R v Brien & Paterson [1998] QCA 70

Court of Appeal (Qld)|1998-04-28|Before: Before Fitzgerald P, Pincus J, Williams J, Mr P, Fitzgerald P

Nicholas Michael Paul Kummer was unlawfully killed on the night of 17 December 1993.[1] The appellants and two other men, William James Wood and Barry Eric Petersen, were present when Kummer was killed. All four men were charged with murdering Kummer. Initially, Wood and Paterson were tried together; Paterson was convicted of murder and Wood was convicted of manslaughter. When Brien and Petersen were later tried together, Brien was convicted of murder and Petersen was convicted of manslaughter. Appeals were allowed.[2] Wood was acquitted, and re-trials were ordered for Paterson, Brien and Petersen. Petersen, who could not be re-tried for murder,[3] pleaded guilty to manslaughter and was sentenced on 12 December 1997.[4]

Meanwhile, following their retrial, Paterson and Brien were each convicted of murder [5] on 22 November 1997. Each has appealed against his conviction.

Subject to a presently immaterial qualification, upon an indictment against a person containing a count of the crime of murder, the person may be convicted on that count of only that crime or the crime of manslaughter.[11] Each of those crimes necessarily involves an unlawful killing.[12] It is unlawful to kill any person unless such killing is authorised or justified or excused by law.[13] Manslaughter is any unlawful killing "under such circumstances as not to constitute murder".[14] What constitutes murder is defined in s. 302 of the Code. In the present case, the prosecution submission was that there had been an unlawful killing under circumstances which constituted murder under sub-s. 302(1)(b).[15]

By s. 8 of the Code, 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[16] 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. Offences are of two kinds, criminal offences and regulatory offences,[17] and criminal offences comprise crimes, misdemeanours and simple offences.[18] An unlawful killing, whether murder or manslaughter, is a crime.[19] The crime committed by the person who committed the offence first referred to in s. 8 and the crime for which another person is made criminally liable by that section may differ.[20] For example, the latter could be convicted of manslaughter although the former was convicted of murder.[21]

The constituent elements of the murder charges against Paterson and Brien were the following:

(3) by an act of such a nature as to be likely to endanger human life;[23]

(4) in the prosecution of the unlawful purpose of assaulting Kummer by threatening him with a loaded firearm;

(5) Paterson, Petersen and Brien[24] had formed a common intention to prosecute that unlawful purpose in conjunction with one another; and

(6) Petersen's act which unlawfully killed Kummer was:

(a) committed in the prosecution of that unlawful purpose; and

(b) of such a nature that its commission was a probable consequence of the prosecution of such purpose; and

(7) the result of Petersen's act, Kummer's death, was a probable consequence of the prosecution of that purpose.[25]

Paragraphs (1) to (4) relate to the requirements of sub-s. 302(1)(b), and concern Petersen's conduct for the purpose of the murder charges against Paterson and Brien. Paragraphs (5) to (7) relate to the requirements of s. 8. The test of likelihood in (3) and of probability in (6) is, in each instance, objective.[26] If death was reasonably foreseeable by an ordinary person as a real possibility from Petersen firing the shot, that act was of such a nature as to be likely to endanger life for the purpose of (3),[27] and the death of Kummer as a result of that act did not occur by accident.[28] If Petersen's act in firing the shot was reasonably foreseeable by an ordinary person as a real possibility from the prosecution of the common unlawful purpose of assaulting Kummer, that act was of such a nature that it was a probable consequence of the prosecution of that purpose.[29] Likewise, if the result of that act, i.e., Kummer's death, was reasonably foreseeable by an ordinary person as a real possibility from the prosecution of the common unlawful purpose, his death was a probable consequence of the prosecution of that purpose. Logically, Kummer's death was a probable consequence of the prosecution of the common unlawful purpose of assaulting Kummer by threatening him with a loaded firearm[30] if Petersen's act in firing the shot was of such a nature (i) as to be likely to endanger human life[31] and (ii) that its commission was a probable consequence of the prosecution of that purpose.[32]

Both ss. 8[33] and 302(1)(b) are concerned with the nature of the act which constituted, or was an element of, the offence charged. However, the former is concerned with whether the nature of the act was such that its commission was a probable consequence of the prosecution of the common unlawful purpose, while the latter is concerned with whether the nature of the act was such as to be likely to endanger human life. The requirements are plainly different. While in some circumstances the difference might be devoid of practical effect, in other circumstances it might be significant. A punishable act of such a nature that its commission was a probable consequence of the prosecution of an unlawful common purpose might kill a person even though the nature of the act was not such as to be likely to endanger human life; i.e., if death was not reasonably foreseeable by an ordinary person as a real possibility from the act.

For Paterson and Brien to be convicted of murder, all seven of the constituent elements set out above had to be proved beyond reasonable doubt. If all seven were not established by the prosecution, Paterson and Brien could be convicted of manslaughter if, and only if, the requirements stated in paragraphs (1), (2), (5), (6) and (7)[34] were established. Requirement (4) is materially indistinguishable from requirement (6)(a). The hypothesis that Paterson and Brien could be guilty of manslaughter but not murder is dependent upon the premise that all other requirements can be established without satisfying requirement (3). It is not clear to me whether the High Court's decision in Barlow requires this premise to be accepted, or indeed whether Barlow goes further and decides that Paterson and Brien could be convicted of manslaughter even if all of requirements (1) to (4) - and presumably (5) to (7)[35] - were established.[36] On a narrower view, Barlow might not fully apply to a count of murder based on s. 8 and sub-s. 302(1)(b) of the Code.[37] In the present case, it is not easy to discern how all other requirements could be satisfied without satisfaction of requirement (3). If Petersen's firing of the shot and Kummer's death were probable consequences of the prosecution of the common unlawful purpose, Kummer's death seems a probable consequence of Petersen firing the shot, which seems an act of such a nature as to be likely to endanger human life.[38]

In the circumstances, the trial judge declined to leave manslaughter to the jury as a possible verdict against each appellant notwithstanding sub-s. 576(1) of the Code. It is unnecessary to consider the consequence of the omission to do so in this instance.[39]

No doubt in an effort to simplify the case for the jury, his Honour discussed the requirements of s. 8 of the Code from prior to sub-s. 302(1)(b) and gave abbreviated directions with respect to the murder counts which, in my opinion, mistakenly treated issues which were different, sometimes only subtly so, as identical. In consequence, in some respects, these directions mis-stated the law and incorrectly withdrew from the jury factual questions which had been put in issue by each appellant's not guilty plea.[40] The material misdirections are sufficiently described in the reasons for judgment of Pincus J.A. Especially because of the earlier acquittal of Petersen of murder by another jury, it is impossible to be satisfied that there has not been a substantial miscarriage of justice.[41]

The appeals must therefore be allowed and the murder convictions quashed. It accordingly becomes necessary to consider whether there should be acquittals[42] or re-trials,[43] and, if either appellant is to be re-tried, whether he should be tried for murder or only manslaughter. There are a number of points to be discussed.

The sole matter for consideration under this heading is the prosecution's inability to prove who fired the fatal shot. That would be significant only if the essential unanimity in the jury's guilty verdicts would be impeached if different jurors held different opinions concerning who fired that shot. A body of authority clearly indicates that that was not a matter on which unanimity was required when the parties were proved to be acting in concert.[44]

Even if Paterson, Petersen and Brien had all been charged in a single indictment and tried together, the admissible evidence against each might have been different. That generally leaves open the possibility of different verdicts, including convictions of different offences.[45] Obviously, the same possibility exists if there are separate trials before different juries.[46] It was nonetheless submitted that, in the circumstances of the present case, the convictions of Brien and Paterson for murder were objectionable when Petersen, who might have fired the fatal shot, had been acquitted of murder and convicted only of manslaughter.

The prosecution cases against Brien and Paterson when each was first tried (in separate proceedings before different juries) were quite different.[47]

Brien's original conviction for murder was based on sub-s. 302(1)(a) of the Code. The prosecution case was, similarly, that Kummer was intentionally killed by a shot (or shots) fired by either Brien or Petersen. The same jury acquitted Petersen of murder but convicted him of manslaughter, seemingly by reference to sub-s. 302(1)(a) and s. 8 of the Code. The foundation for the jury's verdicts with respect to Petersen appears to be conclusions that Brien intentionally killed Kummer but an unlawful killing, without an intention to kill or cause grievous bodily harm, was, and/or was considered by Petersen to be, a probable consequence of the prosecution of a common intention to unlawfully assault Kummer by threatening him with a loaded firearm. There is no general proposition able to be derived from Petersen's acquittal of murder and initial conviction of manslaughter that any party guilty of the unlawful killing of Kummer by virtue of s. 8 of the Code is not guilty, or cannot be convicted, of murder.

Paterson's original conviction for murder was based on s. 8 and sub-s. 302(1)(b) of the Code. The prosecution case was that the fatal shot (or shots) was fired by Brien or Petersen, as in the present instance. Similarly, the common unlawful purpose was the unlawful assault of Kummer by threatening him with a loaded firearm. Wood was acquitted of murder but convicted of manslaughter, seemingly on the footing that he considered that an unintentional unlawful killing was a probable consequence of the prosecution of a common intention to unlawfully assault Kummer, while the jury appears to have decided that Paterson considered that an intentional killing was a probable consequence of the prosecution of such a purpose.

Even if jury findings favourable to an accused which were involved in a conviction could be relied on by the accused after his or her conviction was quashed, there is nothing in the findings involved in the initial convictions, or in the acquittal of Petersen and Wood of murder, which could give rise to any conclusion of res judicata or issue estoppel[48] which could favour Paterson and/or Brien in the present proceeding.

Nor is there any inconsistency in the accepted sense[49] between Petersen's acquittal of murder and conviction of manslaughter and Brien and Paterson's murder convictions. To the extent that each of the previous verdicts carried an implication that it was probable that Kummer was unintentionally, not intentionally, killed, that it is not relevant to the subsequent cases. There is a manifest legislative intent that those who participate in an unlawful purpose in which there is a real or substantial possibility that a person will be unlawfully killed are guilty of murder if death does result. There is nothing unjust in such an outcome, and no reason why persons who embark on an unlawful common purpose of which an unlawful killing is a probable consequence should not be convicted of murder if a person is unlawfully killed in the prosecution of that purpose. The notion that it is "unjust" to convict a person of murder in such circumstances because it was probable that the victim would be unintentionally killed, not intentionally killed, would be illogical; a death has been caused by the prosecution of an unlawful purpose as was probable: cf. s. 302(1)(b).[50]

(iii) Abuse of process, unreasonable verdicts, miscarriage of justice

After his conviction of manslaughter on a guilty plea, Petersen was sentenced on the footing that he did not fire the fatal shot. However, that is of no consequence for present purposes. He could not be sentenced on the basis that he fired the fatal shot when the prosecution was unable to prove that he did so. It does not follow that there is anything inconsistent, unreasonable or unfair in the prosecution proceeding against Brien and Paterson on the basis that Petersen might have fired the fatal shot. On the contrary, that hypothesis favoured Brien in particular, since it required the jury which tried him and Paterson to determine the guilt or innocence of each on the footing that he did not fire the fatal shot.

It remains necessary to consider whether, in the context that Petersen was convicted only of manslaughter and Brien's proven culpability was no greater than Petersen's and Paterson's culpability was probably less, the counts of murder against Brien and Paterson were an abuse of process[51] and/or the convictions of Brien and Paterson for murder are "unreasonable" or involve "a miscarriage of justice".[52] The flexibility of these tests was recently demonstrated by the judgments in Jones v. R. [53]

The situation which has arisen stems from the inappropriate course followed by the prosecution when it proceeded first against Wood and Paterson and later against Brien and Petersen, and from errors in the trial judge's summing-up in the latter trial.[54] Petersen has had the benefit of those mistakes. The critical question for present purposes is whether a similar benefit should, in consequence, be extended to Brien and Paterson although there is no risk that, if either is convicted of murder, he will be convicted of an offence of which he is innocent. If it was not, in this case, an abuse of process for Paterson and Brien to be prosecuted for murder, then it can hardly be unreasonable or unjust if they are convicted of that crime.

In my opinion, neither fairness nor the need to maintain public confidence in the administration of justice requires this Court to acquit Brien and Paterson of murder and order that they be re-tried only for manslaughter. On the contrary, the effect of the mistakes which have been made should be confined to the maximum possible extent.

I would therefore allow the appeals, quash the convictions and order re-trials.

The appellants were both convicted of murder in a trial which was consequent upon the decision of this Court in Wood, Paterson, Brien and Petersen (1996) 87 A.Crim.R. 346. The reasons in that case dealt with appeals by the present appellants, as well as by Wood and Petersen, against their convictions in two previous trials, at one of which Paterson was convicted of murder and Wood of manslaughter, and at the other of which Brien was convicted of murder and Petersen of manslaughter. The results of the 1996 appeals were that Wood was acquitted and new trials were ordered in respect of the other three accused. Petersen subsequently pleaded guilty to manslaughter. The general circumstances giving rise to these charges sufficiently appear from the reasons the Court gave in the previous appeals; but it must be kept in mind that the evidence against each of the present appellants at their second trial differed from that which was before the jury at their first trial.

The principal complaint made on behalf of the appellants before us was of a misdirection. The case against each of the appellants, depending upon the provisions of s. 8 of the Criminal Code and, so it was said, the way in which that section applies was inaccurately explained.

A basic difficulty in dealing with s. 8 cases is that Barlow (1997) 188 C.L.R. 1 contains two explanations of the operation of the section which are not necessarily easy to reconcile. The first explanation which I shall call "Barlow One" appears at pp. 10 and 11 and the second at pp. 13 and 14 (Barlow Two). The doctrine of Barlow One is accurately explained in the headnote of the Commonwealth Law Reports at p. 1, of vol. 188 in the paragraph beginning "Held". The doctrine of Barlow Two finds no mention there and it would in my view be unfortunate if any attempt were made to apply it, whatever its precise content may be.

The essential question is a legal one. The trial was not conducted on the basis that either of the appellants could be convicted as a principal offender; as to each, the Crown relied on s. 8, as I have said.

The case concerns the right way to use ss. 8 and 302(1)(b) of the Code together. The former defines the situations in which a person who is party to an unlawful plan may be guilty of an offence committed, not by him, but by another person, in carrying the plan out. The latter defines a type of murder, which might be called unintentional murder. If one of the parties to an unlawful plan commits such a murder, how is another party to the plan to be held guilty of that same murder, under s. 8?

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

"302(1) Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say -

(b) 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;"

It is not any obscurity of meaning of either provision which creates the problem; the question is how you combine their effect. This seems a puzzle, at first sight, because the provisions contain similar tests; in particular, ss. 8 and s. 302(1)(b) both require, in a homicide case, that the death occur in the prosecution of an unlawful purpose and both impose a test of probability or likelihood of that event. The initial impression gained from a reading of the two might be that the latter says, nearly enough, the same as the former, in a murder case. But that is not so.

The critical point is: what does s. 8 mean when it talks about the "nature" of the offence? It does not mean, in a case where there has been a murder committed, the offence of murder. It does not mean the offence of unlawful killing.

What defines the nature of the offence is the physical act done and so much of the circumstances accompanying that act as are necessary to make the offence murder, or such lesser offence as the principal offender has committed. In a case where the victim is killed by a blow, ". . . the unlawful striking of a blow by the 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" (Barlow at p. 10).

But the s. 8 offender is not necessarily guilty of the same offence as the killer. He is guilty of the principal offence "only in so far as the act done or omission made by the principal offender, when taken in combination with" the attendant circumstances, and the result of what the principal offender did (e.g. death of the person assaulted) and the principal offender's state of mind (e.g. an intent to kill) was a probable consequence of prosecuting the common unlawful purpose. (Barlow at p. 11)

In a case where the principal offender is alleged to be guilty of murder, one sets out the elements of his offence - e.g. a blow with intent to cause grievous bodily harm, but which in fact causes death, and asks: To what extent were these elements a probable result of the parties' plan? A jury might say that the blow was probable, but not the rest of it - so the s. 8 party might be guilty only of assault.

This process of dissection of the principal offence, and consideration of the probability of the whole lot, or some, of these elements is the core of the Barlow One answer to the question which s. 8 does not explicitly answer - the way in which a lesser offence than that committed by the principal offender may under the section be attributed to a secondary party. Applying this to the Brennan [1936] HCA 24; (1936) 55 C.L.R. 253 situation, if the victim is killed by a blow delivered with intent to kill, the man on watch outside will be guilty of murder only if all these elements - the blow, the intent, the death - were a probable consequence of the plan; otherwise he can only be guilty of a lesser offence - e.g. manslaughter, if the blow and resultant death were probable, but not the state of mind (an intent to kill) which accompanied the blow.

Objections to this view of the matter may be made, for example on the ground of its complexity. The only objection I will deal with is that the principal set of reasons of the High Court at pp. 13, 14 gives an explanation of the way s. 8 works (Barlow Two) which, although not easily comprehensible, seems to differ from that at pp. 10 and 11 (Barlow One). My opinion is that this Court should, so that some consistency can be achieved, adhere to Barlow One, which has been accepted in all of the judgments delivered in this Court since the High Court decided Barlow. (Nicholls (C.A. No. 479 of 1995, 31 October 1997) per Pincus JA at 1 and 2; Donald, Jeffrey, Pascoe (C.A. No. 309 of 1996, C.A. No. 154 of 1997, C.A. No. 242 of 1997, 19 December 1997) per Davies JA at 11, Pincus JA at 2 and 3, McPherson JA at 15, 13, and 14 and 7 respectively; Dang (C.A. No. 457 of 1996, 19 December 1997) per Pincus JA at 2; Harding (C.A. No. 519 of 1995, 17 February 1998) per Davies JA at 1, Pincus JA at 5 and 6. The results of applying Barlow One are expounded above, but I reiterate the more important of them:

(A) The "nature" of the offence, in a homicide case, will not for the purpose of s. 8 be unlawful killing, or murder, or manslaughter. It will be composed of the elements of the principal offence - e.g. an unlawful blow with intent to kill, causing death; it is important to observe, when directing juries, and to adhere to, this vital distinction.

(B) The probability of those elements occurring in a case where the victim has been murdered determines the guilt of the secondary party - e.g. of the offence of manslaughter, consisting in having delivered a blow which is in the circumstances unlawful, but not with intent to kill, although causing death.

(C) To convict the secondary party of the same offence as the principal offender, nothing less will do than a finding that all the elements of the principal offence were probable; but that finding is enough and the Crown need not show that e.g. the man on watch, in such a case as Brennan, intended to kill, nor that the common purpose included killing.

To apply this to s. 302(1)(b), then, where the principal offender is said to be guilty of committing the offence of unlawful killing by causing death 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, the first question is whether this has been proved - did the principal offender, whether identified or not, do this? Then as to any secondary offender, the question is to what extent the act done - unlawful killing in the way just mentioned - was a probable consequence of the parties' common unlawful purpose, if any such purpose is proved. If, for example, the jury is satisfied that all was probable except that the cause of death would be an act of such a kind as to be likely to endanger human life, then only the principal offender would be guilty of murder. Of course, it might seem unlikely that the jury would take such a view of the facts.

It should be noted that the Crown might set up that death caused in a number of alternative ways was probable - e.g. death by a blow intended to kill, or by a s. 302(1)(b) act, or a s. 302(1)((c) act. In the present case, however, the Crown tied itself to a case under s. 302(1)(b). Where it is uncertain in what circumstances the death occurred, this might not be a prudent course for the prosecution to adopt; however that may be, all the jury was asked about in the present case was guilt by a combination of s. 8 with a particular variety of murder, viz. murder under s. 302(1)(b).

The trial judge did not sum up in the way which Barlow One requires. The directions about the nature of the offence were of two kinds. The jury were told that the nature of the act was that it was one which caused death, by unlawful shooting and that there were "no doubt some other important circumstances that you will, on your analysis, decide collectively make up the nature of the act". This direction was in my opinion wrong. If the Crown case was to be made out, then the nature of the act proved must have consisted in the elements defined by s. 302(1)(b). It was the probability of the concurrence of those elements, rather than death by unlawful shooting together with any other facts which the jury believed to be relevant, which the jury had to think about. The second suggestion the judge made about the nature of the act was that it was the shooting of Kummer. That is also, with respect, an inadequate explanation. Only shooting in the circumstances set out in s. 302(1)(b) required to be considered, to decide whether, for the purposes of the Crown case (which, I reiterate was tied to use of ss. 8 and 302(1)(b) in combination) the offence committed was of such a nature as to be a probable consequence of carrying out the purpose.

I referred above to the relevant offence as being unintentional murder. To put the point broadly, it catches, and classifies as murder, certain sorts of unintentional killings, caused by dangerous acts. The Crown has to prove that the fatal act was done in the prosecution of an unlawful purpose, but that purpose need not be especially heinous - ordinary theft would do - and, more to the point, the death need not be a probable consequence of prosecution of the purpose. In that respect, the provision is easier to satisfy than s. 8. The death might, given the common purpose, be entirely unexpected. So a party to a plan of robbery, in the course of which the driver of the getaway car kills a pedestrian by very bad driving, may be guilty under s. 8 not merely of unlawful killing but of murder. The apparent harshness of this scheme is mitigated, as was explained in Stuart [1974] HCA 54; (1976) 134 C.L.R. 426 at 438, by the possibility of escaping conviction under s. 23 of the Code.

But it seems inappropriate, considering the wide scope of the provision, to give s. 302(1)(b) by judicial construction any wider operation than its terms require. Some of the directions given in the present case would suggest that any person party to a s. 8 intention is guilty of murder if the victim was shot and killed and shooting was a probable consequence of the prosecution of the parties' purpose. That is not an accurate statement of the law, because there is an additional ingredient, namely satisfaction that the shooting was an act of such a nature as to be likely to endanger human life. It is my view that, although it is likely that a jury, satisfied of the connection of probability which s. 8 requires, would also have been satisfied of the connection of the likelihood, of a rather different sort, which s. 302(1)(b) requires., these appellants were entitled to a trial in which the elements of and relation between the provisions relied on by the Crown were expounded.

Since that did not occur, it is my opinion that the convictions must be set aside.

It was argued for the appellants that they could not be convicted of murder because Petersen, one of the other members of the group mentioned above, was convicted of manslaughter only. Counsel for the appellants relied on the circumstance that the only case the Crown was left with, as to the identity of the principal offender, was that it was Petersen. Having read the reasons of the President, and those of Williams J, I agree that the appellants may be retried for murder. I agree that the appeals should be allowed, the conviction quashed, and the appellants retried for murder.

I have had the advantage of reading the reasons for judgment of Pincus JA and therein the relevant facts and issues are fully set out.

This appeal can be resolved, as the reasons of Pincus JA demonstrate, by applying what his Honour has called Barlow One (R v Barlow (1997) 188 CLR 1 at 10-11). I agree with all that his Honour has said with regard to the application of that principle to the facts and issues for determination here. The convictions must be set aside.

The precise meaning and possible applications of the principle which Pincus JA has referred to as Barlow Two were not argued in depth on the hearing of this appeal, primarily because it was not necessary to do so. It may be that the reasoning in question (at 188 CLR 13-14) will be later demonstrated to have particular application to certain factual situations, though they are somewhat difficult to envisage. I am never surprised at the complexity of unusual (sometimes bordering on fanciful) factual situations which arise for consideration in the criminal courts. In my view, the possible application of the Barlow Two principle should be left until a particular factual situation calls for its further analysis.

Because of the fact that Petersen has been convicted of manslaughter only the question arises as to the charge on which the appellants should be retried. It is true that the prosecution case against the appellants has always been that each appellant was a Section 8 secondary party to the offence committed by the principal offender, Petersen. The case against the appellants is that they were parties to a common intention to prosecute the unlawful purpose of assaulting Kummer by threats whilst armed, that Kummer died as a result of a shot discharged from the firearm under Petersen's control, and that that shooting was a probable consequence of the carrying out of that unlawful purpose. Brennan C.J., Dawson and Toohey JJ in Barlow at 11, relying on the reasoning in Hiu Chi-ming v The Queen (1992) 1 A.C. 34 at 42-3, stated that the doing of the unlawful act by the principal offender had to be proved by evidence admitted against the secondary party, and not by a verdict in the case of the principal offender. Clearly the High Court approved of the reasoning in the Privy Council. There the prosecution case against the appellant was that he was a one of a number of men who encouraged and assisted Ah Po to attack a man who was running to catch a bus. Ah Po struck the man with a metal pipe causing his death. The jury acquitted Ah Po of murder but convicted of manslaughter. Others in the group were charged with murder but the Crown accepted pleas of guilty to manslaughter. The appellant was charged with and convicted of murder. At the trial the appellant's counsel sought to adduce evidence that Ah Po was acquitted of murder but convicted of manslaughter. One ground of appeal was against the trial judge's refusal to admit such evidence. The Privy Council said in the passage referred to by the majority in the High Court:

"Their Lordships have no doubt that he was right to do so, because the verdict reached by a different jury (whether on the same or different evidence) in the earlier trial was irrelevant and amounted to no more than evidence of the opinion of that jury."

It is for a jury, properly instructed, on evidence before them at a trial of the appellants to make a finding as to the unlawful act committed by Petersen. It would be open for them to conclude that the circumstances of that offence required them to categorize it as murder which would open the way for a finding of murder against the appellants. That conclusion is supported by the reasoning of Fitzgerald P.; I respectfully agree with all that he has said on the issue.

It follows that the appellants should be retried for murder.

[1] Section 10A was inserted into the Criminal Code after the date of these alleged offences.

[4] Petersen's application for leave to appeal against his sentence was allowed on 21 April 1998.

[5] Based on ss. 8 and 302(1)(b) of the Code.

[6] The prosecution has not at any point alleged that the fatal shot or shots were fired by Paterson or Wood.

[7] The New South Wales Court of Criminal Appeal has criticised the use by the prosecution of the common law principles which are analogous to s. 8 and sub-s. 302(1)(b) of the Code in these circumstances: R. v. Clough (1992) 28 N.S.W.L.R. 396, 400.

[8] (a) It is simpler to assume that only one of the shots fired killed Kummer, and such an assumption does not affect the outcome.

(b) It is desirable to postpone consideration of the prosecution's inability to prove beyond reasonable doubt who fired the shot which killed Kummer, and to proceed initially on the footing that Petersen did so. It is also desirable to leave for later consideration the potential complication that Petersen was acquitted of murder, and later convicted (on his own plea) only of manslaughter.

[10] Code, sub-s. 302(1)(b). By sub-s. 302(3), it is immaterial under sub-s. 302(1)(b) that the offender did not intend to hurt any person.

[13] Code, s. 291. It was not submitted that Kummer's killing was authorised or justified or excused by law.

[16] An "offence" is an "act or omission which renders the person doing the act or making the omission liable to punishment": Code, s. 2.

[21] Ibid. It is unnecessary to decide in this case whether the converse applies if it is proved that the culpability of the person who is made criminally liable by s. 8 exceeds that of the person who committed the offence first referred to in that section: see, e.g., 87 A.Crim.R. 346, 372; R. v. Jervis [1991] 1 Qd.R. 643, 651-652; Hind and Harwood [1995] QCA 202; (1995) 80 A.Crim.R. 105, 122-123. The prosecution did not suggest that either Paterson or Brien was more culpable than Petersen. (Later, reference will be made to a different, although superficially similar issue; namely, whether the person who is made criminally liable by s. 8 can be convicted of a more serious offence than the person who committed the offence which is the basis for the application of s. 8 because of differences in the evidence which is admissible against the two persons.) It is also unnecessary to consider in this case whether the offence and the unlawful purpose referred to in s. 8 must be different: see, e.g., Hughes [1951] HCA 34; (1951) 84 C.L.R. 170; Stuart [1974] HCA 54; (1974) 134 C.L.R. 426 at pp. 438-439. Here, the alleged unlawful purpose was unlawful assault. Paterson and Brien could not be convicted of unlawful assault on a count of murder: Code, sub-s. 576(1).

[23] The prosecution case was that the shot or shots fired by Petersen and/or Brien were fired deliberately. In a case such as the present, involving the discharge of a firearm, the prosecution could also establish an unlawful killing if it proved that the shot which caused death was discharged because of a failure to use reasonable care and take reasonable precautions in the use or management of the firearm, and that the firearm was a thing of such a nature that, in the absence of care and precaution in its use and management, "the life, safety or health of any person may be endangered": Code, ss. 289 and 291; R. v. O'Halloran [1967] Qd.R. 1; R. v. Hodgetts and Jackson [1990] 1 Qd.R. 456. Likelihood of danger has been treated as the test in, for example, Hoffman v. Nielsen (1928) St.R.Qd. 364, 368 and R. v. Finn (C.A. 375 of 1993, unreported, 4 February 1994, per McPherson J.A.). It is unnecessary in the present case to consider whether a killing which was unlawful because of a breach of s. 289 would necessarily involve an act of such a nature as to be likely to endanger human life.

[24] The prosecution's inability to prove who fired the fatal shot, Petersen or Brien, made it imperative, at least on the charge against Paterson, to prove that all three alleged offenders were party to the common unlawful purpose: cf. Clough at 400D-E.

[28] Code, s. 23; R. v. Van Den Bemd [1994] HCA 56; (1994) 179 C.L.R. 137; Hind and Harwood.

[33] Indirectly, through the definition of "offence" in s. 2 of the Code.

[34] Requirement (7) is made essential by Barlow.

[35] Which are essential to criminal liability for Kummer's unlawful killing based on s. 8.

[36] Barlow did not suggest that, if this possibility exists, it is to be explained as a "merciful" verdict despite the prosecution proving that the crime of murder had been committed: see, Hind and Harwood at p. 131; Wood & ors. (87 A.Crim.R. at p. 387).

[37] Sub-section 302(1)(b) was not referred to in the majority judgment in Barlow, notwithstanding that an unlawful killing is manslaughter, not murder, only if the "circumstances [do] not ... constitute murder" (Code, s. 303).

[39] A similar point is discussed in R. v. Jeffrey (C.A. 154 of 1997, unreported, 19 December 1997).

[43] Code, s. 669. It was not submitted that verdicts of manslaughter should be entered: Code, sub-s. 668F(2).

[44] See, for example, R. v. Salmon [1880] 6 Q.B.D. 79; R. v. King [1962] A.C. 199, 206; Mohan v. R. [1966] UKPC 3; [1967] 2 A.C. 187, 194; R. v. Wyles; ex parte Attorney-General [1977] Qd.R. 169, 179-181; R. v. Warren and Ireland (1987) W.A.R. 314, 321-322; R. v. Webb; ex parte Attorney-General [1990] 2 Qd.R. 275, 283; Clough at p. 399; cf. Boykovski and Atanasovski (1991) 58 A.Crim.R. 436; R. v. Cai and Wang (C.A. 444 and 457 of 1994, unreported, 3 March 1995; Powell v. Smith and Blacker (C.A. 251´ and 264 of 1995, unreported, 14 November 1995).

[45] 87 A.Crim.R. at pp. 387-388. See, for example, R. v. Crawford [1989] 2 Qd.R. 443; R. v. Webb [1994] HCA 30; (1994) 181 C.L.R. 41; Deane (1996) 88 A.Crim.R. 36; R. v. Lewis and Baira (C.A. 252, 253 and 290 of 1996, unreported, 18 October 1996); cf. R. v. Lowrie (C.A. 4487 of 1997, unreported, 2 December 1997).

[46] See, for example, Chi-ming v. R. [1992] 1 A.C. 34.

[47] The differences are analysed in 87 A.Crim.R. 346, and it is that analysis which is used for the following discussion.

[48] Cf. Rogers v. R. [1994] HCA 42; (1994) 181 C.L.R. 251; R. v. Carne (C.A. 553 of 1996, unreported, 24 June 1997).

[49] See, e.g., Webb; Mackenzie v. R. [1996] HCA 35; (1996) 141 A.L.R. 70.

[51] See, e.g., Johannsen and Chambers v. R. (C.A. 219 of 1995, unreported, 30 April 1996); Carne.

[52] Code, sub-s. 668E(1); M. v. R. [1994] HCA 63; (1994) 181 C.L.R. 487.

[54] It was not suggested that the jury's acquittal of Petersen of murder was a "merciful" verdict.

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