SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: The appellant, Patrick Francis Brown, pleaded not guilty on 16 October 2006 to murdering David Charles Meneely (count 1) and to robbing him with personal violence in company while armed with a dangerous weapon (a rifle), with an offensive instrument (a hammer), and with an offensive instrument (a porcelain figurine) (count 2).  Both offences were said to have occurred on 13 August 2003.  After a six day trial a jury found him not guilty of murder but guilty of manslaughter and of robbery in company with personal violence, but not guilty of the circumstances of aggravation alleging that he was armed with a rifle, a hammer and a porcelain figurine.

[2] He appeals against his conviction alleging errors in the directions given by the primary judge first, concerning s 7(1)(c) Criminal Code and second, concerning s 8 Criminal Code.

The evidence

[3] Before turning to the grounds of appeal, it is helpful to set out the relevant evidence at trial.

[4] The deceased's body was found by members of the Queensland Fire and Rescue Service attending a fire at 4.04 am on Friday, 15 August 2003 in a room on the lower level of his house in Salisbury, a southern suburb of Brisbane.  The fire originated in the room where the body was found.  He was lying face down.  Much of the clothing over his back had been burnt away.  His head was swathed in bedding materials secured with plastic hose and rope.  His ankles were tied with electrical cord.  The position of the melted remains of a nylon rope on his lower back was consistent with the rope having been used to tie his arms and hands. 

[5] Pathologist, Dr Lampe, conducted the post-mortem examination.  The deceased was wearing jeans and a black jacket with red piping.  He had suffered multiple abrasions, lacerations and wounds to the head and face as well as a significant skull fracture on the left side of the scalp, another skull fracture depressed inwards about one centimetre, and fractures around one eye and the nose.  Many of the teeth at the front of his mouth had been traumatically dislodged.  There was no significant injury to the neck or abdomen.  There was traumatic disruption to the cartilage at the front of one rib and some bruising.  The force used to inflict the two skull fractures would have been at least moderate and probably severe.  The fatal head injuries were consistent with many blows from a weapon inflicting blunt force.  They could have been caused by fists, feet, boots or a hammer.  Blue paint and white angular crystalline shards consistent with porcelain were found in some of the wounds.  Parts of a broken porcelain figurine of a dog and part of a broken hat stand with the deceased's blood on it were located in the room where the body was found.  Other pieces of the figurine were found in the laundry tub, also with the deceased's blood on them.  The deterioration of the body and the absence of any smoke inhalation suggested that the deceased had died from the head injuries some days before the fire, probably on the morning of Wednesday, 13 August 2003.  He may have survived for a couple of hours after the lethal injuries were inflicted.  There were extensive burns to his body.

[6] The deceased had a high level of methylamphetamine in his blood which was potentially fatal but it would not necessarily have been fatal to a regular user.

[7] The appellant formally admitted at trial that the deceased used his own key-card to withdraw money from an automatic teller machine at the Commonwealth Bank at Moorooka at 6.24 am on 13 August 2003.  It followed that the deceased died some time after 6.24 am.

[8] A witness to whom I shall refer as “X” was originally charged with murder but, after providing a statement to police and agreeing to give evidence against the appellant, he pleaded guilty to the manslaughter and armed robbery of the deceased.  Prior to the appellant's trial he was sentenced to nine years imprisonment.  He would have been sentenced to 10 years imprisonment with a declaration under Pt 9A Penalties and Sentences Act 1992 (Qld) but for his cooperation with the authorities (see s 13A of that Act).  He was a regular methylamphetamine and cannabis user.  He gave evidence that Witsen, the appellant and he went to the deceased's home three nights before the killing.  Witsen and his girlfriend were then living with the deceased.  The deceased was in debt to Witsen and the others for a few thousand dollars.  He and Witsen decided to steal items from the deceased to recoup the value of their debt.  Witsen said the property they had taken did not cover the value of the debt and so Witsen and X returned to the deceased's home at about 1.00 am on Wednesday, 13 August in a Mitsubishi driven by X.   

[9] The deceased and Witsen's girlfriend were upstairs.  The appellant arrived after an hour or two but left again after a short time.  About half an hour later X heard the appellant ride off on the deceased's motor cycle and shortly afterwards return.  The appellant re-entered the lower level of the house wearing black jeans, black shirt and a black balaclava; he was carrying a round headed (ballpein) hammer.  He crash-tackled the deceased and they struggled.  The appellant swung the hammer and X heard it strike the deceased a few times.  The deceased said, "Take everything, take anything."  The appellant called for Witsen to come downstairs.  X went upstairs before hiding in the shed outside.  He heard the deceased say, "Don't, don't do this."  He heard Witsen tell the appellant to tie up the deceased.  Witsen yelled words like, "Don't move."  He heard banging and smashing noises, next a gun shot from the direction of the house and then silence.  The appellant had a sawn-off shotgun tucked into the back of his pants during the struggle with the deceased.  It fell out when the appellant hit the ground. 

[10]  X noticed Corey Giezendanner outside near the Mitsubishi.  He was wearing something on his head.  After about 10 or 15 minutes the appellant, after being at the deceased's house for about half an hour, left on the deceased's motor bike with Giezendanner.  (A small amount of the deceased's blood was later found on the bike.)   

[11]  X left for his home in the Mitsubishi but on the way realised he had forgotten his fiancée's mobile phone.  He returned to the deceased's home after first phoning the mobile, which was answered by Witsen.  Witsen was in an agitated state; he gave the phone to X outside the deceased's house.  X again drove off for his home arriving there at about 7.30 am.  His then fiancée, Melissa Davis, noticed that he appeared to have blood splatters on his pants, one of which was on the thigh and was 5 centimetres long by a half centimetre wide.

[12]  X had given inconsistent versions of the events preceding the killing, for example, as to whether the appellant was carrying a gun, a club or a hammer on the night of the killing.  When giving evidence on an earlier occasion, he said he heard two gun shot sounds, not one.  

[13]  A neighbour, Mr Bull, saw a young man sitting in the Mitsubishi parked outside the deceased's house at 6.15 am on Wednesday, 13 August.  After about ten minutes he got out.  He was wearing a red beanie.  He then returned to the car and appeared agitated as he looked towards the house.  Mr Bull next noticed him wandering up the street.  At about 6.45 am Mr Bull heard the deceased's Harley Davidson motorcycle come down the street ridden by someone wearing a helmet and dark clothing.  He assumed it was the deceased.  About five minutes later he heard shouting and a male voice yell, "Get out".  A few minutes later at 6.50 am he heard a bang which could have been a gunshot, a backfire or a door slamming.  It was not loud enough to be a rifle shot.  There was no-one on the street.  Five or ten minutes later he heard the motorcycle come back down the street although he had not noticed it had left the deceased's premises.  It was ridden by the same person he had seen earlier in the morning but this time with a pillion passenger, the person with the read beanie.

[14]  Mrs Bull heard the Harley Davidson motorcycle leave the deceased's premises and a few minutes later saw it return with two people on it.  She assumed the rider was the deceased; he was dressed in a helmet and black gear but she could not be sure of his identity because she did not see his face.  The pillion passenger was wearing a red beanie.

[15]  Craig Lord, an acquaintance of the deceased, went to his home on Thursday, 14 August at about 3.30 or 4.00 pm to repay some money and to borrow equipment to work on his car.  He noticed the glass near the front door was cracked and the house was in a state of disorder.  He did not see the deceased and left.  He made enquiries with mutual friends and returned at about 1.30 the next morning.  He forcibly entered the house.  He noticed the dog had not been fed and fed it.  The house had been ransacked and property apparently stolen.  He did not see the deceased on this occasion either and again left. 

[16]  On 24 August 2003 a sawn off .22 rifle was found not far from the deceased's home at the Brothers St Brendan's Rugby Club, Kookaburra Park.  On 15 August 2003 police had found part of the sawn off butt of that rifle in a bin at the deceased's home and upstairs a single undischarged .22 calibre bullet.  Scientific examination showed that the bullet had been fed through the action of the sawn off rifle. 

[17]  On 16 August 2003 police attended an address at Kingston where they located a Mitsubishi sedan with the same number plate as the Mitsubishi sedan seen by Mrs Bull outside the deceased's home early on 13 August 2003.  Police then went to premises at Slacks Creek where they found the appellant lying under a bed.  He was wearing jeans apparently stained with blood.  Later scientific examination showed that the large stains on the outside front and back of both jean legs from the thigh downwards were blood and gave the deceased's DNA profile.  Police found an undischarged .22 calibre bullet in his jacket pocket.  It too had been worked through the action of the sawn-off rifle found at Kookaburra Park.  The deceased's Harley Davidson motor cycle was in the back yard.  The appellant said: "I've got nothing to say, I don't even know the bloke. … All I've got to say is that he was alive when I left. …  I've got nothing to say, I'm not doing an interview, no-one was meant to die."

[18]  Police found another .22 calibre bullet at premises in Beenleigh occupied by Justin Witsen.  It was engraved with "Justin".  This bullet had also been worked through the action of the rifle found at Kookaburra Park.

[19]  The appellant did not give or call evidence.  Through his counsel's cross-examination, his case was that he accepted that he had assaulted the deceased before his death in a ferocious fight but after he left the deceased's premises there was a subsequent more serious episode of deadly violence in which he was not involved.  That version was not accepted by any witnesses at trial.

The directions on s 7(1)(c) Criminal Code

(i)The appellant's contentions

[20]  The appellant's first ground of appeal is that the learned trial judge erred in directing the jury that they could convict him of manslaughter under s 7(1)(c) Criminal Code if they found he had aided the principal offender with knowledge that that offender had an intention to assault the deceased. 

[21]  The appellant's contentions are as follows.  The evidence was that the deceased was killed by multiple applications of moderate to severe force to the head, almost certainly with a weapon or weapons.  The verdicts mean that the jury were not satisfied the appellant was a principal offender in respect of either the killing or the robbery, nor that he was a party to any plan that comprehended an armed assault.  The jury were not satisfied the appellant was armed with any weapon.  This means that the jury did not accept X's evidence that the appellant was present at the time of the assault causing the death.  The jury evidently worked out for themselves a view of the case which did not represent the case of either party: cf Stevens v The Queen.[1]  Whoever committed the physical act of killing the deceased must have had an intention to at least do grievous bodily harm and was therefore guilty of murder.  Anyone who aided in the killing by means of a deliberate presence must have been aware of the intention of the killer and was therefore guilty of murder.  The appellant's statement to police raised the possibility that the deceased was killed by accident.  The judge's directions did not leave open the possibility of accident as a defence to the charge of manslaughter to an aider of the actual killer. 

[22]  The appellant places considerable emphasis on McPherson JA's statement in R v Lowrie and Ross:[2]

"Once such a state of mind or knowledge [intent to kill or do grievous bodily harm] on the part of one of the participants is established, he (or she) becomes criminally responsible for the act or acts of any of the others (whether identifiable or not) that cause or substantially contribute to the death and consequent murder of the victim.  In instructing the jury in such a case, it is, I consider, ordinarily sufficient to direct that, once a participant in such an assault becomes aware that life-threatening force is being used by one or more of the others, he or she is, by continuing to assist in the assault, liable to be found guilty if the victim's death results from injuries inflicted by any of the participants.  In applying this approach to such a case, it is of course, necessary to bear in mind that it is proof of the existence of the requisite state of mind or knowledge on the part of the participant that is decisive of responsibility for the offence that ensues. If that element is not established in the case of a particular offender, he will not be guilty of murder, although he may and probably will, subject to any relevance that s 23(1)(a) or s 23(1)(b) of the Code may have, be guilty of manslaughter."[3]

[23]  The appellant contends that for the jury to convict the appellant of manslaughter as an aider under s 7(1)(c), it was necessary for them to be satisfied both that a reasonable person in his position would have foreseen death as a possible outcome of the assault that he was aiding and that he actually foresaw this.  The judge's directions left it open to the jury to convict him of manslaughter even if he was party to a plan to inflict the most minor of assaults on the deceased and was not present when the unplanned and unforeseen deadly attack occurred.  Had the jury been properly directed, it cannot be said they would inevitably have concluded that the assault to which he was a party was one that he foresaw might lead to death.

(ii)The judge's relevant directions

[24]  In order to fairly consider these wide-ranging contentions, it is necessary to set out the judge's relevant directions in full context.  The judge explained to the jury that the prosecution case was that the appellant inflicted some, but not necessarily all, of the violence perpetrated on the deceased with an intent to do him grievous bodily harm and to kill him.  Alternatively, it was that the appellant aided or assisted one or more other persons to inflict such violence or alternatively that he was a party to a plan to rob the deceased and that it was a probable consequence of carrying out that plan that the deceased would be killed by someone who intended to kill him or do him grievous bodily harm. 

[25]  The judge then outlined the defence case.  It was that the appellant at some stage on the morning of the death arrived at the deceased's home to steal from him but not to rob him.  He was unexpectedly interrupted by the deceased and a ferocious fight ensued which involved wrestling, furniture falling over and possibly glass smashing but no weapon.  After the appellant left the deceased's home there was a second deadly attack on the deceased in which he was not involved. 

[26]  After fairly and helpfully summarising the evidence in some detail, her Honour dealt with the elements of the offences, explaining:

"… It is unlawful to kill another human being unless the killing is authorised or justified or excused by law.  What does to kill mean?  For one person to kill another it is enough that he does an act that is a substantial or significant cause of the death or which substantially contributes to it.  Unlawful killing amounts to murder or manslaughter.  It amounts to murder if it is done with the intention to kill the victim or to cause him grievous bodily harm.  Grievous bodily harm is bodily harm of such a nature that if it is left untreated, whether or not treatment is available, it would be likely to endanger life or to cause permanent injury to health.

What was the cause of Meneely's death?  On the medical evidence, he died from his head injuries. There were several drugs in his system, including methylamphetamine at a level that was potentially lethal but it may not have been lethal in a chronic user who'd developed a tolerance to it.  It's a matter for you whether you are satisfied beyond reasonable doubt that the head injuries were a significant or substantial cause of the death or substantially contributed to it.  If you are satisfied of that, then there was a killing and you wouldn't have to exclude the possible contribution of methylamphetamine.

Again, it's a matter for you, but you may have little difficulty in inferring from the number and nature of the head injuries that the blows were inflicted with the intention at least to cause grievous bodily harm, if not with the intention to cause death.

Under our law, a person is not criminally responsible for an act that occurs independently of the exercise of his will or for an event that occurs by accident.  The Prosecution therefore cannot establish that the killing was unlawful unless it persuades you beyond reasonable doubt both that the acts causing the death, the blows with a blunt object or objects, were willed, in other words, voluntary, and also that the relevant event, the death of Mr Meneely, did not occur by accident.

It's up to you, but you may have little difficulty in inferring from the number and nature of the head injuries, that the infliction of those blows was willed in the sense I've described.

The Prosecution has to establish beyond reasonable doubt that the death did not occur by accident.  An event occurs by accident if it was not intended or foreseen by the perpetrator and would not ordinarily have been foreseen by an ordinary person in his position.  It's up to you, but you may have little difficulty in being satisfied beyond reasonable doubt that an ordinary person in Brown's position would reasonably have foreseen Meneely's death resulting from these blows.

The first way in which the Crown puts to you that Brown is guilty of murder is as a principal offender.  What does this mean?  Well, first, did Mr Brown himself murder Meneely?  Did he do something which was a significant or substantial cause of death or which significantly contributed to it with the intent to kill or do grievous bodily harm?  You have to be so satisfied beyond reasonable doubt before you can convict him of murder on the basis that he was a principal offender.

As I've said, intent is a matter of inference and it has to be the only reasonable inference open on the evidence which you accept before you can draw it.

If you're satisfied beyond reasonable doubt one, that the defendant killed Meneely, two, that the infliction of the blows was willed, three, that the death was not an accident, but you're not satisfied to that standard that Brown intended to kill Meneely or to do him grievous bodily harm, then you will find him guilty of manslaughter.

If you are not satisfied to that standard that Brown did something which was a substantial cause of the death or substantially contributed to it, you can't find him guilty of either murder or manslaughter as a principal offender.

Was he liable as a secondary offender?  As I told you at the beginning of the trial, it's not only the person who actually does a criminal act who may be found guilty of it. Anyone who assists or helps that person or who does something for the purpose of assisting or helping may be guilty of the same or a lesser offence. That's what's meant by liability as a secondary offender.

There are a number of things that have to be made out before someone can be found guilty as a secondary offender.  The assistance can take the form of actual physical assistance or of wilful encouragement.  There has to be knowledge of what the principal offender intends and there has to be an intention on the part of the helper to support what the principal offender is doing.

For the Prosecution to establish criminal responsibility on the basis of helping or doing something for the purpose of helping, it's necessary to prove that the defendant, the alleged helper, intended to kill or do grievous bodily harm. It's sufficient and it's necessary that he knew that the other person had that intent, and knowing that, he did something to help him.

If you're satisfied beyond reasonable doubt that Mr Brown intended to kill Meneely or to do him grievous bodily harm, and that he did something to assist someone else to kill Mr Meneely knowing that other person had the same intent, then you can find him guilty of murder as a secondary offender, as a helper.

It may be that you conclude that someone other than Mr Brown killed Meneely and did so with the relevant intent but you're not satisfied that Mr Brown, if he did something to help, knew that that was what the other person intended.  If you're not satisfied beyond reasonable doubt that Mr Brown knew what that other person intended, then you're not going to be able to find him guilty of murder.

If you're satisfied just that he knew the other person intended to assault Meneely without any intention to kill him or to do him grievous bodily harm, then you can find Mr Brown guilty of  manslaughter but not murder.

Whether Mr Brown knew what was going on, whether he intended to support the principal offender's conduct are matters of inference from all of the surrounding circumstances. Unless you're satisfied that it is the only reasonable inference open on the evidence, you may not find him guilty as a secondary offender.

I remind you that mere silence or non interference shouldn't be interpreted as encouragement if in all of the circumstances it's ambiguous.

So in deciding whether Mr Brown did something to assist the principal offender, his state of knowledge of what the principal offender intended is critical.  You have to be satisfied beyond reasonable doubt that he knew that the principal offender intended to kill or inflict grievous bodily harm and, unless you are, you can't find Mr Brown guilty of murder, at most, you could find Mr Brown guilty of manslaughter."  (my emphasis)

[27]  The judge correctly directed the jury that the appellant would be armed with any of the weapons named in the circumstances of aggravation to the robbery charge if either he was himself armed or he knowingly helped a co-offender who was so armed.  

[28]  When the jury retired to consider their verdict the judge handed them a document to aid them in addressing the order in which the verdicts would be taken.  As far as it concerned the verdicts on the robbery charge, it was in these terms:

"Do you find the accused Patrick Francis Brown guilty or not guilty of robbery?

(ANSWER: Guilty or not guilty.)

If guilty:  Are you satisfied beyond reasonable doubt that Patrick Francis Brown was armed with a dangerous weapon, namely a rifle?

(ANSWER: Yes or no.)

Are you satisfied beyond reasonable doubt that Patrick Francis Brown was armed with an offensive instrument, namely a hammer?

(ANSWER:  Yes or no.)

Are you satisfied beyond reasonable doubt that Patrick Francis Brown was armed with an offensive weapon, namely a porcelain figurine?

(ANSWER:  Yes or no.)

Are you satisfied beyond reasonable doubt that Patrick Francis Brown was in company with another person. 

(ANSWER:  Yes or no.)

Are you satisfied beyond reasonable doubt that Patrick Francis Brown used other personal violence to David Charles Meneely? 

(ANSWER: Yes or no.)

So says your speaker, so say you all?"

The verdicts were subsequently taken in the manner set out in that document

(iii)Conclusion

[29] I am unconvinced by the appellant's contention that the effect of the verdicts is that the jury were necessarily satisfied the appellant was not a party to any plan that comprehended an armed assault and that they did not accept X's evidence that the appellant was present at the time of the assault causing the death.  The evidence of the neighbours, Mr and Mrs Bull, in combination with the large amount of the deceased's blood on the appellant's jeans and his possession of the deceased's Harley Davidson motorcycle a few days after the killing was well capable of supporting X's evidence that the appellant was present at the time of the lethal assault.  The verdicts show only that the jury were not satisfied that the appellant intended to kill or do grievous bodily harm to the deceased or that he was armed with any of the three weapons named in the aggravating circumstances in the robbery count.   The verdict on the robbery count is consistent with the jury being satisfied that the appellant participated in the robbery in company of the deceased and used, or knowingly assisted others in using, some personal violence to the deceased other than with the weapons named in the indictment.  It may be that the jury adopted a literal approach to the questions concerning the circumstances of aggravation listed in the document concerning the verdicts and that the returned verdicts reflected a lack of satisfaction that the appellant himself was armed with those weapons.  The guilty verdict for manslaughter is consistent with the jury being satisfied either that the appellant aided another in lethally assaulting the deceased or was a party to a plan to rob the deceased and death could well happen in the prosecution of the plan.  The manslaughter verdict was also consistent with the jury's satisfaction beyond reasonable doubt that death was either foreseen by the appellant or foreseeable by an ordinary person in the appellant's position as something that could happen as a result of the lethal act which he aided or of the robbery plan in which he took part.  The verdicts suggest the jury heeded the judge's warning to scrutinise X's evidence with great care before acting on it where it was unsupported by other independent evidence. 

[30]  The appellant contends that the italicised section of the summing-up set out above constitutes a misdirection because the jury may have convicted him of manslaughter even if he was a party only to the infliction of a minor assault on the deceased.  He submits that the jury should have been directed that they could only convict him of manslaughter under s 7(1)(c) if they were satisfied beyond reasonable doubt that he foresaw death as a possible outcome of the assault he was aiding.

[31]  It was not, however, the appellant's case at trial that he was involved in any minor assault on the deceased which caused his death.  His case, put to but not accepted by prosecution witnesses, was that he was involved in an initial ferocious but non-lethal assault in which a large amount of the deceased's blood was transferred to the appellant's jeans and that the deceased was killed in a subsequent lethal assault when the appellant was not present.  The jury verdict means that the jury rejected the appellant's case (of which there was no evidence) beyond reasonable doubt.  The case against the appellant at trial under s 7(1)(c) was that he was present and knowingly aided the perpetrator in a lethal assault upon the deceased.  To convict the appellant of manslaughter on the basis of s 7(1)(c) in this case, the jury had to be satisfied that the appellant knowingly aided the perpetrator to assault the deceased; the assault was a substantial or significant cause of the death; the killing was unlawful; but not satisfied that the appellant intended to kill or do grievous bodily harm to the deceased.  The appellant told police that the deceased was alive when the appellant left and that "no-one was meant to die".  The killing would not be unlawful and the appellant would be excused responsibility for it if the jury were not satisfied beyond reasonable doubt that the death as a result of the assault was either foreseen by the perpetrator or that an ordinary person in the perpetrator's position would have foreseen that death could happen (s 23 Criminal Code). 

[32]  The appellant's contention, that to be guilty of manslaughter under s 7(1)(c) the jury in this case must be satisfied beyond reasonable doubt that the appellant subjectively foresaw that the assault which he aided could result in death, is not established by McPherson JA's quoted observations in Lowrie and Ross.  McPherson JA does no more than state that s 23 may, depending on the evidence, have application in determining the appropriate verdict on a charge of murder by way of s 7(1)(c).  There could perhaps be cases where it may become necessary to direct the jury that an aider cannot be convicted of murder or manslaughter by way of s 7(1)(c) unless the aider either foresaw death as a result of the assault which he aided or that an ordinary person in the aider's position would have foreseen that the death could happen.  But this was not one.  Because of the manifest violence of the lethal assault, if the appellant was present for and aided in it, there was no evidence from which the jury could have inferred that he may not have foreseen, or that a reasonable person in his position may not have foreseen, that death could happen as a result of the assault.  The italicised passage in the trial judge's directions in the present case said by the appellant to be a misdirection cannot be fairly interpreted in isolation.  The judge in her directions on s 23 (set out earlier by me in bold print) made clear to the jury that, had any fatal assault on the deceased been so minor that the appellant or an ordinary person in the appellant's position may not have ordinarily foreseen that the death could happen as a result of the assault, then the death would be an accident, the killing excused by law and therefore not unlawful so that the appellant could be convicted of neither manslaughter nor murder.  This ground, when considered in the context of the judicial directions set out above as applied to the pertinent evidence, is without substance and fails.

The directions on s 8 Criminal Code

(a)The appellant's contention

[33]  The appellant's second ground of appeal is that the trial judge's directions to the jury about what amounted to "a probable consequence" under s 8 Criminal Code were in error to the extent that they referred to a consequence that "might" well happen. 

[34]  The appellant contends that her Honour's use of the expression "might well happen" departs from the requirements of the High Court in Darkan v The Queen,[4] and a correct direction would have used the verb "could" instead of "might".

(b)The judge's relevant directions

[35]  After explaining that there was another basis on which the prosecution relied, her Honour quoted s 8 in full adding:

The Prosecution case is that the Defendant Brown and others, including Witsen, actively participated in a common unlawful purpose to rob Meneely, that is, to steal from him with actual or threatened violence, and that it was a probable consequence of the prosecution of that common unlawful purpose that Meneely would die from injuries inflicted with an intention to cause death or grievous bodily harm.

So the law says that if two or more people plan to do something unlawful together and in carrying out the plan an offence is committed, each of those persons will be taken to have committed the offence if, and only if, it's the kind of offence that could well be committed in carrying out that plan. That's the effect of section 8.

So before you could find Mr Brown guilty of murder on this basis, there are a number of things of which you'd have to be satisfied and you'd have to be satisfied of these beyond reasonable doubt.  The first is that Mr Brown and at least one other person planned to rob Meneely.   If they merely planned to steal, if violence wasn't part of the plan, then the Prosecution case under section 8 must fail. But if you're satisfied beyond reasonable doubt that there was a plan to rob, then you need also to be satisfied to that standard of the following things before you could find him guilty of murder under section 8.

The first, that it could well have happened in carrying out that plan and as a result of doing so, that Meneely would be killed by an act or acts of one or more of them done with intent to kill or do grievous bodily harm; and that Meneely was indeed murdered in carrying out the plan, that is, that one or more of the parties to that plan caused or significantly contributed to his death and did so with the intent I've described.

The law speaks of a common intention to prosecute an unlawful purpose, so you would have to be satisfied beyond reasonable doubt that the defendant and at least one other person had the same intention.

A probable consequence is more than a mere possibility.  It's ­one that's probable in the sense that it could well have happened.  So for an offence to be a probable consequence of the prosecution of an unlawful purpose, it has to be one that was not merely possible but probable in the sense that it could well have happened in carrying out the plan.

The test is an objective one. A probable consequence in this sense is one which would have been apparent to an ordinary reasonable person in the position of the defendant, knowing what the defendant knew when the plan was formed. You need to be careful not to consider this question with the benefit of hindsight.  The question is not whether the defendant in fact recognised it as something that might well happen or foresaw it when the plan was formed.  The question is an objective one, what would the ordinary reasonable person have recognised?

What the law's concerned with is the probable, even if originally unintended, consequence of carrying out the plan.

Perhaps you're satisfied beyond reasonable doubt that the defendant and at least one other person planned to rob Meneely and you're satisfied that Meneely was indeed murdered in carrying out the plan.  You may also be satisfied that in the eyes of the ordinary reasonable person in Brown's position the probable consequence of carrying out that plan was that Meneely would be killed, not murdered, but killed.  That would be sufficient for you to bring in a verdict of manslaughter, but not sufficient for you to bring in a verdict of murder.

Before you could bring in a verdict of murder on this basis, you'd have to be satisfied beyond reasonable doubt that it was a probable consequence of carrying out the plan to rob that Meneely would be killed by an act or acts of one or more of the parties to the plan done with the intent to kill or do grievous bodily harm.

So let me summarise this: if you're left in reasonable doubt whether murder was the kind of offence that might well have been committed in carrying out the plan, you cannot find the defendant guilty of murder.  You might find him guilty of the lesser offence of manslaughter. For that, you'd have to be satisfied beyond reasonable doubt that unlawful killing, without the intent, was the kind of offence that might well ­have been committed in carrying out the plan.

If you're left with a reasonable doubt whether unlawful killing was the kind of offence that might well have been committed in carrying out the plan, then you cannot return a verdict of guilty of murder or a verdict of guilty of manslaughter."  (my emphasis)

(c)Conclusion

[36]  Section 8 Criminal Code provides:

"8   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."

[37]  In Darkan, the trial judge's criticised direction to the jury was that the phrase "probable consequence" in s 8 meant that it was "a real possibility or a substantial cause or a real chance that that event would happen."  The High Court unanimously agreed "a probable consequence" in s 8 means more than a consequence that is barely possible and more than a real or substantial possibility or chance; the consequence must be probable in the sense that it could well happen.  As Gleeson CJ, Gummow, Heydon and Crennan JJ stated:

[74] "… Accessorial liability is old, but it is an exception to the general rules of criminal responsibility.  Persons liable under s 7, s 8 or s 9 need not be present at the scene of the crimes for which they are convicted, and the fact that those crimes might be committed by the principal offender may never have entered their heads.  In construing 'a probable consequence' in s 8 and s 9, the extent to which it is likely that Parliament has created strict or vicarious liability in accessories must be considered. 

[75] Secondly, the key word in s 8 and s 9 is 'probable', not 'possible'.  The word 'probable' has diverse meanings, but all common usages of it suggest a more exacting standard than 'possible'."[5]

[38]  Whilst accepting the difficulty of defining the phrase "a probable consequence"[6] as used in s 8, their Honours considered that the phrase "means that the occurrence of the consequence need not be more probable than not, but must be probable as distinct from possible.  It must be probable in the sense that it could well happen."[7]  It is not necessary in every case to explain the meaning of the expression 'a probable consequence' to the jury but a correct jury direction where it is necessary or desirable to give one "… would stress that for the offence committed to be 'a probable consequence' of the prosecution of the unlawful purpose, the commission of the offence had to be not merely possible but probable in the sense that it could well have happened in the prosecution of the unlawful purpose."[8]  The trial judge's direction in Darkan:

"… carried the risk of leaving the jury with the impression that the appellants could be found guilty in relation to outcomes which, while more than merely possible, in that they were substantial or real, were not probable.  Hence … the direction that was given by the trial judge was flawed in that it did not convey the idea that the consequence to be looked for was 'a probable or likely outcome'."[9]

[39]  The primary judge's directions on s 8 in the present case are set out above.  The portions emphasised in bold print unquestionably were in accordance with the guidance provided by the High Court in Darkan.  Towards the end of that direction her Honour used the verb "might" instead of the verb "could" (see the italicised sections of the direction set out above). 

[40]  The Macquarie Dictionary gives as the second meaning of the verb "could": "(referring to a potential event or situation): you could do it if you tried; her health could be better; they could take a day's leave."  It is clearly in that sense the word "could" was used by her Honour in the present case and by the High Court in Darkan.  The Macquarie Dictionary gives the primary meaning of the verb "might" as "1. (expressing strong uncertainty): I suppose he might be angry when he finds out." 

[41]  I accept that a slightly greater degree of uncertainty may (or could) be conveyed by the use of the verb "might" than the verb "could".  Even so, the appellant's contention amounts to semantic hair-splitting.  Her Honour's directions to the jury concerning s 8 complied with the guidance given by the High Court in Darkan and bore no comparison to the incorrect directions on "a probable consequence" in s 8 given by the trial judge there.  Her Honour here emphasised that for the offence committed to be "a probable consequence" of the prosecution of the unlawful purpose, it had to be not merely possible but probable in that it could well have happened in the prosecution of the unlawful purpose.  When the full directions are read, there is no reason to conclude that her Honour's occasional substitution of "might" for "could" may (or could) have caused the jury to think that the consequence to be looked for under s 8 was anything other than "a probable or likely outcome".   The jury could only have understood that the consequence under s 8 Criminal Code (the death) had to be probable, as opposed to possible, before entitling them to convict the appellant of manslaughter by way of that section.  I am not persuaded that the judge's directions to the jury concerning s 8 constituted an error of law.  This ground of appeal also fails.

[42]  It follows that I would dismiss the appeal against conviction.

Section 668E(1A) Criminal Code

[43]  In case I am wrong on either or both grounds of appeal, I am in any case satisfied that no substantial miscarriage of justice can have resulted: s 668E(1A) Criminal Code.  The evidence against the appellant is set out earlier in these reasons.  The evidence of the neighbours, Mr and Mrs Bull, the large quantity of the deceased's blood on the appellant's jeans and his possession of the deceased's Harley Davidson motorcycle a few days after the killing, supported X's evidence that the appellant was present at the deceased's home when he was so violently killed and the compelling inference, in the absence of any evidence supporting a competing inference, that he either knowingly aided in the robbery and lethal assault or was part of a plan to rob the deceased and use personal violence with the death a probable outcome of the prosecution of the plan.  After reviewing the whole of the evidence, I am well satisfied of his guilt on each count.

[44]  Were it necessary to consider s 668E(1A) Criminal Code, I would dismiss the appeal under that sub-section.

ORDER:  Appeal against conviction dismissed.

[45]  JERRARD JA: In this appeal I have had the benefit of reading the reasons for judgment of McMurdo P and Holmes JA, and agree with their Honours that the appeal against conviction should be dismissed.  The evidence established that the appellant was party to a plan to steal from the deceased’s home, and the jury could conclude that it was a plan to rob the deceased, that is, to assault him to overcome resistance to his property being stolen.  They could also, almost inevitably, conclude that the appellant had ferociously assaulted the deceased at or about the time of the fatal assault on the deceased, since that was the case put by the counsel for the appellant, and supported by the deceased’s blood stains on the appellant’s clothes.  The evidence also established that the appellant left the deceased’s premises riding the deceased’s motorcycle, apparently at a time after which the deceased was never seen alive again.  In those circumstances it was open to the jury to conclude beyond reasonable doubt that the appellant did not expect the motorcycle would be reclaimed and had been an active party to the violence that led to the death.

[46]  It is apparent from the verdicts that the jury were not satisfied that the appellant himself was either armed with a gun, or a hammer, or used a figurine in the assault that caused the death.  That uncertainty was justified by the poor quality of the principal witness.  Nor were they satisfied that the assault leading to death was committed with an intention of causing either grievous bodily harm or death.  On the findings that were open, and not negatived by the verdicts, convictions for manslaughter and for robbery were inevitable, if the jury fairly applied to the evidence the directions they were given.  The possibility that the appellant was a party only to the infliction of a minor assault simply was not raised in any way by the evidence.  The proposition put at the trial to the only witness by the appellant’s counsel,[10] namely that the appellant and deceased had had a quite ferocious fight, excluded the “minor assault only” theory suggested on the appeal.  The case put at trial by the appellant, and the evidence generally, justify the verdicts, and give an air of unreality to the grounds of appeal argued.

[47]  HOLMES JA: I have read the reasons for judgment of the President and agree that the learned trial judge’s directions in relation to s 7 and s 8 responsibility were adequate.  I propose only to elaborate on my reasons for concluding that the s 7 direction was appropriate.

[48]  The state of knowledge which the Crown had to prove in order to convict the appellant as an aider under s 7(1)(c) of the Criminal Code was of the “essential facts constituting or making up the offence that [was] being or about to be committed by the person he [was] aiding or assisting”;[11] that is to say, the assault which caused the deceased’s death. The direction given met that requirement. In relation to murder, the judge told the jury that it had to be satisfied that the appellant did something to assist in the killing of the deceased and explained the requisite state of knowledge as to the killer’s intent. Immediately after, she went on to tell the jury that if it was not satisfied the appellant knew of an intention on the part of the principal to kill or do grievous bodily harm it could only convict of manslaughter.

[49]  The appellant’s complaint was that the jury might have thought that involvement in any assault, no matter how minor, would justify his conviction of manslaughter. As McPherson JA pointed out in R v Da Costa[12],

“[t]here may be circumstances in which the primary actor or person committing the offence goes well beyond anything that the assistant is aiding him in doing. In that event, s 7(1)(c) would cease to apply because the assistant would no longer be assisting the primary actor in the offence committed.”[13]

But in the context in which the direction as to the appellant’s liability for manslaughter as a secondary offender was given – the stated requirement that the jury be satisfied he had done something to assist in the killing – I do not think there is any basis for concern.

[50]  The direction on accident was given on the strength of the appellant’s statement to police that “no one was meant to die”; so the fact that accident was left at all was certainly very favourable to the appellant, particularly given that the deceased was battered to death. The appellant argued that the direction ought to have been given from his perspective as a s 7(1)(c) aider, not from that of the inflictor of the fatal blow. Generally speaking, it seems to me that the focus, when the excuse of accident is considered according to the Kaporonovski[14] test, ought to be on the actual perpetrator of the assault; so that if neither the perpetrator nor an ordinary person in his position would have foreseen death as a possible outcome (or the prosecution fails to prove the contrary), that result is an accident for which no one, including the aider, is criminally responsible.

[51]  I have not been able to find any authority on point[15] but I have some difficulty in accepting that whether any given death is an “event that occurs by accident” can, in theory, vary depending on whether the subjective perspective taken is that of the perpetrator or that of the aider; and if no offence has been committed by the perpetrator, it is difficult to see how, for the purposes of s 7(1), the aider can be deemed to have taken part in it. The exception will be when the basis of the aider’s liability is as a procurer. Then, s 7(4) makes him responsible as if he has himself committed the act. Thus, for example, if he were possessed of knowledge the perpetrator lacked, which enabled him to foresee death as a possible outcome (perhaps as to some peculiar susceptibility of the victim), although the perpetrator might be excused from criminal responsibility on the basis of accident, the same excuse would not be available to the procurer. This was not such a case.

[52]  The direction on accident in fact mentioned both “the perpetrator” and the appellant by name, but that was in the context of the jury’s regarding the appellant as the principal in the killing.  However, if my view is correct, it was unnecessary for her Honour to give any direction on the appellant’s state of mind as an aider beyond that dealing with the state of knowledge necessary for murder, and the appellant’s contention that his subjective foresight should have been the subject of a direction must fail.

[53]  If, on the other hand, that approach is not correct, and attention should be given to the aider’s intention or foresight in relation to the excuse of accident, I take the view that the result in this case would inevitably have been the same had a more specific direction to that effect been given.  The jury’s failure to find that the appellant was armed did not entail a rejection of his presence in company with someone who was armed; it was entirely explicable by the way the verdicts were left. The conviction of manslaughter, on the directions given, could only have been consistent with the jury’s rejection of the notion that the appellant had only been involved in an earlier non-lethal assault. On the basis that the appellant was at least present for the fatal assault, consideration of accident could not have detained the jury for long.

[54]  I agree with the President that the appeal should be dismissed.