R v Barlow

R v Barlow - [1997] HCA 19 - HCA 1997 case summary — Zoe

[14]

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.

[17]

"291. It is unlawful to kill any person unless such killing is authorised or justified or excused by law." "293. Except as hereinafter set forth, any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person." An omission may be a cause of death for the purposes of s 293 if the omission is made in breach of a duty imposed by the Code: see ss 289, 290. 2. "300. Any person who unlawfully kills another is guilty of a crime, which is called murder or manslaughter, according to the circumstances of the case." 3. "302. 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 of such purposes; is guilty of murder. 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." 4. "303. A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter."

[34]

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.

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Judgment (218 paragraphs)

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Cases Cited (22)