R v Pascoe [1997] QCA 452

Court of Appeal (Qld)|1997-12-19|Before: Before McPherson J, Pincus J, Davies J, McPherson J, Mr J, Pherson J

This is the appeal of Stuart Michael Pascoe against his conviction at a trial in the Supreme Court in May 1997 of the murder of John Edward Timms. Pascoe was one of four men charged with that murder, of whom the other three were brought to trial jointly in June 1996. Of those three, Andrew Jeffrey and Mark Donald were found guilty, and their appeals (CA 154 of 1996 and C.A. 309 of 1996) are the subject of separate decisions on those appeals in this Court. The fourth one charged was Aaron Johnson, who was a juvenile at the time of these events. After a voir dire had been held, the record of interview was excluded from evidence at his joint trial with the other two, and the Crown then entered a nolle prosequi against him on that indictment.

The body of John Timms was found shortly before 9 am on Sunday 18 December 1994. Post mortem examination disclosed that he had sustained extensive and severe injuries before his death. His cheek bones were broken on either side of the face. There were fractures, randomly distributed, of five ribs on the left side of the chest and four on the right; both lungs were bruised; there was a rupture of the left kidney comprising three 1 cm. lacerations which led to bleeding into the abdominal cavity, and a 3 cm. laceration of the liver from which blood had also issued. There were numerous areas of bruising, abrasion, impact and injury in various parts of the body.

Dr Zillman, who conducted the examination gave evidence that in his opinion there were at least 10 separate impact sites of blows or other applications of force to the trunk of the deceased, and at least three further impact sites on the head, as well as similar sites on the limbs. In his opinion, death had resulted from the three sets of injuries to the chest, lungs, kidney and liver. He considered that any one of those three sets of injuries taken on its own was "potentially survivable", but in combination they proved fatal. They were consistent with having been caused by blunt impact from a fist or booted foot, and "severe force" would have been needed to inflict them.

The prosecution case against the appellant, who had turned 20 a few days before these events in 1994, was based essentially on the admissions he made in an interview or interviews conducted by police on Monday 19 December 1994, which was the day after the body was discovered. In substance, what the record of that interview disclosed was that the four accused were living together at a flat at Mary Street, Noosaville. On the afternoon of Saturday 17 December 1994 they began drinking together, and by evening they had arrived at a nightclub at Noosa. It was there that they met the deceased. He was in a drunken state, and they offered him a lift home in the car driven by Mark Donald in which they were all travelling. The deceased had, it was said, offered to provide them with marijuana; but, in the course of the journey, he repudiated his promise, and an argument ensued. The car was driven from the Eumundi Road on which they were travelling, and into a secluded stretch of Eenie Creek Road, where they all alighted. Donald pulled Timms out of the car, and he was the first one to hit him. They then all stood around their victim punching or kicking him as he lay on the ground. After that, they drove off, but, according to the appellant, returned about an hour later to see if their victim was alright. They thought he would be "fine", or so the appellant said, so they drove off and left him. They were surprised to hear next day that he was dead. He said they were all drunk at the time.

The appellant in his record of interview admitted to punching Timms "a couple of times", and, "it just went from there and got out of hand and went too far". It wasn't, he said, intentional - "there's no way it was intentional". The others had punched him about six times. "It wasn't that hard, you know; it wasn't to really hurt him". He had kicked him a couple of times, and so would the other guys, just in the ribs but not very hard. He knew they might have broken a couple of ribs or something; but they did not do it to really hurt him. The four of them did not go at him all at once, but they did not take turns at it. The appellant had intended just to punch him a few times and then go, "but it just got out of hand". It went too far, he said, and went out of control. When they came back to the scene after going home to Mary Street, the man was sitting up. Blood was coming from his nose and lip, but he was breathing properly. The reason they had gone back to see him was because they had concerns about his health and safety.

On the strength of this evidence, the jury found the appellant guilty of the murder of Timms. On the evidence before them at the trial there was more than one way in which they could have reached that verdict. They might perhaps have found that the appellant himself had delivered the fatal blow or blows and that, despite his denials, he had, in the terms of s.302(1)(a) of the Criminal Code, done so with the intention of killing or doing grievous bodily harm. A significant contribution to the death was all that had to be proved: Royall v. The Queen [1991] HCA 27; (1991) 172 C.L.R. 378, 398, 411, 441. On the medical evidence, however, it was not possible to say who, in particular, had brought about the death of their victim. It was clear, however, that all of them had taken part in the assaults which combined to cause the death, and had done so in the presence and sight of all the others. That being so, each of them had assisted or aided all the others in causing that death. On that footing, the appellant would be criminally responsible under s.7(c) of the Criminal Code by having aided the offence, or under s.7(b) by having done an act or acts for the purpose of enabling or aiding the others to commit the offence. For that purpose, it was necessary, in order for the prosecution to establish criminal responsibility under s.7(c), or for that matter under s.7(b), to prove that the appellant did the act or acts in question knowing that the others were, or at least one of them was, committing an offence: see R. v. Beck [1990] 1 Qd.R. 30, 38; R. v. Jervis [1993] 1 Qd.R. 643, 647-648; which means that he must have known the essential facts which, being proved, make up that offence: Giorgianni v. The Queen [1985] HCA 29; (1984) 156 C.L.R. 473. Throughout s.7, the word "offence" bears the meaning ascribed in The Queen v. Barlow (1997) 188 C.L.R. 1, 9; 71 A.L.J.R. 680, 684 col. 1E to 1F, to the same expression in s.8, which is:

"... the element of conduct (act or omission) which if accompanied by prescribed circumstances, or if causing a prescribed result or if engaged in with a prescribed state of mind, renders the person engaging in the conduct liable to punishment".

See The Queen v. Barlow (1997) 188 C.L.R. 1, 10; 71 A.L.J.R. 680, 684 col. 1A to 1B.

The effect, in practical terms in this case, was that, in order to sheet home criminal responsibility to the appellant for murdering Timms, it was necessary for the Crown to prove that the appellant did an act to enable or aid one or more of the other assailants to kill their victim knowing that he or they intended to kill or inflict grievous bodily harm upon him. It was not necessary to prove that the appellant himself had such an intention. It was sufficient that he knew one or more of the others had it; and that, knowing that to be so, he did an act to aid or enable him or them to kill the Timms.

As a further alternative to criminal responsibility under s.7(c), a verdict of murder could also be sustained against the appellant under s.8 of the Code on the basis that the four of them had formed a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence had been committed of such a nature that its commission was a probable consequence of the prosecution of such a purpose. In the context of what happened here, the nature of the offence was murder; that is, killing Timms with the intention of causing his death, or at least of causing him grievous bodily harm. The unlawful purpose which it was their common intention to prosecute was assaulting their victim. If, then, the murder of Timms was a probable consequence of carrying out that assault in conjunction, the appellant could be found guilty of murder under s.8. For that result to follow, it was, again, not necessary for the appellant himself to have intended to cause death or grievous bodily harm. It was enough that, given that common intention to assault their victim and the prosecution of that purpose, it was, objectively considered, a probable consequence of carrying it out that Timms would be murdered.

In summing up to the jury, the learned judge directed them in terms which, having regard to the law stated above, were in some respects unduly favourable to the appellant. His Honour began by instructing the jury that the evidence was insufficient to sustain a verdict of murder against him on the footing that he had himself caused the death of Timms. He then went on to direct them that, to find the appellant guilty of murder, it was necessary to be satisfied that each of the assailants intended to kill or to do grievous bodily harm. His direction was:

"... I want first to emphasis to you the important difference between murder and manslaughter. That important difference is, as I have said, the intent. If you cannot be satisfied beyond reasonable doubt that any identifiable person struck the fatal blows in this case, and I have already suggested that you will not be able to be satisfied beyond reasonable doubt that an identifiable person struck them, it follows that you can find that Timms was murdered only if you are satisfied beyond reasonable doubt that every one who struck him did so with the specific intent set out in section 302.

His Honour's direction to that effect imposed on the Crown a heavier burden than the prosecution was required in law to bear. It was not necessary that each of the assailants, including the appellant, should have intended to kill or do grievous bodily harm. It was enough that any one of the others intended it, and that, in aiding him to do so, the appellant knew of that intention. In relation to both ss.7(c) and 8, the judge was asked to redirect the jury; but as it turned out the redirection he gave was in fact confined to s.8. The jury were left with the original direction in the summing up that, in order to convict of murder under s.7(c), it was necessary that they be satisfied that all four assailants intended to cause death or grievous bodily harm.

There can therefore be no cause for complaint about the summing up in relation to the appellant's liability to be found guilty of murder under s.7(c) of the Code; and, in relation to that provision, the appellant did not advance the submission relied on in Jeffrey (C.A. 154 of 1997) that a verdict of manslaughter had not been left to the jury as a possible alternative under that provision. Mr Jerrard Q.C. said he had no challenge to the directions given in relation to s.7(c). No doubt that was because the learned trial judge had directed the jury that it was open to them to find that Timms had been the victim not of murder but of manslaughter, and had also instructed them that, to find a verdict of murder under s.7(c), it was necessary to be satisfied beyond reasonable doubt that the appellant himself, as well as each of the other three assailants, had the intention to kill or do grievous bodily harm to the victim. According to that direction, if any one of them was not found to have had that intention, the appellant could at most have been found guilty of manslaughter. In relation to responsibility under s.7(c), that ground in the appeal of Jeffrey therefore does not arise in the appeal of this appellant.

It is, however, capable of arising in the appellant's appeal against a verdict of murder based on s.8. Having originally directed that, before such a verdict could be returned, the jury would need to be satisfied that all four assailants had intended to kill or do grievous bodily harm, his Honour was prevailed on to redirect them on s.8. In doing so, he said:

"For the offence to be murder, only one person who struck a fatal blow need have had the intent referred to in section 302; that is, the intent to cause death or do grievous bodily harm. It is necessary for you to be satisfied that there was at least one such person."

The effect is to raise on this appeal the point relied on in the appeals by Jeffrey and Donald, which is that, on the authority of The Queen v. Barlow (1997) 188 C.L.R. 1; 71 A.L.J.R. 680, the jury should have been directed that it was possible for the appellant, as a person charged with murder under s.8 of the Code, to be found guilty only of manslaughter, even though Timms had been murdered by one or all of the other assailants. The judge's omission so to direct the jury is now said to be fatal to the verdict of murder against the appellant at the trial.

Having, in the appeals of both Jeffrey (C.A. 154 of 1997) and Donald (C.A. 309 of 1996), already considered the effect of that defect in the summing up in relation to s.8, it is not necessary to repeat all that was said on that subject in dismissing those two appeals. It is enough here to say that, if in the present case the jury did in fact rest their verdict on s.8 rather than s.7(c) of the Code, it is open to this Court, in the exercise of its powers under s.668E(1) of the Code, to sustain the verdict of murder against the appellant if satisfied that that verdict was inevitable.

In the event of the appeal succeeding, counsel for the appellant on this appeal invited the Court to substitute a verdict of manslaughter against the appellant in place of murder. That invitation accepts as inevitable the conclusion that the death of Timms was the probable consequence of prosecuting in conjunction the common intention of the four assailants of assaulting him. To found a verdict of murder against the appellant, it would also have been necessary for the jury to be satisfied that it was a probable consequence of carrying out the joint assault that Timms would be killed by one or more of the four assailants with the intention of doing grievous bodily harm.

In deciding whether the jury would have arrived at such a conclusion, the material before this Court are Dr Zillman's evidence of the post mortem examination and the admissions made by the appellant in the record of interview. None of this evidence was challenged or contradicted at the trial. The appellant himself did not give evidence and his admissions do not depend on any impression based on seeing him in the witness box. In deciding whether the verdict of murder should be sustained in the exercise of the power conferred by the proviso to s.668E(1) of the Code, the evidence before this Court is in the same form as it was before the jury. The deficiency in the summing up falls to be considered in that context.

In reaching a verdict of murder, whether it was based on either s.7(c) or s.8, the jury must necessarily also have found that grievous bodily harm was intended by at least one of the four assailants. Despite the defect in the summing up, that finding is entitled to some weight in deciding whether it was inevitable that the same verdict would have been returned if the alternative manslaughter verdict had been presented to them. For the purpose of criminal responsibility under s.7(c), it would, in addition, have been necessary for them to have been satisfied that the appellant knew of that intention. On the other hand, for the purpose of s.8, it would have been sufficient for the jury to be satisfied that the murder of the victim was an offence "of such a nature that its commission was a probable consequence of" carrying out in conjunction the common intention of assaulting him. That is, that it was probable that, in carrying out the joint assault and as a result of doing so, the victim would be killed by someone with the intention of killing or doing grievous bodily harm to him. The question is one to be determined objectively according to an assessment of the probability that, in the course of prosecuting the series of assaults which in fact took place, one or more of the assailants would form an intention to kill or do grievous bodily harm to the victim. Contrary to ground 4 in the further application to amend the notice of appeal, it was not necessary for the prosecution to establish that the appellant himself realised or foresaw that an assault with intent to do grievous bodily harm was contemplated or intended by one of the appellant's associates. That the death of Timms would probably ensue as a consequence is also a requirement; but so it would be for the manslaughter verdict under s.8 for which the appellant now contends, and the only complaint here is that the jury were not invited to consider that alternative at the trial.

In determining whether the jury would under s.8 inevitably have arrived at the same verdict of murder, no inquiry is called for, nor is any inference required to be drawn, about the actual state of mind or knowledge of the deceased at the time. The function of this Court in reaching a conclusion on that matter is therefore considerably more limited in scope than it is in many other appeals in which a prediction is called for under s.668E(1). In the circumstances disclosed by the evidence in this case, it is my conclusion that, even if the jury had been left with the alternative of manslaughter, they would nevertheless have arrived at the verdict of murder which they returned. The severity of the injuries that Timms was later found to have sustained, and the nature, the number and the force of the blows inflicted on him clearly demonstrates that grievous bodily harm was intended by at least one of the four assailants. On the undisputed evidence, it was the only rational finding open to the jury: cf. Meyer v. R. [1997] HCA 43; (1997) 147 A.L.R. 440, 443. Any other conclusion would have been perverse. The same can fairly be said of the answer to the question whether it was probable that such an intention would be formed as a consequence of carrying out the joint assault. Considered from the standpoint of an objective observer, the probability that at least one of the assailants would form, was forming, or had formed the intention of inflicting grievous bodily harm became increasingly apparent as the joint assault progressed. As the appellant himself acknowledged, he "lost control hitting into him in the first place". The assault "got out of hand" and it "went too far". No one could have been in any doubt that that was a probable consequence of carrying out the common intention in the circumstances in which it was formed and put into effect. Objectively considered, the outcome was not merely predictable but virtually certain.

The only other ground of appeal was that the trial judge ought to have redirected the jury, in response to the question asked by them, that the application of s.8 did not result in "guilt by association". The question which was asked by the jury appears from the following passage in the transcript:

"His Honour: Gentlemen, we received three questions from you and I will try and answer them as best I can. The first question is this: 'In relation to paragraph 8, the matter of intent, does one or all four need to have intent? If only one, are all others guilty by association?'"

What his Honour on the redirection was to repeat that all four persons must have had the common intention to prosecute an unlawful purpose, which was identified as assault, while at the same time directing them on this occasion that at least one of them must have formed the intention to do grievous bodily harm. He did not specifically refer to guilt "by association"; but to do so it would have been necessary to interrogate the jury about what they had meant by it. Such inquiries are in practice seldom fruitful, because, as often as not, they originate with a particular juror or jurors rather than with the foreman who is speaking on their behalf. The judge's redirection sufficiently instructed them on the law with respect to s.8, which was his function. He also invited the jury, if they still had a problem with the direction he had given, to reformulate the question, and, as he said, "we will have another go at it". As it happens, the kind of criminal responsibility imposed by s.8 can be considered a form of guilt by association of one offender with the act and intention of another or others in the circumstances specified in the section; but his Honour properly refrained from suggesting any such theory, and instead directed the jury in accordance with the section. There was no further request from them for assistance, and no application from counsel for the accused for any further redirection on that issue. Within an hour after that, the verdict of guilty of murder was returned.

In my opinion, the appellant was rightly convicted of murder. The appeal should be dismissed.

I have had the advantage of reading drafts of the reasons of McPherson J.A. as well as those of Davies J.A. in relation to these three appeals. In each of the two trials, that of Pascoe and Donald and that of Jeffrey, the jury were given directions under s. 8 of the Criminal Code based on the reasoning of this Court in Alexanderson & Ors. (1996) 86 A.Crim.R. 77; since that reasoning has been held to be wrong, by the decision of the High Court reported in Barlow (1997) 188 C.L.R. 1, the only question on that aspect of the case is whether there was a substantial miscarriage of justice.

A second group of issues concerns whether, in any respect other than in following this Court's decision in Barlow, the trial judges gave erroneous directions and, of course, if they did whether a substantial miscarriage of justice ensued. It appears to me convenient to consider the s. 8 point first.

Did the misdirections with respect to s. 8 give rise to a substantial miscarriage of justice?

As is explained in the reasons of McPherson J.A. and in those of Davies J.A., in each trial the jury were told in effect that there could be no verdict of manslaughter, under s. 8, if they were satisfied that Mr Timms was murdered. The first question, in determining whether the failure to give a proper direction under s. 8 was fatal, is to consider what a proper direction would have been. In my brothers' reasons there is to be found discussion of this point, which appears to me not to be without difficulty. The source of that is the circumstance that in the principal High Court judgment there are two main passages explanatory of the effect of s. 8. The first, quoted by McPherson J.A. in his Honour's reasons in relation to Jeffrey and in relation to Donald begins, "In the light of these provisions . . . " and concludes " . . . with which the blow is inflicted" (188 C.L.R. 1 at 10). The meaning of that passage is, with respect, quite clear. But there is another passage beginning, "As the operation of s. 8 is limited . . . " and concluding " . . . merely to commit the minor offence", the effect of which is open to argument (188 C.L.R. 1 at 13, 14). It is my opinion that it is the former passage, that quoted by McPherson J.A. and summarised in the Commonwealth Law Reports headnote, which should be regarded as guiding if there is, as I think there is, a difference between the indications given in the two passages I have identified.

A secondary party may be held guilty of manslaughter under s. 8, although the principal offender has committed murder. That is so, not because in such a case the term "an offence" in s. 8 means unlawful killing, but for a reason having application beyond the law of homicide. By s. 8 a secondary party may, in general, be made guilty of an offence different from that committed by the principal offender; one reads s. 8 as if there were added to it, "but if the offence committed in the prosecution of such purpose is not of that nature, then each of the persons other than the principal offender is deemed to have committed such offence as would be constituted by so much of the criminal conduct of the principal offender as was a probable consequence of prosecuting the common unlawful purpose". So to express the matter slightly understates its complexity, for, as is made clear by the High Court, the construction of a notional offence which is then attributed to the secondary party includes consideration of matters other than the principal offender's physical acts or omissions: "[t]he second party is deemed to have done an act or made an omission but only to the extent that the act was done or the omission was made in such circumstances or with such a result or with such a state of mind (which may include a specific intent) as was a probable consequence of prosecuting the common unlawful purpose".

In the present case it was inevitable that the jury would be satisfied that there was a common intention to prosecute an unlawful purpose and that in the prosecution of that purpose an offence was committed. And the jury were satisfied that that offence was murder. A direction in accordance with the High Court decision in Barlow could have assisted any of the three appellants only if the jury, although satisfied that there was a murder, were in doubt on the question whether murder, as opposed to manslaughter, was a probable consequence of the prosecution of the unlawful purpose.

That is, a direction in accordance with the High Court's decision in Barlow could not have helped any of the appellants unless the jury, being satisfied that there was a murder, could have had a doubt as to whether that was a probable consequence of the prosecution of the purpose. As is pointed out by Davies J.A. the s. 8 directions contended for on behalf of the appellants in this Court would themselves have been erroneous; the critical point was whether, even if the jury were satisfied that a murder was committed by one of the appellants, they were also satisfied that murder (involving an intention in the perpetrator to cause death or grievous bodily harm) was a probable consequence of the prosecution of the unlawful purpose. Only if they were not satisfied of this second element would it have been necessary for the jury to consider that part of the operation of s. 8 which I have attempted to expound above by adding words to the section.

It was argued for the respondent that, on the basis of a line of authority beginning with Ross [1922] HCA 4; (1922) 30 C.L.R. 246 at 254, the fact that the judge in each trial did not tell the jury that, even if they thought the principal offender was guilty of murder, any other offender could, under s. 8, be held guilty of manslaughter, was not a vitiating error. I think Ross is well explained, with respect, by Neasey J. in Apted [1981] TASRp 14; [1981] Tas.R. 140 at 146:

"It should be observed . . . that the conclusion which the Full Court of Victoria and the High Court . . . reached in Ross's case depended upon its factual and legal context. That is, the conclusion did not follow from the direct application of any rule of law. Both courts considered whether any injustice was caused in the circumstances of the case, and decided that the judge's exercise of discretion produced no adverse effect but was in fact favourable to the accused."

A view less favourable to appellants has been adopted in Victoria:

"If the trial judge correctly instructs the jury on the essential elements of the crime of which the appellant is convicted and fully and fairly puts to the jury the defence set up by the appellant the verdict of guilty amounts to a finding by the jury of every essential element of the crime and if those findings negate a verdict of guilty of a lesser offence then the verdict cannot be disturbed by a suggestion that the jury might have found him guilty of that lesser offence if the judge had informed them they were at liberty to do so". (Evans and Lewis [1969] VicRp 109; [1969] V.R. 858 at 871, see also Iannazzone [1983] VicRp 60; [1983] V.R. 649 at 653, 654.)

If this means that failure to tell the jury that they may bring in a lesser verdict cannot be a misdirection, so long as the guilty verdict returned is inconsistent with the lesser verdict, then I respectfully disagree. Circumstances can well be imagined in which failure to direct the jury of the possibility of a verdict of guilty of a lesser offence than that of which an offender has been convicted may cause injustice. That will surely be so, in general, if the lesser verdict is open on the evidence and has been raised as a possibility by the defence. In the present cases, the defence did not ask that the jury be directed that, even if they found that Mr Timms had been murdered, s. 8 might justify a verdict, against persons other than the actual perpetrator, of manslaughter only; but that might have well been because of the decision in Hind and Harwood [1995] QCA 202; (1995) 80 A.Crim.R. 105. I agree with McPherson J.A. and with Davies J.A. that the Ross line of authority does not conclude this point in favour of the Crown. The real question is whether, in all the circumstances, the failure to direct in accordance with what has been held by the High Court to be the true interpretation of s. 8 caused either of the trials in question to miscarry. In relation to each of the appellants, McPherson J.A. has given reasons based on the evidence for concluding that the trial judges' failure to sum-up, under s. 8, in accordance with the High Court's decision in Barlow did not bring about a substantial miscarriage of justice; I am in respectful agreement with those reasons and with his Honour's conclusion. I am, as will appear, of the view that in any event there was no room for doubt that the appellants were guilty of murder under s. 7 of the Code.

Complaints about directions other than those based on the decision in Barlow

As to the other matters raised in these appeals, I am in agreement with the reasons of Davies J.A., but will direct some remarks to the application of s. 7(1)(c) of the Code under which, when an offence is committed "every person who aids another person in committing the offence" is deemed to be guilty of it.

It is difficult to see how the jury could have reached the conclusion, on the evidence admissible against any of the three appellants, that that appellant caused Mr Timms' death. If each attacked Mr Timms only in the way he admitted, Mr Timms could have hardly been in the condition in which the evidence showed him to be, after his death. That condition was consistent with more, and more savage, beating and kicking than the total of all the assaults conceded by each of the three appellants in relation to his own participation, when interviewed by the police.

There was, however, no room for rational doubt about the propositions that the three appellants set out to assault Mr Timms, that in the course of those assaults he was beaten and kicked to death, that all the appellants were present on each of the occasions when Mr Timms was assaulted and that all participated in assaulting him. Of the three the appellant who admitted to least in the way of assaulting Mr Timms was Donald, but his role as an assistant to the others was very clear; he drove Mr Timms and the assailants to Eumundi Road where the first assault on Mr Timms took place and then to Eenie Creek Road where Mr Timms was assaulted again. Then, according to Donald, having left Mr Timms, "still alive as far as I knew", he later drove the others back to enable them "to knock him out and put him unconscious so he didn't remember who done it to him". It was clear that each of the three assisted the others in this affair, that they acted positively and not passively (Beck [1990] 1 Qd.R. 30 at 37, Jefferies v. Sturcke [1992] 2 Qd.R. 392) and that each was aware of the assaults being committed by the others. That those assaults included blows of such a character as to be intended to cause grievous bodily harm is beyond the possibility of rational dispute.

In short, on the admissions made, as summarised in the reasons of Davies J.A., and the evidence as to Mr Timms' condition after death, it does not appear to me that any jury acting rationally could have failed to have been satisfied that each of the appellants was guilty of murder under s. 7(1)(c), of the Code, if not under s. 7(1)(a).

Each of the appellants was convicted of the murder of John Edward Timms after a trial by jury. Each appealed against his conviction on the ground that the jury was misdirected with respect to the meaning and application of s.8 of the Criminal Code. Jeffrey also appealed on the ground that the jury was also misdirected with respect to the meaning and application of s.7.[1] The main argument in the appeals relied on the decision of the High Court in R. v. Barlow[2] in which, by a majority, the court reversed a decision of this Court in that case and in doing so overruled R. v. Hind and Harwood[3] as to the meaning and application of s.8.

Donald and Jeffrey were tried together. Pascoe was tried separately. In each trial the learned trial Judge directed the jury upon the application to the facts of the case of ss.7(a) (liability as a principal offender), 7(c) (liability as an aider) and 8; and with respect to s.8, in accordance with the decision of this Court in R. v. Hind and Harwood. All appeals were, by consent, heard together. Pascoe and Donald, who were represented in this Court by Mr. Jerrard Q.C., sought the substitution by this Court of a verdict of manslaughter or alternatively a new trial. Jeffrey, represented in this Court by Mr. Long, sought only a new trial.

None of the appellants gave evidence at his trial. The main evidence in each trial consisted of admissions against interest by each of the accused and medical evidence about the extensive injuries suffered by Timms. Those injuries included serious bruising and multiple abrasions to the head and face; bruising and swelling to both lips; a laceration of the upper lip; the loss of one tooth; several discrete bruises across the front of the right side of the chest; abrasion of the upper chest; abrasion of the right shoulder; multiple small abrasions across the back; two abrasions and areas of bruising to the left loin; bruising to the left chest; multiple bruising and abrasions over the left hip, right thigh, both knees, upper left chin and over both ankles; abrasions and bruising to both hands; bruising over the scalp; a fractured left cheek bone, five fractured left ribs and four fractured right ribs, all fractures being randomly scattered; bruising to the surface of both lungs; a 30 centimetre laceration to the liver; and three one centimetre lacerations to the left kidney from which bleeding had extended down at the back of the abdominal cavity.

The medical evidence was that there was a minimum of ten impact sites to the trunk of the deceased and at least three separate impact sites to his head plus separate impact sites to his limbs. Death was caused by a combination of injuries to the ribs, liver and kidney, the most serious being to the chest and kidney which together would have caused death even without the liver injury. Having regard to the number of injuries, especially to the chest, the number of impact sites and the fact that the degree of force required to cause the kidney injury in particular must have been severe, it was open to the jury to infer that whoever delivered the fatal blows attacked Timms with such ferocity that their intention must have been to cause grievous bodily harm.[4]

Up to a point the appellants, in their admissions, gave similar versions of relevant events, the main differences between them, unsurprisingly, being as to the extent to which each hit and kicked Timms and as to the intentions or apparent intentions of each at material times. All admitted to punching and kicking him. There does not appear to be any significant dispute as to the events leading up to what were, on any view, sustained attacks on Timms.

On the night of 17 December 1994 the appellants, who were aged respectively 20, 18 and 18, together with a fourth youth, Aaron Johnson, were drinking at Noosa. They had been drinking together since about 2.00 p.m. In the early hours of 18 December they met Timms near the Rolling Rock Nightclub at Noosa. They were by then each, to some extent, affected by alcohol. Up to then Timms was a stranger to them.

Timms, who was an older and extremely thin man, had been at the Reef Hotel, Noosa, earlier that night where he was described as being very intoxicated. He was later at the Rolling Rock Nightclub where he was described as placid but intoxicated and "staggering about falling around the ground". His blood alcohol level after death, .192%, confirmed that he must have been very drunk.

He apparently promised the four youths (the appellants and Johnson) some marijuana if they drove him home. He later told them that he did not have any and "things got all fired up after that, everybody got a bit angry ... ". The youths then drove Timms, Donald being the driver of the car, to a place on the Eumundi Road where all alighted and there were some assaults upon him. They all then re-entered the car and drove to a more remote location on Eenie Creek Road. There all alighted again and each of the youths assaulted Timms.

Pascoe admitted to punching Timms five or six times and observing his companions do likewise. He also admitted to kicking him "a couple of times" and observing his companions do likewise. He denied kicking Timms in the head but said that Donald and Jeffrey did so. It was conceded on his behalf before this Court that, in view of a contact blood smear on his discarded jeans, he had lied to police in denying having kicked Timms in the head.

After first making a false denial and giving a false alibi, Donald also admitted to being involved in the attack on Timms. He admitted that on the drive to the location at Eenie Creek Road he knew that "something was going down" from which, in the context, it may be inferred that he knew that the others intended to give Timms a beating. But even before he joined in the others were "kicking the shit" out of Timms. He said that "that guy copped a fucking beating"; and he said that "we belted him to a pulp". He admitted to kicking him only once and punching him only once. But he said that, whilst he was doing that, Pascoe hit and kicked Timms "hundreds of times", and that Pascoe had steel capped boots. And he said that Jeffrey was "just getting stuck into him ... kicking him both feet", that he was "going hard out hitting and kicking" him and that, after they returned to the car Jeffrey and Pascoe went back and started kicking him. He said that it was "just kick, kick, kick, yeah, and then having stop a second and change positions and then kick, kick, kick, hit, hit". At the end of this "he was messed him up big-time ... they just hammered him." He said that they just kicked his head like a rugby ball. On the drive back to their residence he said to the others "You better not have killed the cunt." He said that when they left Timms "was a mess ... one of his eyes was out there, blood was pissing out of his face ..." and that he "had a bad feeling about it all". He did not know, in the end, whether or not Timms was conscious but had described him earlier as "half unconscious". However he was told by the others that Timms was healthy.

Jeffrey said that, when they stopped in Eumundi Road, it was agreed that they would beat Timms up and take his drugs. He admitted to kicking Timms ten times in the head, ribs and back and to punching him three or four times in the face. He said that Pascoe "punched him heaps and kicked him heaps ... in the ribs, in the face and all over his body". He said he was "going hammer and tongs ... he was really into it". Pascoe had on a pair of steel-capped boots and at one stage he, Jeffrey, told Pascoe to stop. He said that Donald kicked Timms four, five or six times and punched him. He said "We all went and did a heap of shit" and "it was chaos" with everyone punching and kicking Timms who just rolled into a ball on the ground.

After the sustained beating I have described the appellants and Johnson, who was also involved, left Timms and returned to their residence. All later returned to the scene, again with Donald driving. Pascoe said that this was to see if Timms was alright. He said that they did not further assault the deceased. He admitted that he picked up a tree branch but threw it away when Donald told him to.

Donald said that the others wanted to return to knock Timms unconscious: "they didn't want the guy to remember who had done it to him". He told them he was not taking them back out there to kill him. They said they weren't going to. "They just said that they were going to knock him out and put him unconscious so he didn't remember who done it to him". He said that he assumed that they would do this by hitting "him across the head a few more times and I knew that if we went back out there it was just going to turn into a disaster". Asked whether he agreed that hitting a person across the head a few times could do permanent damage he said: "Yeah, that's what I told him ... Even Andrew said we could have given him brain damage". He also said that, before they arrived at the scene on the second occasion, he knew there was a chance that Timms was going to end up dead. Before that, according to Donald, whilst they were at their residence, Pascoe and Jeffrey panicked saying "Oh, we killed a man". Then, apparently, they expressed concern that Timms would remember them. When they got back to Timms, according to Donald, he was still conscious but didn't look it. Nevertheless Pascoe and Jeffrey kicked him - "they were kicking him and kicking him" - and he, Donald, walked away.

Jeffrey said that, after they had returned home after the first beating of Timms "someone said 'He might remember' and we all sat there and thought 'Well, we should go back out there and hit him a couple more times so he might not remember' ". When they returned, according to Jeffrey, Timms was sitting up. Jeffrey said that they hit and kicked him again but not for as long, only a few times.

According to Jeffrey, Pascoe also jumped up and down on Timms' chest. Jeffrey also said that it was on this occasion that Pascoe picked up a piece of wood which looked like a fence post but Johnson took it from him. Despite the beatings on both occasions, according to Jeffrey, Timms was both alive (he felt his pulse) and conscious (he appeared to respond to questions) when they left him on the second occasion.

On the following day all admitted to a friend, Darryl Newman, that they had "beat some guy up and kicked him around a bit and messed him up pretty bad."

the principal evidence admissible against Pascoe consisted of:

his admissions that, on the first occasion at Eenie Creek Road he punched Timms five or six times and kicked him a couple of times when he was on the ground, but not in the head, whilst his companions did much the same though some of them kicked him in the head;
the evidence of the blood on his trousers which, it was admitted, proved that he had kicked Timms in the head;
his admission that they had beaten Timms up, kicked him around and "messed him up badly";
his admission that he picked up a piece of wood with which, apparently, to hit the helpless Timms but was disarmed by one of the others; and
Timms' injuries and the inferences drawn from them of the number of impact sites and the severity of the blows which caused them.

The principal evidence against Donald consisted of:

his admission from which it could be inferred that before the first set of serious assaults he knew of a plan to give Timms a beating;
his admission that on the first occasion he kicked and punched Timms only once but that he did so whilst Pascoe hit and kicked him hundreds of times whilst wearing steel capped boots and that each of the others kicked him many times;
his admission that he agreed to drive the others back to the scene of the first beating knowing that they intended to beat Timms into a state where he could not remember, that this would involve them hitting Timms "across the head a few more times" and that he was aware that there was a chance of Timms "ending up dead"; furthermore this was after the others had expressed the view that they might have already killed him;
his admission that, at the scene on this occasion, he stood by while Pascoe and Jeffrey kicked Timms again;
his admissions that Timms "copped a beating" and that they had kicked him around and "messed him up badly"; and
Timms' injuries and the inferences from them referred to above.

And the principal evidence against Jeffrey consisted of:

his admission that, before the first beating, he was party to a plan to beat Timms up;
his admission that on the first occasion he kicked Timms ten times in the head, ribs and back and punched him three or four times in the face whilst the others did much the same, Pascoe kicking with steel capped boots;
his admission that, after they returned home, "we" thought they should go back and hit him a couple more times so he might not remember;
his admission that, when they went back they hit him again, but not as long, only a few times; and Pascoe jumped up and down on Timms' chest;
his admission that they had beaten Timms up, kicked him around and "messed him up badly"; and
Timms' injuries and the inferences already referred to.

At the joint trial the Crown prosecutor, on several occasions during his opening address, the learned trial Judge several times during the trial and in his summing up and, no doubt, both counsel in their closing addresses, instructed the jury that Jeffrey's out-of-court statements were admissible only against Jeffrey and that Donald's such statements were admissible only against Donald. No complaint is made on behalf of either appellant in that respect.

Unsurprisingly it was unclear in this case which of the appellants or Johnson had inflicted the injuries which substantially or significantly[5] contributed to Timms' death. That is no doubt why, in each trial, the Crown relied on ss.7(c) and 8. It is unlikely that the jury would have been satisfied beyond reasonable doubt that any specified one or more of the appellants delivered fatal blows.

"7. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:-

In Barlow the Court was concerned primarily with s.8. No question arose in that appeal as to the application of s.7 or the Judge's direction on that section.[6] Nevertheless the Court said that s.2 of the Code made it clear that "offence" is used in the Code to denote the element of conduct (an act or omission) which, if accompanied by prescribed circumstances, or if causing a prescribed result or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment. It bore that meaning, they said, in both s.7(c) and s.8.[7]

It may be accepted that "offence" in both ss.7(c) and 8 means, in this case, the acts of kicking or punching by the principal offender or offenders which caused Timms' death, the nature of that offence being murder or manslaughter depending on whether, in this case, his or each of their intentions, at the time the blows causing death were delivered, were to cause grievous bodily harm.

The difficulty in identifying a principal offender does not mean that none of the appellants could have been convicted under ss.7(c) or 8.[8] To prove that a murder was committed it is sufficient to prove that, whoever delivered the blows causing death, even if that person or those persons cannot be identified, must have done so with the intention of causing grievous bodily harm. It would not have been difficult to infer that. As mentioned earlier, the number of injuries, especially to Timms' chest, the number of impact sites and the degree of force required to inflict some of the injuries would have been sufficient to enable the jury to infer that whoever inflicted the injuries which caused death did so with the intention of causing grievous bodily harm.

Mr. Jerrard Q.C., for Pascoe and Donald, did not attack the directions of either trial Judge on the application of s.7(c). However Mr. Long, for Jeffrey, submitted that the learned trial Judge's directions in his trial were inadequate with respect to the application of s.7(c).

To aid in the commission of an offence of the nature of murder a person, not himself a principal offender, must know of the intention of the principal offenders to cause grievous bodily harm. That is because "aids" in s.7(c) means "knowingly aids"; otherwise there would be no distinction between the innocent taxi driver who conveys a robber to the bank he intends to rob and the driver of the getaway car who does so.[9] That is, in effect, the way in which each of the learned trial Judges directed the jury on the meaning of s.7(c). Each directed the jury that, to be guilty of aiding in the commission of an offence of the nature of murder, a person must have done so with knowledge of the murderer's intention to cause death or grievous bodily harm.

There was evidence on which the jury could reasonably have concluded that each appellant knew of the intention of each of the principal offenders to cause grievous bodily harm. That could reasonably have been inferred from what they said they heard and observed of the conduct of the other attackers and the medical evidence. And there was evidence from which a jury could reasonably have inferred that, with that knowledge, they aided in committing the offence. Nor was there any contention to the contrary of these propositions.

Nevertheless Mr. Long contended that his Honour's direction on s.7(c) was inadequate because, the offence having as an element a specific state of mind, it failed to instruct the jury that they must be satisfied that the appellant had that state of mind at the relevant time. It is not clear whether Mr. Long relied for this submission on Beck[10] or Barlow (both are cited in the paragraph of his written submission in which this contention is made) but neither supports the contention and, in my view, it is wrong. To be guilty of murder under s.7(c) it is not necessary that the aider have the intention of committing grievous bodily harm; it is sufficient that he knows the principal offender to have that intention. The appeal on the ground of misdirection on s.7(c) must therefore fail.

The main argument in all appeals concerned the directions on s.8. It was that the learned trial Judge, in each case, failed to direct the jury that, even if they were satisfied that a murder had been committed, a verdict of manslaughter against the appellant was open; and directed them that if they were satisfied that a murder had been committed the only verdicts open under s.8 were guilty of murder and not guilty.

"8. 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."

I have already made the point that "offence" in that section denotes the element of conduct (an act or omission) which, if accompanied by prescribed circumstances, or if causing a prescribed result or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment, in this case the acts of kicking and punching which caused Timms' death; the nature of that offence, murder or manslaughter, depending on whether those whose acts caused Timms' death had the intention of causing grievous bodily harm.

Questions which arose in the present case under s.8 with respect to each appellant, on the test stated in Barlow, were:

was there a common intention to prosecute an unlawful purpose to which he was a party and if so what was it? and
to what extent, if at all, was the nature of the offence committed a probable consequence of the prosecution of that purpose?[11]

The relevant common intention to which the jury would have been entitled to infer each appellant was a party, before the commission of the first assault on Timms at Eenie Creek Road, was to give him a beating. And because, on the evidence against each, he did not withdraw from the prosecution of that purpose, the nature and extent of the assault then committed on Timms may be looked at to ascertain the nature and extent of the common intention. The jury would have been entitled to infer from the admissions of each of the appellants as to what was said by others or known by him, in the cases of Jeffrey and Donald, and in all cases from their participation in the drive with Timms down a secluded road and the nature of their joint attack on Timms, that the common intention involved as a probable consequence an assault by the principal offender or offenders so serious that it must have been committed with the intention of causing grievous bodily harm to Timms. And the jury would have been entitled to infer against each of Donald and Jeffrey that when they returned to Eenie Creek on the second occasion the common intention was to beat Timms by assaulting him so seriously that he would be unable to remember who had assaulted him; again an intention which involved as a probable consequence an assault so serious that it must have been committed with the intention of causing grievous bodily harm. For that reason it would not have mattered as against Donald and Jeffrey whether Timms died from blows inflicted on the first or on the second occasion. And as against Pascoe there was no room for the view that any blows were inflicted on the second occasion.

It is common ground in this appeal that the learned trial Judge in each trial directed the jury that, under s.8, they could convict an accused of manslaughter only if they concluded that Timms' death was manslaughter; that a verdict of manslaughter was not open in respect of the accused in either case if the jury were satisfied that a murder had been committed. The learned trial Judge and all parties accepted that to be the correct view of the law in consequence of Hind and Harwood. It is not contended that, in consequence of Barlow, those were not misdirections.

In each appeal it was contended that there were further misdirections with respect to the application of s.8.

On behalf of Pascoe and Donald it was submitted that, for a person to be liable for murder under s.8 it was necessary to establish that he realized or foresaw that at least an assault with intent to do grievous bodily harm was contemplated or intended by one or another of his associates; and that each of the learned trial Judges failed to give this direction. On Jeffrey's behalf it was contended that, for him to have been liable under s.8, it was necessary to prove that he intended to kill Timms or to do him grievous bodily harm; and there was no direction to that effect.

Neither of these submissions is, in my view, correct. Each misunderstands the construction placed on s.8 in the joint judgment in Barlow. The relevant common intention contemplated by s.8 in this case, in order to found a verdict of guilty of murder, was one to commit an assault of sufficient seriousness that an intention to cause death or grievous bodily harm on the part of the principal offender was a probable consequence of the prosecution of that purpose. If that probable consequence was absent but the assault the subject of the common intention was nevertheless of sufficient seriousness that death was a probable consequence, and it occurred, the proper verdict was manslaughter. But it is not necessary in either case that these consequences were intended or even foreseen by the secondary offender.

On behalf of Pascoe a further ground of appeal was argued with respect to s.8. It arose out of a question by the jury in that trial to which the learned trial Judge gave a redirection. The question was:

"In relation to paragraph 8, the matter of intent, does one or all four need to have intent? If only one, are all others guilty by association?"

In answer to that question the learned trial Judge redirected as follows:

"For the offence to be murder, only one person who struck a fatal blow need to have the intent referred to in s.302. That is the intent to cause death or do grievous bodily harm. It is necessary for you to be satisfied there was at least one such person."

In the light of the decision in Barlow the direction was plainly correct. However it was submitted that the learned trial Judge should have corrected what may have been a misapprehension that, merely in the event that the principal offender had the relevant intent, all others were guilty by association. However, shortly prior to this redirection, the learned trial Judge had directed the jury in considerable detail as to the elements of s.8 and what was necessary for their satisfaction in this case. It is not a realistic possibility that the jury would have been under such a misunderstanding. That must also have been the view of the appellant's experienced counsel who did not seek a redirection on any aspect of the above answer which the learned trial Judge gave to the jury.

The question then is whether, in consequence of the learned trial Judge's conceded misdirection with respect to s.8 in each case, there has been a miscarriage of justice. If there has been no substantial miscarriage of justice, notwithstanding that misdirection, each appeal should be dismissed. That question must be considered in the light of the directions which were given in each case and the verdicts reached on those directions.

In Pascoe's trial the learned trial Judge told the jury that, before either s.7(c) or s.8 could apply, they had to be satisfied that an offence had been committed. Then on four occasions during the course of his directions the learned trial Judge told them that, because it was unclear who killed Timms, in order to be satisfied that the offence was murder, they had to be satisfied beyond reasonable doubt that all four of his attackers intended at least to cause him grievous bodily harm. First his Honour said:

"If you cannot be satisfied beyond reasonable doubt that any identifiable person struck the fatal blows in this case, and I have already suggested that you will not be able to be satisfied beyond reasonable doubt that an identifiable person struck them, it follows that you can find that Timms was murdered only if you are satisfied beyond reasonable doubt that everyone who struck him did so with the specific intent set out in section 302.

It is a matter of logic, really. Unless you can identify a person who struck a fatal blow, and I suggest you cannot in this case, then you have to be satisfied that everyone who might have struck the fatal blow had the intent, the specific intent referred to in section 302. If you are satisfied of that, then it does not really matter how many of them or which of them struck the fatal blows. If they all had that intent, then whoever it was that struck the fatal blows must have had the necessary intent and it follows that Timms was murdered."

"Since we do not know who did the killing, that means the question is whether the prosecution has satisfied you beyond reasonable doubt that all four of them had the intention of doing grievous bodily harm or causing death."

Later again, his Honour said, speaking of evidence that Pascoe had disposed of the clothes he wore that night:

"It is not evidence that all four of them had the necessary intention and remember you have to be able to reach the conclusion beyond reasonable doubt that all four of them had the intention to cause death or grievous bodily harm on the basis I have been putting to you."

"You can find that Timms was murdered only if you are satisfied beyond reasonable doubt that all four of those assaulting him intended to cause him death or to do grievous bodily harm to him. Unless you are so satisfied you must, assuming of course you are already satisfied he was unlawfully killed, you must in that case find that the unlawful killing was manslaughter."

It is plain that his Honour gave those directions, on each occasion, on the basis that the jury could not determine who had killed Timms. The redirection referred to earlier "For the offence to be murder, only one person who struck a fatal blow need to have the intent referred to in s.302" must be read as a general direction as to the meaning of s.8 subject to those specific directions.

It follows from what I have said that those directions were incorrect. It was sufficient if the jury could infer from the evidence that whoever killed Timms must have had the intention of causing him at least grievous bodily harm; and it was possible to infer that without being able to identify the killer. The jury would then have been obliged to consider the application of ss.7(c) and 8 on the basis that because the killer could not be identified, each accused was entitled to the benefit of a conclusion in his favour that it was not he.

His Honour's directions prohibited the jury from considering whether Pascoe was guilty of murder under ss.7 and 8 until they were satisfied that he and his fellow attackers all had the intention of causing Timms grievous bodily harm. If the jury concluded, as they must have in obedience to those directions, that each appellant intended to cause Timms grievous bodily harm, it is almost inconceivable that they would not have convicted Pascoe of murder under ss.7(c) and 8. The evidence upon which the jury must have concluded that each of the attackers had the intention of causing Timms grievous bodily harm in their combined attack on him would inevitably[12] have been sufficient for them to infer, in Pascoe, knowledge of that intention in the others. And from that evidence a reasonable jury must have inferred that he aided with that knowledge.

Moreover, given that, with that intention, they combined to attack Timms, that intention must have been common and death was plainly a probable consequence of the prosecution of that purpose. Therefore, in my view, there has been no substantial miscarriage in Pascoe's trial in consequence of the conceded misdirection.

The learned trial Judge in the joint trial directed the jury that all attackers could be guilty of murder under s.7(c) notwithstanding that the jury could not say who had delivered the fatal blow. He said:

"You may be unable to determine which heavy blow or blows actually caused Mr. Timms' death but if you are satisfied beyond a reasonable doubt that the attackers acted together, intending to cause Mr. Timms' death, or to do him some grievous bodily harm, and that as a result of the attack Mr. Timms was unlawfully killed, each of the attackers striking the heavy blows will be guilty of murder.

It requires no evidence of express agreement to establish the existence and scope of such a criminal combination. It may be inferred from all the proven circumstances of the case. In those circumstances, although one assailant may have struck the fatal blow, the other assailants are in the eyes of the law, equally guilty of his offence because they directly and immediately aided him in committing it."

His Honour then went on to direct them that they could conclude that either appellant had aided in a way which was less direct and immediate.

It appears from these passages that, in directing the jury with respect to aiding "directly", his Honour was saying that, notwithstanding that an appellant may not have struck the fatal blow, he would nevertheless be guilty of murder if, in combination with the principal offender, he attacked Timms by delivering heavy blows intending to cause his death or to do grievous bodily harm to him. Although, as I have said, the relevant question under s.7(c) is not whether the aider himself had the intention of causing death or grievous bodily harm but whether he knew that to be the intention of the principal offender whose acts he was aiding, as his Honour went on to add the requirement of knowledge, the misdirection in this passage must have favoured the appellants.

In directing the jury on the application of s.8 his Honour did not direct them as to how they were to conclude that a murder had been committed where they were unable to say who had delivered the fatal blow. As the only direction on this question appears to be that set out above, they may well have thought that, in order to be satisfied of guilt of murder under s.8 also, they needed to be satisfied that all attackers had the intention of causing Timms' death or of doing grievous bodily harm to him. The strong possibility that they may have thought that shows that the failure otherwise to direct on this question could only have favoured each of the appellants. But I do not think it can be said, as it can in respect of Pascoe's trial, that the jury must have concluded, here as well as under s.7(c), that all intended Timms' death or grievous bodily harm.

Perhaps because they were more frank in their admissions than Pascoe, the evidence against each of Donald and Jeffrey as to their own intentions, their awareness of the intentions of the others and consequently the common intention, established an even stronger case of murder against each of them under each of ss.7(c) and 8 than against Pascoe. However it was not inevitable on the evidence against each that, on the first occasion at Eenie Creek Road, he knew of the intention of the principal offender to do grievous bodily harm to Timms.

The facts relating to the second occasion however present a different picture. Each of Donald and Jeffrey must have been aware that their earlier assaults had inflicted serious injuries on Timms. Donald had expressed concern that they may have killed him and Jeffrey was concerned about inflicting future injury, he said, because of the injuries which Timms already had. Each also knew before they returned on the second occasion that the intention, of the others in the case of Donald, of all in the case of Jeffrey, was to render Timms into such a state of unconsciousness that he would not remember who his attackers were. Donald said that he told one of his companions that they could do Timms permanent damage and he said that he then knew that there was a danger that Timms would be killed. Notwithstanding the absence of a similar admission against Jeffrey I think it must have been inferred against both of them that they then knew of the intention of others to do grievous bodily harm to Timms. With that knowledge Donald drove them back to the scene of the first attack and Jeffrey joined in a further assault on Timms.

In my view, in those circumstances, each was guilty of murder under s.7(c) if it was inevitable that blows inflicted on this occasion substantially or significantly contributed to Timms' death. On Jeffrey's admissions it was on this occasion that Pascoe jumped up and down on Timms' chest. Given that the collapse of his rib cage was a substantial cause of Timms' death it is likely that this contributed substantially to his death. But even on the admissions of each of further assaults committed on this occasion on Timms, especially further kicking by Pascoe with his steel capped boots, I think that a reasonable jury must have been satisfied that assaults on this occasion substantially contributed to Timms' death. Therefore I do not think that there has been a substantial miscarriage because of the misdirection in the joint trial.

Whether a verdict of murder under s.8 would have been inevitable against each of Donald and Jeffrey, had the jury been properly directed on that section, depends on an objective question: whether a probable consequence of the prosecution of the common purpose must have been that the principal offender or offenders would have the intention of doing Timms grievous bodily harm. The evidence relevant to that question is in much the same form before this Court as it was before the jury. The question therefore does not involve evaluation of evidence, as it would if there were any questions of credibility and, although it does involve competing inferences of fact, in my view only one inference is reasonably open.

In drawing inferences from the facts proved and in assessing that question of probability this Court is in as good a position as the jury would have been if it had been properly directed. There can have been no substantial miscarriage if this Court is satisfied beyond reasonable doubt that it was a probable consequence of the prosecution of the common unlawful purpose, in the case of each of Donald and Jeffrey, that the principal offender or offenders would have the intention of causing Timms grievous bodily harm. In such case a reasonable jury, properly instructed, must have been so satisfied. I have no doubt that such an intention was a probable consequence of the prosecution of that purpose upon the evidence to which I have referred - the admissions of each as to what they did and what they heard others say and observed others do and the medical evidence.

For both of these reasons the appeals of Donald and Jeffrey must fail in my opinion.

It was submitted by the respondent that, in consequence of the misdirection with respect to s.8, the appellants were not deprived of the opportunity of a verdict of manslaughter but wrongly had the advantage of the possibility of acquittal.[13] However there was never any realistic possibility in either case of an acquittal. It was almost inevitable that each appellant would be convicted either of murder or manslaughter. The principle relied on therefore has no application in these appeals.

[1] Donald's grounds of appeal referred to s.7 and the written outlines of argument on behalf of both Pascoe and Donald also referred to s.7 but the arguments in each of their appeals were, in the end, limited to s.8.

[3] [1995] QCA 202; (1995) 80 A.Crim.R. 105; also Wood, Paterson, Brien and Petersen (1996) 87 A.Crim.R. 346.

[4] See R. v. Clough (1992) 28 N.S.W.L.R. 396 at 399.

[5] Royall v. The Queen [1991] HCA 27; (1991) 172 C.L.R. 378 at 398, 411, 444.

[8] Warren v. The Queen [1987] W.A.R. 314 at 321.

[9] R. v. Beck [1990] 1 Qd.R. 30 at 38; R. v. Jervis [1993] 1 Qd.R. 643 at 647-8.

[12] Glennon v. The Queen (1994) 179 C.L.R. 1 at 8-9.

[13] Relying on Ross v. The King [1922] HCA 4; (1922) 30 C.L.R. 246, Mraz v. The Queen [1955] HCA 59; (1955) 93 C.L.R. 493, Apted v. The Queen [1981] TASRp 14; [1981] Tas.R. 140, R. v. Evans and Lewis [1969] VicRp 109; [1969] V.R. 858 and R. v. Iannazzone [1983] VicRp 60; [1983] 1 V.R. 649.

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