endanger life, then all three, in my respectful submission, are guilty of murder …

You look at the situation objectively and you say, … 'Was it likely that Mr Toth's life would be endangered as a result of this assault.'"

35. Further, at the commencement of the trial, the learned trial judge told the jury that:

"There is a second way in which murder can be established and that is if the death is caused by means of an act done whilst carrying out an unlawful purpose … Now, to - in those circumstances you're not concerned about whether the person who did the act had that intention [scil to kill or do grievous bodily harm] that I was speaking about but you need to be satisfied whether the defendant did the act by means of which death resulted and secondly, that the act was of such a nature as to be likely to endanger life and, thirdly, that the act was done in the course of carrying out the illegal purpose ... "

36. The appellant contends that the effect of the learned trial judge's direction was to invite the jury to proceed on the footing that if the appellant was a party to a plan to assault the deceased, and if in the course of that assault the deceased received blows which were likely to endanger his life and did, in fact, kill him, the appellant was guilty of murder. The appellant submits that, as a result, the jury were told that they might properly convict the appellant without considering whether they were satisfied beyond reasonable doubt that anyone involved in the common purpose had formed the intention to do grievous bodily harm to the deceased.

37. A proper consideration of the appellant's submission requires that the learned trial judge's direction be understood in the context in which it was made.

38. In relation to the case against Deemal-Hall, the learned trial judge instructed the jury that there were two alternative approaches suggested by the prosecution whereby Deemal-Hall might properly be convicted of the murder of the deceased. His Honour explained that the first approach relied on s 7(1)(d) and s 9 of the Criminal Code so that:

"… even if Ms Deemal-Hall counselled a touch-up, a minor assault, and in the end result a far more serious offence … was committed, then the liability for that offence … is extended to her only if the offence, the actions which caused the offence, actually committed are a probable consequence of carrying out that counselling.  So if you approach it this way, in your consideration of the separate case against Ms Deemal-Hall, before you could find her guilty of murder, you must all be satisfied beyond reasonable doubt that:  (1) She in fact counselled or procured Mr Darkan and Mr McIvor to assault the deceased;  (2) That Darkan and McIvor as a consequence of that counselling engaged in conduct which constituted the murder, that is, killing with intention to kill;  and (3) the facts which constituted the murder, that is the blows causing the death with the intention to do grievous bodily harm, were a probable consequence of carrying out that counselling …

Now when I speak of probable consequences, it means that it’s a real possibility or a substantial cause or a real chance that that event would happen.

… It's not necessary for you to make any assessment of what Ms Deemal-Hall intended.  If you are satisfied beyond reasonable doubt that the fact of the counselling occurred, and that the conduct of Darkan and McIvor caused the death but without any intention to do death or grievous bodily harm, and thirdly, that the death was a probable consequence of carrying out the counselling, then your proper verdict would be manslaughter … "

39. The appellant makes no complaint about the terms of the learned trial judge's direction in relation to s 7(1)(d) and s 9 of the Criminal Code.

40. His Honour then went on to explain the second approach whereby the jury might properly convict Deemal-Hall. In doing so his Honour made the observations of which the appellant complains, and which I have set out at [33] above.  His Honour then said:

"So if I could just repeat that.  The liability for the killing in those circumstances extends to all the persons who, firstly, form a common intention to prosecute that unlawful purpose;  provided again that the conduct which results in the killing was likely to endanger human life;  and thirdly, that that conduct was a probable consequence of the prosecution of the unlawful purpose."

41. Pausing here, one can see that the learned primary judge is immediately qualifying the remarks of which the appellant complains by emphasizing that it is necessary that the conduct likely to endanger human life was a probable consequence of the prosecution of the unlawful purpose. It is clear that these remarks were made with s 302(1)(b) in mind.  If they had made the point that the unlawful purpose which the jury had to find beyond reasonable doubt was not merely a plan to effect a simple assault but a plan for the actual assailants intentionally to wound the deceased, in which life-threatening blows were an inherent possibility, the direction would have been orthodox in that it would have drawn the jury's attention to the necessary questions as to the nature of the plan to which Deemal-Hall lent her aid and to her knowledge of her confederates' intentions and whether life-threatening blows were encompassed by the plan.^[1]

42. However, his Honour immediately went on to say:

"Following this approach in the context of this case, relating to all three defendants, you could not convict any one of them of murder unless you are satisfied beyond reasonable doubt that the common intention was to commit an assault on Mr Toth of sufficient seriousness that an intention to cause grievous bodily harm on the part of one of the attackers was a probable consequence of the prosecution of the plan.  It doesn't have to be all the people, but if one of the attackers had that intention and you are satisfied as to the other matters it would be murder.  If you were not satisfied that that probable consequence was present, but you were satisfied beyond reasonable doubt that the assault was of sufficient seriousness that death was a probable consequence, then the proper verdict would be manslaughter.  The difference between the two is whether you come to the decision that the probable consequence included one of the attackers having that relevant intention to do grievous bodily harm."

43. It can be seen in this passage that the learned trial judge is directing the jury to consider whether this was a case where the prosecution of the common purpose has given rise to the formation on the part of one or more of the actual assailants of an intention to cause grievous bodily harm. In the light of this passage, the point made in the appellant's submissions that the effect of the direction was that the jury were told that they could convict Deemal-Hall of murder without any party to the common purpose having the intention to do grievous bodily harm cannot be sustained. What the learned trial judge was here saying was that if the common purpose was to assault the deceased with such severity that there was a real possibility that one of the attackers might form an intention to inflict grievous bodily harm, eg by use of the stick or the steel-toed work boots, then if the assault with the stick or boots caused death, each party to the plan can be guilty of murder. In relation to this part of his Honour's direction, the most that can be said for the appellant is that while this direction was appropriate in relation to s 302(1)(a) of the Criminal Code,^[2] it was not apt in relation to s 302(1)(b) of the Criminal Code.

44. Insofar as the issue put to the jury required them to consider whether an intention to do grievous bodily harm on the part of any one of the attackers could be inferred, a conclusion that both Darkan and McIvor had such an intention was plainly open on the evidence of Bowen concerning the violence of their sustained attack on the deceased, and their use of steel-capped boots, quite apart from Darkan's use of the stick. A conclusion that the prosecution of the assault by an assailant intent on doing grievous bodily harm was a probable consequence of the prosecution of the common purpose was also open to the jury depending on the view they took of what was involved in the common intention to give the deceased a "touch up" and, in particular, whether the jury were disposed to regard this phrase as a sinister understatement of the intentions of the appellants in the light of Bowen's evidence of what actually occurred and the nature and extent of the injuries suffered by the deceased.

45. The real concern to which the learned trial judge's direction gives rise is whether the passage of which the appellant complains would have been regarded as a path to a conviction for murder separate from, and independent of, his Honour's later reformulation. On the earlier instruction set out at [33] above, his Honour does appear to have instructed the jury that a common purpose involving no more than a simple assault on the deceased together with life-threatening conduct from any one assailant would suffice to make the assailants and Deemal-Hall guilty of murder.  That instruction does not represent the law.  Section 302(1)(b) requires that the life-threatening act be done in the prosecution of the common purpose.  That means that for the purposes of the combined operation of s 8 and s 302(1)(b) of the Criminal Code the common purpose must encompass the doing of the life-threatening acts.^[3]

46. The Crown Prosecutor's remarks may also be understood to have invited the jury to convict any of the accused of murder on the basis that the common purpose was not more than a simple assault upon the deceased. I am not sure that they would have been understood that way. In speaking of the assault, the Crown Prosecutor may have been speaking of the planned assault. In the end, however, the Crown Prosecutor's remarks seem to me not to matter because we should proceed on the footing that the jury took its direction on these reasonably complex matters of law from the learned trial judge.^[4]

47. It is important, in this regard, that when asked by the jury for a redirection in relation to criminal responsibility via a common intention to prosecute an unlawful purpose, the learned trial judge said:

"Perhaps I can express it in these terms.  The relevant common intention which must be proven beyond reasonable doubt contemplated by section 8 and necessary to support a verdict of murder is one to commit an assault of sufficient seriousness that an intention to cause grievous bodily harm on the part of at least one of the persons who are doing the attacking was a probable consequence of the prosecution of the unlawful purpose.

Okay.

So keep focussing on the words 'probable consequence'.  If the probable consequence was an assault of sufficient seriousness that one of the attackers must have had an intention to do grievous bodily harm that's probably [sic] consequence:  the verdict is murder.

If that probable consequence is absent but the assault the subject of the common intention was nevertheless sufficiently serious that death was a probable consequence and it occurred, then the proper verdict is manslaughter.  So it comes back to what is the probable consequence?  Was it a probable consequence that one of the attackers would have done the acts with the intention to do grievous bodily harm?  If so, murder…"

In relation to this redirection, I should note that the jury had been provided with copies of s 7, s 8, and s 9 of the Criminal Code, but not s 302.

48. Having regard to the totality of his Honour's direction to the jury on this point, and especially to the redirection to which I have just referred, I do not consider that the jury could have convicted Deemal-Hall of murder pursuant to s 8 of the Criminal Code without being satisfied beyond reasonable doubt that it was probable that, in carrying out the joint assault on the deceased, the deceased would be fatally injured by the actual assailants and that one or more of the actual assailants would form an intention to do grievous bodily harm to the deceased or to kill him.  The appellant makes no complaint in relation to the content of the direction insofar as it concerned s 302(1)(a).  While the learned trial judge's direction strayed from the path of s 302(1)(b) which the Crown Prosecutor urged, and onto the path of s 302(1)(a), the direction which was given in relation to s 302(1)(a) did not leave it open to the jury to act upon the part of the direction of which the appellant complains.

49. That conclusion makes it unnecessary to deal with the appellant's submission that a conviction on the basis of the combined operation of s 8 and s 302(1)(b) was not open in the circumstances of this case. For the purposes of this submission, the appellant identifies the unlawful purpose which it was the common intention of Deemal-Hall, Darkan and McIvor to prosecute as no more than a "touch up", that is to say, no more than an assault simpliciter. The appellant then contends that the assault on the deceased cannot, for the purposes of s 302(1)(b) of the Criminal Code, constitute both the "unlawful purpose" and the "dangerous act".^[5]  In this regard the appellant relies on what Gibbs J, speaking of assault, said in Stuart v The Queen:^[6]

". . . the dangerous act causing death was a violent assault but the accused had no purpose other than to assault the deceased."

50. While it is not necessary to deal with this submission in order to determine the fate of this ground of appeal, it is, in my view, desirable to observe that it is quite clear from the context from which the proposition of Gibbs J has been taken that his Honour was not speaking of a case in which the purpose of the subject of the common intention went beyond a mere assault and extended to a plan to cause actual bodily harm.^[7]  It is clear that Gibbs J regarded such a purpose as something quite distinct from a purpose which does not extend beyond the act of touching sufficient to constitute an assault as defined in s 245 of the Criminal Code.^[8]

51. In conclusion in relation to the first ground of appeal, I consider that the direction which the learned trial judge gave was not apt to lead the jury to the view that the appellant could have been convicted without any of the assailants forming an intention to inflict grievous bodily harm on the deceased. The jury were directed that they could convict of murder only if they were satisfied beyond a reasonable doubt that it was a probable consequence of the prosecution of the common intention that one of the actual assailants would have killed the deceased by kicking and striking him with the intention of inflicting grievous bodily harm. For reasons which I will set out when dealing with the appellant's fourth ground of appeal, the jury were entitled to convict on that basis.

Probable consequence

52. As to the second ground of appeal, the appellant complains of the learned trial judge's direction to the jury that:

"Now when I speak of probable consequences, it means that it's a real possibility or a substantial cause or a real chance that that event would happen."

53. The interpretation of s 8 of the Criminal Code which the appellant challenges was affirmed by this Court in R v Hind & Harwood^[9] and R v Salmon & James.^[10]  It was said in Salmon that a direction on the meaning of "probable" was unnecessary.  That will usually be the case, at least where the jury does not seek the judge's assistance as to its meaning.  It is a different question, however, whether or not the learned trial judge's direction misled the jury.  According to both Hind & Harwood and Salmon it is open to explain the word "probable" in its statutory context as meaning "a real possibility" as the learned trial judge chose to do.

54. The appellant invites this Court to reconsider the correctness of these decisions, particularly R v Hind & Harwood since the Court in R v Salmon & James was content to assume that R v Hind & Harwood was correctly decided.^[11]  This Court should not depart from the position authoritatively established by two of its earlier decisions unless convinced that those decisions are wrong.^[12]

55. In my respectful opinion, R v Hind & Harwood was correctly decided.  It reflects a settled position in relation to the interpretation of the language of s 8 of the Criminal Code whereby criminal responsibility is imposed for the consequences of the risks which can realistically be seen to be assumed as part and parcel of engaging in criminal activity involving more than one person.  If a common criminal purpose involves a real risk that another offence will be committed by one of the participants in the course of the implementation of the plan, then all the participants are taken to be criminally responsible for that other offence even if they did not actually intend that outcome.  If a killing with the intention of causing death or grievous bodily harm is the kind of offence of which the carrying out of the common unlawful purpose gives rise to a real risk, then the parties to the execution of that purpose, are guilty of murder.  If an unintentional killing only was a likely result of the prosecution of the common purpose, then the parties to the prosecution of that purpose are guilty of manslaughter.

56. Thus, in Brennan v The King^[13] Dixon and Evatt JJ, speaking of the Western Australian analogue of s 8 of the Criminal Code, which was in the same terms as s 8, said:^[14]

"… the death can be considered the probable consequence … of the purpose if the purpose in which the [accused] concurred made it likely that his confederates would, if necessary, use violence and such a kind or degree of violence as would probably cause death."

57. In Boughey v The Queen^[15] the High Court was concerned with the provisions of the Tasmanian analogue of s 302 of the Criminal Code.  Those provisions are quite different from s 302 of the Criminal Code.  One must, of course, exercise care in treating the interpretation of the Tasmanian provision as a guide to the interpretation of s 8 of the Criminal Code,^[16] but the circumstance that, in Boughey v The Queen, Mason, Wilson and Deane JJ said that the meaning of the word "likely" in that context was "a substantial - a 'real and not remote' - chance …",^[17] affords some support for the now well-established understanding of the word "probable" in the context of s 8 and s 9 of the Criminal Code.  Significantly, there is no support in authority for the submission that the well-established understanding to which I have referred is unsound.

58. While it is "erroneous to approach the Code with the presumption that it was intended to do no more than restate the existing law",^[18] it is permissible to obtain instruction from decisions expounding a common law principle where the Code employs the language in which the common law principle is conventionally expressed.^[19]  Such instruction may be obtained from "decisions subsequent to the Code's enactment".^[20]  The issue raised by the appellant must be resolved by the application of the words of the Criminal Code rather than the principles of the common law;  but, in R v Hind & Harwood,^[21] Fitzgerald P cited from the judgments in the High Court in Johns v The Queen^[22] (a case where criminal responsibility depended on common law principle conventionally expressed in terms of the probability of an outcome of the prosecution of the common intention)^[23] two passages of present relevance.  These passages provide both instruction as to the meaning of the word "probable" in the context of s 8 of the Criminal Code and a powerful demonstration of the soundness, in terms of the principled attribution of criminal responsibility to those who participate in joint criminal activity which endangers the life and limb of other members of the community, of the interpretation of s 8 which was applied in R v Hind & Harwood.  It is useful in this regard to set out in full the relevant part of the reasons of Fitzgerald P.  His Honour said:^[24]

"The facts in Johns were again broadly similar to the present case, so far as presently relevant, but Johns' culpability depended on the common law.  It was held that, for that purpose, it was not necessary that the unlawful act which caused death was probable in the sense of more likely than not.

Mason, Murphy and Wilson JJ said at 131:

'The narrow test of criminal liability proposed by the applicant is plainly unacceptable for the reason that it stakes everything on the probability or improbability of an act, admittedly contemplated, occurring.  Suppose a plan made by A, the principal offender, and B, the accessory before the fact, to rob premises, according to which A is to carry out the robbery.  It is agreed that A will carry a loaded revolver and use it to overcome resistance in the unlikely event that the premises are attended, previous surveillance having established that the premises are invariably unattended at the time when the robbery is to be carried out.  As it happens, a security officer is in attendance when A enters the premises and is shot by A.  It would make nonsense to say that B is not guilty merely because it was an unlikely or improbable contingency that the premises would be attended at the time of the robbery, when we know that B assented to the shooting in the event that occurred.'

There is a passage in the judgment of Stephen J in Johns at 120-121 in which, in discussing references to probability in this area of the common law, he suggests that 'probable' may bear a variety of meanings and even, in some cases, be satisfied by anything more than a bare probability.^[[25]]  However, overall, both Barwick CJ (at 113) and Stephen J (118-119) in Johns accepted and emphasised the difference between probability and possibility.  Indeed, Stephen J's judgment recognises that an occurrence dependent on unpredictable events cannot be described as probable according to its ordinary meaning.  At 118-119, his Honour said:

'... if, in carrying out that contemplated crime, another crime is committed there arises the question of the complicity of those not directly engaged in its commission.  The concept of common purpose provides the measure of complicity, the scope of that common purpose determining whether the accessory before the fact to the original crime is also to share in complicity in the other crime.  If the scope of the purpose common both to the principal offender and to the accessory is found to include the other crime, the accessory will be fixed with criminal responsibility for it.  In determining scope, it may either be restricted to what the accessory regarded as probable consequences of the criminal venture or may be extended to include what he regarded as possibly involved in the venture.  To apply to such a situation a criterion of what is probable, as contrasted with what is merely possible, seems singularly inappropriate.  The commission of that other crime will not have been the prime object of the criminal venture; it will in all probability have been committed as a reaction to whatever response is made by the victim, or by others who attempt to frustrate the venture, upon suddenly being confronted by the criminals.  There will usually be a variety of possible responses to the criminal act.  With each of these contingencies the criminals will have to reckon, if they are at all to plan their future action.  What they conceive of as contingent reactions to each possible response will have, interposed between these reactions and the planned crime, at least one and perhaps a whole sequence of spontaneous and relatively unpredictable events.

In those circumstances it is understandable that criminal liability should be made to depend upon the jury’s assessment of whether or not the accessory before the fact must have been aware of the possibility that responses by the victim or by third parties would produce the reaction by the principal offender which led to the other crime.  In such a speculative area, it would be remarkable were the accessory's liability for the other crime to depend upon the jury assessing, in terms of 'more probable than not', the degree of probability or improbability which the accessory attached to the happening of the particular reaction by the principal offender which in fact occurred, itself dependent upon the intervening uncertain responses of victim or third parties.  Yet that is what would be required were an accessory's responsibility to depend upon such a criterion of probability, necessarily involving a balancing process and often a nice assessment of odds.  I have spoken of intervening contingencies dependent upon human responses; however to these must be added those contingencies which may arise without any human intervention.

Another and perhaps more substantial objection to the suggested criterion of probability lies in the standard of blameworthiness and responsibility which it presupposes.  If applied, it would mean that an accessory before the fact to, say, armed robbery, who well knows that the robber is armed with a deadly weapon and is ready to use it on his victim if the need arises, will be^[[26]] no criminal responsibility for the killing which in fact ensues so long as his state of mind was that, on balance, he thought it rather less likely than not that the occasion for the killing would arise.  Yet his complicity seems clear enough; the killing was within the contemplation of the parties, who contemplated 'a substantial risk' that the killing would occur: Howard, Criminal Law, 3rd ed (1967), 276.'"

59. In Johns v The Queen, Stephen J discussed the genesis of the notion of "probability" as a basis under the common law for sheeting home criminal responsibility for the acts of the principal offender to an accessory.  His Honour said:^[27]

"That the notion of 'probability' as a suggested criterion of an accessory's liability for what I have called 'the other crime' finds its place in the literature is perhaps due to Sir Michael Foster's use of the term.  In his Crown Cases, 3rd ed (1809), in treating of accessories before the fact, he says, at p 370:  'So where the principal goeth beyond the terms of the solicitation, if in the event the felony committed was a probable consequence of what was ordered or advised, the person giving such orders or advice will be an accessary (sic) to the felony' (emphasis added).  However it is clear from the illustrations which the learned author then gives that he cannot intend 'probable' in any such sense as the applicant would use it; that is, as meaning 'more probable than not', almost as a question of percentage calculation.  The second illustration given by Foster aptly demonstrates this, it is as follows:  'A adviseth B to rob C, he doth rob him, and in so doing, either upon resistance made, or to conceal the fact, or upon any other motive operating at the time of the robbery, killeth him.  A is accessary (sic) to this murder.'  The same point may be made of other illustrations which Foster gives. In Reg v Radalyski ((1899) 24 VLR 687) counsel for the appellant, an accessory before the fact to abortion, sought to rely on the passage from Foster for the proposition that, for his conviction of murder to stand, the death of the woman during an attempted abortion had to be shown to be a probable consequence.  When this was put, Williams J pertinently observed, in the course of argument ((1899) 24 VLR at p 691), that the 'extension of the instances given (that is to say, Foster's examples) is against you':  Street CJ made a similar observation when the present matter was before the Court of Criminal Appeal.

Sir James Stephen, when he came to write his Digest of the Criminal Law, cited (8th ed (1947), p 21) the above passage from Foster J in support of his own statement of an accessory's criminal responsibility.  He used the phrase 'likely to be caused' rather than 'probable consequence' but repeated verbatim Foster's illustration which I have set out above.  The meaning of 'probable' for which the applicant must contend, that of something which is more probable to happen than not to happen, seems to be no more intended by Stephen's use of 'likely' than by Foster's use of 'probable'."

60. In Brennan v The King, Dixon and Evatt JJ also noted that the use of the word "probable" in s 8 of the Criminal Code, seems to have been derived from Sir Michael Foster's use of the term in the common law in relation to criminal responsibility for acts done in the prosecution of a common criminal purpose.^[28]  Though it may not have been necessary to direct the jury in those terms, I do not think the learned trial judge erred by doing so.

61. These considerations confirm my opinion that, for the purposes of s 8 of the Criminal Code, the reference to "a probable consequence" is to a consequence which is a "substantial risk" or "real chance" or "real possibility" of occurring in the prosecution of the common unlawful purpose.

62. I would reject the appellant's second ground of appeal.

Separate trials

63. The third ground of appeal arises because the learned trial judge refused to order separate trials of the appellants.

64. The appellant complains in this regard of:

1. the absence of evidence admissible against her of knowledge on her part of the likely use of the stick.  The interviews given by McIvor and Darkan contained assertions which linked Deemal-Hall to the use of the stick and suggested that she used it herself on the deceased;

2. the attack on her at trial by counsel for McIvor which suggested that Deemal-Hall and Darkan together planned "a more serious attack on the deceased" than a "bit of a touch up".  It is said that this attack was gratuitous because it was not apt to confer any forensic advantage on McIvor and could not have been anticipated.

65. The appellant argues that neither of these problems could have been cured by a direction from the learned trial judge.

66. The prejudice which might have been caused to Deemal-Hall from the material in the records of interview and the attack upon her by a co-accused is no greater than that which often arises in cases of joint trials. It has not previously been regarded as necessitating separate trials.

67. In Ali v The Queen^[29] Callinan and Heydon JJ,^[30] with whom Gleeson CJ agreed,^[31] said:

"[58] … Section 597B of the Criminal Code (Q) confers a discretion on the trial judge, at any time during the trial of two or more persons, as here, charged in the same indictment, that the persons charged be tried separately.  The events leading up to the murder and dismemberment of the infant, and the guilt or innocence of the appellant and the co-accused, were closely interconnected.  Their relationship, their similar motives, their almost equal opportunity to commit the crimes, and their capacity, either separately or jointly to commit them, all argued very strongly in favour of a joint trial.  There were no special or other features of the case requiring that they be tried separately.  That one might seek to incriminate the other, as each accused here did, could provide no justification for a direction that the appellant and his co-accused be tried separately (R v Palmer [1969] 2 NSWR 13).  A joint trial of the appellant and the co-accused served to give the jury the means of obtaining a conspectus of the respective roles of each of them in the crimes with which they were charged."

68. For reasons which I will deal with in relation to the fourth ground of appeal, the case against Deemal-Hall was a strong one. That is important for present purposes because the out of court statements by Darkan and McIvor are not such as to make the case against Deemal-Hall "immeasurably stronger,"^[32] or even significantly stronger, than it would have been without those statements.  There was, in my view, no risk of prejudice that could not be redressed by a direction by the learned trial judge.

69. The learned trial judge directed the jury that "the guilt or innocence of each defendant must be decided solely on the evidence that is admissible against the defendant", and that, "in this regard, the records of interview cannot be used against another defendant." This was not a case where there was a complex tangle of evidence and non-evidence which could not be intelligibly dissected for the jury.^[33]  The judge's direction was sufficient to prevent any prejudice to each accused by reason of the assertions made in the records of interview of the other accused.  There is no reason why this Court should not proceed on the footing that the jury understood and followed the direction given by the learned trial judge.^[34]

70. As to the attack by counsel for McIvor on Deemal-Hall and Darkan, the appellant Deemal-Hall and Darkan both seek to make much of the "gratuitous" nature of this attack, which is so described because it could not reasonably be thought to advance McIvor's interests. It is not apparent to me that the attempt by McIvor's counsel to emphasize the closer involvement of Darkan and Deemal-Hall in devising the plan to "touch up" the deceased could not have advanced McIvor's position. It would have been in McIvor's interests to suggest that what happened to the deceased was the result of the unfolding of a plan to which McIvor was not privy. In any event, having regard to the strength of the case against each of Deemal-Hall and Darkan, it is unrealistic to suggest that their prospects of an acquittal were actually prejudiced by the attack by McIvor's counsel.

Unreasonable verdict

71. As to the fourth ground of appeal, viz that the verdict was unreasonable, the appellant contends that, whether pursuant to s 7(1)(d) and s 9 of the Criminal Code or s 8 and s 302(1)(a), the Crown had to establish beyond reasonable doubt that a killing with intent, either to kill or to cause grievous bodily harm, was the probable consequence of the implementation of the common intention, the ambit of which was no wider or more serious than "a touch up" in the sense of a common assault.

72. This submission seeks to make a virtue out of necessity, by fixing upon the indeterminate meaning of the expression "a touch up", and arguing that the prosecution of a plan to give the deceased "a touch up" could not be found beyond reasonable doubt by the jury to have involved the probable formation on the part of one or more of the actual assailants of an intention to cause grievous bodily harm to the deceased. It is wrong, in my view, to approach a consideration of the common purpose of the appellants as if there was some understanding that the colloquialism, "a touch up", cannot be understood, and understood clearly, to mean that something distinctly more serious than a mere assault is in view.

73. In my opinion, a common intention to assault the deceased with such severity that it was probable that the deceased would be fatally injured and that one or more of the actual assailants' would take to their task with a will so as intentionally to inflict grievous bodily harm on the deceased could have been inferred by the jury from the evidence. In this regard, there was uncontradicted evidence of Deemal-Hall's ill‑feeling towards the deceased, of her recruitment of a number of persons to assault him, and of her luring of the deceased to a place where he could be expected to be without assistance while the beating was being administered and thereafter.  Importantly, when Bowen said that the deceased needed help (and this observation was undoubtedly correct) her response was consistent only with the view that she was not disposed to assist the deceased and was satisfied with what had occurred.  Moreover, there was no suggestion of any dissent on her part to the brutal attacks by Darkan and McIvor on the deceased which proceeded, at least to a large extent, in her presence.  Bowen's uncontradicted evidence was that Deemal-Hall had organized the beating.  Darkan and McIvor were doing it for money.  She was their paymaster.  There is no suggestion that she sought at any time to call off her hired thugs or could not have done so had she been disposed to try.  She paid for the results achieved and promised further payment after the beating had concluded.  There was not a word of remorse from her or any suggestion from her that she thought that "things had got out of hand".

74. These considerations afford a strong basis for the conclusion that what happened to the deceased did not at any time exceed her intentions as to the kind of "touch up" the deceased was to receive from her hired assailants. The jury were presented with a compelling case that the beating administered by Darkan and McIvor proceeded to the satisfaction of Deemal-Hall and in conformity with the common intention to which she had recruited them.

75. I should mention, for the sake of completeness, that it seems likely that Deemal-Hall knew that McIvor had brought along the stick for the purposes of the beating to be administered to the deceased, but even if that inference is not clear beyond reasonable doubt, the other considerations to which I have referred afford ample support to the jury's verdict.

76. It was open to the jury safely to infer that it was a probable consequence of the prosecution of the plan to which Deemal-Hall recruited Darkan and McIvor, that those charged with the physical administration of the beating would carry out the plan by attacking the deceased with the intention of causing grievous bodily harm. The evidence of the conduct of Deemal-Hall before the beating started, while it continued and after it had ceased, points to her commitment to a plan to assault the deceased with such severity that the murder of the deceased was a probable consequence of the prosecution of that purpose. There is no reason to doubt that, when Darkan and McIvor laid into the deceased, they were intending to inflict as much harm upon the deceased as their paymaster required and as they were obviously inflicting. The jury's verdict was not unreasonable.

77. In my opinion, the appeal by Deemal-Hall should be dismissed.

The appeal by Darkan

78. The appellant Darkan raised the following grounds of appeal:

1. that the jury should have been discharged following the introduction of inadmissible and prejudicial material by counsel for McIvor;

2. that the learned trial judge should have granted the application of Darkan's counsel for a separate trial following the addresses.

The appellant Darkan was also given leave to rely on the first two grounds of appeal advanced on behalf of the appellant Deemal-Hall, on the footing that Darkan's case was that he did not strike the fatal blow or blows.  These grounds have already been addressed and rejected in relation to Deemal-Hall.  For the same reasons they may be rejected in relation to Darkan.

79. The first of the grounds of appeal raised solely by the appellant Darkan was based on the suggestion in cross-examination by counsel for McIvor to the investigating police officer, Detective Hodgman that, at a time when Darkan and McIvor were in custody, arrangements were made for Darkan to be fitted with a covert personal listening device and then placed in the cells with McIvor.

80. An application was made to discharge the jury on the basis that the suggested arrangement showed that Darkan was of bad character. The learned trial judge refused this application on the ground that the prejudice was very slight and directed the jury to disregard the suggestion.

81. The learned trial judge was plainly correct. Darkan did not give evidence. His credibility as a witness was not in issue. The jury heard uncontradicted evidence that Darkan had brutally, systematically and determinedly beaten the deceased with a stick and steel-capped boots; and that he did this for money. A contention that, because of a suggestion that he was willing to assist the police to gather evidence against other persons involved in the assault, the jury would have thought less of him in a way which might have reduced his chances of an acquittal, cannot be taken seriously.^[35]

82. As to the second ground of appeal, it was contended that Darkan's right to a fair trial was prejudiced by:

1. the evidence of dishonesty and animus on the part of Deemal-Hall towards the deceased that was not admissible against Darkan and may have adversely affected him in the eyes of the jury;

2. the attack in address by McIvor's counsel on Darkan and Deemal‑Hall of plans on their part to make "a more serious attack" on the deceased;  and

3. an attack in address by counsel for Deemal-Hall on Darkan which repeated the arguments for the prosecution against Darkan.

83. As to the first point, it is unlikely that evidence that Deemal-Hall was dishonest and hated the deceased would have adversely affected Darkan in the eyes of the jury.

84. I consider that the second, and third points, have no more merit here than in any case of a joint trial of accused persons who employ cut throat defences against each other. I have already referred to this issue in relation to Deemal-Hall.

85. The appellant relied, in this regard, on the decision of the Court of Criminal Appeal in R v Crawford.^[36]  That reliance seems to me to be misplaced because that was a case where the only evidence of any cogency at all against the relevant accused on a critical element of the offence charged was contained in the record of interview of a co-accused.^[37]  In such a case the accused was truly prejudiced by the joint trial in which the co-accused's record of interview was put in evidence.  In this case the uncontradicted evidence of Bowen was admissible against Darkan and made a strong case against him.

86. The appellant also relies on the decision of the Court of Criminal Appeal of Victoria in R v Jones & Waghorn.^[38]  That case too is readily distinguishable on the footing that the evidence which was inadmissible against the relevant accused, but which was before the jury because an application for separate trials had been refused, was the only evidence which gave the accused a motive for murder and did so in terms which attributed to the accused the "worst possible bad character" which the jury could not be expected to exclude from their minds whatever direction was given by the learned trial judge.

87. In my opinion the appeal by Darkan should be dismissed.

The appeal by McIvor

88. On the appeal by McIvor, by leave, the following grounds were argued:

1. the learned trial judge erred when he directed the jury and allowed the Crown Prosecutor to address the jury, as to the applicability of s 302(1)(b) of the Criminal Code;

2. the learned trial judge erred when he told the jury that, for the purposes of s 8 of the Criminal Code, a "probable consequence" meant one that was "a real possibility".

89. For the reasons set out in relation to the appeal by Deemal-Hall, I do not consider that these grounds are made out.

90. There was an overwhelming Crown case that McIvor's assault on the deceased was effected with the intention of causing the deceased grievous bodily harm.

91. In my opinion, the appeal by McIvor should be dismissed.

92. MUIR J:  I agree with the order proposed by Keane JA and with his reasons.  I agree also with the reasons of Williams JA.