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[1997] HCA 19
High Court of Australia
1997-06-03
Brennan CJ, Kirby JJ, Toohey JJ, Jersey J
Original judgment source is linked above.
High Court of Australia Brennan CJ Dawson, Toohey, McHugh and Kirby JJ R v Barlow [1997] HCA 19
The respondent and five other persons were charged on indictment before the Supreme Court of Queensland with the murder of Bart Hans Vosmaer. Two of the accused pleaded guilty and were sentenced to life imprisonment. The jury convicted Barlow's other three co-accused of murder. Barlow was acquitted of murder and found guilty of manslaughter.
Vosmaer died as the result of injuries inflicted upon him in a prison gymnasium by Barlow's co-accused who were all, at that time, prisoners at the Sir David Longland Correctional Centre. The case against Barlow was based on circumstantial evidence which, in the submission of the prosecution, established that Barlow was party to a common plan to kill Vosmaer. The prosecution relied, inter alia, on ss 7 and 8 of the Criminal Code Q [1] (the Code) to sheet home liability to Barlow. Those sections read as follows:
(a) Every person who actually does the act or makes the omission which constitutes the offence;
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) Every person who aids another person in committing the offence;
(d) Any person who counsels or procures any other person to commit the offence.
In directing the jury, the trial judge (de Jersey J) said:
You would find Barlow guilty of murder only if satisfied beyond reasonable doubt that Barlow aided others to kill Vosmaer in the sense of consciously assisting the others to achieve the particular object of killing Vosmaer or, alternatively, if satisfied beyond reasonable doubt that Barlow was party with others to a plan or common intention with others to commit a very serious assault upon Vosmaer and that the murder - the intentional killing - which, in fact, occurred, if it occurred, was a probable consequence of the execution of that lesser purpose of very seriously assaulting Vosmaer. This direction was based on s 7(c) and s 8. No question arises on this appeal as to the application of s 7 or the Judge's direction on that section. Pursuant to s 8, the jury were directed to consider whether the intentional killing of Vosmaer by Barlow's co-accused was a probable consequence of the execution by the co-accused of a plan to which Barlow was a party. As the jury acquitted Barlow of murder, they could not have been satisfied that the intentional killing of Vosmaer was a probable consequence of any plan to which Barlow was a party. His Honour continued: But if you are not satisfied beyond reasonable doubt that Barlow ever intended that Vosmaer be killed or that grievous bodily harm be done to him, that that was not part of any plan to which Barlow tied himself, and that an intentional killing - an intentional killing - was not a probable consequence of the implementation of the purpose of that plan for, say, a serious assault, although the death of Vosmaer nevertheless was a probable consequence, then you would find Barlow not guilty of murder, but guilty of manslaughter, and you could do that even though bringing in different verdicts with relation to the other accused. That then is the position with relation to Barlow. Pursuant to this direction, it was open to the jury to convict Barlow of manslaughter if the striking and resultant death of Vosmaer were unlawful and were a probable consequence of the execution by the co-accused of a plan to which Barlow was a party, whether or not the co-accused intended to cause Vosmaer's death or to do him grievous bodily harm.
On appeal to the Court of Appeal, Barlow submitted that, as the co-accused who had actually caused Vosmaer's death did so with the intent necessary to constitute the crime of murder under s 302(1) of the Code, s 8 of the Code could be invoked against Barlow only if the evidence supported a finding that a probable consequence of the plan to which Barlow was a party was the killing of Vosmaer by a co-accused who had the specific intent necessary to constitute the crime of murder under s 302(1) of the Code. As the jury had by their verdict negatived that conclusion, the only verdict open in Barlow's case was said to be a verdict of acquittal.
The scheme of the Code's provisions relating to culpable homicide is to define unlawful killing [2] , to divide the categories of unlawful killing into murder and manslaughter [3] , to define the offence of murder by reference to the specific intent with which the fatal act must be committed or the fatal omission must be made or by reference to the circumstances which must accompany the commission of that act or the making of that omission [4] , and then to define the offence of manslaughter as consisting of the residual cases of unlawful killing [5] .
In the Court of Appeal, Barlow's appeal against conviction was allowed. Macrossan CJ held that:
[s]ection 8 is concerned to attribute criminal responsibility for the same offence as that which, in the event, is found to have been committed by the principal. It is the "offence" which "is committed" that is selected as the offence which the accessory is deemed to have committed. Pincus JA, who came to the same conclusion, found the key to the interpretation of s 8 in an unlawful killing case to be the introductory words of s 302, that is, "a person who unlawfully kills another". Those words, his Honour held, are applicable to the state of mind of the offender who, to use the words of s 7(a), is the "person who actually does the act or makes the omission which constitutes the offence". For ease of reference, that person may be referred to as the principal offender. On this reasoning, it was erroneous for the trial judge to direct the jury to have regard to the state of mind of Barlow in considering his guilt. The question was simply whether it was a probable consequence of the unlawful purpose which Barlow and his co-offenders intended to prosecute that the person who committed the fatal act would do so with the specific intent of causing the victim's death.
Both Macrossan CJ and Pincus JA allowed the appeal but, in the exercise of discretion, declined to order a new trial. Accordingly, a verdict of acquittal was entered. Dowsett J agreed that a verdict of acquittal should be entered, but on a different ground. His Honour was of the opinion that the evidence was not sufficient to establish Barlow's complicity in the crime either by reason of s 7 or by reason of s 8. That ground has not been argued in this Court. This appeal is brought by the Crown by special leave to consider the meaning and application of s 8.
The majority approach in the Court of Appeal followed the decision of that Court in R v Hind and Harwood [6] , which had declined to follow an earlier decision of the Court of Criminal Appeal in R v Jervis [7] . In R v Jervis , a majority (McPherson ACJ and Shepherdson J) had interpreted the term "offence" in s 8 of the Code in its application to cases of culpable homicide so that it might apply to the elements of the offence of manslaughter even though the "principal offender" had committed the fatal act with a specific intent that made him guilty not of manslaughter but of murder. This was the authority to which the summing up by de Jersey J in the present case conformed, though he had dissented in the Court of Criminal Appeal in Jervis [8] where he said:
Similarly, s 8 requires one to identify the offence actually committed. Provided the commission of that offence was the probable consequence of the prosecution of an unlawful purpose, which two or more persons agreed to prosecute in conjunction, then the section deems each of those persons to have committed "the offence", that is, the offence which "is committed". Again, because in this case the offence actually committed was murder, a conviction of the appellant for manslaughter could not be justified by reliance on this section. 1. (1995) 80 A Crim R 105. 2. [1993] 1 Qd R 643. 3. [1993] 1 Qd R 643 at 671.
In Hind and Harwood [9] , this view prevailed. Fitzgerald P said:
Section 8 is founded on the premise that one (the "actor") of a number of persons involved in a joint plan has, in the circumstances specified, committed an offence. The section does not provide that, in those circumstances, each of the other parties to the plan has separately committed an offence created by s 8. Instead, it proceeds on the basis that only a single offence, that of the actor, has been committed. Section 8 makes each of the other parties to the plan criminally responsible for the actor's offence by deeming them "to have committed the offence". If the actor has committed murder and the specified circumstances are met, the other parties to the plan are also "deemed to have committed the offence" of murder committed by the actor. Pincus JA [10] favoured the view: that the proper operation of s 8 is, where a murder has been committed, to require consideration of whether that murder, not a hypothetical unlawful killing, is an offence of such a nature as the section mentions. I am thus of the respectful opinion that Jervis should not, insofar as it holds the contrary, be followed. McPherson JA, however, interpreted the term "offence" in s 8 consistently with s 2 of the Code. That section reads: An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence. His Honour observed [11] : If this provision can be called in aid in relation to s 8, then there is in this respect little difference between these two elements of s 8 and s 302(2): see Stuart [12] where an offence was said to be simply "a punishable act or omission"; and Jervis [13] . 1. (1995) 80 A Crim R 105 at 136. 2. Hind and Harwood (1995) 80 A Crim R 105 at 141. 3. Hind and Harwood (1995) 80 A Crim R 105 at 143. 4. (1974) 134 CLR 426 at 440-441. 5. [1993] 1 Qd R 643 at 652-653.
The first question for consideration is whether offence in s 8 refers to an offence as defined in the Code or whether the term refers to what a principal offender has actually done or omitted that renders the principal offender liable to punishment. In considering this question, it must be borne in mind that to speak of an offence which the principal offender is found to have committed is not to refer to the jury's verdict against the principal offender; it is to refer to a finding by the jury in the case against the party who is said to be liable under s 8, the finding being made upon the evidence admitted for or against that party.
"Offence" is a term that is used sometimes to denote what the law proscribes under penalty and sometimes to describe the facts the existence of which render an actual offender liable to punishment. When the term is used to denote what the law proscribes, it may be used to describe that concatenation of elements which constitute a particular offence (as when it is said that the Code defines the offence of murder) or it may be used to describe the element of conduct (an act or omission) which attracts criminal liability if it be accompanied by prescribed circumstances or if it causes a prescribed result or if it be engaged in with a prescribed state of mind (as when it is said that a person who strikes another a blow is guilty of the offence of murder if the blow was unjustified or was not excused, if death results and if the blow is struck with the intention of causing death). Correspondingly, when the term "offence" is used to denote the facts the existence of which renders an actual offender liable to punishment, the term denotes either the concatenation of facts which create such a liability (as when it is said that Barlow's co-accused committed the offence of murder) or the conduct of the offender (an act or omission) which, with other facts of the case, create such a liability (as when it is said that the co-accused who struck Vosmaer the blow which caused his death and who did so with the intention of killing him or doing him grievous bodily harm is guilty of the offence of murder).
Section 2 of the Code makes it clear that "offence" is used in the Code to denote the element of conduct (an act or omission) which, if accompanied by prescribed circumstances, or if causing a prescribed result or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment. Section 7(a) confirms that "offence" is used to denote the element of conduct in that sense. By the ordinary rules of interpretation, the term must bear the same meaning in pars (b), (c) and (d) of s 7 as it bears in par (a). Section 8, which complements s 7 and extends the net of criminal liability for an offence to the parties who have formed a common intention of the kind therein mentioned, reveals no ground for attributing a different meaning to "offence" in s 8.
The structure of Ch V of the Code shows this to be the meaning of "offence" generally in the Code. The first paragraph of s 23 deals first with criminal responsibility for an act or omission then with criminal responsibility for the result. It then adverts in the second paragraph of s 23 to specific intent to cause a result as a state of mind distinct from the voluntariness referred to in the first paragraph of s 23. The element of specific intent is dealt with again by the third paragraph of s 28 which makes provision for the effect of intoxication. Section 24 deals with mistake as to the circumstances in which an act is done or an omission is made. Section 27 and the first paragraph of s 28 relate to disorders of the mind that might affect voluntariness in the doing of an act or the making of an omission or a mistake in circumstances accompanying an act or omission as well as a capacity "to know that he ought not to do the act or make the omission".
In the light of these provisions, offence in s 8 must be understood to refer to an act done or omission made. So interpreting the section, it deems a person falling within its terms to have done the act or to have made the omission which the principal offender has done or made. It fastens on the conduct of the principal offender, but it does not deem the secondary party to be liable to the same extent as the principal offender. It sheets home to the secondary offender such conduct (act or omission) of the principal offender as (1) renders the principal offender liable to punishment but (2) only to the extent that that conduct (the doing of the act or the making of the omission) was a probable consequence of prosecuting a common unlawful purpose. The secondary party is deemed to have done an act or made an omission but only to the extent that the act was done or the omission was made in such circumstances or with such a result or with such a state of mind (which may include a specific intent) as was a probable consequence of prosecuting the common unlawful purpose. Those circumstances, that result and that state of mind are factors which, either together or separately but in combination with a proscribed act or omission, define an offence of a particular "nature". Thus the unlawful striking of a blow by a principal offender will constitute an offence the nature of which depends on whether the blow causes bodily harm or grievous bodily harm or death and on the specific intent with which the blow is inflicted.
Interpreting s 8 in this way, how does it apply to the facts of the present case? It was not only the striking of Vosmaer but also the result of Vosmaer's death, the absence of any justification or excuse for the striking of the blow and the intention to cause death or grievous bodily harm that made the striker of the blow guilty of the offence of murder. But not all of those facts were needed to give to the striking of a blow the character of an act rendering the principal offender liable to punishment. Absent the intention to cause death or grievous bodily harm, the striking of the blow without justification or excuse and the resultant death rendered the striker liable to punishment for manslaughter. As the striking of that blow was an act that rendered the principal offender liable to punishment, Barlow is deemed to have done that act if the requirements of s 8 are satisfied. Was the nature of the blow actually struck such that its infliction was a probable consequence of the prosecution of the relevant unlawful purpose? The jury must be taken to have found that the striking of a blow which was not justified or excused and which caused death was a probable consequence of prosecuting the purpose common to Barlow and the principal offender.
Does Barlow avoid liability for manslaughter because the striker of the fatal unjustified and unexcused blow had an intention that made him liable to punishment for murder? That would be a curious, if not perverse, operation to attribute to s 8. A party who formed with a principal offender a common intention to prosecute an unlawful purpose would escape liability under s 8 if, in prosecuting the unlawful purpose, the principal offender did the unlawful act with a specific intent that made him guilty of a more serious offence than the offence of which he was guilty without that intent being an offence the commission of which was a probable consequence of prosecuting that purpose. As the doing of an unlawful act by the principal offender has to be proved by evidence admitted against the secondary party - and not by a verdict in the case of the principal offender [14] - should the secondary party be entitled to an acquittal if the jury be left in a reasonable doubt on the evidence in his case as to whether the principal offender had the intention that would make him liable for a more serious offence? So bizarre an interpretation of s 8 confirms, in our respectful opinion, the correctness of the majority view in Jervis and the consequent error of the view espoused in Hind and Harwood. The criminal liability of the principal offender for the act done or omission made by him determines the "nature" of the act which the secondary party is deemed to have done or the omission which the secondary party is deemed to have made only in so far as the act done or omission made by the principal offender, when taken in combination with (i) the attendant circumstances, (ii) the result of the act or omission, and (iii) the principal offender's state of mind, was a probable consequence of prosecuting the common unlawful purpose.
Thus, if a principal offender does an act or makes an omission in prosecution of an unlawful purpose and, by reason of facts attendant on the doing of the act or the making of the omission, the act or omission renders the principal offender liable to punishment for any of a number of contraventions of the Code, a person who formed a common intention with the principal offender to prosecute that purpose is himself liable to punishment for any contravention that was a probable consequence of prosecuting that purpose. This construction of s 8 accords with the view of Jacobs J in Stuart v The Queen [15] and with observations in judgments in Western Australia [16] and in Tasmania [17] . It also accords with what was said in this Court in Markby v The Queen [18] . In that case, Gibbs ACJ said [19] :
It was erroneous to tell the jury that the applicant could be found guilty of manslaughter only if Holden also was guilty of manslaughter and not of murder. When two persons embark on a common unlawful design, the liability of one for acts done by the other depends on whether what was done was within the scope of the common design. Thus if two men go out to rob another, with the common design of using whatever force is necessary to achieve their object, even if that involves the killing of, or the infliction of grievous bodily harm on, the victim, both will be guilty of murder if the victim is killed [20] . If, however, two men attack another without any intention to cause death or grievous bodily harm, and during the course of the attack one man forms an intention to kill the victim, and strikes the fatal blow with that intention, he may be convicted of murder while the other participant in the plan may be convicted of manslaughter [21] . The reason why the principal assailant is guilty of murder and the other participant only of manslaughter in such a case is that the former had an actual intention to kill whereas the latter never intended that death or grievous bodily harm be caused to the victim, and if there had not been a departure from the common purpose the death of the victim would have rendered the two participants guilty of manslaughter only. 1. (1974) 134 CLR 426 at 453-454. 2. Saunders v The Queen [1980] WAR 183 at 184, 189; Warren and Ireland v The Queen [1987] WAR 314 at 322-324, 330-331; Mason v The Queen (1995) 15 WAR 165 at 174, 189. 3. Murray v The Queen [1962] Tas SR 170 at 176; Frost v The Queen [1969] Tas SR 172 at 182. See also R v Tomkins [1985] 2 NZLR 253 at 255. 4. (1978) 140 CLR 108. 5. Markby (1978) 140 CLR 108 at 112, taken from the original transcript of judgment dated 25 July 1978, pp 2-3. 6. R v Lovesey [1970] 1 QB 352 at 356. 7. R v Smith (Wesley) [1963] 1 WLR 1200 at 1205-1206; [1963] 3 All ER 597 at 601; Betty v The Queen (1963) 48 Cr App R 6; R v Lovesey [1970] 1 QB 352 at 356.
Both the common law and the Code draw a distinction between an unintended death that nevertheless occurs in consequence of the prosecution of an unlawful common purpose and an actual intention on the part of either party that death should occur. However, Markby expressed the common law; it did not interpret the Code. The Code is to the same effect. Section 302 prescribes the specific intent (not merely foresight, much less foreseeability, of death or grievous bodily harm) which must be entertained by an offender before the offender is guilty of murder.
A problem similar to that arising under s 8 of the Code was considered by the Supreme Court of Canada in R v Davy [22] . The provision of the Canadian Criminal Code (the Canadian Code) analogous to s 8 of the Queensland Code is s 21(2) [23] . McLachlin J, with whom the other Judges of the Supreme Court of Canada agreed, affirmed the view of the Ontario Court of Appeal that [24] :
where a common unlawful purpose has been demonstrated and one party to the purpose has committed murder, another party to the purpose may be convicted of either murder or manslaughter. McLachlin J noted with approval the Ontario Court's interpretation of "offence" [25] : It is true that the reference in s 21(2), to "an offence" committed by the principal, followed by the phrases "the offence" and "that offence" describing the second person's liability, suggest at first reading that the second person's liability must be for the same offence as the principal's liability, in this case murder. However, if "the offence" and "that offence" are read as encompassing all included offences, a different conclusion emerges. Doherty JA wrote: "The accessory is liable for "the offence" committed by the perpetrator. If the perpetrator commits murder, he or she necessarily commits the offence of manslaughter, although liability for manslaughter, being a lesser and included offence in murder, is subsumed in the conviction for murder The accessory's liability under s 21(2) is properly addressed in relation to each of the incidental offences committed by the perpetrator, not just by reference to the offence to which the perpetrator is ultimately convicted." 1. [1993] 4 SCR 573; (1993) 86 CCC (3d) 385. 2. Section 21(2) of the Canadian Code reads: "Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence." 3. R v Davy [1993] 4 SCR 573 at 584;(1993) 86 CCC (3d) 385 at 392. 4. R v Davy [1993] 4 SCR 573 at 585; (1993) 86 CCC (3d) 385 at 392-393.
The approach to the interpretation of s 8 by the majority in Jervis thus accords with the weight of authority relating to criminal responsibility of those who form a common plan to prosecute an unlawful purpose. In our opinion, that approach reflects correctly the context of the Code in which s 8 operates. By context, we mean s 2 and (relevantly) ss 291, 293, 300, 302 and 303. We do not include s 576 which is merely a procedural provision to cover a question of criminal pleading and which has no substantive operation.
As the operation of s 8 is limited to deeming the secondary party to have done the act or to have made the omission which renders the principal offender liable to punishment only in so far as the doing of an act of that nature or the making of an omission of that nature was a probable consequence of prosecuting their common unlawful purpose, the state of mind of the secondary party may be determinative of the extent of that party's criminal liability in either of two ways. First, it determines the content of the "common intention to prosecute an unlawful purpose". That common intention prescribes any restriction on the nature of the act done or omission made which the secondary offender is deemed to have done or made. The restriction may be referable to the circumstances in which it is done, the result it effected or the state of mind with which the principal offender did it. Once s 8 does its work of deeming the secondary party to have done the act or to have made the omission which the principal offender did or made in so far as that act or omission is of a nature covered by the parties' common intention, the state of mind of the secondary party may again require consideration. If, at the time that the act was done or the omission was made, the secondary party had a state of mind which, in combination with an act or omission of the nature which s 8 deems him to have done or made, renders him guilty of a more serious offence than the offence of which the principal offender is guilty, the secondary party is liable to conviction for the more serious offence. Thus the mastermind who, having greater knowledge of the circumstances or the likely result of a minor criminal offence which he and a comparatively innocent principal offender agree to commit, or who has an evil intent not shared by the principal offender, will be liable according to his (the secondary party's) state of mind, although the common plan was merely to commit the minor offence.
Once s 8 is seen to deem the secondary offender to have done the act or to have made the omission which renders the principal offender liable to punishment within the restrictions above discussed, the proposition that the Code produces some unforeseen anomaly can be rejected. Section 8 operates in the same way in this respect as the common law.
We would therefore allow the appeal, set aside the order of the Court of Appeal of Queensland and in lieu thereof dismiss Barlow's appeal to that Court. We would remit the matter to that Court to determine what orders, if any, should be made consequential on the judgment of this Court.
The question in this appeal is whether the respondent, Shane Barlow, could properly be convicted of manslaughter under s 8 of the Criminal Code Q (the Code) in circumstances where his co-accused had been convicted of murder. Section 8 of the Code, which is entitled "Offences committed in prosecution of Common Purpose", provides that:
When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
By a grant of special leave, the Crown appeals against an order of the Court of Appeal of Queensland which set aside Barlow's conviction for manslaughter and directed that a verdict of acquittal be entered in his favour.
In my opinion, the language of s 8 prevented Barlow from being convicted of manslaughter once his co-accused were convicted of murder. On that hypothesis, the only verdicts that the jury could return against him were guilty of murder or not guilty of murder. It follows that the decision of the Court of Appeal was correct and that the Crown's appeal should be dismissed.
On 22 March 1993 Bart Vosmaer, a prisoner at the Sir David Longland Correctional Centre in Brisbane, was assaulted while he was in the gymnasium of the prison. He suffered fractures to his skull, nose, right elbow, left kneecap, lower right thigh and lower right shin bone as well as extensive lacerations and bruising. As a result of his injuries, he later died.
Six fellow prisoners were charged with murdering him. One of them was the respondent. At the trial, the Crown alleged that the other five prisoners had assaulted Vosmaer. The Crown did not allege that Barlow had actively participated in the assault. However, the Crown alleged that he and the other five prisoners had agreed to assault Vosmaer and that Barlow was liable to be convicted of the charge of murder by reason of s 8 of the Code. Two of the prisoners pleaded guilty to the charge of murder. The other four including Barlow pleaded not guilty to that charge. They were jointly tried before a jury which convicted Barlow of manslaughter and the other three prisoners of murder. The Queensland Court of Appeal dismissed appeals by those prisoners against their convictions [26] , but allowed Barlow's appeal against his conviction.
The trial was conducted by de Jersey J who directed the jury that it was open to them to acquit Barlow or to convict him of murder or alternatively to convict him of manslaughter. In respect of a verdict of murder, the trial judge directed the jury that:
You would find Barlow guilty of murder only if satisfied beyond reasonable doubt that Barlow aided others to kill Vosmaer in the sense of consciously assisting the others to achieve the particular object of killing Vosmaer or, alternatively, if satisfied beyond reasonable doubt that Barlow was party with others to a plan or common intention with others to commit a very serious assault upon Vosmaer and that the murder - the intentional killing - which, in fact, occurred, if it occurred, was a probable consequence of the execution of that lesser purpose of very seriously assaulting Vosmaer. The first limb of this direction was based on the provisions of ss 7, 300 and 302 of the Code. The second limb of the direction was based on ss 300 and 302, as extended by s 8, of the Code.
In respect of a verdict of manslaughter, his Honour directed the jury:
But if you are not satisfied beyond reasonable doubt that Barlow ever intended that Vosmaer be killed or that grievous bodily harm be done to him, that that was not part of any plan to which Barlow tied himself, and that an intentional killing - an intentional killing - was not a probable consequence of the implementation of the purpose of that plan for, say, a serious assault, although the death of Vosmaer nevertheless was a probable consequence, then you would find Barlow not guilty of murder, but guilty of manslaughter, and you could do that even though bringing in different verdicts with relation to the other accused.
The Court of Appeal allowed Barlow's appeal against his conviction for manslaughter on the ground that, where the prosecution relies on s 8 to found a charge of murder against an accused person, a verdict of manslaughter is not open to the jury where they find the principal assailant guilty of murder [27] .
In this Court, the Crown contends that this interpretation of the Code is wrong and that Barlow's conviction for manslaughter should be restored or, alternatively, that the matter should be remitted to the Supreme Court of Queensland for a new trial.
In recent years, appellate courts in Queensland have expressed conflicting views as to whether s 8 allows for alternative verdicts of murder and manslaughter against persons arising out of the prosecution of "an unlawful purpose". In R v Hind and Harwood [28] , the Court of Appeal held that alternative verdicts are not permitted. The Court held the words "the offence" in s 8 refer to the same offence for which the principal offender is convicted and punished [29] . On this view, if one of the other parties to the unlawful purpose is convicted of murder, s 8 requires that any other party to the purpose must be either convicted of murder or acquitted. The Hind and Harwood approach is an "all or nothing" interpretation [30] .
In R v Jervis [31] , however, the Queensland Court of Criminal Appeal had earlier held that s 8 does permit alternative verdicts of murder and manslaughter. In the present case, de Jersey J directed the jury in accordance with Jervis [32] . Other courts have adopted this view of the section and its counterparts in other jurisdictions [33] . It may conveniently be referred to as "the Jervis approach".
In addition to s 8, five sections of the Queensland Criminal Code are relevant to the question at issue. They are ss 2, 7, 300, 302 and 303.
Section 2 is entitled "Definition of Offence" and provides:
An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.
Section 7 is entitled "Principal Offenders" and provides relevantly that:
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -
(a) Every person who actually does the act or makes the omission which constitutes the offence;
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) Every person who aids another person in committing the offence;
(d) Any person who counsels or procures any other person to commit the offence.
Section 300 is entitled "Unlawful Homicide". It provides that: Any person who unlawfully kills another is guilty of a crime, which is called murder, or manslaughter, according to the circumstances of the case. Section 302 is entitled "Definition of Murder" and provides that: Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say, -
(1) If the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm;
(2) If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
(3) If the offender intends to do grievous bodily harm to some person for the purpose of facilitating the commission of a crime which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such crime;
(4) If death is caused by administering any stupefying or overpowering thing for either of the purposes last aforesaid;
(5) If death is caused by wilfully stopping the breath of any person for either or such purposes;
In the first case it is immaterial that the offender did not intend to hurt the particular person who is killed.
In the second case it is immaterial that the offender did not intend to hurt any person.
In the three last cases it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.
Section 303 is entitled "Definition of Manslaughter" and provides that:
A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter.
It is well settled that the Code must be interpreted according to its terms without resort to any presumption that its provisions reflect the common law either at the time of the Code's enactment or subsequently. In Brennan v The King [34] , for example, Dixon and Evatt JJ said of the Western Australian equivalent of s 8 that it:
forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered. This does not mean that a court cannot resort to the common law in interpreting the Code. In Stuart v The Queen [35] , Gibbs J pointed out that: it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground If the Code is to be thought of as "written on a palimpsest, with the old writing still discernible behind" (to use the expressive metaphor of Windeyer J in Vallance v The Queen [36] ), it should be remembered that the first duty of the interpreter of its provisions is to look at the current text rather than at the old writing which has been erased; if the former is clear, the latter is of no relevance. 1. (1936) 55 CLR 253 at 263. 2. (1974) 134 CLR 426 at 437. 3. (1961) 108 CLR 56 at 76.
When the language and structure of the Code compel a particular interpretation, that interpretation must prevail regardless of whether a similar result would have occurred in common law jurisdictions. Thus, on the facts of this case, if the jury had been applying common law principles, they could have convicted Barlow of manslaughter and convicted the other prisoners of murder [37] . They could have done so if they had found that the others had formed the intention to kill or cause grievous bodily harm to Vosmaer only after the commencement of the assault and that Barlow had never intended to cause death or grievous bodily harm to him. On that basis, if the other prisoners had not formed the intention to kill, the death of Vosmaer as the result of the planned assault would have rendered all accused guilty of manslaughter only [38] . Consequently, because Barlow never formed the intention to kill or cause grievous bodily harm to Vosmaer, the jury, if they had been applying the common law, would have been bound to find him guilty only of manslaughter, notwithstanding that the other prisoners were guilty of murder. However, if the construction of s 8 requires, as I think it does, that a party to an unlawful purpose must either be acquitted or convicted of the same crime as that for which the principal offender is convicted and punished, the common law position is irrelevant.
If the three elements are satisfied, s 8 deems each of the persons who had the unlawful purpose to have committed the offence. The policy behind s 8 is that informed participants to a criminal enterprise should be held responsible for any offence committed in carrying out the enterprise when that offence is a probable consequence of carrying out that enterprise. Its ordinary and natural meaning as well as its evident purpose indicates that once a party to the common purpose is criminally responsible for a crime, every other party to that purpose is equally criminally responsible for and guilty of the same crime if it was a probable consequence of the unlawful purpose. In the face of the clear language and obvious purpose of s 8, it would be surprising if, nevertheless, the Code permitted one party to the unlawful purpose to be convicted and punished for one offence and another party to be convicted and punished for another offence when s 8 was the mechanism relied on to convict the latter party.
In the present case, the first issue to be resolved in interpreting s 8 is whether the words "the offence" necessarily refer to the "crime" for which the primary offender is convicted and punished - in this case murder - or to an act or omission which forms the basis of the criminal liability of the primary offender. The Crown contends that the second of these alternatives is correct and that "the offence" in the present case was the "unlawful killing" (s 300) of Vosmaer which was the act which gave rise to the convictions for murder of the other accused. The Court of Appeal held that the first alternative is the correct interpretation.
The Code supplies the answer. Section 2 defines an "offence" as being "[a]n act or omission which renders the person doing the act or making the omission liable to punishment". Section 2 is to be found in Ch I of the Code entitled "Interpretation". No further or alternative definition of "offence" is to be found in Ch II entitled "Parties to Offences", the chapter in which s 8 is to be found. The applicability to s 8 of the definition provided by s 2 is reinforced by the language of s 7(a). Plainly, the act or omission defined by s 2 must be a crime because it renders the person doing or making it liable to punishment. But the question in cases like the present is, what constitutes the crime?
In the present case, the verdicts of murder show that the jury found that Vosmaer was killed by blows to his body in a vicious assault by his fellow prisoners. This was an unlawful killing - there being no legal authorisation, justification or excuse for the conduct of the other prisoners (cf s 291). But to say, as the Crown does, that the relevant "offence", for s 8 purposes, was the unlawful killing of Vosmaer is to fail to give proper weight to the words of s 300 and its relationship to ss 302 and 303. In no meaningful sense is a person punished under the Code because his or her act or omission has resulted in an unlawful killing.
It is true that the killing must be unlawful before a person can be punished. But, as s 300 shows, unlawful killings are either murders or manslaughters. It is because a person is guilty of murder or manslaughter that he or she is punished. They are the offences for which persons who carry out unlawful killings are punished. Whether a person is liable to be punished for murder as opposed to manslaughter depends on whether the acts or omissions of that person fall within s 302. If they do, the unlawful killing is murder and the convicted person is punished for the murder. If the unlawful killing is not murder, it is manslaughter and the convicted person is punished for manslaughter. Barlow was found guilty of manslaughter, not unlawful killing. He was sentenced for manslaughter, not unlawful killing. The other prisoners were found guilty of murder and sentenced for murder, not unlawful killing.
It follows that, where an unlawful killing has occurred, the relevant offence for the purpose of s 8 is murder or manslaughter and the liability of the "s 8 offender" depends on which of those offences the primary offender has committed.
In the present case, there were two acts for which the jury could find that the other prisoners were "liable to punishment" within the meaning of s 2. One was the unlawful killing of Vosmaer with the intention to cause his death or to do him grievous bodily harm (s 302(1)). The other was the unlawful killing of Vosmaer by means of an act done in the prosecution of the unlawful assault, the act being of such a nature as to be likely to endanger human life (s 302(2)). In either case, the doing of the act rendered the prisoners liable to punishment for the offence of murder. That being so, s 8 deemed Barlow to have committed the relevant act which constituted the offence of murder unless that act was not a probable consequence of prosecuting the unlawful purpose of assaulting Vosmaer. If the relevant act was not a probable consequence of that prosecution, s 8 had no further part to play and Barlow was entitled to be acquitted of the charge of murder in so far as the Crown relied on s 8 to found any charge against him. Once the jury found the other prisoners guilty of murder, there was no question of finding Barlow guilty of manslaughter. The Court of Appeal was therefore correct in setting aside his conviction for manslaughter and entering an acquittal on the indictment for murder.
To interpret ss 300, 302 and 303 to mean that the unlawful killing, and not the murder or manslaughter, is the act or omission that is "called" (s 2) the offence for the purpose of s 8 leads to a strange, if not unreal, situation. For it must mean that, under the "probable consequence" issue raised by s 8, the jury is precluded from considering any of the circumstances of the killing except those that go to the issue of unlawfulness, that is, legal authorisation, justification or excuse [40] . This seems contrary to the natural meaning of the section. The expression "offence of such a nature" in s 8 strongly suggests that the probability issue requires an examination of the actual facts and circumstances that give rise to the "act or omission which renders the person doing the act or making the omission liable to punishment". Yet if the unlawful killing per se is the offence of the purpose of s 8, then the circumstances which surrounded the killing and which may make the primary offender guilty of the crime of murder are logically irrelevant to the probability issue under s 8. On that basis, the jury is presumably required to determine the question of probable consequence by asking whether an unlawful killing, but not this particular unlawful killing, was a probable consequence of prosecuting the unlawful purpose. How they are to carry out that task or how they can realistically ignore the facts of the actual killing is not readily apparent.
To disregard the actual circumstances of the principal offender's offence is not only contrary to the natural meaning of the section, it is also contrary to the view of Dixon and Evatt JJ on this issue in Brennan [41] when they said:
The expression "offence of such a nature that its commission was a probable consequence of the prosecution of such purpose" fixes on the purpose which there is a common intention to prosecute. It then takes the nature of the offence actually committed. It makes guilty complicity in that offence depend upon the connection between the prosecution of the purpose and the nature of the offence. The required connection is that the nature of the offence must be such that its commission is a probable consequence of the prosecution of the purpose. (Emphasis added.) 1. (1936) 55 CLR 253 at 263-264.
The practical difficulties that must follow from following the logical consequences of the Jervis approach are highlighted by the directions of the learned trial judge in this case. Although his Honour directed the jury in accordance with that case, his directions did not identify the unlawful killing of Vosmaer as the offence for s 8 purposes. His directions went beyond s 300 to the elements of s 302(1); for his Honour identified the "intentional killing" of Vosmaer as the "offence" which had to be "a probable consequence of the prosecution" of the unlawful purpose. The learned judge's direction on this part of the case is readily understandable. Without identifying the intentional killing of Vosmaer as the offence for the s 8 purpose, the jury would have had no meaningful basis for determining whether his unlawful killing was a probable consequence of the unlawful purpose of Barlow and the other accused. To require an intentional killing as the basis of a probable consequence finding, however, is to repudiate the doctrinal basis of the contention that under s 8 the primary offender can be guilty of murder and the s 8 offender guilty of manslaughter.
But the greatest difficulty of all with the Jervis approach is that it requires fact to be added to fiction before a person, whose liability depends upon s 8, can be convicted of murder. If the Jervis approach is correct, then a s 8 offender can be convicted of murder only if that person's own state of mind or conduct falls within one of the categories mentioned in s 302. On the Jervis approach, the s 8 offender is deemed to have unlawfully killed the victim if the principal offender unlawfully killed that person and the unlawful killing was a probable consequence of the unlawful purpose. In those circumstances, the s 8 offender will have satisfied the opening words of s 302 - "a person who unlawfully kills another" - by reason of the deeming fiction. However, before a conviction for murder can follow from the unlawful killing, the s 8 offender must come within one of the categories specified in s 302, such as having an intention to cause the death of the person killed or an intention to do grievous bodily harm to that person.
Since the s 8 offender did not kill the victim or cause grievous bodily harm to that person and is not otherwise primarily liable under s 7 of the Code, it seems unreal to suppose that that person might nevertheless have the requisite intention. No doubt it is theoretically possible although, absent a confession, it is hard to see how it could ever be proved. Ex hypothesi, the intention is not part of the unlawful purpose and had not been communicated to the principal offender [42] .
But, leaving aside these difficulties, it is not easy to see what theory or policy of criminal responsibility could possibly induce the legislature to make the s 8 offender's liability depend upon such an unusual combination of circumstances. For the Jervis approach means that the s 8 offender's liability under s 302(1) depends upon first imputing to him or her another person's unlawful killing and then inquiring whether the s 8 offender had the relevant intention at the very moment that the principal offender carried out the unlawful killing. This seems contrary to the evident purpose of s 8 which is to impose a vicarious liability on a person coming within the section.
The interpretation for which the Crown contends also leads to a strange situation when the primary offender is guilty of murder only because the case comes within s 302(2). On that basis, the primary offender is guilty of murder simply because death was "caused by means of an act done in the prosecution of an unlawful purpose, which act is of such of a nature as to be likely to endanger human life". It is irrelevant whether the primary offender did or did not intend to cause the death of or do grievous bodily harm to the deceased. Yet if the Crown is right in contending that the unlawful killing per se is the offence, the jury in a joint trial based on s 8 and s 302(2) must first consider whether the principal offender comes within s 302(2). Then, if it finds that the killing was a probable consequence of an unlawful purpose, it must attribute the unlawful killing to the s 8 offender and then go through the same s 302(2) objective process in determining the guilt of that offender. These independent inquiries into the same objective situation hardly seem consistent with either the natural language or the evident purpose of s 8 which is to make those who embark on criminal enterprises jointly responsible for crimes which are the probable consequence of prosecuting that enterprise [43] .
The Crown argues that the distributive construction for which it contends favours the individual and reflects accepted notions of culpability and responsibility for criminal conduct. If the language of s 8 was genuinely capable of such a construction, it would be in accord with the proper interpretation of penal statutes to give effect to it. But the terms of the section indicate it is much more likely that, in enacting s 8, the legislature intended that every party to an unlawful purpose should be jointly liable for the crime of any other party committed in prosecuting the purpose so long as the commission of that crime was a probable consequence of the unlawful purpose. Whether or not that is sound policy is a matter for the legislature.
I do not think that s 576 of the Code has any relevance to the question at issue in the present case. Section 576 is entitled "Indictment Containing Count of Murder or Manslaughter" and its first paragraph reads as follows:
Upon an indictment against a person containing a count of the crime of murder, he may be convicted on that count of the crime of manslaughter if that crime is established by the evidence but not on that count of any other offence than that with which he is charged except as otherwise expressly provided.
On the view that I take of the Code, it was not open to the jury to find that the crime of manslaughter was "established by the evidence".
This appeal from the Queensland Court of Appeal [44] presents a question concerning the meaning of the the Criminal Code Q (the Code) upon which in Queensland, and in other jurisdictions with similar provisions, there have been strongly expressed differences of judicial opinion. The differences are now reflected in this Court.
The question is whether a party to an offence by reason of the common purpose provision of the Code (s 8) may be convicted of an offence different from that for which the principal offender is convicted. Put more specifically, it is whether, when the principal offender is convicted of murder, it is possible for a jury to convict a co-offender of the separate crime of manslaughter where the co-offender is a party to the offence and convicted by reason of the common purpose provisions of the Code.
In Queensland [45] , other Australian Code States [46] , and in Canada [47] and New Zealand [48] under comparable legislation, as well as in common law jurisdictions [49] , differentiation between the verdicts available against the principal offender and the common purpose party (co-offender) has been upheld. However, in the instant case, as well as in majority [50] and minority [51] opinions in Queensland, minority opinions in other Australian Code States [52] and earlier opinions expressed on comparable legislation in Canada [53] and New Zealand [54] , the opinion has been expressed that the offence of which the principal offender is convicted defines the only offence for which the common purpose co-offender may be convicted.
This appeal, by special leave, affords this Court the opportunity to resolve these differences for Australia. However, it must do so in the context of an appeal by the Crown which challenges an acquittal which the Court of Appeal unanimously ordered should be substituted for the jury's verdict of guilty of manslaughter.
On 22 March 1993 in the gymnasium of the Sir David Longland Correctional Centre in Brisbane, a prisoner, Mr Bart Vosmaer, was set upon by a number of other prisoners. The attack occurred at a time when the gymnasium was temporarily unsupervised by guards. When the gymnasium session was concluded and the prisoners were counted it was found that one of their number was missing. Mr Vosmaer was then discovered in a pool of blood. Gymnasium equipment bore evidence that it had been used in the assault. The injured prisoner was taken to hospital where, on 24 March 1993, as a result of his injuries, he died.
There was no objective evidence linking any particular prisoner directly to the killing. To secure convictions, it was necessary for the prosecution to rely upon statements by prisoners who had been present in the gymnasium at the time the attack occurred. A number of the inmates refused to implicate their fellows [55] . Others gave accounts of what they had allegedly seen. Those accounts contained contradictions as between each other and with versions of events given earlier. Because this appeal is confined to the case of Mr Shane Barlow (the respondent) it is unnecessary to examine in detail the way the Crown case was presented against the other prisoners who were convicted. They were Messrs Nixon and Garrett (each of whom pleaded guilty to murder at the commencement of their trial) and Messrs Alexanderson, McQueen and Farr (who, with the respondent, were found guilty by the jury). The Crown relied upon the evidence of five other prisoners present in the gymnasium (Messrs Thompson, Dowling, Bell, Bradvica and Meninga). Four other prisoners present in the gymnasium at the time gave no evidence.
The prosecution case against the respondent was not that he had wielded the blows which occasioned the injuries to the deceased. No evidence was given of actual physical violence on his part. However, the prosecution claimed that the respondent was a party to the prior agreement to assault the deceased. It relied upon the evidence of Mr Bullock that the respondent had asked that the deceased come to the gymnasium. The respondent was said to have been a friend of the deceased who, by inference, would know that his request would be responded to. The prosecution also relied upon the evidence of Mr Bell that he had seen the respondent and another prisoner (Mr Alexanderson) near the deceased when the latter was on the ground and whilst Mr Alexanderson was going through the deceased's pockets. He had also seen the respondent and Mr Alexanderson in the toilet looking through a window into the gymnasium as the assault upon the deceased progressed: "giggling and poking each other in the ribs." There was evidence from Mr Bell that, immediately after the assault, the respondent was seen with some of the assailants and Mr Alexanderson shaking hands and patting one another on the back. Finally, the prosecution relied on the evidence of Mr Bradvica that he had seen the respondent after the incident in the foyer of the gymnasium shaking hands with one of the principal assailants (Mr McQueen).
Two of the principal prosecution witnesses (Messrs Thompson and Dowling) made no reference to his involvement. The latter put him at a drinking fountain in the gymnasium for most of the time that the assault proceeded. On the other hand, Mr Bell had previously stated that the respondent and Mr Alexanderson had actually participated in assaulting the deceased. Mr Bell did not repeat that evidence at the trial although he was challenged with it in cross-examination by counsel for Mr McQueen. The evidence against the respondent was therefore by no means clear-cut. In the circumstances, it would have been understandable if the jury had concluded that the respondent's involvement (if any) in the death of the deceased was comparatively minor, being limited to securing his presence in the gymnasium for the session in question and, after the assault, acting with bravado which reflected "a willingness to abandon friends" but which went "no further than that" [56] .
Relative to the case against the respondent, the trial judge (de Jersey J) directed the jury in terms of the legal authority in Queensland as expressed, at that time, in R v Jervis [57] . The majority in Jervis had found that a common purpose co-offender could be convicted of manslaughter even though the principal offender had been found guilty of murder. de Jersey J had been a member of the Court in Jervis but had dissented on the construction of the Code favoured by the majority [58] . However, he properly conformed to the holding of the Court. He told the jury that they might conclude that the respondent was not an active participant in the assault on the deceased but was a party to a common intention that the deceased should be assaulted. If the respondent was not part of "the plan" that the deceased should be killed or that grievous bodily harm should be done to him, they could find the respondent "guilty only of the lesser crime of manslaughter" [59] .
The jury, so instructed, returned, in the case of the respondent, with a verdict of not guilty of murder but guilty of manslaughter. In the case of the other prisoners on trial (Messrs Alexanderson, McQueen and Farr) the jury returned verdicts of guilty of murder. The prisoners were each convicted in accordance with the jury's verdicts. The respondent was sentenced to serve ten years imprisonment, cumulative upon a sentence which he was then serving. The latter sentence was originally for thirteen years imprisonment. Following an appeal, the period after which it was recommended that the respondent should be eligible for parole on his original sentence was reduced from eight years to six and half years. This rendered him so eligible for parole in November 2001. In the ordinary course, an additional sentence, ordered to be cumulative upon the sentence being served, would commence from that lastmentioned time.
After the trial in this case, the Queensland Court of Appeal reconsidered the authority of Jervis . In R v Hind and Harwood [60] a new majority [61] concluded, in effect, that parties to a plan were criminally responsible for the principal offender's offence and nothing else. The third member of the Court [62] , who had been the principal author of the majority opinion in Jervis , did not consider that the issue arose for reconsideration [63] .
It is in this way that a choice was presented to the Court of Appeal in this case. It was whether to affirm the authority expressed by the majority in Jervis or to follow the contrary opinions expressed by the majority in Hind and Harwood.
Each of the prisoners who had been convicted appealed to the Court of Appeal against his conviction. The respondent also sought leave to appeal against his sentence. The judges comprising the Court divided in their conclusions, including in relation to the resolution of the conflicting opinions expressed in Jervis and Hind and Harwood.
Macrossan CJ and Pincus JA favoured dismissing the appeals against conviction of Messrs Alexanderson, McQueen and Farr. However, Dowsett J, by an analysis of the contradictory elements in the evidence of the prosecution witnesses, concluded that the jury ought to have entertained a reasonable doubt about the reliability of that evidence. They should not have been satisfied, to the requisite degree. Dowsett J therefore favoured upholding the appeals in accordance with M v The Queen [64] .
Applications by Messrs Alexanderson, McQueen and Farr for special leave to appeal against the decision of the Court of Appeal were dismissed. Accordingly, this Court has not been concerned in the trial as it affected them. The dismissal of their applications defined precisely the crimes (to use a neutral word) of which the principal offenders had been convicted, namely murder.
So far as the respondent was concerned, there was a division in the opinions of the Judges of the Court of Appeal but unanimity in the order made.
It is convenient to mention first the opinion of Dowsett J. In respect of the respondent, he took the same view about the unsatisfactory nature of the evidence of the fellow prisoners offered against the respondent as against the co-accused. He concluded that, upon that evidence, it was not open to a jury to be satisfied as to the respondent's guilt. The respondent's involvement in "some plan to offer violence" to the deceased was not the only theory consistent with all of the facts established by the evidence. Having reached the conclusion that the respondent's conviction should be quashed and a verdict of acquittal entered upon this ground, it was not necessary for Dowsett J to consider the conflict between Jervis and Hind and Harwood.
Macrossan CJ rejected the challenge based upon the criticisms of the adequacy of the prosecution evidence. However, by an analysis of the previous decisions of the Queensland courts, by reference to the Code and to the decisions of this Court in Brennan v The King [65] and Stuart v The Queen [66] , his Honour concluded that it was not open to the jury, having found the principal offenders guilty of murder, to find the respondent guilty of manslaughter. Macrossan CJ preferred the reasoning of the majority in Hind and Harwood to that in Jervis . Because the jury had acquitted the respondent of murder, and as that was the only verdict (apart from not guilty) which was open in the circumstances, the verdict of guilty of manslaughter had to be quashed. A verdict of acquittal had to be entered. No question then arose for consideration on the application for leave to appeal against sentence.
Pincus JA adhered to the opinion which he had expressed in Hind and Harwood [67] . He declined the Crown's invitation to revert to the earlier authority in Jervis [68] . But he then said [69] :
The question whether there should be a new trial, in respect of Barlow, depends in part on the strength of the case against him. That is discussed in the reasons of the Chief Justice as well as in those of Dowsett J. My conclusion is that, although the evidence was perhaps sufficient to justify a conviction of Barlow, it has not such strength as to make an order for a new trial appropriate, in all the circumstances. 1. (1995) 80 A Crim R 105 at 137-142, esp at 139, 141. 2. [1993] 1 Qd R 643. 3. R v Alexanderson (1996) 86 A Crim R 77 at 99.
It is not entirely clear what new trial could, upon his Honour's view have been ordered in the case of the respondent given that he had been acquitted by a jury of the crime of murder. The only consideration of the strength of the case against the respondent appears in the reasons of Dowsett J who concluded that a jury could not properly have convicted him. It is not plain whether the final opinion of Pincus JA was (like that of Macrossan CJ) that, as a matter of law, an acquittal of the respondent was required. Or whether, ultimately like Dowsett J he was of the opinion that the respondent was entitled to such an acquittal because of the unreliability of the prosecution evidence against him [70] . In disposing of the appeal to this Court it will be necessary to return to this difficulty.
A number of provisions of the Code must be given particular attention in resolving the central problem presented by the appeal. They are ss 2, 7, 8, 300, 302 and 303. These provisions are set out, or sufficiently referred to, in the reasons of the other members of the Court. I will not repeat them.
The Code also provides for an ameliorative verdict of manslaughter in certain circumstances in s 576 of the Code which states:
Indictment containing count of murder or manslaughter.
Upon an indictment against a person containing a count of the crime of murder, he may be convicted on that count of the crime of manslaughter if the crime is established by the evidence but not on that count of any other offence than that with which he is charged except as otherwise expressly provided.
Upon an indictment against a person containing a count of the crime of manslaughter he cannot on that count be convicted of any other offence except as otherwise expressly provided.
The essential problem which is presented by the language of the Code appears in the terms of s 8. The difficulty arises from the conjunction of the reference to "an offence" and "the offence" in that section. Those who have favoured a strict construction of the section argue that, by the use of the definite article ("the") in the closing words, the Code is plainly intended to deem "the offence" (of which a person with a common purpose is convicted) to be "the offence" of which the principal offender has been convicted.
The argument goes thus: the section introduces a fiction. It deems the co-offender to have committed the offence whatever his or her actual intention may have been. For legal purposes, it is enough that "an offence" is committed (ie by the principal offender) which is "of such a nature that its commission was a probable consequence of the prosecution of such purpose" [71] . This consequence may be artificial. It may even, in some circumstances, be harsh. But it is required by the language of the Code. That language stands as a warning against becoming involved in a "common intention to prosecute an unlawful purpose in conjunction with" others. If, as a result of doing so, events go further than might have been specifically intended by the co-offender, he or she is, notwithstanding, deemed to have committed "the offence". This means the offence perpetrated by the principal offender.
Before considering the conflicting authorities on the meaning to be given to this and like provisions in other codes and legislation, it is useful to recall some of the rules which have been established for the construction of provisions of a code:
A code is enacted by an Act of Parliament. Like any other enactment, the imputed will of Parliament must be derived from the language of the enactment, understood in its context and, so far as possible, in order to give effect to its apparent purposes. Courts must give the language of a code, like any legislation, its natural meaning [72] . If that meaning is clear and unambiguous, it must be given effect. The court will only look externally to other sources where the meaning is doubtful either because of the inherent ambiguity of the language used or because the words used have previously acquired a technical or special meaning [73] .
As a species of legislation, a code, such as the Code in question, is subject to a paramount rule. Its meaning is to be ascertained [74] : by interpreting its language without reference to the pre-existing law, although reference may be made to that law where the Code contains provisions of doubtful import or uses language which has acquired a technical meaning [75] . It is erroneous to approach the Code with the presumption that it was intended to do no more than restate the existing law [76] but when the Code employs words and phrases that are conventionally used to express a general common law principle, it is permissible to interpret the statutory language in the light of decisions expounding the common law [77] including decisions subsequent to the Code's enactment [78] . Thus the first loyalty is to the code [79] . But in the stated circumstances, regard may be had to the pre-existing common law and to parallel developments in non-code jurisdictions.
At least in matters of basic principle, where there is ambiguity and where alternative constructions of a code appear arguable, this Court has said that it will ordinarily favour the meaning which achieves consistency in the interpretation of like language in the codes of other Australian jurisdictions [80] . It will also tend to favour the interpretation which achieves consistency as between such jurisdictions and the expression of general principle in the common law obtaining elsewhere [81] . This principle of interpretation goes beyond the utilisation of decisions on the common law or on comparable statutory provisions to afford practical illustrations of particular problems and the approaches adopted in resolving them [82] . It represents a contribution by the Court, where that course is sustained by the language of the code in question, to the achievement of a desirable uniformity in basic principles of the criminal law throughout Australia. Variations in local opinion may result in divergencies in matters of detail in the criminal law. But in matters of general principle, it is highly desirable that unnecessary discrepancies be avoided or, at least, reduced.
In giving meaning to a particular phrase or word in a code, it is important to read it in the context of the code taken as a whole [83] . This is especially so in a case such as the present because the word "offence", which is in question in s 8 of the Code, is inherently ambiguous [84] . It is given a particular definition in s 2 of the Code. For example, the word appears, undefined, in s 80 of the Constitution [85] .
If the interpretation be available, it is clearly desirable in principle that it should be open to a jury to return a verdict which reflects the measure of the criminality of the accused as established by the evidence [86] . Although the law abounds in fictions and although legislation (including the Code) can sometimes require results which, in particular circumstances, may seem unjust or unreasonable, where there is a choice, a court will ordinarily construe penal legislation to permit a reflection of the relative involvement of the accused in the crime [87] . This approach avoids presenting the law in a bad light [88] . That will occur if the result of a statutory fiction is that an accused person, with minor and distinguishable involvement in a crime, is unjustly assimilated to the principal or escapes altogether because the jury could not tolerate the prospect of that result.
No authority of this Court resolves the question in the appeal. Brennan v The King [89] , a case arising out of the Criminal Code WA, concerned three accused, all of whom were charged with wilful murder but convicted of manslaughter. The decision does not stand for the proposition that a person may be convicted of manslaughter under s 8 if the principal offender is convicted of murder [90] .
The closest that the authority of this Court comes to the question is the opinion of Jacobs J in Stuart v The Queen [91] . His Honour there considered [92] whether "because there was no direction to the jury that a verdict of manslaughter was open" to them there had been a miscarriage of justice. The question assumed the availability of a manslaughter verdict. A case had been brought in reliance, amongst other things, upon s 8 of the Code Q. However, as the jury had convicted each of the accused of murder, the question of differentiation between the verdicts did not arise. Nor did it result from the orders of this Court. The most that can be said is that Jacobs J assumed that differentiation was a legal possibility. However, in the result, his Honour did not have to so determine. Nor did the other members of the Court. Some of the dicta of Gibbs J suggest the contrary conclusion [93] . However, by assuming the verdict of manslaughter was available, Jacobs J has subsequently influenced the decisions of State courts which have addressed the availability of differential verdicts in the case of convictions resting upon s 8 of the Code and its equivalents [94] .
Before the decision in Jervis [95] , the precise point arising under s 8 of the Code had not been decided in Queensland. However, it is fair to say that earlier judicial observations tended to assume that differentiation of a jury's verdicts between the principal offender and the common purpose co-offender convicted of unlawful killing, was permissible [96] . The Crown has informed this Court that it had "always been understood to be the law in Queensland that a party to a plan under s 8 could be convicted of manslaughter notwithstanding that the actual perpetrator was convicted of murder". The remarks of Jacobs J in this Court in Stuart [97] would have reinforced such a belief. The decision of the Court of Criminal Appeal in Jervis confirmed it. It did so notwithstanding the difficulties in the language of the Code upon which de Jersey J relied in his dissenting opinion [98] .
In Western Australia, s 8 of the Criminal Code is, relevantly, identical, to the Queensland provision. It has been consistently interpreted as allowing for the principal offender and the common purpose co-offender to be convicted of different crimes [99] .
In Tasmania, where s 4 of the Criminal Code Tas is for present purposes indistinguishable from s 8 of the Code, a distributive approach has also been adopted [100] . This is so notwithstanding a strong dissenting opinion by at least one Judge [101] . There was a partial recantation when the matter arose again [102] . However, the law there now seems to be settled along Jervis lines [103] .
In the non-code States of Australia the right of a jury to convict a common purpose co-offender of a lesser offence than that of the principal has long been recognised. So far as New South Wales is concerned, it was expressed in Johns (T S) v The Queen [104] by Stephen J in these terms:
The criminal responsibility here under discussion is not that relating to the crime which is the prime object of a criminal venture. As to that crime, one who, while not actually physically present and participating in its commission, nevertheless knows what is contemplated, and both approves of it and in some way encourages it thereby becomes an accessory before the fact [105] . His knowledge, coupled with his actions, involves him in complicity in that crime. But if, in carrying out that contemplated crime, another crime is committed there arises the question of the complicity of those not directly engaged in its commission. The concept of common purpose provides the measure of complicity, the scope of that common purpose determining whether the accessory before the fact to the original crime is also to share in complicity in the other crime. If the scope of the purpose common both to the principal offender and to the accessory is found to include the other crime, the accessory will be fixed with criminal responsibility for it. 1. (1980) 143 CLR 108 at 118. See also Markby v The Queen (1978) 140 CLR 108 at 112. 2. Russell on Crime, 12th ed (1964) vol 1, p 151.
In Victoria, there has also been a facility to show "that criminal liability in varying degrees may result for the parties to the unlawful arrangement" [106] . Whatever the criticism of the foundation for that opinion, it is now accepted law in that State [107] . The position is the same in South Australia [108] , as the Victorian Court of Criminal Appeal remarked in Woolley [109] .
Queensland authority, based upon the language of its code, is therefore now firmly positioned contrary to the conclusion reached in the other Australian States. The approach originally adopted in the dissenting opinion of de Jersey J in Jervis [110] was preferred in Hind and Harwood [111] , affirmed in this case [112] and applied in the later decision in Wood [113] . No suggestion was made that a particular statutory variation warranted an approach different from that taken in the other Code States. The contrary decisions were simply regarded as wrong. The reasons for the error were suggested to be the undue attention which had been paid to common law analogies. These had blinded those reading the Code so that they did not see the clear requirements of its language.
The language of the Code may, indeed, require the result to which the Queensland courts have recently felt themselves driven. But it is a result which puts the law in Queensland out of step with that of all other Australian jurisdictions. Given that two of the jurisdictions in question are themselves code States, with indistinguishable legislation, the disharmony is one which demands a convincing justification or prompt repair.
To the foregoing trend of Australian authority may be added the opinions of courts of high authority in other jurisdictions.
In New Zealand the legislation is now the Crimes Act 1961 NZ, s 66(2) [114] . That section reads:
Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose. 1. It was formerly the Crimes Act 1908 NZ, s 90(2).
In R v Malcolm [115] a trial judge, applying the predecessor of the New Zealand provision, directed a jury that if the proper verdict against the principal offender was murder, they could not convict the common purpose co-offender of a different crime of manslaughter because "[t]he sections in the Crimes Act seem to me to be framed in such a way that prevents it" [116] . On appeal, the convictions of each accused of murder was confirmed. However, this was apparently because of the circumstances of the case and not because the law forbade differential verdicts. The opinion of the trial judge in that case was criticised as unduly narrow both in New Zealand [117] and elsewhere [118] . More recently, in R v Tomkins [119] Cooke J (as Lord Cooke of Thorndon then was) said [120] :
The availability of manslaughter as a verdict in such cases gives effect to the community's sense that a man who joins in a criminal enterprise with the knowledge that knives (or other weapons such as loaded guns) are being carried should bear a share of criminal responsibility for an ensuing death; but that, if he did not think that the weapons would be intentionally used to kill, it may be unduly harsh to convict him of murder. 1. [1951] NZLR 470. 2. R v Malcolm [1951] NZLR 470 at 483. 3. R v Hartley [1978] 2 NZLR 199 at 203. 4. Murray v The Queen [1962] Tas SR 170 at 177, per Burbury CJ; Jervis [1993] 1 Qd R 643 at 651, per McPherson ACJ. 5. [1985] 2 NZLR 253. 6. R v Tomkins [1985] 2 NZLR 253 at 255.
In England, following a long line of early authority [121] , the Court of Appeal has recently recognised that differentiation in jury verdicts is legally permissible in the case of different participants in a joint enterprise resulting in another's death. In R v Stewart the appellants had argued that, if the principal was found guilty of murder, it was not open to a jury to acquit a secondary party of murder but convict him of manslaughter. This argument was rejected [122] . In so concluding, the English Court of Appeal followed the earlier judgment of the Privy Council in a Hong Kong appeal [123] . This had confirmed that, by the common law, it was possible for a person to be a party to a joint enterprise which leads to death and to be guilty of manslaughter although the actual killer was found guilty of murder [124] .
The authority of United States courts appears to follow a similar line [125] . In that country it seems to have been long settled that "principals, accessories and aiders or abettors may be convicted of different grades or degrees of crime according to their respective intents" [126] .
Specially relevant for present purposes is the decision of the Supreme Court of Canada in R v Davy [1993] [127] . This does not appear to have been brought to the notice of the Court of Appeal in the present case. It is important because of the similarity of the language of the Criminal Code of Canada in respect of the provision under consideration. That Code, like the Code of Sir Samuel Griffith which gave rise to the Australian Codes (including that of Queensland), was profoundly influenced by the United Kingdom Royal Commission of 1878 chaired by Lord Blackburn. That inquiry had been set up in the hope of codifying the English criminal law [128] . Relevantly, the Canadian Criminal Code provides in s 21:
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
The similarity between the language of the Canadian Code and that of s 8 of the Code Q is obvious. If anything, by the use of the word "that", the Canadian provision is even more emphatic. The accused in Davy had been convicted of second degree murder. His conviction arose out of evidence that he had driven the principal offender to the scene of the homicide. It was argued that, notwithstanding the conviction of the principal of murder, it was open to the jury, in the terms of the Canadian Code, to convict the appellant of manslaughter. The Ontario Court of Appeal agreed [129] . The Supreme Court of Canada unanimously dismissed the Crown's appeal. Lamer CJ agreed generally in the reasons of McLachlin J. All other judges concurred in her Ladyship's opinion.
The problem considered by the Supreme Court of Canada in Davy was identical to that presented to this Court in the present case. McLachlin J expressed it thus [130] :
whether a party may be found guilty of manslaughter under s 21(2) where the perpetrator of the offence under that section is found guilty of murder. In other words, is the offence referred to in s 21(2) confined to the offence of which the perpetrator is convicted - in this case murder - or does it extend to included offences such as manslaughter? If it is found to extend to included offences, then the further question arises of the required mens rea for manslaughter under s 21(2). 1. sub nom R v Davy [1993] 4 SCR 573 at 584; (1993) 86 CCC (3d) 385 at 392.
McLachlin J described the division of judicial opinion in Canada. In some Provinces the courts had held that, under s 21(2), a co-offender could not be convicted of manslaughter where the perpetrator had been convicted of murder [131] . In other Provinces, the contrary view had been taken [132] . In R v Jackson [133] the Ontario Court of Appeal had concluded that conviction of the lesser crime was within the Code. It thus required instruction to be given to the jury. That Court went on [134] :
The accessory is liable for "the offence" committed by the perpetrator. If the perpetrator commits murder, he or she necessarily commits the offence of manslaughter, although liability for manslaughter, being a lesser and included offence in murder, is subsumed in the conviction for murder The accessory's liability under s 21(2) is properly addressed in relation to each of the incidental offences committed by the perpetrator, not just by reference to the offence to which the perpetrator is ultimately convicted. The Supreme Court of Canada agreed. McLachlin J said [135] : While the matter admits of difficulty, I think that the Court of Appeal in the end arrived at the correct result, bearing in mind not only the wording of the Code but the manifest justice of permitting a conviction for manslaughter in these circumstances. In arriving at this conclusion, I have not ignored the history of s 21(2), which at one time referred to "every offence" (RSC 1927, c 36, s 69(2)). The change is arguably equally consistent with the theory that "offence" encompasses included offences, as with the Crown's theory that the drafters of the Criminal Code were seeking to limit it to the principal's offence. 1. R v Wong (1978) 41 CCC (2d) 196 at 200-202; R v Hébert (1986) 51 CR (3d) 264. 2. R v Emkeit (1971) 3 CCC (2d) 309 at 336-337; R v Kent, Sinclair and Gode (1986) 27 CCC (3d) 405 at 431-432. 3. (1991) 68 CCC (3d) 385 affd sub nom R v Davy [1993] 4 SCR 573; (1993) 86 CCC (3d) 385. 4. R v Jackson (1991) 68 CCC (3d) 385 at 420. 5. R v Davy [1993] 4 SCR 573 at 586; (1993) 86 CCC (3d) 385 at 393.
One final decision may be mentioned in this review of overseas authority. In Papua New Guinea, the Criminal Code derives from that of Queensland. The Supreme Court of Justice has held that it is consistent with the provisions of s 7 of that Code for a principal offender to be convicted of wilful murder (as a counsellor or procurer of the death of an infant) notwithstanding the fact that the actual perpetrator and mother of the infant (the accused's step-daughter) was convicted (on a plea) of the crime of infanticide [10] . The Court approved and applied the approach adopted by Burbury CJ in Murray v The Queen [11] and by Jacobs J in Stuart v The Queen [12] . The case is not strictly in point, being concerned with s 7 and not s 8 of the Code. However, it demonstrates once again the disharmony which would result if, under s 8 of the Code, differentiation of verdicts were forbidden.
This review of authority shows the near unanimity of the decisions of courts upon the question now before this Court. Of course, that does not oblige a construction of the Code which the words will not bear. But, given the similarity or identity of the statutory language in the other jurisdictions and the similar objectives of the Code and of the common law in dealing with common purpose co-offenders, there would need to be convincing reasons to justify a wholly different construction. Otherwise, there would be powerful grounds of legal principle and policy to support the approach which has found favour in so many jurisdictions in Australia and elsewhere, whether governed by a code, statute or the common law.
Apart from the reasons of consistency in the application of authority, there are other reasons of principle and policy which support the arguments advanced to this Court by the Crown. They include:
Therefore, apart, from the trend of authority, the avoidance of artificiality, apparent irrationality and the risk of injustice strongly argue for a facility, in a case of unlawful killing, by which a jury may return a verdict of murder or of manslaughter in respect of a common purpose co-offender, depending upon the evidence which is accepted as to the culpability of the co-offender.
Some of the judges who have favoured the view which has now gained ascendancy in the Queensland Court of Appeal are prepared to acknowledge the force of the contrary arguments of consistency, uniformity, convenience and justice [3] . They simply consider that the construction is not open in the language of the Code [4] . Not all offences have alternative and lesser charges open. The Code, in s 8, is intended to operate in the generality of all offences. In any case, murder and manslaughter are, by the Code, separate "offences". The one cannot be subsumed in the other without an authority in the Code which does not exist. Because there is nothing else in the Code to permit discrimination between offences and because of the structure and language of s 8, the co-offender is deemed to have committed the offence of the principal. The use of the definite article ("the") makes it plain that "the" offence which the co-offender is deemed to have committed is precisely the same offence as the principal has committed. The policy behind such a rule of equivalence is presumably to discourage persons from becoming involved in such an unlawful purpose, given that, by their nature, such activities frequently get out of control and go beyond what might initially have been the shared intention of the perpetrators.
Macrossan CJ was content to adopt the reasoning of the majority in Hind and Harwood [5] . Pincus JA, as part of the majority in that case, endorsed his earlier expressed view [6] . In Hind and Harwood, Fitzgerald P explained his essential reasoning in terms of the language of the Code [7] :
Section 8 is founded on the premise that one (the "actor") of a number of persons involved in a joint plan has, in the circumstances specified, committed an offence. The section does not provide that, in those circumstances, each of the other parties to the plan has separately committed an offence created by s 8. Instead, it proceeds on the basis that only a single offence, that of the actor, has been committed. Section 8 makes each of the other parties to the plan criminally responsible for the actor's offence by deeming them "to have committed the offence". If the actor has committed murder and the specified circumstances are met, the other parties to the plan are also "deemed to have committed the offence" of murder committed by the actor. Pincus JA elaborated his view in Hind and Harwood [8] thus: [W]hat has brought about the result [that Jervis should not be followed] is that if one assumes that the process of identification of the nature of the offence, under s 8, does not require one to discriminate between the two varieties of homicide, then there is nothing else in the Code which enables one adequately to do so.
If the result of the application of s 8 in homicide cases is to deem the associate to have committed the offence of unlawful killing, then one must look to s 302 to determine whether the unlawful killing of which he is guilty is murder or manslaughter. At first sight the tests set out in s 302(1), or some of them, seem up to the task, for one finds in all but one of the paragraphs in s 302(1) reference to intention or to purpose or to both; so the possibility arises that one can test the associate's liability by asking whether, for example, he intended "to cause the death of the person killed or that of some other person", a test in par (a).
But the difficulty is that the five paragraphs of s 302(1) appear to be concerned with the characteristics of the act causing the death - as to par (a) and par (c), with the killer's intention at the time of the killing. If that intention was not such as to make the killing a murder, then (if the view in Jervis is correct) one must test the associate's liability quite separately, presumably by inquiring what was in his mind when the victim was killed; so that if the associate then desired the death of the victim he might be guilty of murder, although the killer was guilty of manslaughter only. It does not appear likely that s 302 was designed to be used in this way. The intentions and purposes mentioned there are those of the perpetrator - or perpetrators, if more than one.
Before this Court the respondent argued that these explanations were compelling. Arguments of compatibility, uniformity, the avoidance of apparent injustice and legal policy ultimately foundered on the rock of the language of the Code. To return to the authority sanctioned by the majority in Jervis would not be to interpret the Code. It would be to rewrite it. 1. (1995) 80 A Crim R 105. 2. Hind and Harwood (1995) 80 A Crim R 105 at 137-142. 3. Hind and Harwood (1995) 80 A Crim R 105 at 136. 4. (1995) 80 A Crim R 105 at 139-140.
I concede the force of the arguments of the respondent. One could scarcely do otherwise given the differing opinions recounted in the successive majority and minority judicial decisions in this country and the conflict of earlier authority upon the equivalent provisions of the Canadian Code. In the end, the fidelity of a court is to the statutory language. But it is not a blind fidelity. Experience teaches that, where there have been so many differences in judicial authority, expressed in opinions of jurists of high repute, the words alone will not yield the solution. The words must be read in their context. They must be construed for the purposes for which they have been enacted.
The structure of the Code in relation to unlawful killing is important in this regard. Section 300 provides that unlawful killing is murder or manslaughter according to the circumstances of the case. Section 302 renders the actor guilty of murder in specified circumstances. Section 303 states that an unlawful killing which is not murder is manslaughter. Section 576 is a procedural provision which allows a jury to return a verdict of manslaughter on an indictment charging murder.
From these provisions it can be inferred that, where an unlawful killing occurs, arising out of a common unlawful purpose, the principal's criminal liability is determined pursuant to section 302 or 303 of the Code. It does not arise out of s 8 of the Code. That section is concerned with non-actors. It extends the criminal liability of such persons from that which it would otherwise be to offences which are a "probable consequence" of the common unlawful purpose. Thus, if the "probable consequence" of the common purpose is murder, then the non-actor, ie the common purpose co-offender, is guilty of murder. If, however, the "probable consequence" is manslaughter, then s 8 deems the non-actor (ie common purpose co-offender) to have committed manslaughter. This is so notwithstanding the fact that the principal is guilty of murder. The jury are then entitled to return a verdict of manslaughter against the co-offender pursuant to the procedure provided in s 576 of the Code.
This approach to the definition of offence in s 8 of the Code is reinforced by reference to the definition of offence in s 2. That section defines "offence" in terms of the "act or omission" of the accused. It does not do so in terms of the classification of the particular crime as appearing elsewhere in the Code. The definition of "offence", when applied to s 8, therefore permits, if it does not compel, a differentiation between the acts and omissions respectively of the principal offender and of the common purpose co-offender. In the case of unlawful killing, the "offence" which is committed by the principal is the act or omission constituting the unlawful killing referred to in s 300 of the Code. In order to see which species of unlawful killing is applicable, it is necessary, in terms of s 300, to have regard to "the circumstances of the case". Those circumstances will render the unlawful killing either "murder" (in accordance with s 302) or, if not, "manslaughter" (in accordance with s 303). The circumstances of the case, which permit the differentiation of some forms of unlawful killing from others, clearly include the intention of the accused and his or her expectation of what the common unlawful purpose involved [9] .
Whilst I accept that either construction of the Code may be criticised and each presents certain textual problems, the construction which I favour is adequately accommodated by the language of the Code. At least it is so where there are available alternative and lesser offences, as in the case of unlawful killing [10] . Once it is concluded that such a construction is acceptable within the language of the Code, the Court may reinforce its opinion to this effect by invoking the powerful reasons of authority, principle and policy for preferring that construction to the one under appeal. Doing so brings the Queensland criminal law, in this respect, back into line with the law applicable elsewhere in Australia both in code and non-code jurisdictions. It broadens the proper function of juries in unlawful killing cases. It permits jury verdicts to reflect, in a discriminating way, the justice of the case.
Before leaving this matter it is appropriate to note that, in this case, the Court did not receive any submissions that it was the right of a jury, upon an indictment for murder, always to return a "merciful verdict" of manslaughter. In some jurisdictions this has been described as a constitutional right or common law right [11] . That expression has been criticised so far as code jurisdictions are concerned [12] . It has been suggested that, at least in code jurisdictions, the use of the epithet "constitutional" is inaccurate [13] . As the argument was not developed I will note the point but refrain from exploring it further.
The Crown has made good its challenge to the reasoning of the Court of Appeal in the case of the respondent. That reasoning led to the entry of an order of acquittal in his case. It was not suggested that it was not competent for this Court to re-open the order of acquittal [14] .
Because the respondent was still serving the sentence for the offence for which he was in prison at the time of the murder of the deceased, the order of acquittal below did not result in his release from prison. Nevertheless, it is a very serious matter to set aside an order of acquittal, even where this occurs in the process of successive appellate considerations of questions of law. This Court has made it clear that only in exceptional cases will it grant special leave to appeal to the Crown where it seeks to appeal against an order quashing a conviction [15] . However, the Court has also drawn a distinction between an acquittal of a person after a trial on the merits, and an acquittal at one tier in the court structure which is corrected at a higher tier [16] :
Once the case is in the appellate hierarchy there is no logical reason why the matter should not be determined - assuming that the point involved is of sufficient importance to warrant the attention of the Court - by the very highest tribunal. There can be no surprise or unfairness; the accused simply takes the appellate structure as he finds it. If the House of Lords agrees with the Court of Criminal Appeal then the accused has no complaint; if it disagrees, then the accused is simply back in at least as good a position as he was before invoking the appellate process. [17] 1. R v Van Den Bemd (1994) 179 CLR 137. 2. Davern v Messel (1984) 155 CLR 21; R v Benz (1989) 168 CLR 110 at 112; cf Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 at 170; Palko v Connecticut (1937) 302 US 319 at 328. 3. Friedland, Double Jeopardy (1969), p 293; cited in R v Benz (1989) 168 CLR 110 at 112-113, per Mason CJ (footnote omitted).
Consistent with this conclusion two courses were debated for the resolution of the appeal to this Court which would take into account, in an appropriate way, the element of double jeopardy to which the respondent has been exposed. The first was that the matter should be remitted to the Court of Appeal to determine a sentence. Because of the view which that Court unanimously formed that a verdict of acquittal should be entered, it was unnecessary for that Court to consider the respondent's subsidiary application for leave to appeal against his sentence. It was submitted for the Crown that the element of double jeopardy could be taken into account by the Court of Appeal in considering the sentence to be imposed.
The alternative course would be for this Court simply to allow the appeal and order a retrial. That would leave it open to the Crown to consider whether, in all the circumstances, such a retrial should be had, bearing in mind that the Crown's principal concern in the case (and the matter which attracted special leave to appeal to this Court) was the establishment of a general legal principle clarifying the meaning of the Code. This latter course has certain attractions given the apparently differing foundations upon which the orders of the Court of Appeal, affecting the respondent, rested. Relevantly, Pincus JA appears to have agreed with the orders upon the ground that the evidence was insufficient to warrant a new trial [18] . This means that two judges of the Court of Appeal have expressed opinions that the evidence against the respondent was not such as to require a retrial.
On balance, I do not believe that the respondent should be deprived of these conclusions. At least he should not lose the benefit of them without an affirmative decision by the Crown that, in all of the circumstances, a retrial should be had. Obviously, the respondent could not be tried again for murder as, upon that charge, he was acquitted by the jury. Sending the matter back to the Court of Appeal to determine the sentence proper to a confirmed conviction of manslaughter would deprive the respondent of the view, favourable to him, which previously appears to have been expressed by a majority of that Court.
I acknowledge that the orders which I favour involve, to some extent, giving the respondent the benefit of the opinion on the evidence reached by Dowsett J, although the other prisoners involved in the appeal (Messrs Alexanderson, McQueen and Farr) were denied that advantage. However, such differentiation arises from the different verdicts of the jury, the different disposition of the respective appeals in the Court of Appeal and from the fact that, in the case of the respondent but not the other accused, Pincus JA appears to have embraced, in part at least, Dowsett J's conclusions.
The orders which I therefore favour are: appeal allowed; set aside the orders of the Court of Appeal of the Supreme Court of Queensland; and, in lieu thereof, order that the appeal to that Court be upheld, the conviction of the appellant be quashed and a new trial be had on the charge of manslaughter.
R
Barlow
(1974) 134 CLR 426
(1995) 15 WAR 165
(1978) 140 CLR 108
(1936) 55 CLR 253
(1961) 108 CLR 56
(1994) 181 CLR 487
(1975) 134 CLR 1
(1986) 161 CLR 10
(1964) 111 CLR 62
(1997) 186 CLR 494
(1987) 162 CLR 645
(1985) 159 CLR 264
(1991) 172 CLR 353
(1980) 143 CLR 108
(1988) 49 SASR 47
(1982) 148 CLR 668
(1986) 161 CLR 423
(1937) 58 CLR 190
(1954) 92 CLR 660
(1994) 179 CLR 137
(1984) 155 CLR 21
(1989) 168 CLR 110