Darkan v The Queen

Darkan v The Queen - [2006] HCA 34 - HCA 2006 case summary — Zoe

[11]

The appellants did not give evidence at the trial. Each appellant was interviewed by police officers, but the answers of any particular appellant were only admissible as against that appellant, and the admissions made by the second appellant were far less extensive than those made by the other two. For that reason it is necessary to be careful in assessing the strength of the case against each appellant in relation to s 668E(1A). However, for present purposes, the primary evidence admissible against all the appellants, largely given by a witness named Bowen, revealed the prosecution case to be as follows.
The second appellant had been the de facto wife of the deceased. She had a grievance against him and wanted to cause him some harm. The deceased was aged 58, but he was a large man, and the second appellant saw it as necessary to recruit the services of no fewer than three men to cause him harm - the first appellant, aged 30, the third appellant, aged 23, and Bowen, aged 22. Indeed, she attempted to secure as well the services of a fourth man named Michael James Cobus. The evidence about the nature of the harm she requested will be examined below. For their services, each of the three men recruited was to receive $50, and more the following week.
The second appellant took the first appellant, the third appellant and Bowen in a van to Bicentennial Lakes Park, Mareeba, on the evening of 13 January 2003. She dropped them there and later returned with the deceased. The deceased got out of the van, but later went back into it and locked it. The second appellant persuaded him to let her enter it, and to drive it to a shed area. They then alighted and sat down with the first appellant, the third appellant and Bowen. The first appellant began to taunt the deceased and punched him in the face. The deceased stood up and began defending himself, and a fist fight broke out. It continued for some time. The third appellant then hit the deceased on the back of the neck with a pickaxe handle. The deceased fell to the ground and covered his face up as the first appellant and the third appellant, who (at least according to Bowen) were wearing steel-capped boots, began kicking him. They continued to kick him for a good while. Watched by the second appellant, the first appellant then took the pickaxe handle from the third appellant, and hit the deceased for a couple of minutes around the ankles and knees before making his way up the body and hitting the deceased in the ribs. The deceased was crying for help. Bowen took the pickaxe handle from the first appellant and gave it to the third appellant. He told him to get rid of it and not to give it back to the first appellant. However, the first appellant took the pickaxe handle away from the third appellant and began hitting the deceased in the head as if "he really meant it this time".
The appellants and Bowen then panicked and left the scene. Before he left, Bowen examined the deceased's face and found him to be "messed up pretty bad". The deceased asked Bowen to get help, and Bowen told the second appellant of this request before she dropped him at his aunt's house and gave him his $50.
The deceased's body was discovered at 6am the following day. A pathologist who conducted a post mortem examination found that, apart from severe bruising of many parts of the deceased's body, there was fracturing of the upper and lower jaw and of many facial bones, that there were many facial lacerations, and that the cause of death was aspiration of blood due to severe facial trauma. The pathologist thought that the injuries could have been caused by the pickaxe handle, if severe force were used.
What had the second appellant said to trigger the death of the deceased in this way? On Bowen's account in chief of a conversation between himself, the first appellant and the second appellant, the first appellant said that the second appellant wanted someone to "fix him up" (ie the deceased), and the second appellant said she would pay whoever would "fix it up". Bowen also said in chief that while the second appellant was driving the three men in the van to the park, she said she "just wanted someone to get into him". He repeated that evidence in cross-examination. Counsel for the second appellant cross-examined Bowen as follows:

[29]

As recorded in the trial judge's summing up, the prosecution's case was that either the first appellant or the third appellant or both of them delivered the blows that caused the death of the deceased. It put its case against the first appellant and the third appellant in three ways. The first was that each killed the deceased intending to do him grievous bodily harm: s 302(1)(a) and s 7(1)(a). The second was that each aided the other, or did or omitted to do an act for the purpose of enabling or aiding the other, to kill the deceased knowing that the other intended to do the deceased grievous bodily harm: s 302(1)(a) and s 7(1)(c). The third - and this case was put against the second appellant as well - depended on s 8 of the Code, and will be described as the s 8 allegation. The s 8 allegation was that the appellants formed a common intention to prosecute an unlawful purpose; that the death was caused by an act done in the prosecution of that purpose which was of such a nature as to be likely to endanger human life; and that the act causing death was a probable consequence of the prosecution of the unlawful purpose: s 302(1)(b) and s 8.
As recorded in the trial judge's summing up, the prosecution put its case against the second appellant in a manner additional to the s 8 allegation. It will be described below as the s 9 allegation. It was that she counselled or procured the first appellant and the third appellant to assault the deceased; that they engaged in conduct - administering blows to the deceased with intent to do him grievous bodily harm - which constituted murder as defined in s 302(1)(a); and that the delivery of blows with that intent was a probable consequence of the counselling or procuring: s 7(1)(d) and s 9.
The s 8 allegation, made against all three appellants, in part depended on the meaning of "a probable consequence" in s 8. The s 9 allegation, made against the second appellant, depended in part on the meaning of "a probable consequence" in s 9. The jury was given copies of ss 7, 8 and 9.

[102]

The expression "a probable consequence" consists of ordinary English words, but they have no single meaning common to lay speakers. Acceptance of the argument advanced by the first and second appellants would mean that trial judges would be precluded from answering questions posed by jurors about the meaning of the expression "a probable consequence". In a given case a jury might understandably experience difficulties with the expression "a probable consequence" while in another case a different jury may not. A rule of law which banned judicial attempts to deal with these difficulties would be perverse. Acceptance of the argument advanced by the first and second appellants would also create a formulaic approach to summing up. The function of a summing up is to furnish information which will help a particular jury to carry out its task in the concrete circumstances of the individual case before it and in the light of the trial judge's assessment of how well that jury is handling its task. It is undesirable for a summing up to assume the character of a collection of hallowed phrases mechanically assembled on a priori principles to be mouthed automatically in all circumstances, whether or not a particular jury actually understands them. If a judge sees it as desirable to explain the meaning of "a probable consequence" - perhaps because it is perceived that some jurors may think it calls for a balance of probabilities analysis while others may think it refers to relatively remote possibilities - the Code does not prevent this from being done.
To reject the argument advanced by the first and second appellants is not to depart from the views of Sir Samuel Griffith or the statements in this Court quoted earlier. Sir Samuel was speaking of how a Code should be framed, not of how a jury should be directed. Kirby J's observations in Murray v The Queen were directed to "relatively simple" provisions: the meaning of "a probable consequence" is not relatively simple, but differs with context. The observation of Mason, Wilson and Deane JJ in Boughey v The Queen about drafting Codes so as to make them comprehensible to juries was qualified by the words "where practicable", and their warning about not submerging ordinary meanings of commonly used words was a warning only against doing so "unnecessarily": it is not always practicable to avoid explanations of "a probable consequence" and it may be necessary to give them. Indeed, in that very case, Mason, Wilson and Deane JJ, after quoting part of the trial judge's summing up there under challenge in which he offered an account of what "likely to cause death" meant, said that the passage "contained helpful and correct guidance for the jury" in making the point that it "is an ordinary expression which is meant to convey the notion of a substantial or real chance as distinct from what is a mere possibility: 'a good chance that it will happen'; 'something that may well happen'; something that is 'likely to happen'"[66]. Further, the fact that in some cases, such as R v Seiffert and Stupar[67], a direction contained no explanation of "probable" does not establish that other directions which do seek to explain it are on that ground alone erroneous.
The stand which this Court has taken on the expression "beyond reasonable doubt" - that it alone must be used, and nothing else - has not been shared elsewhere[68]. Even in Australia it is an extreme and exceptional stand. The justification for it rests on several considerations. One is that "beyond reasonable doubt" is an expression "used by ordinary people and is understood well enough by the average man in the community"[69]. That is not so of "a probable consequence". A second consideration is that departures from the formula "have never prospered"[70]. That has not been demonstrated to be the case in relation to "a probable consequence". A third consideration is that expressions other than "beyond reasonable doubt" invite the jury "to analyse their own mental processes"[71], which is not the task of a jury. "They are both unaccustomed and not required to submit their processes of mind to objective analysis"[72]. Explanation of the expression "a probable consequence" does not require this of juries. Finally, as Kitto J said in Thomas v The Queen[73]:

[107]

The first and third appellants did not explicitly advance any argument beyond the two just examined. But implicit in their position was a further contention, which eventually was explicitly advanced on behalf of the second appellant: that even if the trial judge did not err in commenting at all on the meaning of "a probable consequence", and even assuming he did not err in going beyond an equation of "probable" and "likely", what he actually said was erroneous. It was erroneous in that he failed to steer a course between saying that a probable consequence was one which was more likely to occur than not (which would have been unduly generous to the appellants), and saying that a probable consequence was a real or substantial possibility or chance (which he in fact said, and which was unduly harsh to the appellants).
This criticism is sound, for the following reasons.
First, the context in which the expression "a probable consequence" appears must be borne in mind. While it is true that ss 7, 8 and 9 apply to many offences other than murder, the crime charged here was murder. Section 305(1) of the Code provides that conviction carries a mandatory and single penalty, the highest known to the law - life imprisonment. Further, the form of liability for murder under consideration is accessorial. Accessorial liability is old, but it is an exception to the general rules of criminal responsibility. Persons liable under s 7, s 8 or s 9 need not be present at the scene of the crimes for which they are convicted, and the fact that those crimes might be committed by the principal offender may never have entered their heads. In construing "a probable consequence" in ss 8 and 9, the extent to which it is likely that Parliament has created strict or vicarious liability in accessories must be considered.
Secondly, the key word in ss 8 and 9 is "probable", not "possible". The word "probable" has diverse meanings, but all common usages of it suggest a more exacting standard than "possible"[74].
Further, whatever the common law in the late 19th century was in relation to the problem dealt with by s 8 of the Code, it is clear that now at common law an accessory is liable if the principal offender's crime is "foreseen as a possible incident of the common unlawful enterprise"[75]. Although the law has long recognised accessorial liability, it has also long attempted to lay down limits to the accessorial liability of a person who shared a common purpose with a wrongdoer, or who instigated a wrongdoer to commit a crime. The alleged accessory is not to be liable for everything a principal offender did, either vicariously or absolutely. Over time the law has employed different techniques for placing accessorial liability within just limits while continuing to give it substantial room for operation. The common law protects against excessively wide liability by demanding actual foresight, albeit of a possibility. Under ss 8 and 9 of the Code the function of protecting against excessively wide liability turns on the need for probability of outcome, independently of the alleged accessory's state of mind. If under ss 8 and 9 of the Code the expression "a probable consequence" were construed so as to make a possible consequence sufficient, there would be liability in the accessory for whatever the principal offender did, since the fact that the principal offender did it shows that it was possible, and there would be no protection against excessively wide liability.
Authority in other jurisdictions with similar legislation stresses the contrast between "probable" and "possible". Thus, the New Zealand Court of Appeal, applying s 66(2) of the Crimes Act 1961, which turns on what is "known to be a probable consequence", could "see no justification for reading 'probable consequence' in s 66(2) as 'possible consequence'"[76]. The same court stressed the need for the summing up to emphasise that the consequences were "probable, not merely possible"[77]. In Canada, too, where s 21(2) of the Criminal Code centres on whether the accessory "knew or ought to have known that the commission of the offence would be a probable consequence" of the carrying out of the unlawful purpose, it is customary to distinguish between what is probable and what is possible[78].
The difficulty in defining "a probable consequence" is that once it is accepted that "probable" does not mean "on the balance of probabilities" and that it means more than a real or substantial possibility or chance, it is difficult to arrive at a verbal formula for what it does mean and for what the jury may be told.
The expression "a probable consequence" means that the occurrence of the consequence need not be more probable than not, but must be probable as distinct from possible. It must be probable in the sense that it could well happen[79].
In this case, the s 8 question is whether "the offence" - murder by killing the deceased with intent to do some grievous bodily harm - was "a probable consequence" of the prosecution of the common intention of the appellants to prosecute the unlawful purpose of assaulting the deceased. In this case, the s 9 question is whether "the facts constituting the offence actually committed" - the killing of the deceased with intent to do some grievous bodily harm - are "a probable consequence" of carrying out the second appellant's counsel.
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.

[111]

In an initial interview with the police, the first appellant denied any involvement in causing the deceased's death. In a later interview he admitted to the police that while he had given the deceased a "hiding", and was not the only person who had done so, he had used only his bare hands and that it was the third appellant who had used the pickaxe handle. At a further interview he said that the second appellant had told him that she wanted the deceased bashed in the dark and wanted more help, and that the deceased had raped her daughter. He heard the second appellant tell the third appellant to get a weapon, and saw the third appellant go into his house and come out with the pickaxe handle and wearing steel-capped boots. He saw the second appellant hide the pickaxe handle in the van. He observed the deceased's reluctance to leave the van. Before the fight began, the second appellant took the pickaxe handle from the van and hid it behind a bush. She then told the third appellant to get it, and told the first appellant to hit the deceased. The first appellant punched the deceased four times. The deceased fell to the ground, and the first appellant, the third appellant and Bowen began kicking him in the presence of the second appellant. The second appellant called for someone to get the pickaxe handle and, when nobody did, she got it herself. With it she gave the deceased a couple of "good swings" in the back of the neck. The first appellant then departed as the deceased's blood spread "all over the place".
Bowen's evidence suggested that in this account the first appellant had minimised his role, which included kicking the deceased with steel-capped boots and using the pickaxe handle extensively.
Michael James Cobus also implicated the first appellant: his evidence was that the second appellant's attempt to persuade Cobus to "touch up" the deceased was witnessed by the first appellant.
The respondent submitted that, quite independently of s 8 of the Code, the evidence revealed that the first appellant was guilty of murder by reason of either s 7(1)(a) or s 7(1)(c), respectively read with s 302(1)(a). These cases had been left to the jury. The respondent submitted that the first appellant's admissions showed that he intended to do some grievous bodily harm to the deceased, and that he either unlawfully killed the deceased with that intent, or aided the third appellant in unlawfully killing the deceased with that intent. These submissions are correct. An invitation to inflict a bashing at night in a lonely place in company on a man of violent disposition is an invitation intentionally to inflict grievous bodily harm. Whether or not the first appellant used the pickaxe handle, and whether or not it was used as little as he suggested, each punch or kick he inflicted assisted the third appellant in committing murder under s 302(1)(a) because it diminished the will and the ability of the deceased to resist the bashing which the participants had agreed would be given.
Counsel for the first appellant contended that the case against the first appellant depended on Bowen's credibility. Counsel had in mind the fact that Bowen was a witness whose evidence was to be examined with care. Originally he had been charged with murder, but after pleading guilty to a contravention of s 339 of the Code (assault occasioning bodily harm while in company), he received a sentence which was partly suspended and which led to his release after the plea was taken. Bowen accepted that he received a lesser sentence by reason of a promise to give evidence for the prosecution against the three appellants. Counsel submitted that since this Court was not in a position to assess Bowen's credibility, the case was unsuitable for the application of the proviso.
Combining the first appellant's account with the injuries suffered by the deceased, it is clear that the deceased's death was caused by someone who intended to do the deceased grievous bodily harm. The first appellant on his own admission knowingly aided the third appellant, who plainly had the intention of causing grievous bodily harm to the deceased and who must have caused the deceased's death if the first appellant did not. Hence a case of murder beyond reasonable doubt is established against the first appellant. This reasoning does not depend on Bowen's evidence, and it is not weakened by any infirmities in Bowen's credibility.
Counsel for the first appellant also said that questions arose about the reliability of what the first appellant had said to the police. Since the first appellant did not give evidence denying the correctness of what he had said in mechanically recorded interviews, those are not questions, assuming they are capable of arising, which can be answered favourably to the first appellant.
Counsel for the first appellant also contended that since the jury had been misdirected about s 8, the first appellant had not had a trial according to law. The other appellants advanced similar arguments.
In Weiss v The Queen[82] this Court put aside questions relating to two particular kinds of defect in a trial. One was whether the proviso could be applied when there had been "a significant denial of procedural fairness". This does not arise, because the trial was procedurally fair. The other was whether the proviso could be applied where there had been a sufficiently "serious breach of the presuppositions of the trial". This was a reference to a trial which had "so far miscarried as hardly to be a trial at all" or "where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings"[83]. Neither defect existed in relation to the trial so far as it concerned the first appellant.
The case against the first appellant was put to the jury on three bases. In relation to one of them, there was a misdirection. The first appellant's admissions made a conviction inevitable on one if not both of the other two bases. There is no reason why the proviso should not be applied in relation to those bases.
Counsel also referred to a statement by Kirby J of the accused's entitlement "to have a jury properly instructed on the elements of the offences charged"[84]. His Honour did not, however, say that in the event of misdirection the proviso could not be applied: his point was rather that it "will often be inappropriate, where misdirection is shown, to invoke a provision such as s 668E(1A) of the Code, even in a strong prosecution case"[85]. His Honour was not there dealing with proceedings which could scarcely be described as trials at all. However, even if it is assumed that some misdirections cannot be overcome by recourse to the proviso, that is not so of this misdirection.

[112]

The respondent submitted that the third appellant was guilty of murder either because he killed the deceased intending to do him grievous bodily harm, or because his acts aided the first appellant to kill the deceased in the knowledge that the first appellant intended to do him grievous bodily harm.
The third appellant gave the following account to the police. The first appellant told the third appellant that the second appellant wanted them "to smash this fellow up" for money, and that she had told the first appellant: "just come and just bash this lad for me". She asked what a "good spot" would be at which "to get this bloke". The third appellant anticipated that the deceased would suffer a couple of broken bones and be put in hospital. He went home to put on his steel-capped boots with a view to damaging the deceased. The first appellant asked the second appellant what the deceased was like; when she said he was a big man, the first appellant asked the third appellant if he had a stick to use as a weapon. The third appellant obtained the pickaxe handle, and gave it to the first appellant. After the deceased fell to the ground, the third appellant gave him "a little soft kick in the mouth" and kicked him two or three times in the ribs. The first appellant kicked the deceased at the same time. The first appellant asked for the pickaxe handle, and the third appellant supplied it, but evidently fearing that the first appellant would hit the deceased on the head with it, said "Don't kill him" and "Just knock him out". He saw the first appellant hitting the deceased with the pickaxe handle from his feet to his ribs and on the head and "smashing his jaw around" with it; he thought the deceased would suffer a couple of broken bones and a broken jaw.
There was other evidence against the third appellant (apart from Bowen's). His former de facto wife saw him leave home after putting his steel-capped boots on. On his return he showed her a $50 note and the pickaxe handle covered in blood. He told her that he had been in a fight and expected to receive a further $1,000. He told another witness that he had "bashed this guy in the park" with the pickaxe handle.
In the Court of Appeal, Keane JA correctly said that the prosecution case that the third appellant's assault on the deceased was effected with the intention of causing grievous bodily harm was overwhelming[86]. The evidence also supported the conclusion, beyond a reasonable doubt, that the third appellant aided the first appellant, knowing of the first appellant's intent to do the deceased grievous bodily harm.
Counsel for the third appellant, realistically and responsibly, accepted that there was evidence in the form of the third appellant's admissions capable of establishing his guilt beyond a reasonable doubt. The only point he advanced against the application of the proviso was that there had been a significant denial of procedural fairness. He said that the significant denial of procedural fairness lay in the fact that the summing up urged on the jury the s 8 route to conviction as one which did not require attention to the question whether the third appellant had an intention to do grievous bodily harm, and stressed the erroneous character of the s 8 direction. However, the avenues to conviction now relied on by the respondent were left to the jury, and there was no error in the directions about this. These circumstances do not result in a significant denial of procedural fairness. There is no reason not to apply the proviso against the third appellant.

[113]

Contrary to the position with the first and third appellants, the respondent supported the application of the proviso to the second appellant by reference to s 9. At trial the second appellant's case was that the evidence suggested only that the attack she had requested would result in an assault, and that its probable result was not the intentionally caused death of the deceased or death following the intentional infliction of grievous bodily harm. She relied on the proposition that all she asked for was a "touch-up".
The evidence admissible against her, however, establishes that she spent some time on the evening of the crime arranging for three men to attack the deceased, whom the men did not know, for an initial payment of $150, transporting the men to the site, and enticing the deceased to come to it. She also attempted to recruit another man. She borrowed the promised $150 from a friend. She told the police that the deceased was "very violent", and a "very strong man, it would have taken quite a few to hold him down".
Keane JA in the Court of Appeal said that there was a compelling case that the beating administered by the first and third appellants proceeded to her satisfaction and in conformity with the common intention for which she had recruited them[87]. His Honour was correct. Counsel for the second appellant submitted that the second appellant "was clearly not at the scene for the entire time" and that there was no proof that she knew of the strength of the men she hired, their propensities, their footwear or their possession of a pickaxe handle. These submissions are incorrect. There was uncontradicted evidence that she was there at the start, because she arrived with the deceased. She was there when the punching started, she was there when Bowen saw her watching the deceased being hit on the legs with the pickaxe handle, and she was there at the end when she drove away. It may be presumed that she remained at the site in the intervals between these points. There is no evidence that she did not. Before the deceased was taken to the site, the second appellant would have been able to judge the strength of the young men she had recruited as assailants from their appearance. She could infer their propensities from the fact that they were prepared to beat up a stranger for money. While she was at the site she would have learned more about their propensities, their footwear and the pickaxe handle. She did not protest about what was happening. The best evidence of what she counselled is what actually happened in her unprotesting presence.
Having asked for something to be done which involved three men assaulting as violent and strong a man as the deceased, having seen without protest a long and brutal beating administered, having failed to show any concern for the deceased after she left, having failed to respond to the deceased's cry for assistance communicated to her by Bowen, and having thereafter lied to the police and others about her lack of knowledge of the deceased's movements on the evening on which he died, it is not possible to avoid drawing a strong circumstantial inference that the intentional infliction of grievous bodily harm on the deceased was what the second appellant wanted to happen and what she wanted the assailants to do. She counselled an assault on the deceased which involved at least one, and probably both, of the first and third appellants attacking the deceased with intent to cause him grievous bodily harm in such a manner that murder - an unlawful killing with intent to cause grievous bodily harm - was a probable consequence of carrying out her counsel. It was a probable consequence because the assault directed at the deceased was a beating up, it was probable that the deceased, a violent man, would resist the beating up with violence of his own, and it was probable that the assailants would form an intent to cause grievous bodily harm during the fight even if they had not done so before it started. Hence the second appellant was rightly convicted of murder pursuant to s 302(1)(a), s 7(1)(d) and s 9(1).
However, counsel for the second appellant submitted that the error in direction was so serious a breach of the presuppositions of a criminal trial as to prevent the proviso from being applied. It was not an error as to an ancillary direction or as to something incidental to the trial. It was so important that there could not be said to have been a trial at all.
It is true that the error went to an element in the case advanced against the second appellant at trial (unlike the position with the first and third appellants, in respect of whom there were other paths to conviction unaffected by the error). However, the second appellant's complaints about the summing up had a double aspect. One was that no direction at all should have been given; the other was that the direction was wrong in its terms. It is relevant that counsel did not ask the trial judge not to give, or to withdraw, the direction. It is true that if a direction were to be given, justification could be found for the form of the words used by the trial judge in R v Hind and Harwood. But that case did not mandate that any direction be given. It was open to counsel to request that the direction not be given, or that it be withdrawn. The proposition that no direction should have been given was rejected above, but the failure of counsel to request that it not be given or that it be withdrawn suggests that counsel did not perceive the direction as especially damaging to the second appellant's interests. It is also relevant that the error affected only the degree of probability required. The trial judge repeatedly referred to the concept of probability; his error was to speak of a real or substantial possibility or chance, rather than a level of probability below the balance of probabilities. The fact is that whatever the meaning of "a probable consequence", the circumstances engineered by the second appellant fell within the expression. The complaints of the second appellant in particular about the direction appear to have been formulated after the conviction for appellate purposes. Even though they go to an aspect of the crimes charged in one of their elements, their nature is not such as to suggest that there was in truth no trial at all.
Finally, the second appellant submitted that there were "real difficulties" in applying the proviso in this case because of the "impossibility of distinguishing between murder and manslaughter". She submitted that this was the case, particularly in view of the difficulties of assessing Bowen's credit and determining what was meant by the phrase "touch-up", these being matters quintessentially for a Cairns jury familiar with local conditions. These submissions were not developed. Counsel for the second appellant at the trial (who did not appear on the appeals) said in final address that the prosecution advanced Bowen as "a witness of truth, and I embrace that to a large extent". No doubt it was for that reason that in cross-examination he controverted very little of what Bowen had said in chief, beyond putting into his mouth the propositions that all that was planned was a "touch-up" and that nothing was "discussed" about kicking the deceased or using a weapon on him.
Counsel suggested to this Court that:

[116]

Each appeal should be dismissed.
KIRBY J. In these appeals, from the Court of Appeal of the Supreme Court of Queensland[88], a majority of this Court has upheld the substance of the appellants' challenges to the directions given to the jury. However, it has dismissed the appeals by the application of the 'proviso'[89].
I agree that the appellants' challenges to the accuracy of the instructions given to the jury should be upheld. However, I disagree with the conclusion that the appeals should be dismissed on the ground that "no substantial miscarriage of justice has actually occurred". Essentially, my point of disagreement relates to the importance of the error in the judge's charge to the jury for the accurate trial of the appellants according to law; the significance of the error for the way the jury may have reasoned; and the centrality of the postulate that lies behind the way in which serious criminal charges are ordinarily determined in this country. That postulate envisages the verdict of a jury, properly instructed on the legal ingredients of the offences charged, without error upon such ingredients that might have affected the outcome of the trial[90].
In order to understand the nature of the appellants' complaint, it is important to consider the impugned direction in context. The prosecution cases against the first and third appellants were that each (1) independently committed the offence of murder[91]; (2) aided the other to commit the offence of murder[92]; and (3) was guilty of murder because they formed a "common intention to prosecute an unlawful purpose in conjunction with one other [and the second appellant], and in the prosecution of such purpose" the commission of the offence of murder was a "probable consequence" of the prosecution of such purpose[93].
The prosecution case against the second appellant was presented in somewhat different terms. In common with the charges against the first and third appellants, liability on the basis of a common intention to prosecute an unlawful purpose was propounded. However, the prosecution also maintained that the second appellant was liable on the basis that she had counselled the commission of the assault against the deceased[94]. Significantly, s 9(1) of the Criminal Code (Q) ("the Code") provides that a person who counsels the commission of an offence is liable for any other offence committed provided that "the facts constituting the offence actually committed are a probable consequence of carrying out the counsel".
In the course of directing the jury on s 9(1), the trial judge, conforming to authority binding on him[95], stated that "a probable consequence" was one which was "a real possibility or a substantial [chance] or a real chance" in the circumstances[96].
Although this direction only immediately concerned s 9(1) of the Code, the words "probable consequence" were used by the trial judge in his directions on common intention. It was accepted by the respondent that, consequently, this could have affected the liability of the first and third appellants and the alternative prosecution case against the second appellant based on common intention.
There is a great difference between deciding that serious harm to the victim was a "probable consequence" and that it was a possibility or a chance (even if qualified by "substantial" or "real"). In my view, the error in the judge's direction deprived the appellants of a trial according to law. Their convictions were not inevitable[97]. This Court is not properly equipped, effectively for the first time, to try the appellants on the record. A new trial should be had before a jury, properly instructed on the law.

[117]

The facts: The reasons of Gleeson CJ, Gummow, Heydon and Crennan JJ ("the joint reasons") state clearly the issues in these appeals. I agree with most of what is said there. The appellants have undergone three trials. The first concluded the day after it commenced in May 2004, when the jury were discharged without returning a verdict. The second trial likewise concluded after two days in similar circumstances. It was at the third trial, heard in August and September 2004, that the proceedings came to a conclusion; that the now contested direction was given to the jury; that the jury returned verdicts of guilty of murder in respect of each of the appellants; and that each was convicted and sentenced, as required by law, to life imprisonment, the highest sentence provided in the Code.
The facts are set out in the joint reasons[98]. On the evidence, the motivation that lay behind the desire of the second appellant (Ms Gwendoline Deemal-Hall) to have her former de facto husband ("the deceased") assaulted was not entirely clear. One suggestion, in the evidence of Mr Shannon Bowen, was that "[s]he's having a hard time. Her boyfriend's hassling her." Other evidence, that was no more than unconfirmed hearsay, hinted that she was upset because the deceased had allegedly sexually assaulted her daughter. That evidence was not admissible against Ms Deemal-Hall. It would nevertheless have been open to the jury to conclude that the reason concerned in some way the domestic relationship between Ms Deemal-Hall and the deceased. That relationship, according to the evidence, continued to some extent until the death of the deceased. Ms Deemal-Hall visited him in his motel in Mareeba on the night before his death.
The circumstances that ensued after this visit were the subject of evidence given by Mr Bowen, described in the joint reasons. That evidence differed in material respects from the respective versions of events given to police by the first appellant (Mr Howard Darkan) and by the third appellant (Mr Marlow McIvor). None of the appellants gave evidence at the trial. For her part, Ms Deemal-Hall made no relevant admissions to police.
There was objective evidence of very serious injuries to the deceased which had caused his death, effectively by drowning in his own blood occasioned by the severe injuries he had suffered to his face and head. It was for the jury to decide what each of the appellants had done to contribute to the deceased's death and whether such contribution was proved by the prosecution to amount to the crime of murder with which each of the appellants was charged.
To the extent that the prosecution relied on the evidence of Mr Bowen, caution was required and the jury were so instructed. He was one of the three men who had assaulted the deceased. He had negotiated with the prosecution to accept a plea to a lesser offence. This resulted in a partly suspended sentence on the basis that he would give evidence for the prosecution against the appellants[99]. On the other hand, the statements to police by Messrs Darkan and McIvor, received in evidence, sought to deflect the seriousness of the parts which they had each respectively played in the assault leading to the deceased's death. Counsel for Ms Deemal-Hall sought to minimise her purpose in instigating the assault on the deceased. This endeavour was supported by reference to the statements which the male assailants alleged she had made in describing her objective.
In default of sworn testimony from the appellants and with the evidence of Mr Bowen who, on his own testimony, had taken part in the assaults, the jury faced obvious difficulties in reaching factual conclusions as to the relevant conduct of each appellant, proved in accordance with the criminal standard applicable to the offences of murder that were charged. These considerations also made the task of charging the jury a difficult one. But they rendered it all the more important that the jury should receive accurate instruction concerning the ways in which the prosecution sought to demonstrate that each of the appellants was guilty of murder. This is where the importance of the directions on the Code language ("a probable consequence") becomes critical.
The Code: The relevant provisions of the Code are set out in the joint reasons[100]. Those reasons also contain a most useful reminder of the history that lay behind the adoption of the provisions of the Code, the earlier attempts at codification in England and the eventual achievement of that objective in Queensland, other parts of Australia, and other Commonwealth countries[101]. I gratefully accept this exposition. It demonstrates how, in a most important respect, the process of codification took the Griffith Code[102] in a direction not only different from the common law; but also different from the criminal codes adopted in other countries.
At common law, to establish accessorial liability, it is necessary for the prosecution to prove that the accessory must have foreseen the principal offender's offence as a possible incident of the common unlawful enterprise[103]. Foresight must be proved; but only to the level of a possibility. Under the Griffith Code, an objective standard is adopted. Actual foresight by the accused need not be proved. However, the "trade-off" of accepting this more stringent standard is that the prosecution must prove that what occurred was a "probable consequence" of what was undertaken, evaluated objectively[104].
In the versions of the codes adopted in Canada[105] and in New Zealand[106], the operative provisions require the establishment of even more rigorous elements involving, in each case, a variant of actual knowledge or insight and of probable consequences. Such considerations help to place the exceptional approach of the Griffith Code into the context of the laws applicable elsewhere in Australia and in other countries where statutory codifications and adaptations of the English criminal law are in force. They afford additional reasons for resisting attempts, made by the prosecution in these appeals, to sustain the assimilation of the Code provisions referring to "a probable consequence" to variations on the theme of "possibility" and "chance".
In matters of basic criminal law principle, it is desirable, so far as it can properly be achieved within the statutory language, to ensure uniformity of approach throughout Australia[107]. Complete uniformity on the subject matter of these appeals is impossible, given the content of the common law and the different language of the Australian versions of the Code. However, the insistence on the difference between "probable" and "possible" (or "chance") is certainly a step in the right direction. Where the Code uses the word "probable" it seems unlikely, in this context, that it means "possible". So to construe the Code would not only depart from its text. It would separate even more radically the test applied in Code States from that applicable elsewhere in Australia and indeed in comparable countries overseas.

[118]

The mistaken direction: The joint reasons collect such observations in this Court as throw light on the meaning of the word "probable" appearing in the Code[108]. They explain the adoption by the Court of Appeal of Queensland of the formula used by the trial judge in these proceedings to explain the contested phrase[109]. According to that formulation, it was enough to satisfy ss 8 and 9 of the Code, for example, "if there was a real possibility that an offence of the nature of the offence committed would be committed"[110]. This is how "possibility" and "chance" (qualified by use of the adjective "real") found their way into Queensland trial practice, the Queensland Bench Book and the instructions given to the jury in the present proceedings.
For the reasons given by the other members of this Court, that instruction was erroneous. It did not comply with the language of the Code. Indeed, from internal evidence within the Code, where the word "likely" is quite commonly used[111], it appears clear that the choice of the word "probable" was deliberate[112]. This conclusion is reinforced when the frequency of the general distinction between "probable" and "possible" in legal usage is recognised. It is strengthened still further by contrasting the differential usage of language in the comparable provisions of the codes of different countries, suggesting a deliberate and careful choice of words in the Griffith Code that became the model for Australian codification. It is also reinforced by a reflection on the commonsense conclusion that a decision-maker will find it somewhat more difficult to decide (to the requisite standard) that events are "a probable consequence" of propounded activities than would be the case if all that needs to be shown is that they are a "possibility" or a "chance" (including if those words are qualified by the adjective "real"). Many more consequences are possible, even really possible, than are probable[113]. Reaching a conclusion on possibilities and chances is easier for the mind than having to decide that something is "a probable consequence" of other people's actions and purposes.
The correct direction: One of the objectives of codification of the criminal law was to avoid unnecessary elaboration of the law. Such elaboration may be prone to confuse rather than to assist juries. Especially where the law has been restated in a code, so as to make a fresh start, it would ordinarily be wrong to gloss the language with notions inherited from the common law or with words that merely represent a judicial attempt, in different language, to restate Parliament's purpose[114].
It is not an error for a trial judge, who feels that elaboration to some extent is desirable or necessary, to afford such an elaboration[115]. So much may sometimes be required by jury questions. Indeed, such jury questions often focus upon key expressions, not least the standard formula of "beyond reasonable doubt"[116]. I would not elevate the phrase in question in this appeal to that category so that it may not be elaborated or explained[117]. However, there will often be good sense in simply telling the jury of the requirements of the Code, providing them with a copy of the relevant provisions (as the trial judge did here) and avoiding the use of unnecessary synonyms[118]. Apart from anything else, adhering to the language of the Code tends to narrow the possibility of mistakes and to reduce the length of jury instructions, which are very long in this country, by contrast, say, to jury instructions in the United States of America.
Where it is decided that some elaboration of the phrase "a probable consequence" is desirable or necessary, the use of synonyms that invoke the concepts of possibility and chance, however decorated, is seriously wrong. The jury might properly be told that a probable consequence was one that was more than "merely possible"[119]. They might be told that it is one that they would regard as probable in the sense that it "could well have happened" as a result of carrying out the activities in question but they should not be told that it is sufficient if it is proved that what happened was a possibility or real chance or substantial risk.
In all of this, I agree with what is said in the joint reasons[120]. The appellants have therefore made out the error for which they contended in these appeals. On the face of things, they are therefore entitled to succeed in their appeals. But their success is subject to the 'proviso'.

[122]

The word "Court" in the section means the Court of Appeal[121]. In disposing of these appeals this Court is authorised, on proof of error, to substitute the order which the Court of Appeal ought to have made[122].
Clearly, from the foregoing, it is established that a "wrong decision on [a] question of law" occurred in the judgment of the court of trial. In the event of a wrong decision, the appellate court is then obliged ("shall") to allow the appeal. The provision for dismissal of the appeal in s 668E(1) is not enlivened. It is only enlivened in terms of s 668E(1A) if, notwithstanding the foregoing opinion, the appellate court comes affirmatively to the conclusion that no substantial miscarriage of justice has actually occurred. So is that the case here?
Lack of appellate consideration: In the conclusion reached by the Court of Appeal, it was unnecessary for that Court to consider, still less apply, the 'proviso'. This was because that Court applied its own authority to the meaning of the word "probable" in the context of ss 8 and 9 of the Code, as expressed in R v Hind and Harwood[123]. It concluded that, in the context, "a probable consequence" was, as the trial judge had instructed the jury, a consequence that is a "substantial risk", "real chance" or "real possibility" of occurring in the prosecution of the common unlawful purpose or in fulfilment of the conduct that was "counselled"[124].
In this Court, the prosecution urged that comments in the Court of Appeal, addressed to the seriousness of the injuries suffered by the deceased, amounted in some way to an evaluation by that Court of the strength of the respective cases against the appellants. This submission is unsound. In the conclusion it reached, the Court of Appeal had no reason to evaluate the evidence for 'proviso' purposes. Correctly, on its premises, it omitted to do so. The respondent filed no notice of contention in this Court, seeking to support the judgment of the Court of Appeal on the basis of the application of s 668E(1A) of the Code. However, argument proceeded in these appeals on the footing that the 'proviso' was properly before us, by reason of our function. The procedural niceties may be passed by. But the invocation of the 'proviso' in this Court presents many difficulties, for reasons that I will now explain.

[125]

A legal mistake in peripheral matters, such as on non-fundamental issues of procedure, an insubstantial error in admitting this or that piece of evidence or a misdirection on a particular point of fact or law arising in the trial may not touch the fundamental requirement of having a trial "according to law"[127]. But where the error that is established involves a mistaken direction with respect to an essential ingredient of the offence and a misdescription to the decision-maker (here the jury) of the content of that ingredient, a real question is presented as to whether the outcome then truly answers to a trial "according to law".
Clearly, the language of the 'proviso' is only enlivened when mistakes have happened. The mistakes which s 668E(1A) contemplates include, explicitly, "the wrong decision on any question of law". However, the 'proviso' is manifestly to be understood against the background of the fundamental assumption that high standards of lawfulness are observed in the conduct of criminal trials. Otherwise, such trials would not only depart from our own high conventional standards but also from the requirements of the ICCPR. Australia has ratified the ICCPR and the First Optional Protocol[128]. This renders the legal standards of this country examinable by the United Nations Human Rights Committee. Inevitably, this consideration brings the influence of the Covenant to bear on the exposition of the applicable Australian law[129]. It suggests that the "wrong decision on any question of law" to which s 668E(1) is addressed is of a particular kind - but one that does not involve fundamental errors on such questions as might deprive the trial of the character of one "according to law"[130].
Similar remarks, but without reference to the underpinning in human rights law, have been made several times in this Court. The appellate court, deciding the 'proviso' question, is obliged to reach its own conclusion according to the statutory criteria[131]. However, necessarily, it does so in the context of a legal system that observes high standards of compliance with the law; is protective against miscarriages of justice and wrongful convictions; and ordinarily applies the rigorous criterion for proof of criminal guilt, namely proof beyond reasonable doubt[132].
Defects of trial on the record: There are further considerations to be remembered when the 'proviso' is invoked, as it has been in these proceedings. They include, as this Court pointed out in Weiss v The Queen[133], the limitations inherent in an appellate court conducting a criminal trial on the record. Here that record was taken in the court of trial where that trial, by hypothesis, has miscarried:

[127]

This passage from Weiss provides a salutary reminder both of the appellate duty in criminal appeals and of the necessary limitations within which that duty is performed. In the present proceedings, those limitations have an added feature. This arises because of the fact that, in these appeals, the intermediate appeal court did not perform the function enlivened by the 'proviso'. Effectively, therefore, what is sought by the prosecution in these appeals is a trial of the appellants, on the record, effectively for the first time applying the correct legal standard, and in this Court. In my view, at least in a case of the present kind, the final constitutional and appellate court of the nation is not well equipped to perform such a task.
It is legally authorised to apply the 'proviso'[134]. It may do so although no notice of contention is filed relying on that provision[135] and although it was not considered in the intermediate court[136]. But the existence of the relevant power says nothing about whether that power should be exercised.
Quite apart from the fact that this Court sees no witnesses, is restricted to transcript to which it is taken by the parties with their competing interests, and has inadequate time to consider and absorb all of the evidence viewed in sequence, there are several particular disadvantages in this Court's assuming that role. Doing so represents an aggravated form of the danger, mentioned by McHugh J on several occasions, of "substituting trial by appellate court for trial by jury"[137].
In this case, this Court lacks the assistance of the intermediate court's analysis of the evidence. Assuming this function for itself, it deprives the appellants of a right to appeal against the outcome, although effectively it is the appellants' first trial "according to law"[138]. If we misunderstand the evidence; miscalculate the significance of the testimony of Mr Bowen; or misjudge the importance of admissible factual material in a trial that lasted six days and involved some local considerations, we become the source of a miscarriage of justice rather than the source of its correction.
Final court review of evidence: In the Supreme Court of the United States there have been similar debates over the assumption by that Court of the responsibility to decide the merits of a conviction at trial where legal error in the conduct of a trial is found but it is submitted that such error is "harmless"[139]. In United States v Lane[140], Stevens J, writing in dissent but with the concurrence on this point of Brennan, Marshall and Blackmun JJ, remarked that "[u]ndertaking a harmless-error analysis is perhaps the least useful function that this Court can perform"[141].
In his reasons Brennan J[142] explained why this was so. He said that, in the nature of the other duties and responsibilities of a final court, it was difficult to perform the "examination of the proceedings in their entirety", the course called for by United States[143] as by equivalent Australian authority[144]. He warned against the temptation to a "perfunctory effort to evaluate the effect of this error"[145] and to the substitution of intuitive judgment and impression for a thorough analysis in "one of the most complex" tasks committed to an appellate court[146]. This is why he concluded the Supreme Court was "manifestly ill-equipped to undertake" such a task so that, if it were to be performed at all, it should normally be remanded to the intermediate court[147]. Much of this analysis has direct application to a request that this Court, for the first time, apply the 'proviso'.
The significance of the error: There is a further factor. I now come to why, in these appeals, the erroneous direction given to the jury by the trial judge was so serious. In my estimation, the error of substituting a verbal formula expressed in terms of possibility and chance for the language of the Code, with its reference to "a probable consequence", was factually very significant for the fair trial of the appellants.
There were facts in the evidence that suggest that Ms Deemal-Hall's purpose in counselling the assault upon the deceased did not have murder as a probable consequence of that counselling. Equally, there is evidence which casts doubt on the proposition that a probable consequence of the prosecution of the appellants' common intention to assault the deceased was the deceased's murder. The relevant considerations available to support these propositions included:

[136]

So far as the male appellants are concerned, it is necessary to decide which version of the facts is correct, if either, given that the jury were confined, essentially, to versions respectively given to police by those who had participated to some degree in the assaults (including Mr Bowen), necessitating considerable care in the evaluation of what each of them had to say, exculpating themselves and inculpating the others. Making that evaluation is quintessentially a jury function. It is a function to be performed by the application of the correct legal standard expressed in terms of probability and not possibility. For the final appellate court to perform that function for the first time is for it to assume a role that belongs properly to the appellants' jury.
If one asks whether it was a possibility (even a "real possibility") that the events which Ms Deemal-Hall counselled would descend to the level of violence that they did, the answer, almost inevitably, is in the affirmative. Virtually anything is possible. Where violence gets out of hand, it is really possible. Yet it might not have been regarded as "a probable consequence" - particularly because of the considerations I have identified. At least, this was a view properly open to the jury. Similarly, with the male appellants, it all depended on whose version of events was accepted, given the imperfections of the versions that were available.
It cannot be the case that the "consequence" in question is judged with the benefit of hindsight after it has occurred. To judge whether it is "a probable consequence", it is necessary to place oneself before the events unfold. This means that the actual happenings cannot decide the case in judging the probabilities prospectively. The issue is one of foresight; but it is foresight objectively and not subjectively assessed.
Could it then be said that, before the attacks on the deceased unfolded, they were "a probable consequence" of the appellants' unlawful purpose? Having regard to the considerations that I have mentioned, a jury, properly instructed on the provisions of the Code, might answer that question in the negative. They might regard what happened as a series of events that got out of control and went far beyond the purposes for which the second appellant had engaged the male appellants and beyond the objects that she had counselled them to perform.
The more complex the evidence, the more important it was to have the correct legal standard applied to it. I realise that, by close analysis of the record and logical reasoning, it is possible to identify ways in which the verdicts entered against the appellants might be sustained. The unedifying nature of the attack on the deceased, and the cowardly way he was left to drown in his own blood, scarcely enliven sympathy for any of the appellants. However, they have been convicted of the most serious crime in the Code. They have been sentenced to the highest punishment provided by that law[148]. They were entitled, in such a case, to a very high degree of accuracy in the conduct of their trials. For such serious outcomes and to sustain such extended and multiple deprivations of liberty, it is normal in our system of justice to rely on the verdicts of juries accurately instructed. Their verdicts are preferable to the logical reasoning of judges - even of the judges of the nation's final court. The jury's collective wisdom might not follow the linear logic of the justifications of the guilty verdicts found in the joint reasons[149].
Unknown mode of jury reasoning: This conclusion is reinforced by a reflection on the holding of this Court in Domican v The Queen[150]. In that case, the evidence against the accused, looked at globally and with all of its component parts, was, as in these proceedings, very powerful. However, there was a defect in the judge's instruction to the jury on one issue (identification). This Court pointed out that, in the absence of a special verdict, appellate courts are not ordinarily able to conclude how the jury reasoned to their verdict. Because the reasoning might have been affected by the defective direction (if the jury chose to reason on the basis of the evidence of identification), the verdict and the conviction that depended upon it could not stand.
Verdicts that follow legal misdirection might not have been contaminated by the error. But the appellate court can never know. As in Domican, so here. If the jury in these proceedings reasoned to their verdicts by way of a conclusion that the appellants were guilty because there was a (real) possibility or chance that the death of the deceased would be a consequence of the appellants' conduct, that would render the misdirection critical. Other later rationalisations by judges, to support the verdicts on other lines of reasoning, would not then truly sustain the verdicts actually returned. The appellants would have lost their right to a jury trial according to law. That, without more, would be a miscarriage of justice of a serious kind suggesting the need for a retrial.
The exceptional basis of liability: There is an additional consideration. It derives from the fact that liability under ss 8 and 9 of the Code derogates from the normal requirement of Australian criminal law that a person is only criminally responsible for the acts that he or she intends. Here, the Code language adopts an objective standard. By a legal fiction, it imposes a kind of vicarious criminal responsibility, judged by an objective standard. It does this whatever the actual intention and purpose of the accused might have been[151].
Whilst the Code must be applied according to its terms, where those terms have been mis-stated, the exceptional character of the resulting criminal liability (and its extremely serious consequences in these proceedings) renders the mistake a very significant one. Where the mis-statement has been made with judicial authority to the decision-maker (here the jury), the potential for occasioning a miscarriage of justice is virtually inescapable.
Practical and policy considerations: In addition to the foregoing reasons for requiring a retrial, there are a number of practical or policy considerations that reinforce my conclusion that it would be inappropriate to apply the 'proviso' in the present circumstances. They include:

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