SUPREME COURT OF QUEENSLAND

[1]  THE COURT:  The appellant, Francis Robert Keenan, was charged with Stephen Edward Booth and Dion Francis Spizzirri, with the attempted murder of Darren Thomas Coffey on 8 December 2004.  Alternatively, they were charged with doing Coffey grievous bodily harm with intent.  They were each also charged with assaulting Vonda Muir whilst armed and in company but the prosecution entered a nolle prosequi on this count at the close of the prosecution case.  They each pleaded not guilty in the Supreme Court at Brisbane on 28 February 2007.  On 13 March 2007, after a nine day trial, Keenan was found not guilty of attempted murder, but guilty of unlawfully doing grievous bodily harm with intent.  The jury found Booth not guilty on each count.  They could not reach a verdict in respect of either count against Spizzirri and a retrial was ordered in his case.  (Spizzirri was found not guilty on 4 September 2007 on all counts.)  Keenan was sentenced to life imprisonment with a declaration that 189 days spent in pre-sentence custody be deemed time already served under the sentence.  Keenan appeals against his conviction contending that the trial judge erred in his directions to the jury first, as to s 8 Criminal Code 1899 (Qld); second, as to inferences; and third, in failing to leave the offence of grievous bodily harm simpliciter for the jury's consideration.  He also contends the guilty verdict was against the weight of the evidence.  He further contends that the sentence imposed was manifestly excessive.

The prosecution case

[2] Before considering the grounds of appeal, it is useful to explain the prosecution case and the evidence on which it turned.  Coffey was shot and rendered a paraplegic on 8 December 2004.  The prosecution case was that Spizzirri physically inflicted the grievous bodily harm on Coffey by shooting him in the back and that both Keenan and Booth were liable under s 8 which provides: 

"Offences committed in prosecution of common purpose

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."

[3] Although Spizzirri and Booth have now been acquitted, in the interests of clarity and consistent with the prosecution case brought against Keenan, we will continue to refer to them as participants.

[4] Before counsel's addresses and in the absence of the jury, the learned primary judge ruled on how the prosecution case on s 8 was to be left to the jury:

"The plan was, on the evidence, for three or four men in company to deliver what has been termed 'a touch-up' (page 300) or 'beating' (page 292).

On the evidence, it was in the nature of a revenge attack upon someone who had substantially betrayed the [appellant].  The perception of the plan held by the accused Booth, who went armed with a bat, and the accused Spizzirri, who went armed with a loaded gun, confirms that there was to be a serious assault upon Coffey.

Now, there is no evidence that either knew the other was armed in that way, but that each was armed in that way reveals a common perception which illuminates the nature of the plan, that is to visit serious injury at least upon Coffey.  I add that the jury may infer that the [appellant], who drove the accused Booth in his car as the front seat passenger, knew of Booth's being armed.

…

As to the section 8 case generally, it need not be established that [the appellant] or Booth knew that Spizzirri had a gun.  It is enough for the jury to conclude that there was a plan along the lines I have indicated; that is, a plan for three or four men acting in conjunction to inflict a serious assault by surprise upon Coffey by way of revenge or retribution for Coffey's having absconded with a sum of money, 6 or $7,000 claimed by Keenan."

[5] The eye-witness evidence on which the prosecution case relied was given by Darren Coffey, Vonda Muir, Jeramie Jupp and Carrie Symons.  At the time of the shooting Coffey was 37 years old.  He lived with Keenan's niece, Vonda Muir.  He had known Keenan for about 15 years but they were not close.  He had seen Spizzirri on one or two occasions before the shooting.  He did not know Booth beforehand.  At some time (well before he was shot) Keenan asked him to take a package to a woman in Brisbane.  He received about $6,000 or $7,000 in cash for the package.  Instead of passing the money on to Keenan, he kept it.  He and Muir then regularly moved house.  On 7 December 2004 they were living in their van in front of Nicky Korondy's place at Crescent Avenue, Hope Island.  Coffey and Muir planned to leave for Melbourne a few days later.   On the morning of 8 December, Muir left the van to take a shower.  He looked out and saw her talking to a man whom he did not know.  As Coffey stepped out of the van, this man swung at him with a baseball bat.  He was unsure if it connected.  Keenan then came around the back of the van, grabbed Muir and pulled her out of the way.   Coffey ran away from the person with the baseball bat and towards a neighbouring house.  He next remembered hitting the ground.  He was unable to move the lower part of his body.  He had no idea what had happened.  He remembered hearing a couple of cracking noises or gunshots.  He did not feel really injured, just paralysed.  He saw two people getting into what he thought was a red Commodore.  One seemed to be carrying a gun. 

[6] In cross-examination he said he saw just one person going to the passenger side of the red car and that was the person who appeared to be carrying a gun.  There was so much going on he could only give his best recollection.  From what he could remember there must have been someone in the driver's seat of the red car because it began to drive off before the passenger got in.

[7] Vonda Muir gave the following evidence.  Keenan, her uncle, telephoned her on a couple of occasions before Coffey's shooting and inquired into Coffey's whereabouts.  Keenan also said that he wanted his money.  He seemed upset.  He left text messages on her mobile telephone.  One was to the effect that it was a small world and he would find Coffey one day.  Another was that he would hurt Coffey; he "was going to cave his skull in and stuff".  Muir and Coffey had been staying at Korondy's house for a day or two when Jeramie Jupp visited Korondy to stay for a period.  He left unexpectedly, late on the night of 7 December 2004.  She and Coffey woke the next morning at about 8.45am and she left the van.  A man, whom she did not think she had seen before, came around the back of the van.  He was carrying a wooden bat.  He asked if she was going inside the house to have a shower.  She responded, "Maybe soon."  He opened up the side of the van.  He saw Coffey and "went for" him but she stood in between them.  He hit her a couple of times on her left shoulder.  Keenan ran around the back of the van and grabbed her.  He pulled her away and said, "You little cunt, get out of the way."  He then ran back to his car.  As Keenan got off her, she heard five "pops" which seemed to come from the front of a car (not Keenan's) near the road.  She ran in the direction Keenan had run and saw him sitting in his car.  Coffey was on the ground.  Keenan gave her a cheeky smile and drove off.  Two men then jumped into a red Commodore and drove off. 

[8] On 8 December 2004, Ms Carrie Symons was residing at 33 Crescent Avenue, across the road from Ms Korondy's place.  She was lying in bed that morning when she heard bangs like car doors being slammed.  She looked out the window and saw a man running through the front yard of number 28.  She saw another man following him.  The first man, who was taller, fell forwards onto the ground as if he had lost his footing.  He did not move or try to get up.  The second man was bigger, "kind of fat", very pale, very fair-skinned and did not seem to have any hair.   He kept running and went around the front of a silver car.  He opened the driver's door and yelled towards the house at number 28 something like, "We need to get out of here."  He got into the silver car and drove off pretty fast.  A young woman came out of the house and went to help the fallen man.  She was really upset and was yelling and screaming.  A dark red car came down the street. 

[9] Three discharged .22 calibre cartridge cases, which had all been worked through the same firearm, were found at the scene.  The cartridges could have been discharged by either a pistol or a rifle, possibly a semi-automatic.  A dummy cartridge case was also located at the scene but it had not been discharged by the same firearm as the other cartridge cases.  The .22 was a low calibre firearm often used for shooting small animals like rabbits.  Although not particularly powerful, it had the capacity to kill a human being.  Three projectiles were recovered from Coffey's body.  Two of those (from the anterior and lateral chest) had been fired by the same firearm as the three discharged cartridge cases found at the scene.  The remaining projectile fragments recovered from his body were too small for comparison. 

[10]  Coffey was taken by ambulance to the Gold Coast hospital at about 9.30am.  He had a 10 centimetre wound to the right shoulder and abrasions on his jaw.  He had a bullet wound to the right posterior chest wall underneath his scapula; two bullet wounds to the right lateral flank near the kidney; a bullet wound to the right front forearm; a dislocated right shoulder; and a spinal injury that had affected motor, power and sensation function below T7 of the spinal cord, just above the waist.

[11]  DNA consistent with a partial profile of Keenan's DNA was found on a cigarette butt at the scene.

[12]  Jeramie Jupp gave evidence.  He had known Spizzirri for about 10 years and was very friendly with him.  He had known Keenan for about a year.  They were not so friendly since Jupp had lost $1,000 which he had collected from someone on behalf of Spizzirri's younger brother.  Keenan seemed very unhappy with him for losing the money and told him that it "could end him six foot under".  Keenan had not physically harmed him.  On 7 December 2004 Jupp visited Nicky Korondy at Crescent Avenue, Hope Island where he was introduced to Coffey and Muir.  At about 8.00am the next day he sent a text message to Spizzirri telling him that he had met Coffey and a girl called Vonda.  Spizzirri immediately phoned him and questioned him about the couple.  Spizzirri rang again and told him to go to Keenan's house at Mount Nathan as soon as possible.  Jupp drove there but no-one was home.  Spizzirri rang him again and arranged a meeting around the corner.  Jupp saw Spizzirri beside his red Commodore.  Spizzirri told him to get into Keenan's car, a silver WRX Subaru.  Jupp refused but instead got into Spizzirri's red Commodore. 

[13]  He then directed Spizzirri, with Keenan following in his car, to Ms Korondy's house at Hope Island.  Both vehicles stopped at a petrol station in Crescent Avenue.  Keenan had a male passenger.  This man had been present at Mount Nathan but Jupp did not know him.  He failed to identify Booth shortly after the incident in December 2004.  Much later, in February 2005, he identified this man as Booth from a police photographic line-up.  They had all agreed to drive by Ms Korondy's house to see if Coffey and Muir were there and to then meet at the other end of the street to discuss matters.  Jupp was to point out Coffey's van to Spizzirri.  The vehicles drove past Ms Korondy's house and stopped together further down the street.  Keenan proposed that he would drive back and pull up at the van to let out his passenger (on the prosecution case, Booth) who would beat up Coffey.  Spizzirri and Jupp were to wait five metres back for Keenan's passenger who would get into Spizzirri's vehicle after he had finished beating Coffey.  Keenan referred to his passenger as "old mate". 

[14]  Keenan's vehicle drove off first and stopped outside the house.  Booth got out of Keenan's car carrying a wooden baseball-type bat.  Booth ran to the side door of the van.  His arms were drawn back, swinging the bat.  Jupp heard screaming which sounded like Muir.  Keenan got out of his car and ran around the back of the van.  Spizzirri got out of his car and followed Keenan behind the van.  Jupp got out of Spizzirri's car but stayed beside it.  Coffey ran from the other side of the van.  Jupp heard five or six cracking sounds and Coffey fell down face first.  Keenan and his passenger ran back to Keenan's car which quickly drove off.  Spizzirri came from behind the van and ran back to his car.  Spizzirri and Jupp got in and Spizzirri drove off.  Spizzirri was carrying a shortened rifle or gun.  Jupp was not knowledgeable about firearms and had not seen the weapon before.  He was "freaking out" and realised that Coffey had been shot.  He said to Spizzirri, "Well, you fucking shot him."  Spizzirri replied, "I never miss a whole clip."  Spizzirri put the gun underneath the passenger seat.  Spizzirri followed Keenan's vehicle back to Mount Nathan.  Someone in Keenan's vehicle threw the bat out of the car on the way.  Spizzirri let Jupp out of the car not far from where Keenan and Spizzirri lived at Mt Nathan.  Jupp then drove off in his own car.

[15]  In cross-examination Jupp agreed that he knew there was going to be some physical violence when they arrived at Ms Korondy's house but he thought it was to be a "punch-up" or "fisticuffs"; he had not heard any discussion about the use of guns or bats.  After they had driven past Ms Korondy's house, he heard someone (he thought Keenan) tell him to pull up and that Keenan's passenger was to get out and give Coffey a "touch-up".  Jupp was to drive Coffey's van away from the scene. 

[16]  Police found a wooden bat adjacent to Maudsland Road, which leads from Hope Island to Mount Nathan where both Keenan and Spizzirri resided.  Jupp agreed that this bat looked like the one with which Keenan's passenger hit Coffey.  The members of this Court have inspected the bat, an exhibit at trial.  It is a less than full-sized wooden baseball bat but it is well capable of being used effectively as a weapon to inflict serious injury.

[17]  The primary judge warned the jury of the danger of acting on Jupp's evidence without independent supporting evidence.

[18]  None of the accused gave or called evidence.

The impugned directions to the jury

[19] We will next set out in an appropriately full context the judge's directions to the jury relevant to the grounds of appeal.  Early in the summing up, his Honour gave a general direction about drawing inferences from evidence:

"… The documents and photographs put into evidence as exhibits may also tend directly to prove facts, but in addition to facts directly proved by the evidence, you may also draw inferences; that is, deductions or conclusions from facts you find established by the evidence. If you are satisfied that a certain thing happened, it may be right to infer that something else happened. That is the process of drawing an inference from facts. For example, suppose that a person went up to another and shot him in the chest. The inference, the deduction, or conclusion would be that he meant to do him some serious harm, even kill him. You may only draw reasonable inferences.  There must be a logical and a rational connection between the facts you find and your deductions or conclusions. You must not indulge in intuition or guessing."

[20] His Honour, with respect, correctly stated the burden and onus of proof: 

"As I've mentioned, you may draw inferences only from the proved facts. There must be a logical and rational connection between the facts as you find them and any inference you draw.  Importantly, if two or more inferences are equally open, you must draw the inference more or most favourab1e to the accused. You must be satisfied beyond reasonable doubt that the inference of an intention to kill Mr Coffey is the only reasonable inference open on the evidence you accept."

[21]  Later, in discussing the elements of the offence of which Keenan was subsequently convicted (grievous bodily harm with intent), the judge correctly noted that:

"Doctor Cochrane's evidence … was unchallenged, [it] establishes that the cause of the paraplegia was the entry of bullets into Mr Coffey's spine. The doctor confirmed that the injuries done to Mr Coffey amounted to grievous bodily harm as obviously they did and there was no contrary contention."

[22] The judge next explained to the jury that the prosecution case was that Spizzirri was the offender who actually fired the shots into Coffey and that the case against Keenan and Booth turned on s 8.  After reading the section to the jury, his Honour gave the following lengthy directions:

"The Crown contends that depending on how you assess it the evidence warrants a conclusion that all three accused formed a common intention or plan and that the object of that plan was to inflict some serious physical harm upon Mr Coffey; that the three of them implemented that plan. That in the course of implementing the plan the offence of attempted murder or, alternatively, doing grievous bodily harm with intent was committed and that the commission of whichever of those offences as committed, was a probable consequence of the implementation of the plan.

Accordingly, the prosecution contends each accused is guilty of the offence in fact committed in this case directly on the prosecution case by Spizzirri. I repeat the terms of this provision of the Code:

'If two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence 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.'

Accordingly, if two or more people plan to do something unlawful together, and in carrying out that plan an offence is committed, the law is that each of those persons is taken to have committed that offence if, but only if, it is the kind of offence likely to be committed as the result of carrying out that plan.

For the prosecution to prove an accused guilty in reliance on this provision it is necessary for you to be satisfied beyond reasonable doubt:

(1) that there was a common intention to prosecute an unlawful plan. You must consider fully and in detail what was any unlawfu1 purpose and what its prosecution was intended to involve; (2) that the offence of attempted murder, or alternatively doing grievous bodily harm with intent, was committed in the prosecution or carrying out of that purpose. You must consider carefully what was the nature of any actual crime committed; and

(3) that any offence in fact committed was of such a nature that its commission was a probable consequence of the prosecution of that purpose.

A great deal depends on the precise nature of any common unlawful purpose you find established by the evidence in light of the circumstances of the case, particularly the state of knowledge of the accused. It is the particular accused's own subjective state of mind established by that evidence which determines the scope of the common intention to prosecute the unlawful purpose, but provided always that all parties to the plan shared that intent.

What do we know of the extent of any common intention to carry out an unlawfu1 purpose? Whether you agree with what follows depends upon your own view of the evidence. On the evidence of Jupp, if you accept it, he informed Spizzirri on the morning of 8 December, that he had been with Coffey. We know that Spizzirri was an associate of Keenan. Spizzirri soon thereafter effectively summoned Jupp to the Mount Nathan precinct. 'Get up to Frank Keenan's house ASAP'. Jupp was then required to take Spizzirri and Keenan to Coffey's location. When Jupp arrived at Mount Nathan the others had congregated together, apparently waiting for him. No time was wasted, allowing a possible inference they wished to get to Coffey before he may move on.

On Jupp's evidence, the man he subsequently on 9 February 2005 identified as Booth, was in Keenan's car. The two cars moved off in convoy. There was no delay in the movement to Hope Island. When they got there, at the BP service station there was some talk about strategy, about driving past to see if Coffey and Ms Muir were still out the front of Nikki Korondy's place, and then drive past and have another talk at the other end of the street. The two cars moved off past the house.  They regrouped near the other end of the street. It was then that Keenan told Jupp, on Jupp's evidence under cross-examination, that it was his, Jupp's role, to drive Coffey's white van away after Keenan's passenger had finished beating up Coffey. Inferentially suggesting, perhaps, some imperative to remove from Crescent Avenue any evidence of the place in which Coffey may have been dealt with.

More particularly as to what was to occur, insofar as it was then relayed in the presence of Jupp, Jupp said that at the end of the road Keenan said that he would drive down and pull up in his silver WRX and let out his passenger, who would then go and beat Darren Coffey, and Dion [Spizzirri] and Jupp in the red Commodore would be sitting behind five metres away waiting for the passenger in the silver WRX to hop in after he had finished beating up Darren Coffey. And Jupp was told to get in the van and drive the van away.

Under cross-examination Jupp described what was in mind as some sort of a punch-up or touch up, fisticuffs. In view of the way the visit to Coffey was set up, on Jupp's evidence, with some urgency and deliberation, and with the contemplated removal of the van afterwards, you could however reasonably infer, if you considered it appropriate, that the unlawful purpose was to inflict some serious harm upon Coffey. Whether you reach that factual conclusion would be entirely for you to consider.

There was defence emphasis on Jupp's evidence that to his knowledge any plan did not contemplate the inflicting of serious injury upon Coffey. There is plainly room for an inference, if you consider it appropriate to draw this inference, that the plan may have been formulated, at least partly, in the absence of Jupp, so that his effective reservation when he gave his evidence in using the words 'to my knowledge' in answer to the questions, could be significant. That is, however, another observation on the facts with which you may or may not agree. You look at all relevant circumstances in determining the scope of any common intention of these three accused. Exercise your own judgment.  Remember also that the scope of a plan may change. The common purpose may alter and broaden over time. You look at all relevant circumstances in determining the ambit at any particular relevant time.

Now, we may know things about each of the accused which were not necessarily known to the others. For example, as to the accused Keenan, if you accept the evidence of Darren Coffey and Vonda Muir, you could conclude that Mr Keenan resented Coffey's keeping for himself the sum of $6,000 to $7,000 claimed by Keenan, which Coffey knew he had collected on Keenan's behalf. Mr Coffey's evidence was that he collected that sum of $6,000 to $7,000 on behalf of the accused Keenan in exchange for a packet he believed contained speed, which is the street name for amphetamines, which are unlawful drugs.

That evidence from Coffey that he believed the packet to contain speed was inadmissible. I direct you to disregard it. It was given in the context of an opening by the Crown Prosecutor which foreshadowed the giving of evidence on that in admissible form. That evidence was not, however, given.  What the witness did was to express his view of the contents of a bag which he had not seen. He could not permissibly do that. You must disregard that evidence.

The admissible evidence is confined to this. On Mr Coffey's evidence the accused Keenan asked him to take a package to a woman in Brisbane, for which Coffey would receive cash of $6,000 to $7,000, whereupon Coffey was to return and give that cash to Keenan. Now, on that evidence, depending on how you choose to view it, you may feel that it was an unusual transaction, in the respect that a comparatively large amount of cash was paid over as consideration. That is, that it was paid in cash and that Keenan used the services of Coffey to deliver the package and to receive that cash, rather than carrying out the transaction himself. You may feel, in short, that it was not an ordinary run-of-the-mill commercial transaction. That's an observation on the facts with which you may or may not agree. You follow your own judgment on the matter.

On Ms Muir's evidence, after Coffey had kept the cash, Keenan sent her messages such as that 'it was a small world and he would find Coffey one day', and that he 'would cave Coffey's skull in'. On their evidence, they took those threats seriously. When eventually Keenan saw the prospect of meeting Coffey, Keenan acted without delay, on Jupp's evidence. This evidence could be used to confirm a view drawn from the other evidence to which I have just referred, as to the manner in which the passage to Crescent Avenue was set up, but so far as Keenan was concerned he would have been motivated to teach Coffey a serious lesson, to inflict serious harm upon him.  This is, however, in the end a matter quintessentially for your factual assessment.

Then, as to the accused Booth, on Jupp's evidence, if you accept it, and depending on how you assess it, he went to the van in Crescent Avenue armed with a baseball bat. Since on Jupp's evidence Booth travelled as Keenan's front seat passenger, there is ground for possibly concluding, depending on how you assess Jupp's evidence, that if Jupp had the bat in the car Keenan would have been aware of it. That, again, is a matter for your consideration. You have seen the bat, or an object apparently very like the bat. You may think it of substantial proportion and not easily concealable, even if under the arm of a long-sleeved jumper. You may or may not take that view. But, in any event, that Booth took the bat, if you accept that occurred, supports a view, if you are prepared to draw it from the other evidence to which I have referred as to the manner in which the excursion to Crescent Avenue was set up, that so far as he personally was concerned Booth contemplated inflicting some serious harm upon Coffey.  Then, as to the accused Spizzirri, on Jupp's evidence, if you accept it, he went armed with a gun, inferentially also contemplating inflicting some serious harm upon Coffey.

In summary, depending on how you view the evidence, you could possibly conclude that the accused Keenan was, on the morning of 8 December 2004, influenced by vengeful motivation towards Coffey, and that each of the other two accused, Booth and Spizzirri, respectively contemplated through their possession of a weapon or what could be used as a weapon, the inflicting of some serious harm upon Coffey.

But there is no direct evidence that in the case of one accused, the other two knew of his position. There is no evidence, for example, that Keenan and Booth knew that Spizzirri had a gun - if that was the case.  There is no evidence that Booth and Spizzirri knew of Keenan's vengeful motivation, if you are satisfied that he had it. There is no evidence that Keenan and Spizzirri knew that Booth had a baseball bat - if you are satisfied he had it. Although there may be a basis for an inference of that in the case of Keenan.

I raise these things in relation to your assessment of what, if anything, the prosecution has established as to a common intention to prosecute an unlawful purpose in conjunction with one another. In determining what was any such common intention you cannot use what you may be prepared to infer was in the mind of one accused, but not in the minds of the others. You can rely only on matters which on the evidence you reasonably infer were in the minds of all three accused.  On the evidence of Jupp, if you accept it, all three of them were aware of the manner of progression to Crescent Avenue and of the content of the discussion near the end of the street, which included reference to beating Coffey and removing the van.

Now, turning again to what I have said of the individual situations of the three accused. In addition, depending on which evidence you accept and how you assess it, you could, if you saw fit, use the respective positions of the three accused, as just described, to found a conclusion that they shared this intent in common. That is, to visit some serious injury upon Coffey. How could you in theory be satisfied that each of them had that intent such that you could say that it was a common intent? Well, in the case of Keenan there is the vengeful motivation, if you are prepared to infer it; the nature of the threats he communicated to Vonda Muir, and the prompt nature of his response to the locating of Coffey, who he had been seeking out. In the case of Booth, there is his possession of the bat, if you are satisfied of that. In the case of Spizzirri there is his possession of the gun, on Jupp's evidence. Those features of the individual positions of each accused could, when taken with the other evidence of what all three knew, if you saw fit, warrant an inference that all three accused shared an intention to visit some serious harm upon Coffey.

Now, you should continually bear this in mind. In carrying a gun and contemplating firing it, Spizzirri may have independently thought he would depart from any common plan, which may indeed have been pitched at a much lower level, for example, to give Coffey a good talking to, or perhaps a cuff over the ear or a slap in the face, or a punch in the chest, but nothing too serious. That is broadly the level for which the defence contends. Likewise, in arming himself with the bat, Booth may independently have been departing from a common intent pitched less threateningly.

Bear in mind those possibilities and consider whether there is any feature emerging from the evidence warranting a suspicion they may have been inclined to act independently in that way.

It is entirely for you, but you may feel there is ground for inferring that Keenan was, in effect, the anchor in all this. What was done may well have been explained by his vengeful motivation. There is no other explanation apparent on the evidence, at least on my assessment of it, although you may differ from me on this and in the end it is your assessment which matters. The strength of the reaction to Coffey's duplicity may have been measured against the seriousness, not of Booth's or Spizzirri's particular feelings, but against the depth of Keenan's antipathy, if that was indeed his attitude.  So if Spizzirri carried a gun and Booth a bat, did they in truth act independently of and outside the common intent, or was that their reflection of a reasonable means of implementing the plan upon which the three of them had agreed?

Now, I am not for one moment suggesting that because Spizzirri carried a gun, or because Booth carried a bat, it was the common intent that retribution be achieved in a commensurately violent way. If they went so armed and the others were unaware of that circumstance, it is possible that Spizzirri and Booth both misunderstood the common plan, or unreasonably went beyond its bounds. Is there anything in the circumstances warranting a conclusion they did misinterpret the plan, or exceed its bounds? If not, is it a reasonable inference, taking all circumstances into account, there was a common intent, at least to this extent, and that is to visit a serious assault upon, to occasion some serious harm to Mr Coffey? If so, you could proceed on that basis.

I have done my best to explain to you how you could potentially draw all these threads together. I stress, however, that this is a primarily factual type of analysis.  The matter which I should ultimately emphasise, and I do so again, is that in determining the scope of any plan you are absolutely limited to what you conclude, drawing only reasonable inferences, was any common intention shared by all three."  (emphasis added)

[23] Later, in summarising to the jury Keenan's defence, the judge emphasised the following:

"In his address on behalf of the accused Keenan, Mr Hardcastle focused on the provision about an offence committed in the prosecution of a common purpose - section 8. He dwelt initially on Mr Jupp's observation that what occurred was never meant to happen. He submitted that Jupp exaggerated his fear of Keenan. The words used by Keenan, on Jupp's evidence, were basically for stuffing up like that could end him six feet under.

Mr Hardcastle also pointed to limits on the evidence from which you could conclude Coffey and Muir's movements were constrained by a fear of Keenan. Mr Hardcastle downplayed messages like 'to cave Coffey's skull in' as not seriously meant. He pointed to some arguable vagueness in Coffey under cross-examination as to the basis of the $7,000  transaction.  He submitted the only plan evidenced was for one man to go in and beat Coffey. Keenan got out of the car only, he submitted, to help the screaming Vonda Muir. The plan changed midstream, as Mr Hardcastle put it. He challenged the reliability of Jupp's evidence. He reminded you of Vonda Muir's evidence, that the bat could have come from within the white van facing his - Mr Hardcastle's contention - that on the evidence Keenan may not have seen a bat in the WRX.

Mr Hardcastle submitted further that the involvement of a bat or a lowish .22 calibre firearm for that matter was not consistent with an intent to kill. Mr Hardcastle pitched any plan at the level of no more seriousness than a fist fight. He submitted that after careful consideration you would be left with a reasonable doubt as to the guilt of Keenan."

[24]  Mr Keenan's trial counsel did not seek any redirections.

The directions to the jury on s 8 Criminal Code

[25]  Mr A J Kimmins on behalf of Kennan contends that the judge should have directed the jury on s 8 in the following terms.  Keenan could only be convicted if the prosecution proved beyond reasonable doubt that Coffey's paraplegia caused by the intentional discharge of a bullet or bullets was a probable consequence of the common purpose involving Keenan and/or Booth and Spizzirri to prosecute an unlawful purpose as found by the jury.

[26]  Mr M J Copley for the respondent contends that the prosecution was not obliged in establishing criminal responsibility under s 8 to prove that Keenan knew that Spizzirri, Booth or he would cause intentional grievous bodily harm in the particular way in which it was caused.  It was sufficient to prove that they had formed a common intention to unlawfully cause Coffey serious harm and that the intentional doing of the grievous bodily harm to him by one of them was a probable outcome of the agreed unlawful purpose. 

[27]  The resolution of this issue and the construction of s 8 is by no means straight forward.  It requires an analysis of the relevant statutory provisions and case law.

(a)The relevant provisions of the Criminal Code

[28]  The term "offence" is defined in s 2 Criminal Code as "an act or omission which renders the person doing the act or making the omission liable to punishment". 

[29]  Section 8 is contained in Ch 2 Criminal Code "Parties to offences".  It is useful to place it in its statutory framework.  The chapter commences with s 7 which deals with principal offenders and provides: 

"(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;

(b)every person who does or omits to do any act for the purpose of enabling or aiding another person to commit 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.

(2) Under subsection (1)(d) the person may be charged either with committing the offence or with counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if the person had done the act or made the omission, the act or omission would have constituted an offence on the person’s part, is guilty of an offence of the same kind, and is liable to the same punishment, as if the person had done the act or made the omission; and the person may be charged with doing the act or making the omission."

[30]  Next follows s 8 which is set out earlier.[1]

[31]  Section 9 adds:

"Mode of execution immaterial

9  (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."

[32]  Section 10 deals with accessories after the fact and has no present relevance.  Section 10A, the final section in the chapter, provides:

"Interpretation of ch 2

10A (1) Under section 7, a person’s criminal responsibility extends to any offence that, on the evidence admissible against him or her, is either the offence proved against the person who did the act or made the omission that constitutes that offence or any statutory or other alternative to that offence.

(2) Under section 8, a person’s criminal responsibility extends to any offence that, on the evidence admissible against him or her, is a probable consequence of the prosecution of a common intention to prosecute an unlawful purpose, regardless of what offence is proved against any other party to the common intention.

(3) This section does not limit any other provision of this chapter."

(b)The relevant case law

[33]  The High Court of Australia gave detailed consideration to the construction of s 8 in R v Barlow,[2] ultimately concluding that s 8 did not preclude a secondary offender from conviction of manslaughter when the principal offender was convicted of murder.  Brennan CJ, Dawson and Toohey JJ in their joint judgment discussed the meaning of "offence" in s 8.

"Section 2 of the Code makes it clear that 'offence' is used in the Code to denote the element of conduct (an act or omission) which, if accompanied by prescribed circumstances, or if causing a prescribed result or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment. Section 7(a) confirms that 'offence' is used to denote the element of conduct in that sense. By the ordinary rules of interpretation, the term must bear the same meaning in pars (b), (c) and (d) of s 7 as it bears in par (a). Section 8, which complements s 7 and extends the net of criminal liability for an offence to the parties who have formed a common intention of the kind therein mentioned, reveals no ground for attributing a different meaning to 'offence' in s 8."[3]

[34] After considering the construction of "offence" in Ch V of the Criminal Code (Criminal Responsibility, s 22-s 36), their Honours continued:

"In the light of these provisions, 'offence' in s 8 must be understood to refer to an act done or omission made. So interpreting the section, it deems a person falling within its terms to have done the act or to have made the omission which the principal offender has done or made. It fastens on the conduct of the principal offender, but it does not deem the secondary party to be liable to the same extent as the principal offender. It sheets home to the secondary offender such conduct (act or omission) of the principal offender as (1) renders the principal offender liable to punishment but (2) only to the extent that that conduct (the doing of the act or the making of the omission) was a probable consequence of prosecuting a common unlawful purpose. The secondary party is deemed to have done an act or made an omission but only to the extent that the act was done or the omission was made in such circumstances or with such a result or with such a state of mind (which may include a specific intent) as was a probable consequence of prosecuting the common unlawful purpose. Those circumstances, that result and that state of mind are factors which, either together or separately but in combination with a proscribed act or omission, define an offence of a particular 'nature'. Thus the unlawful striking of a blow by a principal offender will constitute an offence the nature of which depends on whether the blow causes bodily harm or grievous bodily harm or death and on the specific intent with which the blow is inflicted."[4]

[35]  Their Honours referred to the evidence in Barlow concluding:

"As the striking of that blow was an act that rendered the principal offender liable to punishment, Barlow is deemed to have done that act if the requirements of s 8 are satisfied. Was the nature of the blow actually struck such that its infliction was a probable consequence of the prosecution of the relevant unlawful purpose?"[5]

[36] Their Honours continued:

"The criminal liability of the principal offender for the act done or omission made by him determines the 'nature' of the act which the secondary party is deemed to have done or the omission which the secondary party is deemed to have made but only in so far as the act done or omission made by the principal offender, when taken in combination with (i) the attendant circumstances, (ii) the result of the act or omission, and (iii) the principal offender's state of mind, was a probable consequence of prosecuting the common unlawful purpose."[6]

[37]  Later their Honours also noted that:

"… the operation of s 8 is limited to deeming the secondary party to have done the act or to have made the omission which renders the principal offender liable to punishment only in so far as the doing of an act of that nature or the making of an omission of that nature was a probable consequence of prosecuting their common unlawful purpose, …"[7]

[38]  Justice Kirby reached a similar conclusion, observing that s 8:

"… is concerned with non-actors. It extends the criminal liability of such persons from that which it would otherwise be to offences which are a 'probable consequence' of the common unlawful purpose. Thus, if the 'probable consequence' of the common purpose is murder, then the non-actor, ie the common purpose co-offender, is guilty of murder. If, however, the 'probable consequence' is manslaughter, then s 8 deems the non-actor (ie common purpose co-offender) to have committed manslaughter. This is so notwithstanding the fact that the principal is guilty of murder. The jury are then entitled to return a verdict of manslaughter against the co-offender pursuant to the procedure provided in s 576 of the Code.

This approach to the definition of 'offence' in s 8 of the Code is reinforced by reference to the definition of 'offence' in s 2. That section defines 'offence' in terms of the 'act or omission' of the accused. It does not do so in terms of the classification of the particular crime as appearing elsewhere in the Code. The definition of 'offence', when applied to s 8, therefore permits, if it does not compel, a differentiation between the acts and omissions respectively of the principal offender and of the common purpose co-offender. In the case of unlawful killing, the 'offence' which is committed by the principal is the act or omission constituting the unlawful killing referred to in s 300 of the Code. In order to see which species of unlawful killing is applicable, it is necessary, in terms of s 300, to have regard to 'the circumstances of the case'. Those circumstances will render the unlawful killing either 'murder' (in accordance with s 302) or, if not, 'manslaughter' (in accordance with s 303). The circumstances of the case, which permit the differentiation of some forms of unlawful killing from others, clearly include the intention of the accused and his or her expectation of what the common unlawful purpose involved (163)."[8]

[39]  The application of these observations in Barlow to the present case supports the appellant's contention to the extent that "offence … of such a nature" in s 8 here refers to the act of intentionally shooting Coffey and so causing him grievous bodily harm, not merely (as the trial judge told the jury) the generic offence of intentionally doing Coffey grievous bodily harm.  That view is further supported by this Court's observations in R v Brien and Paterson.[9]

[40]  In R v Johnston[10] Davies JA, with whom Williams JA and Douglas J agreed, made the following pertinent observations:

"[27] … as  Barlow demonstrates, pursuant to s 8 one offender may be guilty of murder whilst another co-offender may be guilty only of manslaughter.  And similarly, as in this case, one may be guilty of attempted murder whilst another may be guilty only of grievous bodily harm.  That is because the second offender in each case is 'liable to punishment only insofar as the doing of an act of that nature … was a probable consequence of prosecuting their common unlawful purpose' and, in the case of the second offender, his knowledge of the intention of the principal offender is not proven.  To the extent that Mr Hamlyn-Harris' submission went as far as implying that knowledge of such an intention was required for a conviction of grievous bodily harm, it is plainly inconsistent with Barlow.

[28]  However I think that Mr Hamlyn Harris was saying no more than that 'an act of that nature' means an act of cutting Ware's throat;  that an act of doing serious harm by whatever means or even of doing serious harm with a knife was not sufficient.  In my opinion that is too narrow a construction of the requirement that the offence must be of such a nature that its commission was a probable consequence of the purpose.  In the first place, an offence of that nature cannot mean merely the precise act which was done;  it must mean an act of serious wounding with a knife.  Secondly to see whether an act of that nature was a probable consequence of the prosecution of the common purpose it is necessary to examine more closely what that common purpose was."

Johnston's contention was that the judge should have told the jury that:

"… in order to convict [him], the[y] must be satisfied that grievous bodily harm by cutting Ware's throat was a probable consequence of the prosecution of the plan."

Davies JA considered that:

"This submission must fail for the same reason as the previous submission failed;   that it was sufficient for liability pursuant to s 8 that Johnston was a party to a plan to take Ware to a remote location and there do him serious harm by means which might include the use of a knife.

[33]  It may well be that, where there is a plan to do an act of a specific kind to a person, for example to assault him by punching him, an act of an entirely different kind, for example by shooting him, would not be an act of such a nature that its commission was a probable consequence of the prosecution of that plan.  However here, as already mentioned, the jury were entitled to infer that the common intention to which the appellant was a party was to do serious harm to Ware by whatever means seemed appropriate to ensure his silence;  and in such circumstances it was open to the jury to conclude that an act of the kind done here, namely wounding with a knife so seriously as to be likely to endanger life or cause permanent injury, was a probable consequence of the prosecution of that common purpose. That seems to have been what her Honour had in mind when she said that if grievous bodily harm was a consequence of a plan to do him harm Johnston can be held criminally responsible.  And by speaking of grievous bodily harm as a consequence of the plan, her Honour was posing the question whether such harm, by whatever means, was a probable consequence of prosecuting the common unlawful purpose.  I do not think that in saying this her Honour erred.

[34]  Her Honour might have put this question more specifically by:

(a) inviting the jury to consider whether Johnston was a party

to a plan to do serious harm to Ware, by whatever means;

and

(b) whether, in that event, the use of a knife for that purpose

was a probable consequence of the prosecution of that plan.

However Johnston's counsel did not seek any redirection on this question and, in the factual context of this case, it is reasonable to conclude that these questions were implicit in the way in which her Honour directed.  Accordingly I would reject the submission that any miscarriage arose from her Honour's direction on this section."  (emphasis added)

(c)Analysis and conclusion

[41]  As the High Court explained in Darkan v The Queen,[11] whilst the law has long recognised accessorial liability, it places limits on that liability.  Courts should be cautious not to extend that liability beyond established legal principle.

[42]  Mr Copley has referred us to this Court's observations on s 8 in R v Jeffrey.[12]  Those comments were made in the context of the pertinent factual situation in that case where four assailants attacked the deceased and the evidence did not show which delivered the fatal blow.  It is of no assistance in interpreting s 8 in the present case.

[43] Barlow, Brien and Paterson and Johnston make clear that "offence" in s 8 has the meaning of "offence" as defined in s 2.  The offence in s 8 is the act (or omission) rendering the principal offender liable to punishment.  Its "nature" is determined by the circumstances in which the act was done, the intent with which it was done and its result.    It follows that the "offence … of such a nature" under s 8 is here, not the generic offence of doing grievous bodily harm with intent as the learned primary judge told the jury.[13]  It is the act which rendered Spizzirri liable to punishment, namely, discharging a bullet or bullets and so causing grievous bodily harm.  To convict Keenan under s 8, the jury had to be satisfied beyond reasonable doubt that he, and either or both Booth and Spizzirri, formed a common intention to unlawfully cause Coffey serious harm; and that Spizzirri's act of shooting resulting in grievous bodily harm was a probable consequence of the prosecution of their joint common intention. 

[44]  This construction gives s 8 a unique role in Ch 2 and in the Code generally.  Section 8 extends criminal responsibility beyond s 7.  Unlike s 7, liability under s 8 does not require that the offender know that the charged offence is to be committed; it is sufficient if the offence (the doing of an act rendering the principal offender liable to punishment) is of such a nature that its commission was a probable consequence of prosecuting the common joint intention.  This construction also sits comfortably with s 9 and s 10A(2) and (3). 

[45]  The learned primary judge nowhere made clear in the jury directions that, before convicting Keenan of the offence of doing grievous bodily harm with intent by way of s 8, they would have to be satisfied that Spizzirri's act of shooting causing Coffey grievous bodily harm was the probable consequence of the prosecution of Keenan's common intention, formed with either or both Booth and Spizzirri, to unlawfully cause Coffey serious harm.  It cannot be said that no miscarriage of justice has resulted from this misdirection.[14]  The appeal must be allowed and the guilty verdict set aside.  It is necessary to refer to the remaining grounds of appeal only to determine whether a retrial should be ordered and, if so, on which count or counts.

The directions to the jury on inferences

[46]  Mr Kimmins' second and related ground of appeal is that the judge's directions as to inferences that may be drawn from the evidence, particularly those rendering him personally liable under s 8 for Spizzirri's actions, did not adequately alert the jury to the alternative inferences which could have been drawn in his favour and that the jury can only draw an unfavourable inference if it is the only inference reasonably open. In Knight v The Queen[15] Mason CJ, Dawson and Toohey JJ observed that:

"… the reasoning process which must be employed if the onus of proof beyond reasonable doubt is to remain upon the prosecution is well recognized. As Dixon J said in Martin v. Osborne (1936) 55 CLR 367, at p 375:

'If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation.'

In Plomp v. The Queen (1963) 110 CLR, at p 243, Dixon CJ cited his previous observation in Martin v. Osborne and acknowledged the difficulty found in stating the rule, a difficulty which he said 'has not been overcome by employing the expression "more consistent" as if there could be degrees of consistency'. His Honour attempted clarification by citing his further words in Martin v. Osborne (1936) 55 CLR, at p 375:

'This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.'

With respect, Young CJ was in error in the view which he expressed below that the appellant could only succeed in his argument if the two inferences said to be open - one consistent with innocence and the other consistent with guilt - were equally open. There are not, as Dixon CJ observed, degrees of consistency and, if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance."

[47]  We have set out the primary judge's detailed directions as to inferences.[16]  His Honour early in the summing up gave correct directions as to the onus and burden of proof and told the jury they should only draw the inference of an intention to kill if it was the only inference reasonably open on the accepted evidence.[17]  His Honour's directions invited the jury to find Keenan guilty of the offence of grievous bodily harm with intent from inferences drawn from the evidence.  They emphasised Coffey's failure to pass on a substantial sum of money to Keenan and Keenan's resulting serious threats to Coffey through Muir.  They pointed out the evidence of the urgency in informing Keenan about Coffey's whereabouts and in the protagonists attending at Coffey's van "allowing a possible inference they wished to get to Coffey before he may move on".[18]  His Honour emphasised that the plan was for Jupp to take Coffey's van after the assault on him and that this "[i]nferentially suggest[ed], perhaps, some imperative to remove from Crescent Avenue any evidence of the place in which Coffey may have been dealt with".[19] 

[48]  An alternative rational inference open was that Keenan and his assistants were taking the van in satisfaction of Coffey's debt to Keenan.  The judge did not mention this possible inference to the jury.

[49]  His Honour stated that the jury could infer that Keenan may "have been motivated to teach Coffey a serious lesson, to inflict serious harm upon him".[20]  The judge emphasised the possibility that Keenan may have known Booth, a passenger in Keenan's car on the way to Crescent Avenue, was in possession of a baseball bat immediately prior to the assault on Coffey.  His Honour added that the jury could:

"… conclude that the [appellant] was … influenced by vengeful motivation towards Coffey, and that … Booth and Spizzirri, respectively contemplated through their possession of a weapon or what could be used as a weapon, the inflicting of some serious harm upon Coffey."[21] 

His Honour then set out in considerable detail the adverse inferences which could be drawn against Keenan to convict him.

[50]  Only once in his directions[22] did his Honour briefly mention some alternative inferences contended for by the defence as to s 8.  He also made mention of these[23] in summarising the defence case.  His Honour nowhere emphasised, in the lengthy directions on the inferences that could be drawn to find Keenan liable under s 8, that if there were a competing inference open on the evidence consistent with innocence, the jury must give Keenan the benefit of that doubt.  Indeed, when concluding his directions on inferences, his Honour may well have misled the jury by inviting them to consider:

"… is it a reasonable inference, taking all circumstances into account, there was a common intent, at least to this extent, and that is to visit a serious assault upon, to occasion some serious harm to Mr Coffey?  If so, you could proceed on that basis."   (emphasis added)[24]

[51]  This direction is contrary to the requirement explained in Knight, that if two inferences are reasonably open, the jury can draw the guilty inference only if it is the only inference reasonably open.  An alternative inference contended for by the defence was that the common intention was merely to moderately assault Coffey.  On the evidence, an alternative inference may have been a common intention to seriously harm Coffey with a baseball bat and to then take his van to set off the debt.  There was no evidence of any common intention of the protagonists to use or possess a firearm.  The abandonment of the plan to take the van immediately after Coffey's shooting suggests that Spizzirri, in shooting Coffey, may have been acting outside the common intention.  In giving such detailed directions on the drawing of inferences to establish s 8 liability, the judge should have also emphasised the competing rational inferences favouring the defence and given the Knight direction. 

[52]  The misdirection on inferences was of real significance in this case which sought to convict Keenan under s 8 on inferences drawn from the evidence.

Should the jury have been directed to consider an alternative verdict of grievous bodily harm simpliciter?

[53]  Mr Kimmins' third contention is that the primary judge did not leave the jury to consider as an alternative verdict the offence of grievous bodily harm simpliciter. 

[54]  The learned trial judge was not asked to leave an alternative verdict to the jury so that there has been no wrong decision on a question of law in not doing so.  Because the appeal is to be allowed on other grounds, this contention becomes relevant only if a retrial is ordered.  It is sufficient for present purposes to merely note that the effect of s 575 Criminal Code (and see also s 579(2) Criminal Code) and Rehavi v The Queen,[25] is that the alternative charge of grievous bodily harm simpliciter should have been left to the jury in this case. 

Should a retrial be ordered?

[55]  A retrial should only be ordered if a jury could on the evidence convict Keenan of either doing grievous bodily harm with intent or doing grievous bodily harm simpliciter.

[56]  The High Court, in interpreting s 8 in Barlow regarded consistency with the common law as desirable.[26]  Some assistance in correctly applying s 8 in this case may then be gained from a review of relevant decisions concerning the common law.  In Varley v The Queen[27] Varley and two police officers went to the deceased's residence to "rough him up" so that he would pay over proceeds of illegal transactions.  There was evidence of a police baton in the vehicle which took all three to the deceased's residence.  One witness gave evidence that Varley admitted a "cosh" was used in the fatal assault.  After distinguishing R v Anderson and Morris[28] Barwick CJ, with whom the other members of the court agreed, noted that the use of the baton or cosh, even if not actually contemplated, was a likely means of carrying out the plan of beating up the deceased and obviously within the scope of that plan.  Varley can be distinguished from the present case.  Here, there was no evidence that a firearm may be used or that its use was within the scope of the common intention.

[57]  The English case of Anderson and Morris was discussed in Varley.  There, Anderson and Morris went in search of the deceased to avenge his treatment of Anderson's wife.  Anderson was armed with a knife of which Morris denied knowledge.  There was no evidence contradicting this denial.  During a fight between the deceased and Anderson, Anderson stabbed and killed him.  Lord Parker CJ gave the unanimous judgment of the five member Court of Criminal Appeal.  The court followed a long line of authority to conclude that where two persons embark on a joint enterprise each is liable for the acts done in pursuance of that joint enterprise.  This included liability for unusual consequences if they arise from the execution of the agreed joint enterprise.  But if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorised act.[29]  The jury had been wrongly directed that they could convict Morris of manslaughter even if he had no idea that Anderson had armed himself with a knife.  Reg v Smith (Wesley)[30] was distinguishable on its facts because the common design there involved an attack in which the use of the knife was not outside the scope of the concerted action. 

[58]  In another case under the common law, Markby v The Queen,[31] Gibbs CJ, with whom Stephen, Jacobs and Aickin JJ agreed, relevantly noted the following:

"… When two persons embark on a common unlawful design, the liability of one for acts done by the other depends on whether what was done was within the scope of the common design. Thus if two men go out to rob another, with the common design of using whatever force is necessary to achieve their object, even if that involves the killing of, or the infliction of grievous bodily harm on, the victim, both will be guilty of murder if the victim is killed: Reg. v. Lovesey (1970) 1 QB 352, at p 356. If, however, two men attack another without any intention to cause death or grievous bodily harm, and during the course of the attack one man forms an intention to kill the victim, and strikes the fatal blow with that intention, he may be convicted of murder while the other participant in the plan may be convicted of manslaughter … The reason why the principal assailant is guilty of manslaughter … is that the former had an actual intention to kill whereas the latter never intended that death or grievous bodily harm be caused to the victim, and if there had not been a departure from the common purpose the death of the victim would have rendered the two participants guilty of manslaughter only. In some cases the inactive participant in the common design may escape liability either for murder or manslaughter. If the principal assailant has gone completely beyond the scope of the common design, and for example 'has used a weapon and acted in a way which no party to that common design could suspect', the inactive participant is not guilty of either murder or manslaughter: Reg. v. Anderson; Reg. v. Morris (1966) 2 QB 110, at p 120. If however the use of the weapon, even if its existence was unknown to the other party, is rightly regarded as no more than an unexpected incident in carrying out the common design the inactive participant may be convicted of manslaughter: Varley v. The Queen (1976) 51 ALJR 243, at p 246."  (emphasis added)

[59]  This Court expressed similar views in R v Ritchie:[32]

"… it is possible for two or more persons to start off with a limited common intention of using physical force of a relatively moderate degree against their victim.  Matters may, as is often said, then 'get out of hand' to such an extent that one or more of the original participants engage in acts of violence against the victim going beyond the level of force initially contemplated.

Before some other individual can, in circumstances like that, be held criminally responsible under s.8 for an event[33] (such as the death of the victim) that ensues from such acts of excessive violence that are not his or her own, it is essential that the jury be satisfied either that that event was a probable consequence of the level of violence originally intended by all; or that that other individual shared in the expanded intention to inflict more serious violence than had first been planned. Otherwise the intention will not be 'common' to him or her.  The expression 'escalating' violence is sometimes used to describe actions which take place after a relatively modest beginning; but it is necessary, if s.8 is not to produce serious injustice, to establish that an accused person alleged to be responsible under its terms be proved to have formed and to have shared the intention to inflict more serious violence than was originally in the common contemplation of all concerned.  Such proof may, and in many cases can only, be derived by inference from acts done, rather than words spoken, by the particular accused at the time in question, in which event the attention of the jury must be directed to the circumstances alleged to show that that individual fully shared the escalating common intention.  In such cases, the very real possibility needs to be borne in mind that, starting with a common intention to inflict a moderate degree of violence on a victim, the intention of some, but not all, of the participants may, in the course of an assault, progress far beyond that of one of their number, who continues to share with them no more than the original and limited common intention to use moderate force."

[60]  To convict Keenan the prosecution had to establish on the evidence that he formed a common intent with either or both Spizzirri and Booth to prosecute an unlawful purpose, a probable consequence of which was that Coffey would suffer grievous bodily harm by shooting.  In order to convict Keenan of even grievous bodily harm simpliciter, the jury would have to be satisfied that that was the only inference reasonably open from the evidence.  Alternative rational inferences were well open on the evidence.  The common plan may have been, as Jupp said it was, to assault Coffey in a "punch up" with only "fisticuffs" or, at its highest, with a baseball bat, so that Spizzirri's use of the gun was entirely outside the unlawful common plan instigated by Keenan.  There was no evidence of a broad plan to injure Coffey by whatever means any of the participants might find available or bring to hand: see Markby. A reasonable jury properly instructed on the present evidence could not honestly exclude the reasonable inference that Spizzirri, in shooting Coffey, was acting independently of the common planned intention.  Such an inference was supported by the protagonists sudden decamping immediately after the shooting and the abandonment of the plan for Jupp to take Coffey's van.  The drawing of such an inference would mean the prosecution could not prove under s 8 that the shooting and the resulting grievous bodily harm to Coffey ("the offence … of such a nature") were a probable consequence of the carrying out of the common purpose joined in by Keenan.  This was a fatal flaw in the prosecution case against Keenan on the offences of both grievous bodily harm with intent and simpliciter.  This conclusion is also supported by the approach of the courts in Markby,[34] Anderson and Morris,[35] Johnston[36] and Ritchie.[37]

[61]  The present case is distinguishable from Reg v Smith (Wesley)[38] where the secondary offender knew that the principal offender, who stabbed the deceased, was carrying a knife.  Had the grievous bodily harm in the present case been effected with a baseball bat rather than a gun, then s 8 may well have extended Keenan's criminal liability for Coffey's injuries: cf Varley.  But that was not the evidence here.

[62]  As the prosecution cannot on the evidence exclude the drawing of inferences consistent with Keenan's innocence of even the offence of grievous bodily harm simpliciter, no retrial should be ordered in respect of any count.  On the present evidence, a charge of assault occasioning bodily harm to Coffey whilst armed with a baseball bat and in company under s 339 of the Criminal Code may have been open.  But it has not been charged.  This Court should direct acquittals on the charges of malicious act with intent and on the alternative count of grievous bodily harm simpliciter.

The application for leave to appeal against sentence

[63]  Because of the orders we propose, it is unnecessary to deal with the application for leave to appeal against the sentence of life imprisonment, the maximum sentence able to be imposed.  In case the sentence is used as a comparable sentence for convictions under s 317 Criminal Code, we think it prudent to make the following brief observation.  Despite the serious aspects of the case and Keenan's concerning antecedents, we are unpersuaded that this was an appropriate case in which to impose the maximum penalty of life imprisonment.

ORDERS:

1.Appeal against conviction allowed and conviction set aside.

2.Verdicts of acquittal entered for the offence of malicious act with intent under s 317(e) Criminal Code and for the offence of grievous bodily harm simpliciter under s 320 Criminal Code.