At about 11.00 p.m. on 16 February 1994, the appellants went to the Coach's Inn, a bus depot at Bundaberg, intending to rob the cafeteria. Hind was, to Harwood's knowledge, armed with a sawn-off .22 calibre rifle, which was to be used in the robbery "as sort of a persuader". Harwood told the police that he did not know whether the rifle was loaded, although he knew that that might be the case. He also said that he did not know what Hind would do if anyone resisted or refused to cooperate: "You can't really plan what is going to happen."

The deceased, Bowering, was sitting outside the cafeteria. While Harwood stood nearby, Hind went over and sat beside Bowering and told him to move. Hind pointed the rifle at Bowering, with its muzzle against his clothing. There was a bullet in the chamber, the bolt was closed, the safety catch was off and Hind's finger was probably on the trigger. Bowering, who did not move as directed, was shot and killed by Hind. The only possible explanation, other than a deliberate killing, was a suggestion that Bowering had pushed Hind, causing the rifle to fire. On later testing, it was established that the rifle discharged with a trigger pressure of 1.1kg., at the bottom of, but within, the range of "safe" trigger pressures for general firearm usage.

After the shooting, the appellants ran off, and, at about 10 a.m. the following morning, they robbed the Bundaberg Post Office. The rifle was used on that occasion, but no shot was fired at any person. However, in an attempt to calm or discourage a dog, Hind struck it while holding the rifle, and a bullet discharged and lodged in the ceiling.

After they were arrested the following day, the appellants were interviewed by the police and evidence of their statements, which included admissions, was given at their trial.

The jury was instructed that there were two bases on which the appellants could be convicted of murder, and the matters of which it needed to be satisfied beyond reasonable doubt before it could convict were separately listed for them in the following terms:

Hind 1. That Hind voluntarily pulled the trigger causing the gun to discharge.

2. That Hind intended to cause death or grievous bodily harm.

Harwood 1. That Harwood and Hind formed the common intention to prosecute the unlawful purpose of armed robbery.

2. That Hind voluntarily pulled the trigger causing the gun to discharge.

3. That Hind intended to cause the death of Bowering or grievous bodily harm.

4. That the killing of Bowering in this way was a probable consequence of the prosecution of the unlawful purpose.

Hind 1. That Hind held the loaded cocked gun without the safety catch on in the direction of Bowering.

2. The death of Bowering was caused by means of Hind holding the gun in this way.

3. That the death of Bowering by means of Hind holding the gun in this way could have been foreseen by an ordinary person in the position of Hind.

4. That Hind held the gun in this way in the prosecution of the unlawful purpose to rob the Coach's Inn.

5. That the holding of the gun in this way was an act of such a nature as to be likely to endanger human life.

Harwood 1. That Hind and Harwood formed the common intention to prosecute the unlawful purpose of robbery.

2. That Hind held the loaded cocked gun without the safety catch on in the direction of Bowering.

3. The death of Bowering was caused by means of Hind holding the gun in this way.

4. That the death of Bowering by means of Hind holding the gun in this way could have been foreseen by an ordinary person in the position of Hind.

5. That Hind held the gun in this way in the prosecution of the unlawful purpose to rob the Coach's Inn.

6. That the holding of the gun in this way was an act of such a nature as to be likely to endanger human life.

7. That the killing of Bowering in this way was a probable consequence of the prosecution of the unlawful purpose."

Manslaughter was also left to the jury, which was told that, if it did not convict of murder, it could convict of manslaughter on the following basis.

HIND 1. That Hind had under his control a thing of such a nature that in the absence of care or precaution in its use or management, the life, safety or health of any person may be endangered, namely a firearm.

2. That Hind was criminally negligent in his failure to use reasonable care or take reasonable precaution in his handling of the firearm.

3. Hind's failure to use reasonable care or take reasonable precaution in the handling of the firearm resulted in the death of Mr Bowering.

HARWOOD 1. That Hind and Harwood form the common intention to prosecute the unlawful purpose of robbery.

2. That Harwood knew Hind had a firearm and was reckless as to whether it was loaded or not.

3. That Hind had under his control a thing of such a nature that in the absence of care or precaution in its use or management, the life, safety or health of any person may be endangered, namely a firearm.

4. That Hind had the firearm under his control in the prosecution of the unlawful purpose to rob the Coach's Inn.

5. That Hind was criminally negligent in his failure to use reasonable care or take reasonable precaution in his handling of the firearm.

6. Hind's failure to use reasonable care or take reasonable precaution in the handling of the firearm resulted in the death of Mr Bowering.

7. That the killing of Bowering in this way was a probable consequence of the prosecution of the unlawful purpose."

By s. 293 of the Code, any person who causes the death of another person directly or indirectly, by any means whatever, is deemed to have killed that person, and, by s. 291, killing is unlawful unless authorised or justified or excused by law. For present purposes, the only "excuse" which needs be noted is that provided by s. 23 of the Code which, so far as material, provides that "a person is not criminally responsible ... for an event which occurs by accident".

Section 300 of the Code provides that any person who unlawfully kills another is guilty of a 'crime', i.e., a criminal offence (sub-s. 3(2)). By s. 2, an offence is an "act or omission which renders the person doing the act or making the omission liable to punishment". Section 300 further states that the crime committed when one person unlawfully kills another "is called murder, or manslaughter, according to the circumstances of the case".

Any unlawful killing under such circumstances as not to constitute murder is manslaughter by s. 303 of the Code. What constitutes murder is defined by s. 302. It is common ground that:

(i) the first basis left to the jury for a conviction of murder depended on sub-s. 302(1) of the Code; i.e., that Hind unlawfully killed Bowering intending to cause him death or grievous bodily harm; and

(ii) the second basis for murder depended on sub-s. 302(2) of the Code which, so far as presently material, provides:

"302. Definition of murder. ... a person who unlawfully kills another under any of the following circumstances, that is to say -

(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;

... it is immaterial that the offender did not intend to hurt any person.

By virtue of s. 23 of the Code, on the second basis the prosecution was also required to prove that Bowering's death did not occur by accident.

The prosecution and Harwood also agreed that his guilt, on all bases, depended on s. 8 of the Code, which provides:

8. "Offences committed in prosecution of common purpose. 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."

The unlawful purpose in relation to both sub-s. 302(2) and s. 8 was robbery, i.e., stealing with actual or threatened violence: Code, s. 409. (The present case does not involve an issue which, as was noted by McPherson A.C.J. in R. v. Jervis [1993] 1 Qd.R. 643 at pp. 649-650, has been the subject of dispute in other jurisdictions, namely, whether s. 8 can operate if the intended unlawful purpose was the commission of the offence in relation to which it is sought to apply s. 8. See also Hughes v. R. [1951] HCA 34; (1951) 84 C.L.R. 170; Stuart v. R. [1974] HCA 54; (1974) 134 C.L.R. 426, pp. 438-439, 447-449; and Ross v. R. [1979] HCA 29; (1979) 141 C.L.R. 432, 438-439.)

Hind did not dispute that there was evidence upon which the jury could have convicted him on the first basis (sub-s. 302(1) of the Code), but argued that the jury's verdict might not have not been based on sub-s. 302(1) but on sub-s. 302(2), and that the evidence could not support such a verdict. He also argued that evidence of the post office robbery ought not have been admitted and that the trial judge's direction to the jury concerning the permissible use of such evidence was deficient. Hence, he submitted that his conviction should be set aside and a new trial ordered. Harwood argued that he could not properly be convicted on either basis; in addition to the arguments relied on by Hind, Harwood submitted that the prosecution had failed to establish the matters required by s. 8 of the Code.

1. Code sub-s. 302(2) and s. 23: both appellants

The prosecution case based on sub-s. 302(2) of the Code (second basis) was that the act which caused Bowering's death was Hind pointing the loaded rifle at Bowering without the safety catch on. The appellants submitted that Bowering's death was not "caused by means of" Hind's act of pointing the loaded rifle at him without the safety catch on but by the discharge of the rifle. The complexity of the situation lies in the circumstance that there were two acts, occurring sequentially, which, in combination, resulted in Bowering's death; the loaded rifle was (i) pointed at Bowering and (ii) discharged. Bowering would not have been killed if the rifle had been pointed at him but not discharged, or if it had been discharged when not pointed at him. Nothing is sufficient for the prosecution's case based on sub-s. 302(2) except a conclusion that, irrespective of what caused the rifle to discharge, Bowering's death was "caused by means of" Hind's act of pointing the loaded rifle at him.

The appellants conceded that the decision of the Court of Criminal Appeal in Cronau (1980) 3 A.Crim.R. 460 is against them. On a quick perusal, Lucas A.C.J., who delivered the leading judgment, followed the judgment of Barwick C.J. in R. v. Ryan [1967] HCA 2; (1967) 121 C.L.R. 205 on this point. On closer reading, the reference to Ryan in Cronau related to a different issue, namely whether pointing the loaded rifle was a dangerous act, on the assumption that, if the rifle then discharged, pointing it was the cause of death. However, Ryan itself accepts that, in circumstances such as the present, a conclusion that pointing the loaded rifle caused death is open, but, as Lucas A.C.J. pointed out in Cronau at p. 463, Ryan was decided under different statutory provisions. See also R. v. Butcher [1986] VicRp 4; [1986] V.R. 43, 55-56; R. v. Demirian [1989] VicRp 10; [1989] V.R. 97, 109 ff.

Perhaps because of their view of Cronau, the appellants' counsel did not advert to later authority on the issue of causation, including the decision of the High Court in Royall v. R. [1991] HCA 27; (1990) 172 C.L.R. 378. (See also McAuliffe v. R., in which special leave was granted on 7 December 1994: The Legal Reporter, Vol. 16 (1995) No. 1, page C4). Royall concerned sub-s. 18(a)(a) of the Crimes Act 1900 (NSW) and, more particularly for present purposes, the requirement that an act of the accused caused the death of the deceased. One basis relied on by the prosecution was that the deceased was killed jumping from the window of her sixth floor flat because of a well-founded and reasonable apprehension of life-threatening violence from the accused. It was held that the jury could conclude, on those facts, that the act of the accused caused the deceased's death: see per Mason C.J. at pp. 385 ff; Brennan J. at pp. 398 ff; Toohey and Gaudron JJ. at pp. 420 ff; McHugh J. at pp. 440 ff.

Mason C.J. (p. 387), Deane and Dawson JJ. (pp. 411-412); and Toohey and Gaudron JJ. (pp. 423 and 425) approved the statement of Burt C.J. in Campbell v. R. [1981] W.A.R. 286, 290 that it is "enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter": cf. per McHugh J. at p. 441.

Brennan J. at p. 398 stated that the "basic proposition relating to causation in homicide is that an accused's conduct, whether by act or omission, must contribute significantly to the death of the victim", citing for that proposition R. v. Pagett [1983] EWCA Crim 1; (1983) 76 Cr.App.R. 279 at p. 288. Deane and Dawson JJ. at p. 411 also referred to Pagett, stating:

"... there may be no simple cause of the death of the deceased, but if the accused's conduct is a substantial or significant cause of death that will be sufficient ... to sustain a conviction for murder. It is for the jury to determine whether the connexion between the conduct of the accused and the death of the deceased was sufficient to attribute causal responsibility. ..."

McHugh J. also cited Pagett with approval: pp. 441 and 449. At p. 441, his Honour said:

"Causation is a question of fact: Reg. v. Evans & Gardiner [No. 2] [1976] VicRp 53; [1976] V.R. 523 at p. 527; Reg. v. Pagett [1983] EWCA Crim 1; (1983) 76 Cr.App.R. 279, at pp. 290-291. To constitute a cause for the purposes of the criminal law, it is not necessary that an act or omission be the sole or main cause of a wrong: Pagett. But, as I have indicated, the purpose of the legal doctrine of causation is to attribute legal responsibility, not to determine the factors which played a part in the happening of an event or occurrence. It is for this reason that the common law doctrine of causation has not accepted that a person is criminally responsible for an event or occurrence simply because his or her act or omission was a causa sine qua non of that event or occurrence. If, as a matter of commonsense, an ordinary person would not hold an accused's act or omission to be a cause of the event or occurrence, it is irrelevant that it was a causa sine qua non of that event or occurrence: cf. Campbell v. The Queen [1981] W.A.R. 286, at p. 290; ...

In most criminal cases, the issue of causation is not controversial. If an accused's act or omission is causally linked with the event or occurrence, it is always only one of the conditions which were jointly necessary to produce the event or occurrence. Ordinarily, however, the application of the commonsense test of causation is enough to determine whether the accused's act or omission was sufficiently significant to make him or her 'causally responsible' for the event or occurrence in question."

It is necessary to quote only one further passage from Royall. At p. 423, Toohey and Gaudron JJ. said:

"... the jury must be told that they need to reach a conclusion as to what caused the deceased's death. That does not mean that the jury must be able to isolate a single cause of death; there may be more than one such cause: Reg. v. Butcher ([1986] V.R. 43 at pp. 55-56); Reg. v. McKinnon ([1980] 2 N.Z.L.R. 31, at p. 36). In that event it is inevitable that the jury will concentrate their attention on whether an act of the accused substantially contributed to the death."

According to their terms, ss. 293 and 302(2), taken in conjunction, are satisfied if an act which is of such a nature as to be likely to endanger human life is done in the prosecution of an unlawful purpose and directly or indirectly causes the death of another person by any means whatever. Nonetheless, the reasoning underlying Royall suggests that the act relied on by the prosecution must have a sufficiently substantial connection with the death which followed to justify the attribution of criminal responsibility. Here, there were two closely connected sequential acts, pointing and discharging the rifle, which together resulted in death. In my opinion, Hind's act in pointing the rifle at Bowering without the safety catch on had a sufficiently substantial connection with Bowering's death for the jury to conclude that that act caused Bowering's death within the meaning of sub-s. 302(2).

The appellants' submission that Hind's action in holding the loaded rifle with the safety catch off in the direction of Bowering was not done in prosecution of the unlawful purpose of an armed robbery of the Coach's Inn cafeteria depended on the hypothesis that, at the time when Bowering was killed, the appellants had not, or might not have, commenced to prosecute that purpose, but were, or might have been, merely considering whether or not to do so, or planning or preparing to do so. The sole foundations for this hypothesis were a somewhat equivocal statement by one of the appellants when speaking to the police after arrest, and the fact that the appellants did not proceed with the robbery but decamped after the killing.

The most obvious answer to this submission is that the trial judge's directions, although not entirely clear on the point, indicated to the jury that it ought not convict unless satisfied that the appellants were not merely "'sussing out' the place and considering robbery as an option" when Bowering was killed, and there was ample evidence for the jury to conclude that Hind shot and killed Bowering in the prosecution of an unlawful purpose of an armed robbery of the Coach's Inn cafeteria. In any event, as they conceded, the trial judge's direction was too favourable to the appellants according to the decision of the Court of Criminal appeal in R. v. Stuart and Finch [1974] Qd.R. 297; see, for example, per W.B. Campbell J. at pp. 352-354. The submission that the act which caused death in that case, lighting a fire, was not done in prosecution of the unlawful purpose, extortion, does not appear to have been pursued in the High Court, which refused special leave: [1974] HCA 54; (134 C.L.R. 426). However, at least Jacobs J. considered that an act "preliminary to" the unlawful purpose was done in prosecution of that purpose (p. 449). See also R. v. Phillips and Laurence [1967] Qd.R. 237, where each member of the court treated what was done in "furtherance of" the unlawful purpose as done in prosecution of it: Mack C.J. at p. 247; Hanger J. at p. 258; Hart J. at p. 284.

(c) act ... likely to endanger human life/death did not occur by accident

To satisfy sub-s. 302(2), Hind's act in pointing the rifle at Bowering without the safety catch on had to be "of such a nature as to be likely to endanger human life". The test is wholly objective: Stuart (134 C.L.R.) at p. 438, per Gibbs J. with whom Menzies and Mason JJ. agreed. To negative s. 23, the prosecution also had to prove that the death of Bowering, the person at whom Hind pointed the rifle without the safety catch on, did not occur by accident.

In Stuart (134 C.L.R.), Gibbs J. said at p. 438 that "the apparent severity of the operation of sub-s. 302(2) is mitigated by the provisions of the first paragraph of s. 23, since if ... death was a consequence which ... would not reasonably have been foreseen by an ordinary person ..., the accused will not be criminally responsible". Sub-section 302(2) requires only that the act be "likely to endanger human life", not that it be likely to cause death: contrast Boughey v. R. (1986) 161 C.L.R. 10. It is presumably for that reason that, in some circumstances, an ordinary person might reasonably not have foreseen death as a consequence of an act although that act was of such a nature as to be objectively likely to endanger human life; i.e., to place human life in danger.

As Boughey demonstrates, there can be considerable difficulty in deciding the test of what is "likely"; the meaning of the word can be influenced by the context, and even its "ordinary" or "natural" meaning is a matter of dispute. Thus, in their joint judgment in Boughey, Mason, Wilson and Dawson JJ. said at p. 21 that the "ordinary meaning [is] to convey the notion of a substantial - a 'real and not remote' - chance regardless of whether it is less or more than 50 per cent ...". On the other hand, Gibbs C.J. at p. 14 said that the "natural meaning" of "likely" is "probable" and not "possible", which, without more, does not necessarily fully resolve all difficulties since, according to Mason, Wilson and Deane JJ. at p. 20, the meaning of "probable" is also "liable to vary according to the context ...". However, it seems clear enough from the judgment of Gibbs C.J. that his Honour considered that "likely" meant more probable than not: cf. R. v. Crabbe [1985] HCA 22; (1985) 156 C.L.R. 464. That was also the opinion of Brennan J. in Boughey: see pp. 40ff.

In this case, it is unnecessary to analyse the operation of the word "likely" in sub-s. 302(2) of the Code: objectively, whatever the test, Bowering's life was endangered by Hind pointing the loaded rifle at him without the safety catch on; that was an act which, of its nature, inevitably endangered Bowering's life.

It remains necessary to consider whether the prosecution excluded s. 23; i.e., whether it was proved that Bowering's death did not occur by accident.

In Van den Bemd [1994] HCA 56; (1994) 68 A.L.J.R. 199, a majority of the High Court accepted as correct the decision of this Court in that case, reported (1993) 70 A.Crim.R. 489, dealing with the operation of s. 23. Unfortunately the test was there stated in two different ways. In the first (incomplete) paragraph on p. 493, the Court said: "The test thus appears to be one of foreseeability of the happening of the consequence as a matter of probability or 'likelihood'." In the next paragraph, it was said: "The test ... is ... whether death was such an unlikely consequence of that act an ordinary person could not reasonably have foreseen it".

While the first of those tests could be taken to indicate that a death did not occur by accident only if an ordinary person would have foreseen that death was a probable or likely consequence of the act which caused death, on the second test, death did not occur by accident if an ordinary person would have foreseen that death was not an unlikely consequence of the act which caused death; that test would be satisfied if an ordinary person would have foreseen death as a real or substantial, as distinct from a remote, possibility: cf. Koufos v. C. Czarnikow Ltd [1969] 1 A.C. 315. Overall, the terms of this Court's judgment in Van den Bemd suggest that it was the second test which was intended in that case. See also per Gibbs J. in Kaporonovski v. R. [1973] HCA 35; (1975) 133 C.L.R. 209, 232.

The arguments in favour of the first test, which were substantially raised in the judgments of Gibbs C.J. and Brennan J. in Boughey, did not find favour with the majority in that case despite the support those arguments draw from Crabbe. In the latter case, the High Court was concerned with the question whether, at common law, "the knowledge which an accused person must possess in order to render him guilty of murder when he lacks an actual intent to kill or do grievous bodily harm must be a knowledge of the probability that his acts will cause death or grievous bodily harm ... or whether knowledge of a possibility is enough" (p. 468). In a joint judgment, five members of this Court held that knowledge of a probability of death or grievous bodily harm was necessary. After referring at p. 468 to the opinion of McTiernan and Menzies JJ. in Pemble v. R. [1971] HCA 20; (1971) 124 C.L.R. 107, at pp. 118-121 which used the words "probable or likely (both expressions are used)", the Court said at p. 469:

"The conclusion that a person is guilty of murder if he commits a fatal act knowing that it will probably cause death or grievous bodily harm but (absent an intention to kill or do grievous bodily harm) is not guilty of murder if he knew only that his act might possibly cause death or grievous bodily harm is not only supported by a preponderance of authority but is sound in principle. The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. ... If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word 'probable' means likely to happen. That state of mind is comparable with an intention to kill or to do grievous bodily harm. There is a difference between the case in which a person acts knowing that death or serious injury is only a possible consequence, and where he knows that it is a likely result."

Nonetheless, in light of Boughey, I consider that I should adopt the second test expressed in Van den Bemd. Once it is accepted that the question is whether an ordinary person would reasonably have foreseen that there was a real possibility that Hind's act in pointing the rifle at Bowering without the safety catch on would cause death, it becomes plain that it was open to the jury to answer that question in the affirmative.

2. Evidence of the post office robbery: both appellants

A further joint argument by the appellants related to the evidence of the post office robbery and the appellants' actions on that occasion.

Although, at trial, the appellants' counsel initially objected to such evidence, it is not clear that the objection was maintained. Similarly, although the reception of the evidence was a ground of appeal, the difficulty of maintaining that position, especially in light of what had occurred at trial, was frankly acknowledged during the hearing in this Court. In the circumstances, the point need not be discussed at length.

The appellants seemed not to dispute that the evidence concerning the post office robbery was relevant, and did not merely establish the commission of another offence or a propensity to offend by the appellants; for example, it was material that, in the post office robbery, the rifle was again loaded, and, conversely, that no attempt was made to shoot any person present. The objection in this Court to the evidence of the post office robbery, to the extent it was pressed, was that it was prejudicial because it constituted evidence of another serious crime.

However, the trial judge was not asked to exclude the evidence of the post office robbery on the basis that its probative value was outweighed by its prejudicial effect (Harriman v. R. [1989] HCA 50; (1989) 167 C.L.R. 590), and it was not demonstrated that, had he been asked, or without being asked, he should have done so, especially since the evidence was of some potential assistance to the appellants. For example, the incident involving the dog during the post office robbery and the absence of any shot at any person on that occasion were relied on before the jury by the appellants as indicating that the discharge of the rifle when the deceased was killed might have been involuntary. Further, in the unusual circumstances of this case, the prejudicial effect of the evidence was limited to an inference of callousness which might be drawn from the brief period between the killing and the post office robbery. That the appellants were armed robbers conducting, or planning or preparing for, a robbery when the deceased was killed was not a matter on which the jury could have had any reasonable doubt.

The appellants' remaining joint argument related to the omission by the trial judge to give the jury careful directions concerning the use they might make of the evidence of the post office robbery. There is no suggestion that any attempt was made by the prosecution to use the evidence for an impermissible purpose. His Honour reminded the jury of all the appellants' submissions on the issue. No redirections were sought by the experienced counsel who represented the appellant at trial. They might well have considered, probably correctly, that their clients' causes would not have been advanced by any further reference to the matter.

It follows from what has been said that Hind's appeal must be dismissed.

Harwood's appeal necessitates consideration of the operation of s. 8 of the Code.

The prosecution sought to prove two additional matters against Harwood on both the first and second bases for murder, namely, that:

(a) the appellants' common intention was to prosecute the unlawful purpose of armed robbery; and

(i) voluntarily pulling the trigger causing the rifle to discharge intending to cause death or grievous bodily harm to Bowering (first basis); or

(ii) holding the loaded rifle, without the safety catch on, in the direction of Bowering (second basis);

was a probable consequence of the appellants' prosecution of their unlawful purpose of armed robbery.

Paragraph (a) also formed part of the prosecution case against Harwood for manslaughter, and, for present purposes, it is sufficient to describe the remainder of the manslaughter case as an expansion of the conduct relied on in para. (b)(ii).

4. Code s. 8

Clearly, the jury was entitled to conclude that the appellant's common intention was to prosecute an armed robbery of the Coach's Inn cafeteria in conjunction with each other; cf. the other finding which it was held above was open to the jury, namely, that the killing of Bowering by Hind was done in the prosecution of that purpose.

The test of whether an offence of the nature of the offence committed was a probable consequence of the prosecution of the unlawful purpose which Hind and Harwood intended is objective, and is related to the particular armed robbery intended, not such an offence (armed robbery) in the abstract. See, generally, Brennan v. R. [1936] HCA 24; (1936) 55 C.L.R. 253, 260-261, 264-265; Stuart v. R. (134 C.L.R.) at pp. 438, 442-443; Jervis at p. 648. It was not argued for the appellants that the identity of the deceased is a material factor in determining what was a probable consequence, and that implicit concession was, in my opinion, correctly made.

While what has been said in relation to sub-s. 302(2) and s. 23 indicates the difficulties and potential ambiguities associated with the word "probable", the overall effect of Crabbe and Boughey is that the ordinary meaning of "probable" is "more likely than not". However, Brennan indicates a different meaning for "probable" in s. 8 of the Code.

Section 8 of the Western Australia Criminal Code, which is in identical terms to s. 8 of the Queensland Code, was considered by the High Court in Brennan, in which Brennan and his two co-accused were acquitted of wilful murder but convicted of manslaughter. It will be necessary to discuss that case in more detail later, but for the moment it is sufficient to notice passages from each of the two judgments delivered which deal with what is a probable consequence for the purpose of s. 8.

"A probable consequence is, I apprehend, that which a person of average competence and knowledge might be expected to foresee as likely to follow upon the particular act; though it may be that the particular consequence is not intended or foreseen by the actor. This is not a definition, but 'only a guide to the exercise of common sense'. Now if a person commits manslaughter who brings about the death of another by some unlawful act, then it must be taken, I think, that death is treated in law as a not improbable consequence of such an act, either because of the definition of the crime or because experience has established that such a result ought to be foreseen and expected. Under a proper charge, therefore, a verdict of manslaughter against the prisoner Brennan could upon the evidence be supported." (Underlining added)

The overall effect of the passages underlined is that it is sufficient to satisfy s. 8 if a consequence was a real or substantial possibility; indeed, the second passage appears to assert that probability can be proved by linking cause and effect.

In their joint judgment at p. 264, Dixon and Evatt JJ. said that "death can be considered the probable consequence of the prosecution of the purpose if the purpose in which [Brennan] concurred made it likely that his confederates would, if necessary, use violence and such a kind or degree of violence as would probably cause death. The fact that, according to the verdict, they must be taken to have used an amount of force, less than might have been contemplated by them, would not make the death, which ordinarily would not, but actually did, result from such a use of force, too remote a consequence for the prosecution of the purpose". (Underlining added).

Again, the tenor of these statements is that it is sufficient to satisfy s. 8 if there was a real possibility that an offence of the nature of the offence committed would be committed.

Indeed, what was said by Dixon and Evatt JJ. might go further; on one view at least, it ignores the degree of likelihood of circumstances occurring which would make it "necessary" (in this case) for Hind to shoot. Once it is concluded that Hind would shoot, if necessary, whether there was a real possibility that he would shoot depends upon the degree of likelihood that a person encountered in the prosecution of the robbery would resist or refuse to cooperate or otherwise make Hind consider shooting necessary; however, what was said by Dixon and Evatt JJ. in Brennan seems to indicate that, however unlikely such occurrences, the question is whether Hind would shoot if one of them did occur. (Compare Markby v. R. [1978] HCA 29; (1978) 140 C.L.R. 108, 112-113 in relation to the common law.)

The first part of the passage from the joint judgment of Dixon and Evatt JJ. in Brennan at p. 264 was cited with approval in the joint judgment of Mason, Murphy and Wilson JJ. in Johns v. R. [1980] HCA 3; (1980) 143 C.L.R. 108 at pp. 128-129, and Johns was, in turn, affirmed in Mills v. R. (1985) 17 A.Crim.R. 411. The same statement by Dixon and Evatt JJ. in Brennan has also been cited with approval in the Court of Criminal Appeal: e.g. R. v. Solomon [1959] Qd.R. 123, 135-136 per Mack J. See also Murray v. R. [1962] TASStRp 18; (1962) Tas.S.R. 170.

The facts in Johns were again broadly similar to the present case, so far as presently relevant, but Johns' culpability depended on the common law. It was held that, for that purpose, it was not necessary that the unlawful act which caused death was probable in the sense of more likely than not.

"The narrow test of criminal liability proposed by the applicant is plainly unacceptable for the reason that it stakes everything on the probability or improbability of an act, admittedly contemplated, occurring. Suppose a plan made by A, the principal offender, and B, the accessory before the fact, to rob premises, according to which A is to carry out the robbery. It is agreed that A will carry a loaded revolver and use it to overcome resistance in the unlikely event that the premises are attended, previous surveillance having established that the premises are invariably unattended at the time when the robbery is to be carried out. As it happens, a security officer is in attendance when A enters the premises and is shot by A. It would make nonsense to say that B is not guilty merely because it was an unlikely or improbable contingency that the premises would be attended at the time of the robbery, when we know that B assented to the shooting in the event that occurred."

There is a passage in the judgment of Stephen J. in Johns at pp. 120-121 in which, in discussing references to probability in this area of the common law, he suggests that "probable" may bear a variety of meanings and even, in some cases, be satisfied by anything more than a bare probability. However, overall, both Barwick C.J. (at p. 113) and Stephen J. (pp. 118-119) in Johns accepted and emphasised the difference between probability and possibility. Indeed, Stephen J.'s judgment recognises that an occurrence dependent on unpredictable events cannot be described as probable according to its ordinary meaning. At pp. 118-119, his Honour said:

"... 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. In determining scope, it may either be restricted to what the accessory regarded as probable consequences of the criminal venture or may be extended to include what he regarded as possibly involved in the venture. To apply to such a situation a criterion of what is probable, as contrasted with what is merely possible, seems singularly inappropriate. The commission of that other crime will not have been the prime object of the criminal venture; it will in all probability have been committed as a reaction to whatever response is made by the victim, or by others who attempt to frustrate the venture, upon suddenly being confronted by the criminals. There will usually be a variety of possible responses to the criminal act. With each of these contingencies the criminals will have to reckon, if they are at all to plan their future action. What they conceive of as contingent reactions to each possible response will have, interposed between these reactions and the planned crime, at least one and perhaps a whole sequence of spontaneous and relatively unpredictable events.

In those circumstances it is understandable that criminal liability should be made to depend upon the jury's assessment of whether or not the accessory before the fact must have been aware of the possibility that responses by the victim or by third parties would produce the reaction by the principal offender which led to the other crime. In such a speculative area, it would be remarkable were the accessory's liability for the other crime to depend upon the jury assessing, in terms of 'more probable than not', the degree of probability or improbability which the accessory attached to the happening of the particular reaction by the principal offender which in fact occurred, itself dependent upon the intervening uncertain responses of victim or third parties. Yet that is what would be required were an accessory's responsibility to depend upon such a criterion of probability, necessarily involving a balancing process and often a nice assessment of odds. I have spoken of intervening contingencies dependent upon human responses; however to these must be added those contingencies which may arise without any human intervention.

Another and perhaps more substantial objection to the suggested criterion of probability lies in the standard of blameworthiness and responsibility which it presupposes. If applied, it would mean that an accessory before the fact to, say, armed robbery, who well knows that the robber is armed with a deadly weapon and is ready to use it on his victim if the need arises, will be no criminal responsibility for the killing which in fact ensues so long as his state of mind was that, on balance, he thought it rather less likely than not that the occasion for the killing would arise. Yet his complicity seems clear enough; the killing was within the contemplation of the parties, who contemplated 'a substantial risk' that the killing would occur: Howard, Criminal Law, 3rd ed. (1967), p. 276."

In Stuart (134 C.L.R.), both Finch, who lit the fire, and Stuart, who with Finch was party to a plan to use the fire for the purpose of extortion, were convicted of murder. At p. 441, referring to ss. 8 and 302(2) of the Code, Gibbs J., with whom Menzies and Mason JJ. agreed, said:

"... The two sections are not in conflict and have the combined effect that when two persons form a common intention to prosecute an unlawful purpose, and in the prosecution of that purpose one does an act which is likely to endanger human life, and in fact causes death, and the nature of that crime was such that its commission was a probable consequence of the prosecution of the purpose, the other is deemed to have committed the offence of murder."

"... Under s. 8 it is necessary for the jury to consider fully and in detail what was the unlawful purpose and what its prosecution was intended to entail and what was the nature of the actual crime committed, and then to decide whether that crime was of such a nature that its commission was a probable consequence of the prosecution of that purpose. In the present case there was evidence on which the jury could have been satisfied that the murder committed was of such a nature that its commission was a probable consequence of the prosecution of the purpose which Finch and Stuart had in common; it was open to them to infer that Stuart and Finch formed a common intention that Finch should light the fire in the night club at the time when he did light it and when people were known to be in it. ..."

And, at p. 445, he distinguished that case from cases, which he considered difficult, "in which the principal offender went beyond the instigation of his confederate, or departed from a pre-arranged plan, and used more violence that had been agreed".

While there is nothing in what Gibbs J. said in Stuart (134 C.L.R.) which suggests that he considered "probable" meant anything other than more likely than not, it was unnecessary in that case to consider whether a lower standard would have sufficed; the higher standard - more likely than not - was satisfied on the facts of that case.

McTiernan A.C.J. and Jacobs J. delivered separate concurring judgments in Stuart. It is unnecessary to discuss the judgment of McTiernan A.C.J. The statements of Jacobs J., who discussed s. 8 at some length, give no support to a proposition that, in that section, "probable" requires more than a real possibility.

I can find nothing in the authorities which could justify this Court adopting a meaning for the word "probable" in s. 8 different from that adopted in Brennan.

The prosecution had to prove against Harwood that the "offence" which Hind committed by killing Bowering in the prosecution of the armed robbery was "of such a nature" that its commission was a probable consequence of the prosecution of the armed robbery. The prosecution case against Harwood, i.e., each of the two bases for murder and the basis for manslaughter, proceeded on the footing that he could only be convicted under s. 8 if a killing of Bowering by Hind in the manner specified in that basis, i.e., by reference to the specific matters listed, was a probable consequence of the appellants' prosecution of their armed robbery at the Coach's Inn; further, as the prosecution case was presented, Harwood could only be convicted of manslaughter if Hind was convicted of manslaughter, not murder. The propositions on which the prosecution case was based were that Harwood:

(i) could be convicted of murder on either basis only if a murder by Hind (in the manner specified in that basis) was the probable consequence of the armed robbery, and

(ii) could be convicted of manslaughter only if an unlawful killing by Hind (in the manner specified) - which did not amount to murder - was a probable consequence of the armed robbery.

While that approach was, in some respects, more favourable to Harwood than was required by the decisions of the Court of Criminal Appeal in Solomon and Jervis, that is now unimportant since Harwood was convicted. However, it is necessary to decide whether, in putting the case to the jury on that basis, the trial judge deprived Harwood of the chance of a conviction of manslaughter, not murder, despite Hind's conviction of murder. Consideration of that issue requires analysis of the decision in Jervis.

Jervis was one of a group of four young women charged with murder after the brutal slaying of a man in a Brisbane park. One was acquitted. Another, Wiggington, who inflicted the knife wounds which caused the death of the deceased, pleaded guilty to murder shortly before the trial. A third, Ptaschinski, was found guilty of murder. Jervis was acquitted of murder, but found guilty of manslaughter. The Court of Criminal Appeal dismissed an appeal by Jervis, and the High Court refused special leave to appeal.

The presently material facts may be briefly stated, by quoting the following two passages from the judgment of McPherson A.C.J., the first from p. 645 and the other from pp. 649-650:

"The evidence at trial disclosed that Mr Baldock's death was associated with circumstances of peculiar horror and cruelty. In the days before he was killed the four women had been discussing a plan put forward by Wiggington. She claimed to be a vampire who needed to drink human blood to survive. The plan was to use Ptaschinski's car to drive around the city to locate some unsuspecting victim. He, or possibly she, would be lured into the car, and taken to a place where Wiggington would be able to 'feed' on his blood. In the police interviews of the women that followed there are suggestions that a willing victim might be found. If the plan was to be taken seriously, no one could genuinely have believed that a person would submit voluntarily to treatment of that kind. If Wiggington's proposal was to be carried into effect the very least that could have been intended was a wounding of the victim."

"Apart from her knowledge, so far as it went, of Wiggington's plan before the Saturday night in question, the single most incriminating fact in the Crown case against her was that she handed over her knife to Ptaschinski shortly before the stabbing took place. After luring Mr Baldock into the car driven by Ptaschinski in which they were all travelling, the women took him to the park at West End. When Wiggington led him to the river bank the others remained in the car. Some time later Wiggington returned and said that she needed help and was going to 'kill the bastard'. These remarks were addressed to Ptaschinski, who then left the car and accompanied Wiggington back to the river bank. Ptaschinski returned to the car on one or more occasions, on one of which she asked for and received from Jervis the knife that she was known to have with her. It was primarily upon this act of the appellant that the prosecution founded its case of murder against Jervis. ... In fact there is some evidence that, in the event, Wiggington took this knife from Ptaschinski and used it together with her own to wound and kill her victim. Ptaschinski played a part in the killing, which is reflected in the verdict of guilty returned against her, if only by accompanying Wiggington back to Mr Baldock and placing herself in front of him while Wiggington stabbed him from behind. Jervis herself remained in the car some distance away while the killing took place. ..."

It is essential to an understanding of McPherson A.C.J.'s judgment in Jervis to note his Honour's rationalisation of the jury's verdicts that she was not guilty of murder but guilty of manslaughter. His Honour proceeded on the basis that Wiggington's guilt of murder was based on sub-s. 302(1) of the Code (unlawful killing with an intention to cause death or grievous bodily harm). Then, at p. 650, he stated a number of propositions, including:

(i) Jervis might have been convicted of murder under s. 8 "if the unlawful killing accompanied by an intent [by Wiggington] to kill or cause grievous bodily harm was found to be the probable consequence of carrying out together a common intention shared by Jervis that Mr Baldock should be wounded in order to take his blood"

(ii) "The verdict of not guilty on the charge against Jervis of murder shows that the jury were not satisfied that by the time the knife was handed over she realised that Wiggington intended to kill Mr Baldock or to do him grievous bodily harm. ... It necessarily ... disposed of the case [i.e., for murder] against her founded on s. 8 of the Code. For if she did not realise that Wiggington intended to kill or do grievous bodily harm, Jervis could not have been party to the intention of doing so, which by s. 8 was required to be a 'common' intention."

(iii) [the jury] must have been persuaded that death was, within the terms of s. 8, a probable consequence of a common intention of carrying out together the unlawful purpose of wounding or of causing some other injury or hurt falling short of death or grievous bodily harm".

It is difficult to reconcile proposition (ii) with propositions (i) and (iii), both of which assume that an unlawful killing, although unintended by Jervis, might have been "a probable consequence of ... causing some ... injury or hurt [to Baldock] falling short of death or grievous bodily harm".

Earlier, at p. 647, his Honour had said that the "fundamental question ... is whether ... a person may be guilty of an offence, different in law but constituted by the same act as, the offence committed by the other person ... with whom he joins in committing that offence". At the foot of p. 650 to p. 651, he said:

"It is to the correctness in law of the verdict of manslaughter that the present appeal is directed. It is not the form of the summing up that is challenged, but the proposition that such a verdict was available at all. The submission ... for the appellant is that ... [s.] 8 extend[s] criminal responsibility to an assistant or a confederate, but ... only as regards the offence 'actually committed' and not some other offence whether more or less serious. Hence, if in killing Mr. Baldock, Wiggington committed murder, Jervis could in law be convicted of murder but not of any other offence such as manslaughter. Having been found not guilty of murder, it followed according to this thesis that she could not, in reliance on ... [s.] 8, be convicted of manslaughter."

Although not entirely clear, it seems that the setting for the question identified by McPherson A.C.J. was that, although Wiggington had murdered Baldock, the jury in Jervis' trial had concluded that an unintentional unlawful killing, but not an intentional unlawful killing, was a probable consequence of Wiggington and Jervis' common intention of "wounding or of causing some other injury or hurt falling short of death or grievous bodily harm". Because of the hypotheses on which McPherson A.C.J.'s judgment in Jervis, proceeded, which were shaped by the jury's verdicts that she was not guilty of murder but guilty of manslaughter, it is his Honour's reasoning, rather than the actual decision in Jervis, which is of principal importance in the present case.

There are two aspects of that reasoning which were material at Harwood's trial, one of which remains important in his appeal. McPherson A.C.J.'s judgment in Jervis involves propositions that (i) an offence of unlawful killing is of the same nature as an offence "of wounding or of causing some other injury or hurt falling short of death or grievous bodily harm" (p. 650) and (ii) unlawful killing can be a probable consequence of an offence "of wounding or of causing some other injury or hurt falling short of death or grievous bodily harm". This aspect need not be further considered, since the jury was not instructed that it could convict Harwood of manslaughter on that basis, and, in any event, it did not convict him of manslaughter, but murder.

The aspect of Jervis which remains of importance in the present appeal is the conclusion that a person can be convicted of manslaughter on the basis of s. 8 although the person who carried out the unlawful killing was guilty of murder.

Commencing at p. 651 in Jervis, McPherson A.C.J. referred to a number of factors which led him to reject the appeal against Jervis' conviction for manslaughter. I will mention each of those matters, and discuss some of them briefly.

A. "The trend of authority at common law is opposed to the appellant's submission on this point" (p. 651). Reference was made to English, Victorian and United States' decisions, including a decision of the Supreme Court of Appeals of West Virginia (Moore v. Lowe 180 S.E. 1. (1935) which accepted "that an accessory, or principal in the second degree, or an aider or abettor, in a homicide may be found guilty of murder in a higher or lower degree than the actual perpetrator, or may be convicted of murder though the perpetrator has been convicted of manslaughter, or of manslaughter though the perpetrator has been guilty of murder".

However, as de Jersey J. in his dissenting judgment in Jervis pointed out at pp. 670-671 and 673, it is impermissible to use these authorities in construing s. 8 of the code, the words of which are "perfectly clear as they stand": Stuart (134 C.L.R.) at p. 441.

Further, it might be a necessary consequence of the view of the majority in Jervis that a person convicted under s. 8 could, theoretically at least, be convicted of a more serious offence than the principal offender; for example, if a plan to rob involved an intent to kill or cause grievous bodily harm by one offender shooting, say, a security guard but, before that was done, the armed offender shot the guard in circumstances amounting only to manslaughter, the majority view in Jervis might have implicit in it, although certainly it was not expressly stated, that although the principal offender was guilty only of manslaughter, the person charged under s. 8 could be convicted of murder. In my opinion, such an outcome cannot be accommodated to either the language or apparent purpose of s. 8; and see Stuart (134 C.L.R.) pp. 438-440.

B. McPherson A.C.J. also pointed out in Jervis that most decisions in jurisdictions with statutory provisions comparable to s. 8 of the Code favour the view that a person charged under that section can be convicted of manslaughter although the principal offender was guilty of murder. Decisions suggesting the contrary to which reference was made are R. v. Malcolm [1950] NZGazLawRp 146; [1951] N.Z.L.R. 470, 473 and R. v. Simpson (1983) 6 C.C.C. (3d) 516, 528. Decisions in other jurisdictions which favour the majority view in Jervis are Murray, Imiyo Wamela v. The State [1982] P.N.G.L.R. 269 (see also Willy Kelly Goya v. The State [1987] P.N.G.L.R. 51); and Saunders v. R. [1980] W.A.R. 183. Solomon is also in accordance with that view. See also R. v. Hartley [1978] 2 N.Z.L.R. 199, 203.

In Jervis, McPherson A.C.J. discussed Murray and Saunders in more detail, and quoted passages from Imiyo Wamela and Stuart (134 C.L.R.) at pp. 654-655. de Jersey J. also considered Murray and Saunders (and referred to Imiyo Wamela and Stuart (134 C.L.R.)) at pp. 673-674. I do not think it is necessary to repeat the respective views expressed or to agree with all de Jersey J.'s observations to conclude that the cases from other jurisdictions discussed in Jervis support, but do not provide compelling reasons for acceptance of, the majority view.

C. At p. 652, McPherson A.C.J. noted that "the strength of the appellant's submission ... lies in the underlying compulsion to treat the word 'offence' as referring to the same offence throughout s. ... 8". His Honour then continued at pp. 652-654:

"A possible escape from the difficulty may lie, as I foreshadowed earlier, in reading the word 'offence' in the light of the definition in s. 2 of the Code to mean 'an act or omission which renders the person doing the act or making the omission liable to punishment'. ... A submission along these lines was presented in Stuart v. The Queen ((1974) [1974] HCA 54; 134 C.L.R. 426, 440-441), where Gibbs J. said that if the word 'offence' in s. 8 is regarded as defined by s. 2 'it means an act or omission done or made in such circumstances as to render the person doing it liable to punishment - a punishable act or omission'. His Honour, whose reasons were concurred in by Menzies and Mason JJ., did not finally reject the submission; but he went on to say that an attempt to expand the test of s. 8 by reading into it the description of 'offence' contained in s. 2 'tends to obscure rather than illuminate its meaning'. His Honour was speaking with reference to the particular facts of the case before him, which involved the combined effect of s. 8 and s. 302(2). The same criticism does not necessarily apply to the facts of this case, where Wiggington's 'punishable act' may be seen simply as the unlawful killing of Mr Baldock.

A cognate solution, which may be preferable, is to analyse the series of acts and events that occurred, without immediately deferring to the consideration that both Wiggington and Ptaschinski were convicted of murder, the latter by a verdict of the same jury who found the appellant guilty of manslaughter. It is true that in one sense the convictions of Wiggington and Ptaschinski may be treated as demonstrating that murder was the offence 'actually committed'. But in law those convictions and the verdict of guilty against Ptaschinski proved nothing at all against Jervis. It is also true that the evidence on which Ptaschinski was found guilty was for the most part also the evidence in the prosecution case against Jervis. But although they were tried jointly on the same indictment, not all of the evidence admissible against Ptaschinski was admissible against Jervis in what were in law two separate trials proceeding concurrently. Evidence tending to show that the other two women intended to kill or do grievous bodily harm was not relevant to proof of the charge against Jervis of murdering Mr Baldock unless ... for the purpose of s. 8, that it was a common intention which she shared with Wiggington. Once the jury failed to find these matters proved against Jervis, and instead returned in her favour a verdict of not guilty of murder, evidence of the intention of the other woman, or either of them, to kill Mr Baldock ceased to be of any relevance. Indeed, if Jervis had been tried alone on an indictment charging her only with the manslaughter of which she was ultimately convicted, evidence in any form of intention to kill would have been inadmissible at her trial.

Murder is a form of unlawful killing. A person who unlawfully kills another is, as we have seen, guilty by virtue of s. 300 of a crime, which is called murder or manslaughter according to the circumstances of the case. Murder is a compound offence comprising in circumstances like these three elements, which are the event of death, which must be caused by the act of the accused (s. 293), done with the intention of killing or doing grievous bodily harm: s. 302(1). It is the third of these elements, comprising intention, that constitutes the 'circumstances of the case' which convert the unlawful killing into a murder. If the unlawful killing takes place without that circumstance it amounts to manslaughter, because by s.303 'a person who unlawfully kills another under such circumstances as not to constitute murder' is guilty of manslaughter. Both murder and manslaughter nevertheless are and remain, particular forms of what is viewed by s. 300 as a single 'crime' of unlawfully killing another.

Despite s. 300, it must be conceded that the Code is not completely consistent in viewing murder and manslaughter simply as branches of a single crime. Section 576 provides that upon an indictment charging a person with the 'crime' of murder he may be convicted of the 'crime' of manslaughter, if that crime is established by the evidence. But if this be thought to raise a degree of inconsistency between s. 300 and s. 576, there is no compelling reason for preferring the latter."

At pp. 654-656, his Honour added the following statements:

"The conception of murder as an aggravated form of the offence of unlawful killing was adopted in this court in R. v. Solomon ([1959] Qd.R. 123, 131-132). Philp J., with whom Mansfield C.J. agreed, said that after acquittal on a charge of murder the appellant could be found guilty of manslaughter, for the reason that 'every murder involves an unlawful killing'... .

Likewise, in Stuart v. The Queen ((1974) [1974] HCA 54; 134 C.L.R. 426, 453), in which convictions for murder were upheld in the case of both accused one of whom instigated the other to light a fire in a nightclub that caused the death of the deceased, Jacobs J. plainly treated the responsibility under s. 8 of the confederate as resting upon the circumstance that the unlawful killing was the probable consequence of setting the fire. He accepted that a person sharing a common purpose to commit an assault, from which death resulted as a probable consequence, 'would be guilty of manslaughter even though not guilty of the murder of which his confederates might be found guilty' (133 C.L.R. 426, 453-454). His Honour's statements on this subject were adopted by both Burt C.J. and Brinsden J. in Saunders v. The Queen ([1980] W.A.R. 183, 184, 189), in holding that under s. 8 the confederate could in law be convicted of manslaughter in relation to the same killing with respect to which the perpetrator had been found guilty of murder at the same trial. Such a conclusion can only have been reached on the basis that under s. 8 the 'offence' was the unlawful killing, and that the circumstance that the perpetrator possessed an intention to kill or to do grievous bodily harm which rendered him guilty of murder was, legally speaking, no longer relevant to the criminal responsibility of the confederate once he was found not guilty of murder.

... That unlawful killing by Wiggington must have been found by the jury to be a probable consequence of carrying out the joint purpose shared by Jervis, thus rendering her liable to be convicted of manslaughter. So far as Jervis was concerned, the offence which by the operation of s. 8 she is deemed to have committed was the crime of unlawful killing of Baldock perpetrated by Wiggington. The appellant's responsibility under the Code stopped at that point, regardless of whether murder was also committed, of which offence she was acquitted by verdict of the jury."

The foundation of de Jersey J.'s disagreement with the majority view in Jervis is encapsulated in the following passage from p. 671:

"... 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."

Later, at p. 673, his Honour said that he did not regard the Code definition of offence as an answer to the problem.

"... In this case 'the act or omission' rendering Wiggington 'liable to punishment', in terms of s. 2, and constituting her 'offence', was killing the deceased with the requisite intent, not simply the killing. I agree with what Gibbs J. said in this regard in Stuart v. The Queen at 440-441. (I note that in Imiyo Wamela v. The State [1982] P.N.G.L.R. 269, the Supreme Court of New Guinea sanctioned a similar disparity by regarding the 'offence' as a bare unlawful killing, an approach with which I would therefore disagree.) Brinsden J. in Saunders (at 191-192) draws heavily on the position in England, which is in my opinion simply unhelpful to the construction of these clear provisions of the Code. He also relied (at 189) on what was said by Jacobs J. in Stuart v. The Queen at 453; but Jacobs J. was not there dealing with the possibility of a conviction of, say, the aider of the confederate, for an offence different from that committed by the actual perpetrator of the crime."

"I should add that ss. 300, 302 and 303 of the Code, read in conjunction, plainly establish that murder and manslaughter, although respectively examples of unlawful killing, are distinct offences. The 'offence committed' (cf. s. 8) here by Wiggington and Ptaschinski was not unlawful killing, or manslaughter, but murder; that is unequivocally established, not by the convictions, but by the undisputed facts of the case. To suggest that although there was a murder, there was also a manslaughter caught up with it, would be to ignore the structure of the Code, and one obviously would not expect the draftsman of [s.] ... 8 to have done that. If the legislature were to consider that the application in this case of the plain language of [s.] ... 8 produced a socially undesirable result, then the solution would be amendment, such as might bring the Code into accord with the common law ... . As to s. 576, which authorises a conviction for manslaughter on an indictment charging murder, that may occur if manslaughter 'is established by the evidence'. In this case, the evidence did not establish guilt of manslaughter, because the appellant did not kill the deceased. That is, of course, why the Crown sought to rely on the deeming provisions of [s.] ... 8. In my opinion the conviction for manslaughter could not in this case be justified by resort to s. 576."

There are a number of matters discussed in the passages which I have extracted from the judgment of McPherson A.C.J. in Jervis at pp. 652-656, which I will comment on as briefly as possible.

1. As McPherson A.C.J. might have accepted, the importation into s. 8 of the definition of "offence" in s. 2 of the Code does not lead to a conclusion that manslaughter and murder are the same offence. Indeed, the definition is against the majority view in Jervis; the offence committed by Wiggington in Jervis, (and for present purposes accepted as having been committed by Hind in this case) was murder, which, so far as presently material, involved both conduct and intention; that is not the same as an unintentional, negligent killing: cf. McPherson A.C.J. at p. 653 where he describes murder as "a compound offence comprising in circumstances like these three elements, which are the event of death which must be caused by the act of the accused (s. 293), done with the intention of killing or doing grievous bodily harm: s. 302(1)". See also per de Jersey J. at p. 673.

2. In the "cognate solution" introduced by McPherson A.C.J. at p. 653, his Honour pointed out that, although Wiggington and Jervis were tried jointly on the same indictment, there were, in law, two separate trials proceeding concurrently, that there were potential differences in the evidence admissible against each, and the irrelevance, or perhaps limited significance, of Wiggington's conviction to the guilt or innocence of Jervis.

Nonetheless, Wiggington's guilt, and the offence of which she was guilty, had to be proved against Jervis for s. 8 to operate, and, under that section, an offence of the "nature" of Wiggington's offence had to be a "probable consequence" of the prosecution of Wiggington and Jervis' unlawful purpose. The matters to which his Honour made reference do not seem to me to determine what is involved in these requirements.

3. The statement (at p. 653) that, unless Wiggington and Jervis shared a common intention that Wiggington should kill or do grievous bodily harm, the evidence that Wiggington had that intention "was not relevant to proof of the charge against Jervis of murdering Mr Baldock" seems to me incorrect; Wiggington's intention was relevant to a charge of murder against Jervis at least if it was the prosecution case that an unlawful killing by Wiggington with intention to kill or cause grievous bodily harm was a probable consequence of the prosecution of their unlawful purpose.

4. At p. 653, McPherson A.C.J. stated that "murder and manslaughter ... are and remain, particular forms of what is viewed by s. 300 as a single 'crime' of unlawfully killing another". And, at p. 654, his Honour adopted Philp J.'s description of murder as "an aggravated form of unlawful killing" (Solomon p. 131), and his Honour's statement in that case at p. 132 that "every murder involves an unlawful killing". (Cf. Andrews C.J.'s dissenting judgment in R. v. Boney ex parte Attorney-General [1986] 1 Qd.R. 190, 198.) Then, after reference to the judgment of Jacobs J. in Stuart (134 C.L.R.) - which is further referred to below - McPherson A.C.J. said in Jervis at p. 656 that "the offence which by the operation of s. 8 [Jervis] is deemed to have committed was the crime of unlawful killing of Baldock perpetrated by Wiggington".

Insofar as these statements might suggest that, for the purpose of s. 8, murder and manslaughter are the same "offence", de Jersey J.'s response at p. 674 seems to me persuasive. This critical issue is further referred to below.

5. At p. 655, McPherson A.C.J. said that statements by Jacobs J. in Stuart (134 C.L.R.) at p. 453-454, which had been adopted by both Burt C.J. and Brinsden J. in Saunders at pp. 184, 189, supported his opinion that Jervis could be convicted of manslaughter although Wiggington was convicted of murder. Despite de Jersey J.'s view (in Jervis) at p. 673, I think that McPherson A.C.J.'s opinion of what Jacobs J. said in Stuart (134 C.L.R.) was correct. Nonetheless, it is questionable whether what Jacobs J. said was correct. Indeed, it is not clear, to me at least, what Jacobs J. meant. His Honour's statements seem to derive from, and be dependent on, a consequence which he considered followed from the reasoning of Dixon and Evatt JJ. in Brennan but which I cannot discern in that judgment.

One of the complaints made on behalf of Stuart was that "the jury ought more clearly been told that they might have found [Stuart] guilty of manslaughter only, and not murder, if they took the view that a prosecution of the unlawful purpose by the common intention under s. 8 had a probable consequence of the commission of the offence of manslaughter by Finch and not of murder". The trial judge directed the jury that, even if on the evidence admissible on [Stuart's] case it should find that Finch was guilty of murder under s. 302(2), nevertheless it should find [Stuart] not guilty of either murder or manslaughter unless it should find the offence of unlawful killing of Jennifer Davie a probable consequence ... of the prosecution of the unlawful purpose ...": p. 451. Jacobs J. considered that direction "in one sense unduly favourable to [Stuart]" (p. 453) and that there was no miscarriage of justice (pp. 455-456). In the course of arriving at his conclusion, he explained the relationship between ss. 8 and 302(2) of the Code by contrasting what was required for a conviction for murder on that basis with what was required for a conviction for manslaughter. At pp. 453-454, his Honour said:

"... Even if the probable consequence of the ... common purpose was not the offence of murder of which Finch was on the hypothesis guilty nevertheless the probable consequence of the ... common purpose might well be found to be the unlawful killing of Jennifer Davie in circumstances amounting to manslaughter.

... If ... the probable consequence of the setting fire to the premises which was ... planned was not a likely endangering of human life, nevertheless the ... common purpose may have had as its probable consequence the unlawful killing of some person. The apparent contradiction is not a real one when the distinction between murder under s. 302(2) and manslaughter is borne in mind.

It appears to me that what I have said follows from the reasoning of Dixon and Evatt JJ. in Brennan v. The King [1936] HCA 24; (1936) 55 C.L.R. 253, at pp. 263-265, though it does not follow from the decision itself. If, differently from the facts as found by the jury in that case, the actual assaulters of the night-watchman had used more force than was contemplated in the common purpose, if, let us say, the common purpose involved no more than simple assault, the fact that a probable consequence of prosecution of the common purpose was not the likely death of the night-watchman would not have the result that the look-out man was not at all guilty of the unlawful killing. He would ... be guilty of the unlawful killing if the probable consequence of the common purpose was the possibility of death occurring as a result of simple assault. The probable consequence was this possibility but not the likelihood of endangering human life. He would be guilty of manslaughter even though not guilty of the murder of which his confederate might be found guilty. ...

So in the present case, if the ... common purpose did not have the probable consequence that by the arson the life of a person, ... was likely to be endangered, nevertheless if the common purpose had the probable consequence that by the arson the life of a person might be endangered and that thereby that person might be unlawfully killed, [Stuart] would be guilty of manslaughter. ..."

His Honour's opinion, as it emerges from those passages, is not reflected in the other judgments in Stuart. Nor does it seem to me to follow from either the decision or the reasoning of Dixon and Evatt JJ. in Brennan, to which further reference is now appropriate.

Brennan was complicated by what had occurred at trial. According to the evidence, Brennan had kept watch while two other men broke into a jeweller's shop. A caretaker inside the shop, who struggled, was killed during the struggle. All three were charged with wilful murder but convicted of manslaughter. The Western Australian Court of Criminal Appeal dismissed Brennan's appeal, but the High Court granted special leave, allowed the appeal and ordered Brennan's retrial on a charge of manslaughter. By the time the matter was considered by the High Court, it was impossible for Brennan to be convicted of murder: cf. Jervis.

Further, s. 8 of the Western Australian Code had played little part in Brennan's trial, at which the case against him was based, principally at least, on s. 7. The trial judge, and it seems the Court of Criminal Appeal, proceeded on that basis. The trial judge incorrectly told the jury that, if satisfied that Brennan was a party to the robbery, he must be convicted of whatever offence those who killed the caretaker committed. While that was plainly incorrect, the Western Australia Court of Criminal Appeal dismissed Brennan's appeal, holding that, because there was "... no doubt that violence was intended to be used ...", "Brennan was equally a party to the committing of a crime of violence as to robbery; and such violence resulted in the death of [the caretaker]". Brennan's appeal was allowed by the High Court on the basis that the issue whether violence was part of the joint plan had not been left to the jury. However, a retrial on the charge of manslaughter was ordered.

One difficulty in ascertaining exactly what Brennan is authority for is that there is little or no examination of the bases on which those who entered the jewellery store could have been convicted of murder; that had ceased to be directly relevant because all had been acquitted of murder; nonetheless, the omission to analyse that possibility, as it originally existed, limited the identification of the matters of which the jury must not have been satisfied, to the requisite standard, to acquit of murder. Secondly, there was no reference to the Western Australia equivalent of s. 23 of the Code. Thirdly, at a number of points it is impossible to tell whether or not statements which were made were referable to s. 8 of the Code; e.g., nothing Starke J. said until he set out s. 8 at the foot of p. 260 seems to refer to that section. Fourthly, the judgments do not directly deal with the argument based on s. 8 which was presented by counsel for Brennan (Mr Barwick).

The argument for the prosecution did not address any difficulties associated with a verdict of manslaughter against Brennan based on s. 8. The prosecution's primary argument (p. 256) was that the "trial judge was right in confining himself to sec. 7 of the Criminal Code, to the exclusion of sec. 8 ...". Its later assertion, based on sec. 8, was restricted to a submission that there had been no miscarriage of justice because the evidence disclosed that, in point of fact, the common intention was to overcome the resistance which was to be expected from the caretaker.

On the other hand, counsel for Brennan submitted at pp. 254-255:

"... A verdict of manslaughter against the other two accused should, following the direction to the jury and having regard to the provisions of sec. 8 of the Criminal Code, have resulted in a verdict of acquittal for the applicant. That section is much more favourable to an accused than is the common law."

I have already set out what appears to be the only material passage concerning s. 8 in Starke J.'s judgment. Dixon and Evatt JJ. dealt with that provision at greater length. The following three passages are taken from pp. 262, 264 and 265 respectively:

"... in convicting the prisoners of manslaughter only and thus impliedly acquitting them of murder, the jury must be taken to have held that, although two of them brought about the death of the caretaker in the prosecution of the unlawful purpose of shopbreaking, the act by which they did so was not proved beyond reasonable doubt to have been of such a nature as to be likely to endanger human life.

Manslaughter is a form of homicide. It cannot be committed unless death is caused and by an unlawful act. Thus, to establish under sec. 8 that the applicant was guilty of manslaughter, it must appear that among the probable consequences of prosecuting the unlawful purpose upon which the prisoners had resolved was the death of the caretaker, or of a person chancing to be in their way. It is evident that, in applying this requirement to the facts, a difficulty arises from the refusal of the jury to convict the prisoners of murder. For the verdict must imply that the jury were not satisfied that the violence used, although in the event actually proving fatal, was of such a nature as to be antecedently likely to cause death. It therefore raises the question whether the death which ensued from the force employed can without inconsistency be considered as a probable consequence of carrying out the unlawful purpose in which the applicant is taken to have participated. Our answer to this question is that, notwithstanding the implications of the verdict, the death can be considered the probable consequence of the prosecution of the purpose if the purpose in which the applicant concurred made it likely that his confederates would, if necessary, use violence and such a kind or degree of violence as would probably cause death. The fact that, according to the verdict, they must be taken to have used an amount of force less than might have been contemplated by them, would not make the death, which ordinarily would not, but actually did, result from such a use of force, too remote a consequence for the prosecution of the purpose.

... under sec. 8, he would be guilty of manslaughter only if the plan was of such a nature that the use of enough violence to cause death appeared a probable consequence of carrying it out. The practical result is that the applicant would not be guilty of manslaughter unless he knew that his confederates whom he was aiding and abetting intended to commit at least a common assault upon the caretaker or, supposing that they had not that actual intention, then unless he foresaw that to carry out the plan of shopbreaking they would probably so injury him that death might be a likely to result. ..."

Brennan is not authority for the proposition that a person can be convicted of manslaughter under s. 8 if the actor, the person whose conduct unlawfully killed another person, is convicted of murder. Further, it might be that Brennan envisaged that a person can be convicted of manslaughter under s. 8 only if:

(b) an unlawful killing was a probable consequence of the prosecution of the unlawful purpose.

The unusual circumstance in which that might occur - which has no present relevance - involves death caused by the use of force unlikely to cause death in prosecution of a plan involving the use of sufficient force to cause death. Subject to that, and to the test of probability, the passages quoted from the judgment of Dixon and Evatt JJ. in Brennan are consistent with the submission set out above from the argument of Brennan's counsel. Finally, it should be added that it is not clear from the joint judgment of Dixon and Evatt JJ. in Brennan that their Honours envisaged that there was a case against Brennan based on s. 8 to go to the jury on his retrial: see the foot of p. 269.

In what I have written so far, I have found it helpful to set against one another the competing views of McPherson A.C.J. and de Jersey J. in Jervis. However, it is necessary to notice also the reasons given by the other member of the majority, Shepherdson J., for agreeing that the appeal in that case should be dismissed.

Shortly stated, Shepherdson J. at pp. 662-663 adopted the reasoning of Burbury C.J. in Murray and, at p. 664, noted that, in Solomon, Philp J., with whom Mansfield C.J. agreed, said at p. 131 that "murder is an aggravated form of unlawful killing". Further, he said:

"I consider it important that this section [300] identifies 'the crime' as the unlawful killing of one person by another. The label attached to that crime depends on the circumstances of the killing. It will be either 'murder' or 'manslaughter'. To find out what falls within each label one goes to s. 301 where 'murder' is defined and s. 303 where 'manslaughter' is defined. One can therefore readily understand why Philp J. should describe 'murder' as he did in Solomon's case.

In my opinion, given that murder is an aggravated form of unlawful killing, it is apparent why s. 576 should provide that if a person such as the present appellant is charged on indictment with the crime of murder, the jury is entitled to convict of the crime of manslaughter if that latter crime is established by the evidence. In passing I recognise that s. 576 refers to the crime of murder and the crime of manslaughter."

"The verdict of guilty of manslaughter may well mean that the jury took the view that an unlawful killing was a probable consequence of the prosecution of the planned unlawful purpose but were not satisfied beyond reasonable doubt that the common intention of the parties was, so far as the appellant was concerned, such as to envisage murder as a probable consequence of the prosecution of the unlawful purpose. By virtue of s. 576 the evidence was such that in my view they were entitled in the application of s. 8 to find the verdict against the appellant which they did."

Because of the correspondence otherwise between his views and those of McPherson A.C.J., I do not think that it is necessary to comment upon what was said by Shepherdson J. other than his references to s. 576. It seems that his Honour might have considered that, when the actor is guilty of murder, a verdict of manslaughter might properly be returned under s. 576 against an accomplice charged with murder on the basis of s. 8, even if such a verdict is not provided for by s. 8. If that was intended, I do not agree. If a verdict of manslaughter is properly open in such a case, that must be because of s. 8; if, in such circumstances, s. 8 justifies a conviction of the accomplice only for murder, that is the only verdict which the jury can properly return, notwithstanding s. 576; while a merciful verdict of manslaughter would have to be accepted, it would be contrary to the jury's duty and the jurors' oaths: cf. Jervis at p. 674 per de Jersey J., with whom McPherson A.C.J. agreed on this point at p. 656. See also Hughes at p. 175; R. v. Russell [1973] Qd.R. 295; Boney.

As the preceding discussion illustrates, it was a critical part of the reasoning in Jervis that murder and manslaughter are the same offence: that conclusion was necessary to a decision that Jervis could be convicted of manslaughter although Wiggington was guilty of murder. As I have indicated, I prefer de Jersey J.'s opinion that murder and manslaughter are not the same offence. That conclusion also seems to me supported by the approach taken in other cases in relation to similar questions.

Apart from Jervis, the issue whether statutory provisions create different offences or only one offence, with different consequences depending on the circumstances associated with the offence, has been considered in a number of contexts; for example, a number of decisions have held that aggravated assault is not a separate offence from common assault: see Cronin v. Hamilton-Smith ex parte Hamilton-Smith [1958] Qd.R. 24; Ross; cf. Buckle v. Josephs (1983) 47 A.L.R. 787; O'Brien v. Fraser [1990] NTSC 1; (1990) 66 N.T.R. 9.

In Ross, Gibbs J., with whom all other members of the High Court agreed, discussed Phillips and Laurence at pp. 437-439. One of the arguments in Phillips and Laurence, as stated at p. 260 by Hanger J., was that:

"... where the basis of the charge is s. 8, unless an accused has himself used personal violence, he cannot be convicted of robbery with personal violence. The basis of the argument was that the offence is robbery simpliciter; that the element of personal violence merely renders the culprit liable to a greater punishment; and that s. 8 merely enables a conviction to be for robbery simpliciter; that s. 8 postulates the commission of an offence as the result of a common purpose, and that the section in saying 'each of them is deemed to have committed the offence' limits the liability to 'the offence' which is robbery."

(The corresponding argument in this case would be that a person made criminally responsible under s. 8 could never be convicted of more than unlawful killing, i.e., manslaughter, even if the actor was guilty of murder: that goes beyond what was decided in Jervis, and was not contended for by Harwood in this case.)

To return to Phillips and Laurence, Hanger J. said at p. 261 that "the circumstance of aggravation is an element of the offence. ... the offence in s. 8 includes the offence of robbery with any circumstance of aggravation". Hart J. expressed a similar view at p. 285. However, in Ross, Gibbs J. left the correctness of the opinions of Hanger and Hart JJ. in Phillips and Laurence undecided, although critical of some of the reasoning. Then, at pp. 438-439, he said:

"... When persons form a common intention to rob with personal violence, and the other conditions of s. 8 are satisfied, the natural effect of the words of the section would appear to be that the participants in the common purpose are deemed to have committed the offence - robbery - with the circumstances of aggravation which it was part of common purpose to bring about: in other words, they are deemed to have committed robbery with personal violence. ..."

With diffidence, I doubt whether those remarks were correct. Section 8 does not seem to me necessary for, or directed to, the circumstances which his Honour postulated in that passage; what he said reflects the approach adopted in British Columbia which, in my view correctly, has been rejected in Ontario: see Jervis at pp. 649-650 per McPherson A.C.J. Further, it might be arguable that it is implicit in what Gibbs J. said that the circumstances which he described were the only circumstances in which a conviction with robbery with personal violence would have been justified by s. 8. However, his Honour did not expressly say so and, in my opinion, such a statement would not have been correct.

The question whether offences are the same or different has also been considered in England, and again some difficulty has been encountered. Recently, for example, the Divisional Court in Shaw v. Director of Public Prosecutions [1993] 1 All E.R. 918 distinguished R. v. Courtie [1984] A.C. 463, and followed Metropolitan Police Commission v. Curran [1976] 1 W.L.R. 87 (H.L.). Courtie was also distinguished in R. v. Hietanen [1989] SASC 1909; (1989) 51 S.A.S.R. 510. However, in R. v. Kingswell (1985) 159 C.L.R. 264, the High Court, following Courtie, accepted that there is a "salutary" rule of construction that where statutory provisions increase the maximum penalty by reference to specified circumstances, prima facie there are separate offences provided for; by analogy, this principle would also apply if the absence of circumstances permitted a lower penalty than that which is mandatory if the circumstances are present.

In their joint judgment in Kingswell, Gibbs C.J., Wilson and Dawson JJ. said at pp. 274-276:

"In the applicant's argument ..., strong reliance was placed on the recent decision of the House of Lords in Reg. v. Courtie ([1984] A.C. 463). In that case the appellant had pleaded guilty to a count of buggery with a male person under the age of twenty-one years. The indictment did not charge that the offence was committed without the consent of the other person, but after conviction the trial judge, sitting with two justices of the peace, tried the issue whether the other person had consented. They found that there was no consent and the judge sentenced on that basis. The House of Lords allowed an appeal against the sentence. It held that the statutes there in question, s. 12(1) of the Sexual Offences Act 1956 (U.K.), as modified by ss. 1 and 3 of the Sexual Offences Act 1967 (U.K.), created more than one offence, that the absence of consent was a factual ingredient of one of those offences and that the appellant, by pleading guilty to a lesser offence which did not require the existence of that factual ingredient, had not admitted its existence and that in those circumstances the question was one to be determined by the jury. Lord Diplock ([1984] A.C., at pp. 466-467) (with whom the other members of the House agreed) referred to two basic principles of English criminal law. The first is a substantive principle, viz. that:

'an accused person cannot be convicted of any offence with which he is charged unless it has been established by the prosecution that each one of the factual ingredients, which are included in the legal definition of that specific offence, was present in the case that has been brought against him by the prosecution.'

'if there has not been an informed and unequivocal plea of guilty, the question whether any particular factual ingredient of the specific offence charged (or for any lesser offence of which he might be convicted on that indictment) was present in the case against an accused person, falls to be determined by those persons, and by those persons alone, in whom, under English criminal procedure, there is vested the function of finding whether or not the factual ingredients necessary to constitute the offence have been proved to their satisfaction. Who those persons are in any particular case depends upon the mode of trial, i.e., summarily or on indictment; but in the instant case your Lordships are concerned only with a prosecution on indictment, and where such is the mode of trial, those persons are the jury.'

Lord Diplock ([1984] A.C., at p. 468) went on to say that:

'It lies within the power of parliament to modify or exclude by statute either or both of these basic principles of English criminal law and to do so either generally or in relation to particular offences; but, as was said by his House in Reg. v. Miller ([1983] 2 A.C. 161, at p. 174), where it is contended that particular provisions of a statute do have that effect: "Those particular provisions will fall to be construed in the light of general principles of English criminal law so well established that it is the practice of parliamentary draftsmen to leave them unexpressed in criminal statutes, on the confident assumption that a court of law will treat those principles as intended by Parliament to be applicable to the particular offence unless expressly modified or excluded." '

He then considered the statutory provisions in question and held that the Act of 1967 created a number of specific offences and in that context went on to make the statement upon which particular reliance is placed by the counsel for the applicant in the present case. He said ([1984} A.C., at p. 471):

'My Lords, where it is provided by a statute that an accused person's liability to have inflicted upon him a maximum punishment which, if the prosecution are successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another.'

This passage cannot have been intended to state an absolute rule of law, but rather a rule of construction or an indication of the way in which the courts will approach a question of this kind. The word 'offence' has no fixed technical meaning in the law and Lord Diplock was probably using it in the broad sense of any conduct forbidden by law on pain of punishment. As his judgment recognizes, in the passage already cited, it is the legal definition of the offence which indicates which are its factual ingredients. ... there is no fundamental law that declares what the definition of an offence shall contain or that requires the Parliament to include in the definition of an offence any circumstance whose existence renders the offender liable to a maximum punishment greater than that which might have been imposed if the circumstance did not exist. The existence of a particular circumstance may increase the range of punishment available, but yet not alter the nature of the offence, if this is the will of the Parliament. The rule of construction which Lord Diplock has enunciated is a salutary one, but must yield to an expression of a contrary intention. ..."

Brennan J., referring to the meaning of the term "offence" in s. 80 of the Commonwealth Constitution, said at pp. 292-293:

"... the term 'offence' is not left to be defined by Parliament; in s. 80 it has the meaning which it bears in the criminal law. In Reg. v. Courtie ([1984] A.C. 463, at p. 471), Lord Diplock said:

'My Lords, where it is provided by a statute that an accused person's liability to have inflicted upon him a maximum punishment which, if the prosecution are successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another.'

In my respectful opinion, Lord Diplock is manifestly right. The passage cited conforms to the principle that an offender's liability to punishment depends on the facts which are determined by a plea or verdict of guilty. What is a criminal offence? A criminal offence can be identified only in terms of its factual ingredients, or elements, and the criminal penalty which the combination of element attracts. Littledale J., speaking of criminal offences in Mann v. Owen ((1829) 9 B. & C. 596, at p. 602 [1829] EngR 133; [109 E.R. 222, at p. 224]), said: 'The proper definition of the word "crime" is an offence for which the law awards punishment." That view accords with Sir James Fitzjames Stephen's definition of crime as "an act or omission in respect of which legal punishment may be inflicted on the person who is in default either by acting or omitting to act": History of the Criminal Law of England (1883) vol. I, p. 1; see also Sir Samuel Griffith's Code definition of offence: "An act or omission which renders the person doing the act or making the omission liable to punishment" (Criminal Code (Q.), s. 2) and the congruent views of Lord Esher M.R. in Rayson v. South London Tramways Co. ([1893] 2 Q.B. 304, at p. 307), and of Bramwell L.J. in Mellor v. Denham ((1880) 5 Q.B.D. 467, at p. 469). If a particular combination of elements attracting a particular penalty is one offence, a different combination of elements attracting a different penalty is another offence."

Deane J., dealing with the provisions of the Customs Act 1901 (Cth) which were material in that case, said at pp. 320-321:

"At the end of the day, one is left with the question whether the various combinations of primary conviction and additional ingredients which attract much higher maximum punishments under pars. (c) and (d) of s. 235(2) are, as a matter of substance, the same offence as the bare primary offence punishable under s. 235(2)(e). It appears to me that the answer to that question is that they plainly are not. The offence punishable under s. 235(2)(e) is the simple offence of which the elements are set out in s. 233B(1)(cb). The offences in respect of which punishment is provided by para. (c) and (d) of s. 235(2) are offences including the additional elements of commercial quantity or traffickable quantity and prior conviction or traffickable quantity alone. It would be to confound substance with form to say that an offence with respect to a very small quantity of a proscribed drug for personal use which was punishable under s. 235(2)(e) with a maximum penalty of a fine of $2,000 and imprisonment for two years was the same offence as an offence with respect to a traffickable quantity of that proscribed drug committed by a person with a relevant prior conviction which was punishable under s. 235(2)(c)(ii) and in respect of which the maximum penalty was imprisonment for life. The offence for which the applicant was punished under s. 235(2)(c)(ii) involved two essential elements which were not elements of the primary offence under s. 233B(1)(cb). The distinction between that primary offence and an offence punishable under s. 235(2)(c)(ii) is of the kind referred to by Lord Diplock, in a judgment with which the other members of the House of Lords agreed, in Reg. v. Courtie:

'My Lords, where it is provided by a statute that an accused person's liability to have inflicted upon him a maximum punishment which, if the prosecution [is] successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another.'

The conclusion that the offences punishable under s. 235(2)(c) and (d) of the Act are, as a matter of substance, different offences and with different elements from the bare primary offence punishable under s. 235(2)(e) effectively disposes of the issue in the present case. ..."

The principle stated in Courtie and accepted in Kingswell suggests that, prima facie, murder and manslaughter are different offences, although that would yield to a sufficient indication to the contrary in the Code. However, in my opinion, the material provisions of the Code support the view that murder and manslaughter are separate offences; although unlawful killing is the basis of both murder and manslaughter, the other provisions relevant to each, both in the essential circumstances and the difference as to penalty, tend to that conclusion. Further, that is consistent with, although not dictated by, the language used in the relevant sections of the Code.

In any event, the question whether Harwood could be convicted of manslaughter when Hind was convicted of murder does not seem to me to depend on whether murder and manslaughter are the same offence.

It is necessary to return at this point to the terms of s. 8. I propose to take as a starting point a statement in Brennan by Dixon and Evatt JJ. at pp. 263-264:

"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."

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.

In my opinion, therefore, Harwood could not properly have been convicted of manslaughter when Hind was convicted of murder. Harwood could only have been convicted of manslaughter if a merciful verdict of manslaughter had been returned, despite his legal guilt for murder under s. 8. Accordingly, notwithstanding Jervis, the trial judge did not err in failing to leave that possibility to the jury.

It remains to be considered whether Harwood was properly convicted of murder on the basis of s. 8. One of the specified circumstances by reference to which s. 8 operates is that an offence of the "nature" of the offence committed by the actor must have been a "probable consequence" of the prosecution of the unlawful purpose intended by the actor and the other parties to the joint plan. It is in that context that it becomes necessary to consider not whether manslaughter is the same offence as murder but whether manslaughter and murder are, either generally or in the particular circumstances, of the same "nature". As I have earlier stated, in determining whether an offence of the requisite nature was "probable", the test to be applied is that adopted in Brennan.

Because of the manner in which the case against Harwood was presented - which was unduly favourable to Harwood - the jury could have only convicted Harwood (as the case was put to them) on either the first basis or the second basis.

If Hind was convicted on the first basis, i.e., that he shot Bowering intending to cause death or grievous bodily harm, the case against Harwood on the first basis depended on a conclusion that it was a real possibility that, in the prosecution of the armed robbery, involving Hind's use of the rifle, he would shoot some person, intending to kill or cause grievous bodily harm, and that he would do so if necessary. In my opinion, that conclusion was open to the jury.

That being so, it is plain that it was also open to the jury to be satisfied that Harwood was guilty of murder on the second basis, if it was on the second basis that it convicted Hind of murder.

In my opinion, therefore, Harwood's appeal also fails.

SEPARATE REASONS FOR JUDGMENT OF FITZGERALD P., PINCUS J.A. AND MCPHERSON J.A., CONCURRING AS TO THE ORDER MADE.

CATCHWORDS: CONVICTION - UNLAWFUL KILLING- whether co-accused guilty of murder or manslaughter

MURDER - CAUSATION - what was the cause of the deceased's death - whether the accused's act of pointing a rifle at the victim without the safety catch on had a sufficiently substantial connection with the victim's death for the jury to conclude that that act caused the victim's death; ss. 302(2), 291, 293 Criminal Code (Qld.)

ACCIDENT - s. 23 Criminal Code - whether the death of the victim was caused by accident

S. 302(2) - whether the accused's act in pointing the rifle at the victim without the safety catch on was of such a nature as to be likely to endanger human life - question of the test of "likely"

EVIDENCE - whether evidence of the post office robbery was prejudicial in that it constituted evidence of another serious crime

CO-ACCUSED - s. 8 Criminal Code - whether a co-accused can be convicted of manslaughter on the basis of s. 8 although the person who carried out the unlawful killing was guilty of murder - question of the test of "possible"

Queensland Director of Public Prosecutions for the Respondent