O'Dea v Western Australia

O'Dea v Western Australia - [2022] HCA 24 - HCA 2022 case summary — Zoe

[17]

The trial judge, Lemonis DCJ, directed the jury in connection with s 7(a). His Honour directed, with reference to a jury handout, that they must be satisfied to the requisite standard that "an offence can consist of numerous acts, which have been done by more than one person. Where two people are acting in concert, each of them doing one or more of the acts which together constitute the offence, then they are all guilty of that offence. Persons who are guilty in this way are sometimes referred to as joint principals". His Honour said that "[f]or an accused to be liable as a joint principal, he must do an act that forms part of the offence, which act is part of a series of acts committed with another person, while they are acting together".
The summary of this pathway of reasoning ("the first pathway") in the handout to the jury contained the statement that the jury must be satisfied that the appellant and Mr Webb "were acting in concert, each of them doing one or more of the acts which caused the traumatic brain injury to be done to Mr Koroma" and that "[t]he relevant accused's acts were unlawful". The "relevant accused" was said to refer to "the accused whose case [the jury was] considering". In further directions, given when the jury sought clarification of the words "in concert", the trial judge reiterated his earlier direction and said: "[w]hat you do is you look at the totality of the acts and if it can be said that the relevant accused was acting together or in concert with the other accused".
The trial judge also directed the jury in relation to the prosecution case which relied on s 7(c) ("the second pathway") but no issue regarding it arises on this appeal. It was accepted by both parties on this appeal that, as the Court of Appeal concluded, the jury must have convicted on the first pathway, which related to s 7(a). No submissions were made concerning the relevance of the second pathway to questions concerning s 7(a).
In the Court of Appeal, the appellant relevantly argued that the trial judge failed to direct the jury in two respects, either of which constituted a miscarriage of justice. It was argued that the trial judge ought to have directed the jury that, for the appellant to be found liable pursuant to s 7(a), not only must his acts have been unlawful, so too must the acts of his co‑accused, Mr Webb. This was necessary because there were issues at trial as to whether the prosecution had proved that each of them had not acted in defence of another[2], or that they had not acted reasonably to overcome force used by Mr Koroma in resisting arrest[3], or that they had not acted reasonably to prevent offences and violence[4]. The jury was directed to consider these issues. The trial judge was also said to have failed to direct the jury as to the meaning of the phrase "acting in concert".
The Court of Appeal (Buss P, Mazza and Vaughan JJA) unanimously rejected these arguments and dismissed the appeal[5]. Their Honours held[6] that the jury was entitled to convict the appellant of the charged offence in accordance with the first pathway, even if the jury was not satisfied beyond reasonable doubt that Mr Webb's acts were unlawful. In so holding, their Honours reasoned by analogy with this Court's decision in Pickett v Western Australia[7] that any statutory excuse from criminal liability that Mr Webb may have had was not an obstacle to the application of s 7(a) of the Code to the appellant. Applying Pickett, which in turn referred to the earlier decision of R v Barlow[8], their Honours explained that s 7 is not concerned with the criminal responsibility of any person who is a party to the offence. It is the doing of the act by the actor which s 7 attributes to another person or persons, not the criminal responsibility of the actor[9]. Their Honours were also satisfied that the trial judge adequately explained what was meant by "acting in concert" in the context of s 7(a)[10].
The appellant's second ground of appeal to this Court, which concerns the directions given as to when persons could be said to be "acting in concert", may be disposed of shortly. Where persons do acts which together would amount to the commission of a criminal offence, but the evidence does not reveal which one of them actually did the offending act, it is not uncommon for each of them to be charged with committing the offence[11]. A jury can apply s 7(a) with respect to a charge of grievous bodily harm if they find two or more persons were acting together in delivering a series of blows which resulted in the grievous bodily harm[12]. The effect of s 7(a) is to deem each person to have committed those actions constituting the offence.
In R v Wyles; Ex parte Attorney‑General[13], it was explained that at the time the Criminal Code (Qld) was enacted the criminal law had developed in a way so as to sheet home criminal responsibility by a jury being able to look at the totality of the acts where it could be inferred that persons acted in concert, "one doing the one thing and others other things, all leading to the completion of the ... offence". In cases such as this, each of the perpetrators was held to be liable as a principal and was treated as if they had actually committed the offence.
It may be accepted, as McPherson JA pointed out in R v Sherrington[14], that it may be preferable not to import words which have a special meaning in the common law into the Code. His Honour was speaking of the Criminal Code (Qld) but the same may be said of the Code of Western Australia. "Acting in concert" may be misunderstood to refer to a pre‑arranged plan, which is an aspect of the common purpose to which s 8 refers. But in the present case, the jury could not have been confused about the meaning of that phrase in the context of s 7. They were directed that s 7(a) refers to persons "acting together". This conveyed that they should determine whether the appellant and Mr Webb were acting in combination. No question of intention or common purpose was said to arise in connection with their actions.
Attention may then be directed to the first ground of appeal, which repeats the submission made to the Court of Appeal that the jury should have been directed that they must be satisfied that the acts of Mr Webb were also unlawful. The essential question is whether the characterisation of Mr Webb's actions as lawful or unlawful, which turns on the application of the relevant defences, is relevant to the enquiry under s 7(a). The question turns on the construction of that provision and its operation.
It is important to bear in mind that the Code was intended to replace the common law[15]. Whilst it may be proper to resort to the common law as an aid to the construction of the Code, which was the course taken in Wyles[16], the first duty of a court is to look to the text of the Code for an answer to a question which arises as to the meaning of its terms and its operation[17]. In Barlow, the majority focused on the provisions of ss 7 and 8 in their context in the Criminal Code (Qld) and upon the guidance offered by the structure of it[18].
In the latter respect, it may be observed that ss 7 and 8 appear in Ch II of the Code, which concerns parties to offences, whereas ss 231 and 248 appear in Ch XXVI, which is concerned with offences involving violence to the person, justification, excuse and circumstances of aggravation. Sections 7 and 8 are concerned with the attribution of acts to a person. Sections 231 and 248 are concerned with whether a person is liable to punishment for an offence.
The error in reasoning which was corrected by Barlow was the notion that ss 7 and 8 were concerned with imputing to other participants in an offence the criminal responsibility of the person who did the act or made the omission constituting the offence ("the actor")[19]. Barlow and Pickett held that criminal responsibility is not the concern of those provisions; rather they fasten upon the conduct of the actor.
The key to the operation of ss 7 and 8, identified in Barlow, was whether the term "offence" refers to an offence as proscribed by the Code or to what an actor (there referred to as "a principal offender") has actually done or omitted to do that renders that person liable to punishment[20]. The majority held[21] that it was the latter. In their Honours' view, s 2 of the Criminal Code (Qld), which is in relevantly the same terms as s 2 of the Code, makes it clear that "offence" is used to denote the element of conduct which, if accompanied by the prescribed circumstances, renders a person engaging in the conduct liable to punishment.
In Barlow, the majority confirmed that, by the ordinary rules of construction, the term "offence", as denoting the element of conduct in an offence for which a person may be punished, must bear the same meaning in paras (b), (c) and (d) of s 7 as it does in para (a) and that there is nothing to suggest that it has any other meaning in s 8[22]. In Pickett, the majority observed[23] that s 7(a) expressly refers to "the act or ... omission which constitutes the offence" and said that "[i]t is hardly to be supposed that the word 'offence' in the introductory words of s 7, '[w]hen an offence is committed', bears a meaning different from that spelt out in terms in s 7(a)".
In Pickett, the case for the prosecution was that one member of the group who assaulted the deceased, which included Mr Pickett, inflicted the fatal stab wound. The prosecution could not establish that Mr Pickett had done so. There was a real possibility that the fatal stabbing had been done by a child under the age of 14 ("PM") who, by virtue of s 29 of the Code (which appears in Ch V of the Code, "Criminal Responsibility"), could not have been held criminally responsible unless certain matters were proved by the prosecution. It was common ground that the prosecution did not adduce evidence to establish PM's capacity beyond reasonable doubt. Nevertheless, in argument, PM was treated as the hypothetical killer. Because the person who "actually caused the death" of the deceased was a person other than Mr Pickett, s 7(a) clearly could not be relied upon. The prosecution case was that each of the other seven, including Mr Pickett, was deemed to have taken part in committing the offence by reason of s 7(b), s 7(c) or s 8[24].
The argument that because PM might not be criminally responsible meant no offence had been committed, was held to be erroneous by the majority in Pickett[25]. The reasoning of the Court of Appeal in that case - that if the person who does the act is not criminally responsible for the act, the act is not one which "renders the person doing the act … liable to punishment" for the purposes of s 2 - was also rejected.
The Court of Appeal in Pickett had read "offence" as if it referred to an act which of itself renders the person liable to punishment. As the majority of this Court explained[26], Barlow had made clear that the definition of "offence" refers "not to the concatenation of elements and circumstances that establish liability to punishment, but to the conduct element of an offence (being an act or omission), which, if combined with other circumstances, renders the offender liable to punishment". The "act" that constituted the offence for the purposes of ss 7 and 8 was the physical act of stabbing the deceased. The stabbing constituted the conduct element of the offence of murder. It followed that an offence within the meaning of ss 7 and 8 may be committed even though the person who did the act that constitutes the offence is not criminally responsible because of the provisions of Ch V.
It is clear from the reasoning of the majority in Pickett that the opening words of s 7, "When an offence is committed", refer to the factual circumstances - there of death by stabbing - rather than to a conclusion that a particular person - a "principal offender" - can be said to be liable to punishment for it[27]. Their Honours regarded a suggestion that ss 7 and 8 can have no operation unless liability to punishment of a "principal offender" is first established as a departure from the terms of the Code. Those provisions make each person within its scope a principal offender and "[s]ection 7 is explicit in this regard"[28]. The majority added that whilst it may be convenient to refer to a person who "actually does an act or makes an omission" as "the principal offender", the use of "that short-hand" should not obscure the point that s 7 expressly attributes to the persons mentioned in s 7 the acts or omissions that constitute the offence.
In holding that "an offence" may be committed for the purposes of ss 7 and 8, even though the person who did the act was not criminally responsible, the majority in Pickett explained[29] that "[t]he personal circumstances referred to in the provisions of Ch V ... are immaterial to whether an act has been done, and so to whether an offence has been 'committed' for the purposes of ss 7 and 8". In their Honours' view, "[i]t would be inconsistent with [the majority in Barlow] to treat the possible application of the provisions of Ch V to one participant in the doing of an act that constitutes an offence as an obstacle to the operation of s 7 or s 8 of the Code in relation to others"[30]. The intended operation of ss 7 and 8 was made clear in the conclusions stated by their Honours in Pickett. They said that ss 7 and 8 render a person other than the actor liable to criminal punishment for those acts or omissions, subject to the personal circumstances of that other person. The circumstance that one person may have an immunity from criminal responsibility by reason of the personal circumstances referred to in Ch V does not prevent ss 7 and 8 from operating against others[31].
Applying the reasoning in Pickett to this case, the "offence" for the purposes of s 7(a) was each act of striking a blow to Mr Koroma by the appellant and by Mr Webb. The acts of each are attributed to the other and they both become principal offenders and liable to criminal punishment under s 294(1), subject to any defences which may arise from their personal circumstances. The fact that they may each have a defence does not prevent s 7(a) from applying. It follows that the lawfulness or otherwise of Mr Webb's actions for the purposes of Ch XXVI is not material to the application of s 7.
The appellant seeks to distinguish the holding in Pickett. He contends that whereas Pickett was concerned with excuses from criminal responsibility, which arise under Ch V, this case raises questions about justifications provided for under Ch XXVI, by which an act may be regarded as lawful. The appellant relies in particular on a passage in the reasons of the majority in Pickett[32] where it was said that:

[21]

Section 7 of the Criminal Code (WA) provides that, when an offence is committed, four classes of persons will be "deemed to have taken part in committing the offence and to be guilty of the offence". Each of the four classes of persons can be charged with "actually committing" the offence. The first class, in s 7(a), is "[e]very person who actually does the act ... which constitutes the offence". The question in this appeal is whether an accused person who does not actually do the act which constitutes the offence, or who the Crown cannot prove beyond reasonable doubt actually did the act which constitutes the offence, can be "deemed ... to be guilty of the offence" under s 7(a).
Over the last three decades, different intermediate appellate courts have taken different approaches to the interpretation of s 7(a) and an equivalent section in the Queensland Criminal Code. The first and narrowest approach, taken by some intermediate appellate courts, is to give the words "actually does the act" their ordinary meaning in every case. An accused person will be criminally responsible under s 7(a) only for their own acts. Sections 7(b), 7(c) and 7(d) then expand that criminal responsibility to deem the accused person to be criminally responsible for the acts of others in certain circumstances, so that the accused person may be charged with "actually committing" the acts that constitute the offence. This approach is consistent with the text of s 7(a). It is consistent with fundamental principles of criminal law that underpinned the drafting of s 7. And it respects the correctness of the unchallenged reasoning in Pickett v Western Australia[34], a decision of this Court delivered only two years ago.
The second approach, taken by some intermediate appellate courts, is to give the words "actually does the act" in s 7(a) their opposite meaning by attributing to the accused person the acts of another provided that the other person's acts were committed pursuant to a common intention (purpose or design) with the accused person. This approach requires the recognition of a large implication in s 7(a) that cannot be justified. That implication: contradicts the meaning of the plain text of s 7(a); is inconsistent with the drafting history of s 7 and the well‑established approach at common law to which regard could be had in resolving any ambiguity in s 7(a); and is unnecessary due to the existence of a wider, express provision in s 8 concerning extended liability based on a common intention (purpose or design) with the accused person.
On the third and broadest approach, reflected in the directions given by the trial judge to the jury in this case, the words "actually does the act" in s 7(a) are given their opposite meaning by attributing to the accused person the acts of another provided that the accused person and the other person were "acting in concert" (albeit not in the sense of that expression at common law) and the acts were part of "the same series of events", but without any requirement for an unlawful common purpose. This approach rewrites s 7(a) with dramatic consequences. Suppose that an accused person unexpectedly became involved in a brawl in which the accused person "actually committed" a minor act of assault upon a victim. On this broad approach, the accused person could be treated as having "actually committed" a stabbing act of murder if another person stabbed the victim during the brawl. In a circumstance where there was a much closer relationship between the accused person and the perpetrator, this Court in Pickett assumed that s 7(a) would not apply.
Mr O'Dea was convicted after the trial judge erroneously directed the jury based on the third and broadest approach. The Court of Appeal of the Supreme Court of Western Australia dismissed Mr O'Dea's appeal against conviction. The appeal must be allowed, Mr O'Dea's conviction quashed, and an order made for a retrial.

[38]

Mr O'Dea was charged on indictment with the offence under s 294(1)(a) of the Criminal Code of unlawfully doing grievous bodily harm to Mr Koroma with intent to maim, disfigure, disable, or to do some grievous bodily harm. Mr O'Dea was charged jointly with Mr Webb. He was tried in the District Court of Western Australia before a judge and jury. The State's case against Mr O'Dea and Mr Webb relied upon ss 7(a) and 7(c) of the Criminal Code. In establishing the facts of the case, the State relied upon closed‑circuit television footage from the house outside which Mr Koroma was attacked as well as from an adjacent house.
The State's case was as follows. In January 2018, between 2.30 am and 2.50 am, Ms Dimer entered the Manning Bowling Club. She attempted to open a box labelled "footy tips" when she was disturbed by Mr Koroma, who worked as a cleaner at the bowling club. She fled from the premises and was pursued by Mr Koroma. After confronting Mr Koroma with a house brick, Ms Dimer continued to run along the street, with Mr Koroma in pursuit, towards a residential house that was occupied by Mr O'Dea, Mr O'Dea's partner and Mr Webb. Mr O'Dea awoke to the sound of screaming. Mr O'Dea then woke Mr Webb, who was asleep on a couch in the house, and they went outside. Mr O'Dea had armed himself with a weapon similar to a hockey stick.
Ms Dimer and Mr Koroma were in the driveway of the house when Mr O'Dea came outside with Mr Webb. Mr O'Dea and Mr Webb tackled Mr Koroma and struck him, causing him to fall to the ground. When he was on the ground, Mr O'Dea and Mr Webb kicked him to the body and head. Mr Koroma sat up. Mr O'Dea kicked him to the face, causing him to fall down again. While Mr Koroma was lying on the ground, Mr O'Dea struck Mr Koroma to the head with the weapon and then hit him at least ten times in the head with his clenched fist. Mr Webb kicked Mr Koroma to the head twice.
Mr O'Dea then dragged Mr Koroma onto the grass verge where he punched Mr Koroma twice more while Mr Koroma was lying on his back. Ms Dimer began to walk away but Mr O'Dea told her to return, which she did. Ms Dimer grabbed a lanyard that was around Mr Koroma's neck and started to drag his body by it. Mr Koroma recovered into a sitting position, but Mr Webb grabbed him from behind and dragged him onto a neighbour's driveway where Mr Koroma's head struck the ground. Mr O'Dea and Mr Webb circled Mr Koroma. When Mr Koroma attempted to stand, Mr O'Dea struck him on the right ankle with the weapon. Mr Koroma again fell to the ground before getting up, taking several steps, and then falling again. Mr Koroma eventually got up and walked away.
The weapon used by Mr O'Dea was never found. Mr Koroma suffered a traumatic brain injury as a result of the attack. He also suffered skull and facial bone fractures, and a fractured right ankle. The traumatic brain injury amounted to grievous bodily harm. A neurosurgical registrar, Dr Rasouli, who was called by the State, gave evidence at trial that Mr Koroma's brain injury involved brain haemorrhages on the left‑hand side of his head and a smaller brain haemorrhage on the right‑hand side of his head. The injuries were most likely caused by blunt force trauma which could have been caused by, amongst other things, a punch to the head, slamming the head on the ground, falling hard on a surface, or being hit with an object. It was possible that the injuries to the left‑hand side of the brain and the injury to the right‑hand side of the brain had been caused by a single punch or a fall to the ground with force.
Mr O'Dea did not give evidence at trial nor did he adduce any evidence. His defence at trial, based on submissions by his counsel and an electronic record of interview with police, was that he had an honest and reasonable belief that Mr Koroma was attacking Ms Dimer. The jury returned a verdict of guilty in relation to Mr O'Dea for the offence under s 294(1)(a) of the Criminal Code of unlawfully doing grievous bodily harm with intent to disable or do grievous bodily harm. The jury were unable to agree upon a verdict in relation to Mr Webb. Mr Webb was subsequently retried and convicted of the alternative offence of unlawfully doing grievous bodily harm contrary to s 297(1) of the Criminal Code.

[45]

The Criminal Code "should be construed ... without any presumption that it was intended to do no more than restate the existing law"[40]. There is no such presumption because the Criminal Code was intended to replace the common law.
Nevertheless, in its goal of providing a comprehensive statement of criminal liability, the Criminal Code inevitably borrowed from some common law concepts. Hence, it has been held that it is permissible to resort to the common law prior to the Criminal Code in circumstances "where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning"[41]. In each instance, the common law is considered as part of the contemporary context of the drafting of the relevant provision of the Criminal Code. In relation to ss 7 and 8, the common law prior to the Criminal Code formed an important part of the context in which the provisions were drafted: "[o]bviously s 7 ... employs words which previously had acquired a technical meaning"[42].
The common law, prior to the introduction of s 7, drew a distinction between principals in the first degree, whose criminal responsibility was primary, and principals in the second and third degrees, who were accessories and whose liability was derivative of, or dependent upon, a finding of criminal responsibility of another: "[o]bviously ... accessorial liability is dependent upon the commission by someone of an offence"[43].
As to principals in the first degree, the core instance of such criminal responsibility, as expressed in Russell's Treatise on Crimes and Misdemeanors[44] three years prior to the enactment of the Queensland Criminal Code, concerned "those who have actually and with their own hands committed the [act]". Sir James Fitzjames Stephen described principals in the first degree as "those who actually committed the offence"[45]. As Sir Courtney Kenny said, a principal in the first degree is "[a]lmost always ... the [person] by whom this act itself was done"[46].
There was one exceptional circumstance where a person could be a principal in the first degree without actually performing the act that constituted the actus reus of the offence. That circumstance was where the person acted through an agent[47]. Where a principal acted through an agent, the acts of the agent were attributed to the principal and the liability of the principal was primary, not derivative[48]. An example of where the common law treated a person as a principal in the first degree by agency was where the acts of another were part of a joint enterprise[49].
Sometimes it was said that a person could be a principal in the first degree based on a fiction of "innocent agency". For instance, a person who prepared a poisoned drink to be given by an innocent person to the victim was sometimes said to be a principal who acted through an innocent agent[50]. But the better view is that no agency and no attribution are involved. The person who prepared the poisoned drink is criminally responsible for their own act which caused the death, even if the drink was served by a different person[51]: it is "natural to say that the defendant had caused the death"[52].
There was a fine distinction drawn between principals in the second degree and principals in the third degree. A principal in the second degree was a person who was present at the scene of a crime and encouraged the perpetrator but did not physically participate. The liability of a principal in the second degree was derivative of, or dependent upon, the criminal responsibility of the person who had been encouraged[53]. A principal in the third degree, or "accessory before the fact", was a person who aided and abetted in the commission of the crime, but who was not present at the scene of the crime. Again, the liability of the accessory before the fact was derivative of, or dependent upon, the criminal responsibility of the person who was aided and abetted[54].
In 1877, Sir James Fitzjames Stephen was authorised by the Lord Chancellor and the Attorney‑General to prepare a draft Penal Code[55]. The draft Penal Code which he prepared was based upon his earlier Digest[56]. Although introduced to the House of Commons, it was never enacted into law: it was the "closest England came to achieving a codified criminal law" and served as a model for numerous jurisdictions, including Queensland and Western Australia[57]. Section 71 of his draft Penal Code[58] provided as follows:

[66]

As noted above, some intermediate appellate courts have held that s 7(a) contains an implication that the acts of another person can be attributed to a person, and treated as "actually" having been committed by the person, where the person acts "in concert" with the other person in the sense of that expression at common law[79] (or, to use expressions that amount to the same thing, with a "common purpose" or with a "common design"[80]).
The premise of Mr O'Dea's second ground of appeal was that this approach was correct. On this approach, Mr O'Dea argued, the trial judge erred because he did not properly direct the jury as to the requirement of an unlawful common purpose between Mr O'Dea and Mr Webb. This premise should not, however, be accepted.
The implication that must be recognised on this approach is contrary to the text and context of s 7(a). In Campbell v Western Australia[81], McLure P redrafted s 7(a) so as to include such a fictitious implication that extended the operation of the paragraph to include acts that were not actually done by the person but were done by another person for whom the person was "liable at common law". In R v Sherrington[82], in a passage quoted by the Court of Appeal in this case[83], McPherson JA (with whom Wilson J agreed) correctly characterised such reasoning as "a form of heresy".
The implication based on common law would so overwhelm the meaning of s 7(a) that it would be possible for a person to be criminally responsible under s 7(a) even if the person had not done any actual acts at all. As the Court of Appeal of the Supreme Court of Western Australia correctly observed in L v Western Australia[84], in the course of rejecting any implication of a common law principle of common purpose in s 7 of the Criminal Code, the common law principle permitted the attribution of acts of another person to an accused person acting in concert for an unlawful purpose, even if the accused person had not "actually" done any act at all.
The recognition of an implication of a common law requirement of "acting in concert" in s 7(a) is also precluded by the history and context of s 7(a), which includes the express requirement of a common purpose in s 8. As explained above, s 8 was a modified version of Sir James Fitzjames Stephen's provision for criminal responsibility based upon agency where persons satisfy requirements including having formed a common intention to prosecute an unlawful purpose in conjunction with one another. Section 8 thus operates in the circumstance, incorrectly contemplated by Lucas J as falling within s 7(a) in R v Wyles; Ex parte Attorney-General[85], where "A B and C form a plan to burgle a house, in pursuance of which A breaks into the house but does not enter, B takes no part in the breaking but enters and steals, and C keeps watch in the street outside".

[67]

The broadest approach to s 7(a), adopted by the trial judge in this case, is to eschew the requirement for the commission of any offence by either the accused person or another person. Instead, the acts of the other person are attributed to the accused person by a novel principle unknown to the civil or criminal law of agency. That novel principle would permit attribution to an accused person (here, Mr O'Dea) of the acts of another (here, Mr Webb) if the acts form part of a series of acts committed "in combination" with the other person. No attempt was made to justify the attribution of acts to Mr O'Dea on such a novel basis.
Apart from the unjustified novel approach to attribution, a further problem with this approach is that it is contrary to the textual meaning of "actually does the act" in s 7(a) and the plain meaning of those words in light of the drafting history of s 7(a). As explained above, the language of s 7(a) preserved, in almost identical terms, the core instance of a principal in the first degree as expressed by Sir James Fitzjames Stephen in the opening words of s 71(a) of his draft Penal Code[86]. That meaning imposed criminal responsibility upon the accused person only for their actual acts, not acts that were attributed to them. Moreover, and as already pointed out, s 7(a) does not contain the additional language of s 71(a) of the draft Penal Code, with its reference to the doing of an act or omission which "forms part of the offence".
A further problem with this approach is the inconsistency with the remainder of s 7 in imposing criminal responsibility based in part upon the lawful acts of others. As explained above, one premise of the decision in Pickett was that an accused person could not be criminally responsible for the lawful acts of others under s 7(b), s 7(c) or s 7(d). An offence must be committed by the other person. The opening words of s 7, "When an offence is committed", do not merely govern ss 7(b), 7(c) and 7(d). They also govern s 7(a).
If this broad approach were correct, then Mr Pickett could have been made criminally responsible under s 7(a). It would not have mattered whether the person who "actually" inflicted the stab wound that caused Mr Slater's death was PM rather than Mr Pickett. In other words, if the stab wound had been inflicted by PM, it would have been possible on this approach for Mr Pickett to be criminally responsible under s 7(a) by the attribution to him of PM's acts that were committed as part of a series with the acts of Mr Pickett, and while PM and Mr Pickett were acting in combination. Such an approach was emphatically rejected by this Court. As Kiefel CJ, Bell, Keane and Gordon JJ said, the person who actually inflicted the stab wound, "and only that person, actually caused the death of the Deceased for the purposes of s 7(a) of the Code"[87].

[68]

In Whitby v Western Australia[88], Buss P and Mazza JA observed that a "remarkable feature of the State's case at the trial was the prosecutor's reliance solely upon s 7(a) of the [Criminal Code]". Equally, in this case, a remarkable feature of the State's case against Mr O'Dea and Mr Webb was that the State made no attempt to allege that, at any point during the assaults on Mr Koroma, Mr O'Dea and Mr Webb tacitly formed an unlawful common purpose of doing grievous bodily harm to Mr Koroma, which extended beyond a reasonable response to the circumstances that they believed to exist[89]. Instead, the State sought to attribute the acts of Mr O'Dea or Mr Webb to each other by a novel doctrine of agency that cannot be justified by the text or context of s 7(a) and has never been justified as a matter of principle.
The acceptance by the Court of Appeal of the broadest approach to s 7(a), which was the basis of the trial judge's direction to the jury as to the first pathway, was an error. Rather, and in light of the acceptance by the prosecutor in closing that it was possible that the grievous bodily harm had been caused by a combination of the acts of Mr O'Dea and Mr Webb, the proper legal meaning of s 7(a) in its application to Mr O'Dea required a direction to the jury as follows. The jury could convict Mr O'Dea if they were satisfied beyond reasonable doubt that: (i) Mr Koroma's traumatic brain injury was grievous bodily harm; (ii) Mr O'Dea's acts, by themselves, were sufficient to have caused Mr Koroma's traumatic brain injury; and (iii) Mr O'Dea's acts that were sufficient to cause Mr Koroma's traumatic brain injury were not undertaken in self‑defence or as a result of an honest and reasonable mistake.
The Court of Appeal should have found that the trial judge erred in his direction to the jury that Mr O'Dea could be convicted under the first pathway based upon a combination of the acts of Mr O'Dea and Mr Webb acting "in concert". That direction was an error of law amounting to a miscarriage of justice. The appeal should be allowed on the first ground of appeal. It is, therefore, strictly unnecessary to address Mr O'Dea's second ground of appeal, although it should be apparent from these reasons that the second ground was based upon a misconceived premise. There was no requirement for the trial judge to explain to the jury the meaning of "acting in concert" in relation to s 7(a). The concept of "acting in concert" is not contained in s 7(a) and it should not form part of any direction concerning that section.
Orders should be made as follows:

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