SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  On 17 November 2005 the appellant was convicted upon the verdict of a jury of one count of murder, and one count of robbery while armed and in company with personal violence.

[2] On 21 November 2005 the appellant was sentenced to life imprisonment for the offence of murder, and 10 years imprisonment in respect of the armed robbery.  The armed robbery was declared to be a serious violent offence.  It was declared that 827 days spent in pre-sentence custody was time already served.

[3] On 29 February this year this Court extended the time within which the appellant might appeal against his convictions.[1]  In the event, the appellant has pursued only the appeal against the conviction for murder.

[4] The appellant contends that the verdict of the jury was unreasonable, and that the learned trial judge's directions to the jury were deficient.  I will discuss the arguments agitated on appeal after first summarising the case at trial and setting out the passages from the learned trial judge's directions to the jury with which the appellant takes issue.

The case at trial

[5] At about 4.00 am on 15 August 2003 officers of the Queensland Fire Service attended a fire at a two storey brick house at 167 Henson Road, Salisbury.  There they discovered the body of David Meneely ("the deceased") in a billiard room on the downstairs floor.  The deceased was found face down with his head wrapped and ankles roped by an electrical cord.

[6] An autopsy of the deceased was carried out on 16 August 2003 by Dr Guy Lampe, a State Government pathologist.  Dr Lampe considered that the deceased had been dead for a day or two when he was found.  There were a number of facial lacerations and some of the deceased's teeth had been knocked out by blunt trauma.  There was a depressed fracture on the top of his skull and four wounds to the scalp.  There was a left bony orbit fracture, and the nose was broken.  There was also evidence of an injury to the chest.

[7] Dr Lampe's opinion was that all these injuries had been inflicted while the deceased was alive.  Severe force was used to inflict the left bony orbit fracture and the fracture of the skull.  Dr Lampe described the force necessary to dislodge the deceased's teeth as mild to moderate.  Death was caused by the injury to the head as well as blood loss.  The deceased survived for about an hour after the fatal beating was inflicted.

[8] Constable Trezise, acting on information received by police, attended at an address at Beenleigh at 4.00 pm on 15 August 2003 where he found the appellant and Jessica Van Achterberg.  The appellant was taken to a police station where he was interviewed.

[9] The appellant did not give evidence at his trial, but his record of interview and subsequent written statements to police were adduced by the Crown.

[10]  In the record of interview the appellant admitted that he had arranged for the deceased to be beaten by two men, Brown and Fishburn.  The beating was part of a plan by the appellant and Van Achterberg to "rip off" the deceased to enable the appellant to repay a drug debt.  Brown and Fishburn "were supposed to knock him [the deceased] out and tie him up."  The appellant said that he did not know "what went wrong".  The appellant said that the plan was that he and Van Achterberg were to wait upstairs while Brown and Fishburn were to tie up the deceased so that he could see nothing.  The appellant said that Brown and Fishburn asked him if he wanted the deceased "knocked", and that he said:  "No." 

[11]  According to the record of interview, while the appellant and Van Achterberg were upstairs they heard screaming.  He heard the deceased "yelling out" his name, and then he heard someone say to "get the fuck down there".  He went downstairs and saw "blood everywhere" from the deceased who was face down on the floor.  Brown told the appellant to hold the deceased by the back of the jacket, but the deceased began to struggle and the appellant could not maintain his hold on him.  Brown then hit the deceased over the head with a rifle.  Fishburn was at the feet of the deceased at this time.  The deceased was hit again in the head with "big swings" of the rifle.  He was struck so hard that the rifle discharged and the appellant was almost hit.  At this time, the appellant was still holding the deceased.  The appellant then tied the deceased up with rope and wire.  He said that he was told to do so by Brown.  The deceased was at this time unconscious, but he was still breathing. 

[12]  Brown and Fishburn then started looking for money and drugs.  They, together with the appellant, ransacked the house and then left.  At the time they left, the deceased had stopped breathing.  The appellant said that he then cleaned up the mess.

[13]  In his record of interview, the appellant said that Brown and Fishburn were supposed to bash him as well and tie him up so that it would look like he had been robbed too.  The appellant said that the idea was originally Van Achterberg's, and that he had asked Brown and Fishburn to become involved because he "couldn't hurt a flea".

[14]  The appellant said that he had bought the rifle which Brown used to beat the deceased.  The appellant's record of interview did not explain how Brown came to be in possession of the rifle, but there was no reason to think that he had not been given it by the appellant. 

[15]  In the course of his interview by the police, the appellant was asked whether he agreed that "robbery, that when you rob someone is a dangerous thing".  He replied:  "Yes, I do."  The questioner went on:  "And that people are likely to get hurt when you rob them".  He replied:  "Yes, I know that but I never wanted this to happen.  I just wanted to – to get out of this shit …"

[16]  The following passage from the appellant's record of interview sheds important light on an essential aspect of the plan which the appellant and Van Achterberg hatched to rob the deceased:  "Why didn't you just take the property when he wasn't there?--  Because we didn't want him to know it was us …"

[17]  The appellant said that after the house had been ransacked and he had cleaned up the mess, he and Van Achterberg were driven to Brown's house at Beenleigh by Corey Giezendanner.  He said that he and Van Achterberg had gone to Brown's house because Brown insisted.  The appellant said that Brown told him that because the deceased was going to die, he had hit the deceased with a hammer and "it was like … jelly coming out of his head." 

[18]  The appellant said that he was afraid of Brown who was "a good person" but "a violent person".  He said that he knew that Brown was violent "because he's had a bit of a history of it."

[19]  The appellant said that Brown told him that he wanted him to burn down the house at Henson Road, Salisbury and get rid of the body, but the appellant said that he could not do it.  The appellant said that he found out about the fire at the house when he woke up at about 1.00 pm on 15 August 2003.

[20]  Subsequent to the record of interview, the appellant gave written statements to police.  Those statements were not included in the appeal record.  It was common ground that the terms of these written statements were sufficiently summarised in the learned trial judge's directions to the jury.  It is unnecessary to refer in detail to these written statements, save to note that the appellant asserted that the plan involved stealing the property of the deceased while he was absent from the house so that no violence would occur.  No argument was advanced on the appeal to suggest that it was not open to the jury to reject the assertions in these later written statements by the appellant.

[21]  Forensic evidence was adduced at trial to establish that the blood of the deceased was found on Brown's jeans.

[22]  The Crown case of murder against the appellant was based upon the provisions of s 7 and s 8 of the Criminal Code 1899 (Qld).  The Crown contended that the appellant had aided or assisted Brown and Fishburn to commit the offence of murder in that the blows with the rifle caused the death of the deceased and were delivered by Brown, to the knowledge of the appellant, with the intention of causing death or grievous bodily harm.  On this basis the Crown contended that s 7(1)(c) of the Criminal Code rendered the appellant guilty of the murder of the deceased as a person who aided Brown and Fishburn in committing that offence. 

[23]  Alternatively, the Crown contended that by virtue of s 8 of the Criminal Code, the appellant was responsible for the murder of the deceased because the blows with the rifle were delivered by Brown or Fishburn with the intention of either killing or causing grievous bodily harm to the deceased, that being a probable consequence of the intention common to the appellant, Brown and Fishburn to render the deceased unconscious while they robbed him. 

[24]  The appellant did not give or call evidence.  His defence at trial disputed the prosecution's theories of responsibility for murder based on s 7 and s 8 of the Criminal Code.  He also advanced the argument that he had been compelled by Brown to assist in the beating of the deceased.  On the appeal no argument was advanced on the appellant's behalf in relation to the compulsion issue.

The learned trial judge's directions to the jury

[25]  In relation to s 7(1)(c) of the Criminal Code, the learned trial judge instructed the jury in the following terms:

"… Section 7 of the Criminal Code relevantly provides that:

'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.'

It then gives four categories of people. The first category is, 'Every person who actually does the act or makes the omission which constitutes the offence.' So, in this case if you are satisfied that Mr Meneely was murdered, the person who actually did the act, which constituted that offence, was either Brown or Fishburn or both.

Then there are further categories of persons that are also deemed to have taken part in committing the offence and to be guilty of it. Relevantly for this case, the prosecution says that the defendant fits within one or both of these categories. 'Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence', the prosecution case being that the defendant held or otherwise restrained Mr Meneely as he was being beaten by others, 'for the purpose of enabling or aiding them to commit the offence of murder.'

A further category is every person who aids another person in committing the offence. The prosecution case here relies upon the same acts of the defendant, the acts of restraining Mr Meneely, and the prosecution case is that they were acts done in aid, that is, in assisting another person, Brown and/or Fishburn, to commit the offence. So, this section extends criminal responsibility to any person who is a party, who is a participant in an offence. It includes, therefore, not only the person who actually did the act, which constitutes the offence, but it also includes any person who aided him or them to kill Mr Meneely.

Upon this section 7 case, you have to be satisfied beyond reasonable doubt that Mr Meneely was murdered by someone before you can go on to consider whether the defendant was a party to that offence. That's because, of course, the defendant could not have aided in the murder of Mr Meneely unless he was in fact murdered by someone else. But as with this case upon section 8, the prosecution doesn't have to prove that the person or persons who actually committed that offence, actually killed Mr Meneely, have also been convicted of it.

What's meant by aiding? Well, to aid simply means to assist or help. To conclude that the defendant aided in the murder, you must be satisfied in essence of three things. The first, which I have mentioned, is that Mr Meneely was murdered by someone. The second is that the defendant in some way assisted; that is, by some act he assisted in what was done to kill Mr Meneely. The third is that when he did that act of assistance, he knew that the person or persons who were killing Mr Meneely intended to kill or at least intended to do grievous bodily harm.

The prosecution case is, as I have said, that he aided by various acts of restraining Mr Meneely whilst others assaulted him. It says that he aided by holding Mr Meneely's arms and by tying him up, and it says that that [sic] the evidence of what the defendant did comes from the defendant himself and what he told police in his interview."

[26]  The learned trial judge then referred the jury to relevant excerpts from the appellant's record of interview.  His Honour then reverted to his directions upon the law.  In a passage which is important in relation to the arguments advanced on the appellant's behalf, his Honour said:

"It is also, of course, a matter for you as to whether you act upon all or some of that evidence, but in the way that the case has been argued, ultimately there seems to be no dispute by the defendant that he did some acts of the kind of restraining the [victim], and that they provided some assistance in the assault upon the victim. But the third element which the prosecution must prove is knowledge of the intent of the others to kill or do grievous bodily harm.

It isn't necessary for the prosecution to prove that the defendant himself intended to kill or do grievous bodily harm. The prosecution must prove that the defendant knew that the assailant had that intention. Unless you're satisfied beyond reasonable doubt that the defendant knew that the assailant - Brown and/or Fishburn - had that intention, you could not convict him of murder upon this alternative basis of section 7."

[27]  Later on, his Honour reminded the jury that it was essential to the prosecution's case of murder against the appellant that he should have known that they intended to kill or cause grievous bodily harm to the deceased when he assisted them to administer the blows with the rifle:

"On the alternative basis, section 7, that is in reliance upon the acts of the defendant at the scene in restraining the victim, the same acts are relied upon by the prosecution for manslaughter as they are for murder, but in relation to manslaughter, the prosecution need not prove that Brown or Fishburn had any intention to kill or do grievous bodily harm or that if they did have that intention, the prosecution need not prove that the defendant knew that Brown or Fishburn had that intention. For manslaughter, on the basis of the defendant's acts of aiding or assistance, it's necessary to prove only that the defendant knew he was assisting in the assault, about which there seems to be [no] issue."

[28]  The jury sought further assistance from the learned trial judge in relation to the operation of s 7 of the Criminal Code.  His Honour said:

"You've asked for clarification on the points of section 7 in relation to the charge of murder and what the prosecution must satisfy you of before you could convict of murder upon that basis. Could I then summarise those matters, that is, the matters of which you must be satisfied beyond reasonable doubt in each case.

The first is that Mr Meneely was murdered by someone. The second is that the defendant in some way assisted in the killing of Mr Meneely. The third is that when he did that act of assistance the defendant knew that the person or persons who were killing Mr Meneely intended to kill or at least do grievous bodily harm. Further, in this case the prosecution must also prove that the acts of assistance were not justified or excused on the basis that the defendant was compelled to do them. I trust that answers your questions?"

[29]  In relation to s 8 of the Criminal Code, the learned trial judge commenced his instruction to the jury with an explanation of the scheme of s 8.  His Honour said:

"Section 8 provides as follows:

'When [2] or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.'

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

[30]  The learned trial judge, having succinctly summarised the effect of s 8 of the Criminal Code in terms which expressly explained probable consequence in terms of likelihood, went on to explain the elements of s 8:

"For the prosecution, to prove the defendant guilty, relying on this section 8, it is necessary for you the jury to be satisfied beyond reasonable doubt of these things, and there are three of them: the first is that there was a common intention to prosecute an unlawful purpose, and you have to consider fully and in detail what was the alleged unlawful purpose and what its prosecution was intended to involve. The second is that the murder of Mr Meneely was committed in the prosecution or carrying out of that purpose. You have to consider carefully what was the nature of that crime in relation to the common purpose. The third thing is that you have to be satisfied that the offence was of such a nature that its commission was a probable consequence of the prosecution of that purpose.

Now, a great deal depends on the precise nature of any common unlawful purpose proved by the evidence in the light of the circumstances of the case, and particularly the state of knowledge of the defendant. It is the defendant's own subjective state of mind, as established by the evidence, which decides what was the content of the common intention to prosecute an unlawful purpose. That common intention is critical, because it defines the restrictions on the nature of the acts done or omissions made which the defendant is deemed by section 8 to have done or made. So, in considering what any common intention was and what was any common unlawful purpose, you should consider whether you are satisfied beyond reasonable doubt that the defendant agreed to a common purpose that involved the use of violence, at least, against Mr Meneely. If you are satisfied beyond reasonable doubt that there was a common intention to prosecute an unlawful purpose and what that was, you then have to ask whether you are satisfied beyond reasonable doubt that the offence of murder was committed in the prosecution or furtherance of carrying out that purpose. If you are so satisfied, then in considering whether you are satisfied beyond reasonable doubt that the nature of the offence committed was such that its commission was a probable consequence. The probable consequence is a consequence which would be apparent to an ordinary, reasonable person in the position of the defendant with the defendant's state of knowledge at the time when the common purpose was formed. This question of what was a probable consequence involves an objective test. It doesn't involve whether the defendant himself recognised the probable consequence or himself realised or foresaw it at the time that the common purpose was formed."

[31]  It may be seen from this passage that his Honour's direction to the jury was focused upon the common unlawful purpose put forward by the Crown as part of its theory of the appellant's guilt of murder under s 8 of the Criminal Code at the time immediately prior to the blows with the rifle.  It was not part of the Crown's case that the appellant and Brown and Fishburn formed a new common unlawful purpose to kill or do grievous bodily harm to the deceased.

[32]  The learned trial judge, having instructed the jury as to the operation of s 8 in the abstract, then descended to the concrete detail of the Crown case which was to emerge from the appellant's own statements to police:

"Now, according to the prosecution case, what was the common intention? What was the plan? On its case, the alleged plan was to make Mr Meneely unconscious and then to steal from him. It was to assault him. There is evidence which you have going to what was planned, or what was not planned that comes from the defendant's mouth, that comes from things which he said himself. The first part of the defendant's evidence in that respect is made up of various things which he said to police during the course of his recorded interview, and I wanted to direct you to particular passages which I hope will cover everything which he has said, firstly within the records of interview, going to this question of what, if any, was the plan. I'm using the transcript at this stage. Ultimately you will be looking at the tapes, but for present purposes, I don't think there would be any difficulty with your looking at the transcript, but at page 4 of the transcript of the record of interview, the videotaped interview, the defendant was asked: 'What can you tell us?', and he answered then, 'Just planned to rip Dave off, to pay off some debts and get a new house - like, get a place and get away from the shit - us from getting knocked off, and then we were supposed to knock him out and tie him up. Wasn't supposed to be involved in none of that. There was just - I don't know what went wrong. He started yelling out my name.'

Then on the next page, towards the bottom of the page, he was asked by one of the police officers: 'Now - all right. Now, you have said before that you planned to rip Dave off. What was the plan?', and the defendant said, 'It was me and Jess to stay upstairs, not know what was going on, and two other people were supposed to just knock him out and tie him up so he couldn't see nothing.' And he was asked: 'And whose plan was this?' He says: 'It was Jess's and mine.' He was asked: 'And what was the goal of the plan? What were you hoping to get out of the plan?' He said, 'To stop me from getting killed because of a debt.' 'What sort of debt are we talking about?' 'Drug debt.' 'Okay.' And he said, 'To get a place for me and Jess.'

Relevant also to what was planned or not planned is what appears in the transcript later on on that page, which is page 6, when he was asked, 'All right. So, Dave went out, and then what happened?' He said, 'They asked - they asked if I wanted him knocked.' 'So, this is these two other men?' 'Yes.' 'And what did you say to that?' 'No.', was the defendant's answer - that is, that's what he said in answer to the suggestion of Dave being knocked. He was then asked by police, 'And what did you think they meant by 'knocked'?' He answered, 'Dead.' The police asked, 'All right. And what happened then?' He said, 'They said they'd wait until he got back. So I got back upstairs and we-----', and then it is perhaps for you to work out what he said after that from the tape."

[33]  The learned trial judge continued to take the jury through the detail of the appellant's statements to the police; it is unnecessary to set out that detail here.  His Honour then summarised the prosecution case under s 8 of the Criminal Code:

"Now, you may think that according to what he said to police when he was interviewed by them, what you saw on the video, that the plan necessarily involved at least violent attacks sufficient to cause Mr Meneely to lose consciousness, but that under the written statement, the plan did not involve violence and, instead, it involved stealing whilst Mr Meneely was out of the house. It is a matter for you what you make of all of this evidence, and what it is that you are persuaded of as to the existence and extent of any plan; that is, as to the existence and extent of any common intention, remembering, of course, that in all respects, the burden of proof lies on the prosecution and that the standard is beyond reasonable doubt.

But for the prosecution to prove that the defendant is guilty of murder on the basis of section 8, it must prove to your satisfaction beyond reasonable doubt that, amongst other things, a probable consequence of the pursuit or prosecution of whatever you find was the common purpose was that one or more people were to attack Mr Meneely and with the intent of at least doing him grievous bodily harm. Unless you are satisfied as to the existence of that probable consequence, if that probable consequence is not made out by the prosecution, the defendant cannot be convicted of murder upon this particular basis under section 8.

You might be satisfied that it was a probable consequence that Mr Meneely would be killed but not killed by someone intending to kill or do grievous bodily harm. In that event, you couldn't convict of murder upon this basis of section 8. It would still be open to the prosecution to prove its murder charge by the alternative basis upon which it relies, which is that of section 7, and it is at this point, I think, that it is convenient to end my summing-up for the day. I'll resume in the morning by explaining to you the elements of section 7 and what the prosecution has to prove, firstly in relation to proving murder by the operation of section 7 …"

The appeal

[34]  I turn now to address the arguments advanced on the appellant's behalf.  I propose to deal first with the arguments advanced in support of the contention that the verdict of the jury was unreasonable.  I will then address the arguments which criticise the learned trial judge's directions to the jury in relation to s 7 and s 8 of the Criminal Code.

Unreasonable verdict

[35]  The point is made on the appellant's behalf that, in a separate trial, Brown was found not guilty of murder but guilty of the manslaughter of the deceased.[2]  Fishburn and Van Achterberg each pleaded guilty to manslaughter and were not convicted of murder.  These circumstances are such, it is submitted on the appellant's behalf, as to give rise to "a justifiable sense of grievance" on his part, in that the appellant, who did not actually inflict the fatal blows on the deceased, is the only person to have been convicted of his murder. 

[36]  In submitting that these circumstances give rise to a justifiable sense of grievance in the appellant, the appellant's Counsel is not merely striving for rhetorical effect.  Rather, he is seeking to enlist the support of the decision of the Victorian Court of Appeal in R v Iliovski & Shnider[3] for the argument that the verdict in this case is unreasonable.  In that case, Iliovski was convicted of counts 3 and 4 on the indictment and his co-accused in the same trial was convicted only of count 3.  The Crown case on count 4 against Iliovski was that he was liable as an accessory who aided his co-accused to do the acts that constituted count 4.  Having regard to the facts of the case, if the co-accused were not guilty of the charge in count 4, Iliovski could not have been liable as an accessory, accessorial criminal liability being derivative in nature.[4]  Iliovski's conviction on count 4 was quashed. 

[37]  That decision provides no support for the appellant's argument in this case.  The outcome in R v Iliovski & Shnider resulted from the impossibility of reconciling legally inconsistent verdicts which were arrived at on the same facts by the same jury in a joint trial.  In this case, the appellant's conviction resulted from the verdict of a jury based upon evidence quite different from that adduced in Brown's trial.[5]

[38]  It is well-established that the circumstance that different verdicts have been reached by different juries on the basis of different evidence is not of itself a basis to apprehend that a miscarriage of justice has occurred.[6]  In Osland v The Queen,[7] McHugh J said:

"… When persons alleged to have committed a crime jointly are tried separately, it can often happen that one will be acquitted and the other convicted. One reason for that occurring is that the evidence admissible against one accused may not be admissible against the other. For that reason, it can often happen that, even when both persons are tried together, one may be convicted and the other acquitted without there being any inconsistency in the verdicts of the jury (R v Jones [1971] 1 NSWLR 613) …"

[39]  The different outcomes of the trials of the appellant and Brown can readily be accounted for by differences in the evidence adduced at each trial.  In this case, the jury which convicted the appellant of the murder of the deceased were entitled to act upon the appellant's own description of the brutal battering of the deceased with the rifle while the appellant was holding the struggling victim.  That description of events was not, and, indeed, could not lawfully be, adduced against Brown in his trial.  This basis for contending that the verdict of the jury was unreasonable must be rejected.

[40]  Before I turn to consider the other arguments advanced on the appellant's behalf under the "unreasonable verdict" rubric, I pause to observe respectfully that there is little point in invoking the notion of a "justifiable sense of grievance" on the part of a convicted offender in the present context.  Whether or not a jury's verdict is unreasonable must be resolved by the application of logic and common sense to the evidence put before it in accordance with the law.[8]  While a "justifiable sense of grievance" on the part of an offender who has received a sentence which is said to be excessive in comparison with that imposed on a co-offender may serve as a useful frame of reference where what is at issue is an asserted disparity in sentencing,[9] the phrase is not particularly useful as an aid to discussion of the reasonableness of the verdicts of different juries reached on the basis of different evidence adduced at separate trials.  In this regard, the relevant sense of grievance held by the appellant in this case could sensibly be said to be, not that he was convicted of murder, but that Brown was only convicted of manslaughter.  Further, it could also sensibly be said that the reason for such a grievance was, not that the jury in this case was unreasonable in its verdict, but that the jury in Brown's trial were precluded by law from using the appellant's account of the slaughter of the deceased in the appellant's record of interview as evidence against Brown.  Accordingly, a consideration of whether the appellant has a justifiable sense of grievance does not provide useful guidance as to whether the verdict in this case was unreasonable.

[41]  The appellant's next argument is that, on the evidence, the jury could not reasonably conclude that he was criminally responsible for the murder of the deceased.  I am unable to accept that argument.  In my respectful opinion, the case of murder against the appellant based on his record of interview and the evidence of Dr Lampe was compelling.

Section 7(1)(c)

[42]  For the purposes of the Crown's s 7(1)(c) theory of the appellant's responsibility for murder, it was certainly open to the jury to conclude, from the appellant's description of the circumstances of the killing and from the medical evidence of the ferocity of the beating in which the appellant acquiesced, that, at the time when the appellant was holding the deceased and the blows with the rifle were administered, the appellant knew that the blows which he aided Brown to deliver were intended by Brown to achieve the result of causing the deceased grievous bodily harm or of killing him. 

[43]  The jury were entitled to infer that the appellant gave Brown the rifle.  They were also entitled to note the absence of any expression of surprise or dismay by the appellant when he was called into the room where the deceased had been subdued, and saw that there was "blood everywhere".  Similarly, there was no expression of surprise or dismay from the appellant when he saw that Brown was wielding the rifle in a manner which was bound to cause serious harm to the deceased:  the jury were entitled to note that, in the appellant's record of interview, there was no protest by the appellant at the manner in which Brown was using the rifle on the deceased.  The jury were also entitled to note that the appellant admitted in his record of interview that he knew that Brown was a "violent person" with a "history" of violence.  The appellant rendered active assistance to Brown while Brown carried out his ferocious assault on the deceased; and the jury were entitled to conclude that he did so voluntarily rather than under compulsion, because at that time it was very much in the appellant's interest to prevent the deceased from seeking revenge upon him for his role in the robbery.  The jury were entitled to regard all these aspects of the evidence as pointing to the conclusion that the level of violence being deployed by Brown met with the appellant's satisfaction and assent.[10]

[44]  The jury were entitled to reject any suggestion that there was a reasonable possibility that, at the stage when the appellant aided Brown and Fishburn in their beating of the deceased, the appellant did not know that Brown was intent upon killing or maiming the deceased.  The jury were entitled to proceed on the basis that the appellant would have been concerned that the deceased, who was conscious and struggling when the appellant had been called in to help Brown and Fishburn to batter him, must have then known that the appellant was involved in the attack on him.  The death or disabling of the deceased offered a means of disposing of the problem which thus arose for the appellant.  It was an obvious solution.  The jury were entitled to conclude beyond doubt that the appellant was not subject to such ordinary considerations of human decency as might have made the maiming or death of the deceased seem to him an unacceptable response to the appellant's fear of reprisals as a result of the deceased's becoming aware of the appellant's role in the robbery.  The appellant had, after all, arranged for the robbery involving the attack on the deceased for the most squalid of motives.  The jury were entitled to conclude beyond reasonable doubt that the appellant's assistance to Brown and Fishburn was rendered with full knowledge on his part that the assault on the deceased with the rifle was intended to remove permanently the risk of reprisal by the deceased. 

Section 8

[45]  For the purpose of the Crown's s 8 theory of the appellant's responsibility for the murder of the deceased, in The Queen v Barlow,[11] Brennan CJ, Dawson and Toohey JJ explained that s 8 of the Criminal Code operates to sheet home to a secondary offender the criminal responsibility of the principal offender for an act or omission the doing or making of which was a probable consequence of prosecuting a common unlawful purpose.[12]  On the evidence, it was open to the jury to conclude that an assault on the deceased with the intention of killing or doing grievous bodily harm to the deceased was a probable consequence of prosecuting the intention common to the appellant, Brown and Fishburn of using violence on the deceased in order to rob him. 

[46]  The jury were entitled on the evidence to conclude that the common intention of the appellant, Brown and Fishburn was to rob the deceased by using violence upon him.  The jury were entitled to conclude that the risk of death or grievous bodily harm to the deceased was obviously inherent in the execution of that plan:  there was no sensible basis on which it could have been thought that the force used to render the deceased unconscious would not be such as to cause grievous bodily harm or death.  Especially is this so bearing in mind the likelihood that the deceased would not be disposed to submit meekly to being knocked out.  The jury were also entitled to conclude that it was likely that, in the execution of the plan to knock the deceased out, Brown and Fishburn would act with a will to ensure that the deceased would be killed or caused grievous bodily harm to ensure that he could not impede the robbery or seek reprisals later. 

[47]  While the foregoing is sufficient to demonstrate that the jury's verdict was reasonable, it can also be said that the jury were entitled to have regard to the risk that, in the execution of the plan, the involvement of the appellant might become known to the deceased.  The risk that the appellant's involvement in the robbery of the deceased would become apparent in the course of the execution of the plan was a risk inherent in the plan even if it was not specifically adverted to by the appellant.  There was simply nothing in the terms of the arrangement with Brown and Fishburn revealed by the appellant in his record of interview to obviate the possibility of Brown and Fishburn calling upon the appellant to aid them in subduing the deceased.  That they did so was hardly surprising, given that the deceased could not have been expected to "go quietly".  That the appellant might not have actually adverted to this risk himself is not a flaw in the Crown's s 8 theory of responsibility for the murder of the deceased.  That is because, if the matter is regarded objectively, it is readily apparent that, if the risk were to eventuate, the appellant would have a problem, in that he could expect severe reprisals from the deceased.  There was no explanation as to how this problem could be resolved without the death or maiming of the deceased if, as was likely to happen, and indeed did happen, the robbery unfolded in a way in which the deceased became aware of the appellant's involvement in the robbery. 

[48]  The appellant's contention that the verdict of the jury was unreasonable on all the evidence must be rejected.

The trial judge's directions to the jury

[49]  I propose now to consider the arguments advanced on the appellant's behalf in relation to the sufficiency of the learned trial judge's directions to the jury on the law in relation to the operation in this case of s 7(1)(c) and s 8 of the Criminal Code.

Section 7(1)(c)

[50]  The appellant contends that the learned trial judge's directions were deficient in two respects:  first, it is said that the effect of the judge's direction was that the appellant could be found responsible for the murder of the deceased if the jury were satisfied that the appellant knew no more than that it was possible that Brown or Fishburn intended to kill or cause grievous bodily harm to the deceased; and, secondly, it is said that his Honour's directions did not make a crucial distinction between aiding an assault on the deceased and aiding the actual assault which caused death.

[51]  As to the first of these points, it is submitted on the appellant's behalf that the prosecution was required to prove that the appellant had actual knowledge that Brown's state of mind involved an intent to kill or do grievous bodily harm to the deceased:  it is not enough if the prosecution prove that the appellant knew only of the possibility that the offence of murder might be committed.  That part of the appellant's submission is supported by the decision of this Court in R v Lowrie & Ross,[13] and may be accepted.  The flaw in the argument advanced by the appellant, however, is that the learned trial judge's direction to the jury did not fall short of what the law requires in order to establish the criminal responsibility of the appellant for murder via s 7(1)(c) of the Criminal Code.  As is apparent from the excerpts of his Honour's directions set out in paragraphs [25] to [28] above, the direction given to the jury was clearly sufficient in this regard.  These repeated directions must have left the jury with a clear understanding that, in order to find the appellant guilty of murder on the basis of the Crown's s 7(1)(c) theory, they were obliged to conclude beyond reasonable doubt that the appellant knew that Brown or Fishburn were acting with the intention of killing the deceased or doing him grievous bodily harm.

[52]  For the appellant's second point, reliance is placed on the appellant's assertion in his record of interview that Brown told him that he hit the deceased with a hammer at some time when the appellant was not present.  It is said that the learned trial judge failed to make it clear to the jury that the appellant could not have been responsible for the murder of the deceased effected by a blow in which he did not assist in the delivery.

[53]  The first problem with this argument is that it assumes that the evidence raised a reasonable hypothesis that it was the subsequent blow with the hammer that killed the deceased.  In that regard, what Brown was said by the appellant to have said to him was second-hand hearsay.  Even if the statement by Brown to the appellant was strictly admissible, it was obviously unreliable as evidence of the cause of death of the deceased in that, in the uncontradicted evidence of Dr Lampe, brain injury was not identified as the cause of death.  The conclusion that the blows to the head of the deceased with the rifle while the appellant was holding the deceased caused his death was supported by Dr Lampe's uncontradicted evidence and the appellant's description of what he actually observed. 

[54]  The hypothesis that Brown struck the fatal blow at a later time out of the appellant's presence was, therefore, not a reasonable hypothesis on the evidence.  That this is so is confirmed by the circumstance that it was not advanced on the appellant's behalf at the trial by the able and experienced Counsel who then represented him.  It was not raised by the learned trial judge for the consideration of the jury.  No redirection was sought from the learned trial judge in that regard.  In these circumstances, no criticism can be levelled at the directions of the learned trial judge on this point. 

[55]  In any event, it is well-established that a person may properly be convicted of murder on the basis that his or her act substantially contributed to the death of the victim even though the immediate cause of death was a wound inflicted by another, and even though that other was convicted only of manslaughter rather than murder.[14]  In this case, there was no room for doubt that the blows with the rifle to the head of the deceased contributed to his death.  That was the effect of Dr Lampe's evidence; and even if one were to give full credence to the appellant's account of what Brown told him, and to accept fully the accuracy of Brown's assessment of the situation, the deceased was dying when Brown administered the coup de grace with the hammer.

Section 8

[56]  The appellant contends that the learned trial judge should have instructed the jury that the appellant could be responsible for the murder of the deceased by virtue of s 8 of the Criminal Code only if the death of the deceased was a probable consequence of the level of violence intended by the appellant in common with Brown and Fishburn.

[57]  In this regard the appellant argues, first, that the directions to the jury were deficient in that they failed to inform the jury that the appellant could not be responsible for the murder of the deceased unless they were satisfied that any intention on the part of Brown and Fishburn to kill or inflict grievous bodily harm on the deceased was shared by the appellant.[15]

[58]  The appellant also argues that the learned trial judge should have instructed the jury that, for the purposes of s 8, a probable consequence is more than a real or substantial possibility.  In this regard the appellant relies upon the decision of the High Court in Darkan v The Queen.[16]

[59]  The gravamen of the first argument under this heading seems to be that the learned trial judge's directions to the jury were not sufficient to ensure that the appellant could not be held responsible for the murder of the deceased if it were possibly the case that Brown and Fishburn formed such an intention on their separate initiative and despite a different original plan.  In support of this argument, the appellant relies upon the following statement by McPherson JA, with whom Helman and Chesterman JJ agreed, in R v Ritchie:[17]

"A matter that is critical to criminal responsibility of any kind under s.8 is proof of a common intention on the part of two or more persons to prosecute an unlawful purpose. The Crown is required to prove not only that on their part a common intention existed and what that intention was, but also that it was to be prosecuted 'in conjunction with one another'; that is to say, jointly or together. In cases like the present, of which there have been several in this Court since Barlow was decided in 1997, it has become evident that 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 (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. The possibility that the intentions of the participants may diverge after being formed in common was recognised in R. v. Jervis [1993] 1 Qd.R. 643, 655-656, where the verdict of manslaughter against Jervis was sustained on the basis that at relevant times she shared with Wiggington an intention, initially common to both of them, to wound their victim, but without knowing of and sharing Wiggington’s intention to go on and kill or do him grievous bodily harm."

[60]  In R v Ritchie, the prosecution sought to assert that the "common unlawful purpose" of the offenders was that which might be inferred to subsist between them at the time when the level of violence against their victim had escalated to its highest point and the accused, Ritchie, had ceased to participate in the assault upon the victim.  In such a case, it was necessary to ensure that the jury appreciated that the accused could be held responsible under s 8 of the Criminal Code for the acts which occurred at that time if they were a probable consequence of the common unlawful purpose to which the accused was actually a party.  That problem did not arise at all in this case where the Crown case of unlawful common purpose was always focused upon the plan to knock the deceased out and rob him, and the probable consequences of that plan.

[61]  The directions given by the learned trial judge in relation to the Crown's s 8 case left no room for the jury to misunderstand their obligation to consider whether the murder of the deceased was a probable consequence of the plan which was originally in the common contemplation of the appellant, Brown and Fishburn.  The Crown case as to when the relevant common intention was formed between the appellant and the others was clear; and the learned trial judge's directions were appropriate to that case.  The direction which his Honour gave was sufficient to ensure that the jury understood that they could not convict the appellant of murder if the acts of violence inflicted on the deceased were beyond a probable consequence of their original plan.

[62]  The Crown case did not involve any suggestion of an expansion of the common unlawful purpose beyond the purpose of robbing the deceased after knocking him out.  The directions to the jury by the learned trial judge were focused upon the common intention put forward by the prosecution as the basis for its s 8 case, and were appropriate in relation to the Crown case.  The jury was required to consider whether it was inherent in the plan to rob the deceased after knocking him out that violent measures amounting to a murderous assault might intentionally be taken against the deceased by Brown and Fishburn. 

[63]  As to the second argument under this heading, his Honour did not suggest to the jury that, for the purposes of s 8 of the Criminal Code, probability should be equated with mere possibility or even a substantial possibility.  Indeed, the material terms of his Honour's direction to the jury on this point presage the observations of the High Court in Darkan v The Queen.[18]  In that case, the High Court held that for an offence to be "a probable consequence" of the prosecution of an unlawful purpose within the meaning of s 8 of the Criminal Code, the commission of the offence must not have been merely possible or a real possibility, or a substantial chance or a real chance, but probable in the sense that it could well have happened during the prosecution of the unlawful purpose. 

[64]  In the joint judgment of Gleeson CJ, Gummow, Heydon and Crennan JJ, the following passage appears:

"It is not necessary in every case to explain the meaning of the expression 'a probable consequence' to the jury. But where it is necessary or desirable to do so, a correct jury direction under s 8 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. And where it is desirable to give the jury a direction as to the meaning of the expression 'a probable consequence' in s 9, a correct jury direction would stress that for the facts constituting the offence actually committed to be 'a probable consequence' of carrying out the counselling, they had to be not merely possible, but probable in the sense that they could well have happened as a result of carrying out the counselling.

The respondent contended that the trial judge's direction in this case did not fail to comply with these criteria. The respondent's argument was that the word 'possibility' in the impugned part of the summing up was qualified by the word 'real' and the word 'chance' by the words 'substantial' and 'real'. On this basis, the respondent submitted that the jury would not have been left with the impression that the appellants could be found guilty in relation to outcomes that were merely possible. That may be true, but the trial judge's direction, compelled by authority as it was, 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, contrary to the respondent's submissions, 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'. "[19]

[65]  It will be apparent from the last sentence of the passage cited from the joint judgment in Darkan v The Queen that the directions of the learned trial judge excerpted at paragraphs [29], [30] and [33] do not exhibit the flaw identified by the High Court.  The learned trial judge's directions to the jury on this point conveyed, without equivocation, the idea that the consequence to be looked for was "a probable or likely outcome". 

Conclusion and order

[66]  In my respectful opinion, the appellant's arguments impugning his conviction for murder must be rejected.

[67]  The appeal should be dismissed.

[68]  JONES J:  I agree with the reasons of Keane JA and the order that the appeal be dismissed.

[69]  DAUBNEY J:  I respectfully agree with the reasons for judgment of Keane JA, and with the order that the appeal be dismissed.