Shaw v Tasmania [2022] TASCCA 2

Criminal Law - General matters - Ancillary liability - Complicity - Common purpose - Generally - Criminal Code (Tas) - Common law doctrine of joint criminal enterprise not applicable.

L v Western Australia [2016] WASCA 101, 49 WAR 545, followed.

R v Webb; ex parte Attorney-General [1990] 2 Qd R 275, not followed.

Clarke v Tasmania [2013] TASCCA 11, 24 Tas R 384; Edwards v Tasmania [2016] TASCCA 7; R v Wyles, ex parte Attorney-General [1977] Qd R 169; R v Palmer [2005] QCA 2; R v Quagliata [2019] QCA 45; Warren v The Queen [1987] WAR 314; Lacco v Western Australia [2006] WASCA 152; Campbell v Western Australia [2016] WASCA 156, 50 WAR 331; R v Beardy 2016 MBCA 68, discussed.

Criminal Law - General matters - Ancillary liability - Complicity - Common purpose - Probable consequence - Criminal Code (Tas) - Crime within the scope of the unlawful common purpose.

Ahsin v The Queen [2014] NZSC 153, [2015] 1 NZLR 493, followed.

R v Simpson (1988) 23 BCLR (2d) 145, 38 CCC (3d) 482, not followed.

Clayton v The Queen [2006] HCA 58, 81 ALJR 439; R v Keenan [2009] HCA 1, 236 CLR 397; Brennan v The King [1936] HCA 24; (1936) 55 CLR 253; Darkan v The Queen [2006] HCA 34, 227 CLR 373, referred to.

Criminal Law - Appeal and new trial - Miscarriage of justice - Dismissal of appeal where no substantial miscarriage of justice - Application of proviso to particular cases - Arson - Joint trial of two accused - Evidence left open possibility appellant did not participate when crime committed - Judge erroneously directed jury on basis that common law doctrine of joint criminal enterprise was applicable - Evidence sufficient for conviction on statutory common purpose basis - Adequate directions to jury.

Kalbasi v Western Australia [2018] HCA 7, 264 CLR 62, applied.

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Arson and attempting to dishonestly acquire a financial advantage - Insurance fraud by house owner - Cost of repairs over $260,000 - Sentence of two years' imprisonment with non-parole period of one year not manifestly excessive.

Judgment Number: [2022] TASCCA 2

1 In June 2016 the appellant, David Shaw, owned a house in Clarendon Vale. On the evening of 27 June 2016 it caught fire and was badly damaged. It was insured. The appellant made a claim on his insurance policy. The insurance company conducted an investigation and rejected the claim. The appellant and a friend of his named Michael Wells were jointly charged with arson and with attempting to dishonestly acquire a financial advantage. They were tried together before Geason J and a jury, and both found guilty of both charges. His Honour convicted the appellant and sentenced him to two years' imprisonment with a non-parole period of one year. This is an appeal against his convictions and sentence.

2 The appellant's contentions can be summarised as follows:

• That the learned trial judge erred in law in directing the jury on the basis that the common law doctrine of joint criminal enterprise was applicable in Tasmania.
• That his Honour failed to direct the jury as to the act or acts of the appellant that were capable in law of attracting criminal responsibility.
• That the verdicts were unsafe and unsatisfactory, in the sense that the evidence lacked probative force to such an extent that he should be acquitted.
• That his sentence was manifestly excessive.
• That the trial judge failed to consider, or properly consider, parity of sentence.

3 This is the first time the Court has convened a bench of five judges to review the law since 1997. This step has been taken in light of the grounds of appeal concerning the treatment of the common law doctrine of joint criminal enterprise. Notwithstanding considerable debate regarding the precedential value of a decision of this Court in Clarke v Tasmania [2013] TASCCA 11, 24 Tas R 384, the reality is that Clarke has been treated as authority for the principle that a person incurred criminal responsibility under s 3(1)(a) of the Criminal Code by participating in a joint criminal enterprise, as understood under the common law. Since Clarke, joint criminal enterprise has been pressed by the Crown and left to juries, with directions given to juries about the elements of joint criminal enterprise reflecting the common law. The trial here was a stark example of this development because joint criminal enterprise was left to the jury as the sole basis of liability, without reliance on aiding or abetting in s 3(1)(b) or (c) or the "common purpose" provision in s 4 of the Code. The question that arises squarely on this appeal is a consideration of joint criminal enterprise under the Code in Tasmania and the role it plays.

4 There was evidence at the trial that the house caught fire at about 6pm on the evening in question. There was evidence from fire investigators that the fire had been deliberately lit, that it had four areas of origin, and that a low volatility accelerant had been used. There was evidence that the appellant, Mr Wells, and another friend named Leanne Coleman had been at the house together for some hours before departing in cars at 5.58pm. Ms Coleman gave evidence to the effect that, shortly before their departure, she saw Mr Wells set fire to a towel by holding it over a burning candle. However there was no evidence upon which the jury could find or infer that the appellant had taken any active part in starting a fire or setting fire to the building. There was circumstantial evidence suggesting that he had both a motive and a plan to set fire to the building and make a fraudulent insurance claim, but no evidence that he participated in starting the fire.

5 The Crown sought a conviction on the arson charge solely on the basis that the appellant and Mr Wells were parties to a joint criminal enterprise. The learned trial judge gave the jury directions to the effect that they could find the appellant guilty of arson if they were satisfied beyond reasonable doubt that he and Mr Wells had reached an understanding to commit that crime, and that it was committed in accordance with that understanding, in which case each was responsible for what the other one did. The appellant contends that that amounted to a misdirection. He contends that the common law concept of joint criminal enterprise is not the law in Tasmania, and that it was not open to the jury to convict him on the basis of him being a party to an understanding or arrangement without being satisfied beyond reasonable doubt that he actively participated in the commission of the crime. The Crown contends that the jury was properly directed.

6 There has been a controversy as to what place, if any, the common law doctrine of joint criminal enterprise has in Australian jurisdictions with criminal codes. There are conflicting decisions of intermediate appellate courts. The decision of the Queensland Court of Criminal Appeal in R v Webb; ex parte Attorney-General [1990] 2 Qd R 275 is consistent with the Crown's contentions in this case. The decision of the Western Australian Court of Appeal in L v Western Australia [2016] WASCA 101, 49 WAR 545 is consistent with the appellant's contentions. The point was addressed in Clarke v Tasmania (above). The judgment of Porter J in that case is consistent with the Crown's contentions. The judgment of Wood J in that case is consistent with the appellant's contentions. The judgment of Estcourt J in that case is silent as to the situation when joint criminal enterprise is relied upon as the sole basis of criminal liability and there is no evidence as to the accused physically participating in the commission of the crime. For the reasons stated below, we agree with the views expressed by Wood J in Clarke, and by the Court of Appeal in L v Western Australia.

7 At the end of the trial the learned trial judge provided the jury with two memoranda, one relating to each accused. The memorandum relating to the appellant began with the following:

1.1 If you are satisfied beyond reasonable doubt that the accused DAVID SHAW, and the other accused, Michael Wells, acted together pursuant to an understanding that they had reached to commit the crime, the accused DAVID SHAW is guilty of the crime, and it does not matter what part he and Michael Wells played in its commission."

8 In his summing-up, his Honour explained that paragraph to the jury as follows:

"So the memorandum starts with definitions, joint enterprise. If you are satisfied beyond reasonable doubt that the accused, Michael Wells, and the other accused, David Shaw, acted together pursuant to an understanding that they had reached to commit the crime the accused, Michael Wells, if you're looking at Wells' memo, is guilty of the crime, and it doesn't matter what part he and David Shaw played. And that's the essence, ladies and gentlemen, of this concept of joint enterprise, it doesn't matter. Ms Pennington [the prosecutor] said to you quite openly at the start of the trial we don't necessarily know who did what, what part each person played in the execution of the crime, but if two people or more are carrying out a joint criminal enterprise then each is responsible for what the other one does and it doesn't matter what aspect of that criminal enterprise one or other did, each is caught by the fact of the plan. And so you get the situation, don't you, where someone's a lookout, someone's the robber. So in this case the Crown says that you can infer, going back to what I said to you earlier, the existence of an agreement between Mr Shaw and Mr Wells to carry out a joint criminal enterprise which was to destroy by fire 131 Mockridge Road and claim against the insurance policy. Now you have to be satisfied of that beyond reasonable doubt of course and that's a matter for you based upon all of the evidence, and I told you the matters that the Crown asks you to look at for the purposes of inferring the existence of such a plan."

9 No directions were given to the jury in relation to the appellant as to criminal liability based on aiding, abetting or instigating the commission of the crime charged. The learned trial judge had proposed giving such directions. However the prosecutor made no reference to aiding, abetting or instigating in her closing speech. She closed only on the basis of a joint criminal enterprise. There followed a discussion between counsel and the learned trial judge. The prosecutor said that she was content that aiding, abetting and instigating not be left to the jury. The learned trial judge was proposing to cover those matters in his memorandum to the jury, but revised his memorandum by removing all material relating to those bases of liability.

10 In Tasmania, there are various bases of criminal liability. They are dealt with in ss 3 and 4 of the Criminal Code. Those sections read as follows:

"3 Which parties to crimes to be deemed principals in the first degree

(1) Where a crime is committed, each of the following persons is deemed to be a party to, and to be guilty of, the crime, and may be charged with actually committing it:

(a) every person who actually commits the crime;

(b) every person who does any act or makes any omission for the purpose of enabling or aiding another person to commit the crime;

(c) every person who abets another person in committing the crime;

(d) every person who instigates any other person to commit the crime.

(2) Any person who instigates another to do any act or make any omission of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted a crime on his part, is guilty of the same crime as if he had himself done the act or made the omission; and may be charged with himself committing that crime.

4 Crimes committed in prosecution of common purpose

Where 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose a crime 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 crime."

11 The Crown contends that when a crime is committed by a party to a joint criminal enterprise, all parties to that joint criminal enterprise fall within the meaning of the words "every person who actually commits the crime" in s 3(1)(a), including a party who plays no active role in the commission of the crime. The critical question is whether those words are to be given a literal meaning, or are to be given an extended meaning on the basis that they were intended to reflect the common law as it has developed with respect to the criminal liability of principal offenders, involving participation in a joint criminal enterprise by presence.

12 Further, the Crown contends that s 4 of the Code imposes criminal liability for all crimes committed in the prosecution of an unlawful common purpose, including crimes within the scope of the unlawful common purpose and crimes incidental to the prosecution of that purpose. The appellant contends that s 4 does not apply to crimes within the scope of the common purpose, but only to crimes incidental to the prosecution of that purpose.

13 The common law as to criminal liability based on a joint criminal enterprise was discussed by the High Court in McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108. That case concerned convictions for murder in New South Wales. The court said the following at 114:

"But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission." [Footnote omitted.]

14 The judgment in McAuliffe went on to note later developments in the common law and the principle of extended joint criminal enterprise, determined by reference to the possible consequences of the criminal venture which were subjectively within the contemplation of the parties to the understanding or arrangement.

15 The common law as referred to by the High Court in McAuliffe, before these developments, was no different when the Code was enacted in 1924. In Russell on Crimes and Misdemeanours (8th ed), 1923, the learned author stated at Vol 1, page 112:

"The general rule applies to offences by statute as well as at common law, viz, that all present at the time of committing an offence are principals, although one only acts, if they are confederates, and engaged in a common design, of which the offence is part." [Footnote omitted.]

16 Section 7(1) of the Criminal Code 1899 (Qld) is in very similar terms to Tasmania's s 3(1). It reads as follows:

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

(a) every person who actually does the act or makes the omission which constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence."

17 This subsection does not contain an equivalent of our s 3(1)(c), which relates to abetting, nor does the equivalent provision in Western Australia. There is a substantial overlap between abetting and counselling or procuring the commission of an offence.

18 In our s 3(1)(c), "abets" means "encourages": Murray v the Queen [1962] TASStRp 18; [1962] Tas SR 170. It is possible for a person to abet the commission of an offence merely by being present at the place where it is committed: R v Coney [1882] UKLawRpKQB 30; (1882) 8 QBD 534; Smith v The Queen (unreported, Court of Criminal Appeal, 4/1979); Hutt v The Queen (1989) 14 Tas R 182 at [51]. Encouraging the commission of an offence in that way has been regarded in Queensland as aiding the commission of the offence: R v Beck [1990] 1 Qd R 30 per Macrossan CJ, with whom McPherson J agreed, at 38; and per Derrington J at 47.

19 An interesting question as to persons acting in concert was considered by the Queensland Court of Criminal Appeal in R v Wyles, ex parte Attorney-General [1977] Qd R 169. Two people had been jointly charged with breaking and entering a dwelling-house in the night-time with intent to commit a crime therein, contrary to s 419(1) of the Criminal Code (Qld). That section has since been amended. The crime was constituted by a breaking and an entering. A question arose at the trial as to whether either of the accused would be guilty of the crime if one broke open the front door without entering the house, and the other entered for the purpose of stealing. The accused were acquitted. The Attorney-General referred a question to the Court of Criminal Appeal as to whether an accused person had to be acquitted unless the Crown could prove beyond reasonable doubt that the same person had both broken and entered with the necessary intent.

20 The answer depended on whether a person who broke without entering, or entered with breaking, fell within the scope of s 7(a) of the Queensland Code - now s 7(1)(a) - which read, "Every person who actually does the act or makes the omission which constitutes the offence". Section 32(c) of the Acts Interpretation Act 1954-1971 (Qld) provided that, unless the contrary intention appeared, "Every word in the singular number shall be construed as including the plural number and every word in the plural number shall be construed as including the singular number". A similar provision was in force when the Queensland Code was enacted in 1899: Acts Shortening Act 1867 (Qld), s 11.

21 All members of the court held that it was not necessary for the Crown to establish beyond reasonable doubt that an accused person had personally both broken and entered. Lucas J held that s 7(a) was intended to restate the common law, but also relied on the provision in the Acts Interpretation Act. At 177 he said that s 7(a) should be read distributively, to mean, "All persons who actually do the act or one or more acts in the series which constitutes or constitute the offence".

22 Hoare J agreed with the reasoning of Lucas J, but advanced further reasoning, based on the common law, that led to the same conclusion. At 179-180 he said:

"It is clear that at the time the Code was enacted the criminal law had developed in a way which could sheet home criminal responsibility by a jury being able to look at the totality of the acts where it could be inferred that persons acted in concert, one doing the one thing and others other things, all leading to the completion of the incident which constituted the offence. In such cases each of the perpetrators was held to be liable as a principal. He was treated as if he had 'actually committed the offence'."

23 The third member of the court, Matthews J, agreed with both of his brethren.

24 In that case s 7(a) was given an extended meaning, but it was a meaning consistent with treating the singular as including the plural. The court did not hold that a person who had done nothing could be regarded as a "person who actually does the act". Treating the singular as including the plural requires the provision to be read as "All persons who actually do the acts which constitute the offence". When a crime is constituted by two separate acts, an interpretation that imposes criminal liability only when both acts are performed by the same person would be inconsistent with the purpose or object of the Criminal Code. [1]

25 R v Wyles did not concern the criminal liability of a party to a joint criminal enterprise who takes no active part in the commission of an offence. However that situation was considered by the Queensland Court of Appeal in 1990 in R v Webb, ex parte Attorney-General (above). The facts in that case were similar to those in this case. Webb was charged with attempting to commit arson. The Crown case was that he and a companion entered a building, and that a towel was set alight, but there was no evidence as to which of the two men had started the fire. The jury acquitted Webb at the direction of the trial judge. The Attorney-General referred some questions to the Court of Criminal Appeal. The first question was:

"If two persons are together and are acting in concert to do an act which, if done, would amount to the commission of a criminal offence and that act is done, but the evidence does not reveal which one of them actually did the act, is each of them deemed to have taken part in committing the offence?"

26 Macrossan CJ, with whose reasons Lee J agreed, assumed that the common law applied, and took that to have been settled in R v Wyles. He said, at 283:

"Question No 1 in the reference raises no novel point. ... the question can be answered consistently with a number of decisions which have been pronounced in this area. In particular, in R v Wyles, ex parte Attorney-General [1977] Qd R 169 some apparent difficulties in the application of the words of s 7 of the Code were explored and resolved. It is now settled that s 7(a) can include cases where there are several persons acting in concert each doing some act so that the actions, in totality, would constitute all of the elements if the offence were committed by one person: see per Hoare J (with whom Matthews J agreed) at 182F of Wyles."

27 Thomas J agreed that the question should be answered "Yes", but relied on very different reasoning. He said, at 287:

"On the assumption that the question fairly arises, the question demands a 'Yes' answer. In many circumstances, especially when acts are done in combination, it is unnecessary to show which accused person personally performed the acts. ... If the evidence excluded the participation of any third person, and showed that either the accused lit the fire himself or that he aided his companion to light the fire (and plainly there was at least a case of sufficient encouragement in this respect) and that in lighting the rag (or aiding his companion to light it as the case may be) the accused had the necessary wilfulness in relation to the prospect of the house being burned, the case was adequate. In other words the mere fact that the Crown could not nominate which one of the two lit the rag was not of itself a sufficient reason to stop the case." [Case references omitted.]

28 Thomas J did not hold that a person who took no physical part in the lighting of the fire could be a "person who actually does the act" within the meaning of s 7(a). Macrossan CJ and Lee J took the view that that was the law, seemingly gaining support from Wyles, but Wyles did not relate to that question.

29 The practice of using the language of joint criminal enterprise when directing juries as to criminal liability was criticised by Davies JA in R v Palmer [2005] QCA 2. That was an appeal against convictions on charges of torture and murder. The trial judge had directed the jury to the effect that "the Crown must prove beyond reasonable doubt both the existence of a joint criminal enterprise and of the appellant's participation in its implementation": per Davies JA at [28]. No question of the criminal liability of a non-participant arose. The court held that the jury had not been misdirected and dismissed the appeal. However Davies JA, with whose reasons Fryberg and Mullins JJ agreed, made the following observations at [17]-[19]:

"[17] It is submitted, correctly in my opinion, that the phrase 'joint criminal enterprise' is not used in the Criminal Code and adds nothing to the provisions which are there contained. If an accused's conduct comes within the operation of any of the subsections of s 7(1) or within s 8 then she is deemed to have committed the offence whether or not she was a party to a joint criminal enterprise. And if she was a party to a joint criminal enterprise, as defined by the learned trial judge, but her conduct does not come within any of the subsections of s 7(1) or within s 8 then she is not deemed to have committed the offence.

[18] Thomas JA and Jones J pointed out in R v Walton and Harman [2001] QCA 309 at [30] that the language of joint criminal enterprise is not usually helpful when discussing criminal liability under s 7(1)(b) or s 7(1)(c). To that I would add that it may lead to confusion. It may describe an agreement to carry out an offence, participation in which may constitute counselling or procuring within s 7(1)(d) but even here it is not helpful to so describe it. In all these cases, as already mentioned, the question is not whether the accused was a party to a joint criminal enterprise but whether she did something which brought herself within one of the paragraphs of s 7(1). The language of joint criminal enterprise may be more appropriate to s 8 because that section requires a common intention to prosecute an unlawful purpose in conjunction with one another. That is the sense in which that or a similar phrase appears to be used in common law cases. However, because of the risk, even with respect to s 8, that its use may lead to confusion, in my opinion the phrase should be avoided in directions with respect to s 8 as well as in directions with respect to s 7.

[19] That is not to say that where that phrase has been used in directions about liability, whether under s 7 or s 8, there has been a misdirection which left open the possibility that the verdict miscarried. [Some footnotes omitted.]

"[35] I agree generally with the reasons for judgment delivered by Davies JA. I particularly agree with his Honour's comments relating to the notion of 'joint criminal enterprise'. Whatever those words convey at common law, they are at best unhelpful in explaining to a jury the effect of either s 7 or s 8 of the Criminal Code. At worst they are capable of misleading a jury. They might occasionally be helpful as a shorthand description of a particular complex of facts, but they do not describe the law in this State."

31 There was a different result in R v Quagliata [2019] QCA 45. That was an appeal against convictions on drug charges, including a trafficking charge. The trial judge had directed the jury by reference to the concept of a joint criminal enterprise. Bond J, with whom Sofronoff P and Henry J agreed, concluded, at [94], that the directions to the jury, taken as a whole had invited them to convict the appellant otherwise than by reference to s 7 of the Criminal Code (Qld). The conviction on the trafficking charge was quashed. At [17] and [93] Bond J referred with approval to comments made in R v Palmer (above) and L v Western Australia (above).

32 Section 7 of the Criminal Code (WA) is also in very similar terms to Tasmania's s 3, except for the absence of any express reference to abetting. The section reads as follows:

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

(a) Every person who actually does the act or makes the omission which constitutes the offence;

(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) Every person who aids another person in committing the offence;

(d) Any person who counsels or procures any other person to commit the offence.

In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.

A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission."

33 At the hearing of this appeal, counsel made submissions about Warren v The Queen [1987] WAR 314, a decision of the Full Court of the Supreme Court of Western Australia. In that case two men were appealing against their convictions on charges of causing grievous bodily harm. They had attacked a police officer together. Burt CJ, Kennedy and Franklyn JJ delivered separate judgments. Only that of Franklyn J contains anything relevant to this appeal. At 327-329 his Honour discussed R v Wyles and decided that it should be followed in relation to the construction of s 7(a) of the Criminal Code (WA). His Honour concluded that for the purpose of a case in which two people had acted in concert, the words in question should be read as "all persons who actually do the act or one or more of the acts in the series which constitutes or constitute the offence". The case did not concern the criminal liability of a party to a joint criminal enterprise who did not physically participate in the commission of the intended crime.

34 In Lacco v Western Australia [2006] WASCA 152, Buss JA made some obiter comments based on the reasoning of Macrossan CJ in R v Webb (above). That was an appeal to the Court of Appeal against a conviction for aggravated burglary. The appellant had been tried with two co-accused, both of whom were acquitted of the aggravated burglary charge. At [54] his Honour expressed a view to the effect that all three would have been guilty of aggravated burglary if all three had the common purpose of entering the house in question without the occupant's consent to commit the offence of stealing, if that common purpose existed when the appellant entered the house, and if the two co-accused were physically present when he entered but did not enter the house themselves.

35 L v Western Australia (above) was the first of two cases in that State's Court of Appeal in 2016 in which different views were expressed in relation to the common law doctrine of joint criminal enterprise. In that case two appellants appealed against convictions on a joint charge of possessing methylamphetamine with intent to sell or supply it to another. The trial judge had directed the jury as to criminal liability on the basis of participation in a joint criminal enterprise, leaving open the possibility of L being convicted solely on the basis of being a party to a joint criminal enterprise, without the jury being satisfied beyond reasonable doubt that she had ever had possession of any of the methylamphetamine or in any way participated in the joint enterprise. The court (Martin CJ, Mazza JA and Mitchell J) unanimously quashed the convictions.

36 In a joint judgment, their Honours rejected the proposition that a party to a joint criminal enterprise constituted a "person who actually does the act" when he or she had not done any act for the purposes of the enterprise. Their Honours said, at [32]-[33]:

"32 Section 7(a) of the Criminal Code identifies the criminal liability of '[e]very person who actually does the act or makes the omission which constitutes the offence'. For reasons explained by Franklyn J in Warren v The Queen, the reference to every person who actually does 'the act' includes all persons who do the act or one or more of the acts in a series of acts which constitutes or constitute the offence. In that manner, s 7(a) provides for criminal liability of several persons, acting in concert, each doing some act which, in aggregate, would constitute an offence if done by one person.

33 The operation of s 7(a) differs from the common law of joint criminal enterprise in that, under s 7(a) of the Code, it is necessary for the accused to have done at least one act in a series of acts which constitutes the offence. As the formulation in McAuliffe indicates, under the common law, all participating parties to the arrangement or understanding are liable even if only one does the relevant act. For this purpose, participation in a joint criminal enterprise at common law may be constituted by mere presence when the crime is committed pursuant to the arrangement or understanding." [Footnotes omitted.]

37 At [42] and [43], their Honours referred with approval to the comments of Davies JA in R v Palmer as to the use of the phrase "joint criminal enterprise". At [44], their Honours commented that the position in Queensland was "somewhat complicated" by the decision in R v Webb. At [51], they commented that, "the reasons given by Wood J for concluding that s 3 of the Criminal Code (Tas) does not incorporate the common law doctrine of joint criminal enterprise are compelling and are generally applicable to s 7 of the Criminal Code (WA)."

38 Their Honours' reasons for rejecting the proposition that the common law doctrine of joint criminal enterprise was incorporated in their State's Criminal Code were clearly stated at [52] and [53], as follows:

"52 In construing any statute it is of fundamental importance to give primacy to the statutory text. That is particularly important in construing a criminal code intended to replace the common law. The language of the Criminal Code should be construed according to its natural meaning and without any presumption that it was intended merely to restate the common law. While the common law may be considered, at least in resolving ambiguities or considering language which has acquired a technical meaning, the first duty of a court construing the Criminal Code is to look at the current text. Further, resort to the common law in construing s 7 - s 9 of the Criminal Code must recognise the significant developments in the common law, especially in the area of accessorial liability, since the terms of the Code were developed.

53 The language of s 7(a) of the Criminal Code is clear. It only attaches criminal liability to a person who 'actually does the act or makes the omission'. A person will only be taken to have committed an offence under s 7(a) if he or she has done an act (or one or more of a series of acts) or made an omission (or one or more of a series of omissions) which constitutes the offence. Otherwise deliberate assistance or encouragement of the kind referred to in s 7(b) - s 7(d) is required. Participation in a joint criminal enterprise will not render an accused criminally liable under s 7 of the Criminal Code unless he or she either:

1 does at least one act or makes at least one omission which, alone or in combination with the acts or omissions of another person (at least where they are acting in concert), constitutes the offence; or

2 deliberately aids another person to commit the offence, or does or omits to do any act for that purpose; or

3 deliberately counsels or procures another person to commit the offence." [Footnotes omitted.]

39 Eight days after the publication of their Honours' reasons in L, the Western Australian Court of Appeal, differently constituted, heard the case of Campbell v Western Australia [2016] WASCA 156, 50 WAR 331. Each of the judges in Campbell (McLure P, Buss JA and Corboy J) made detailed comments about the reasoning and conclusions of the court in L. Mazza JA, Mitchell JA and Hall J subsequently commented in Sheriff v Western Australia [2017] WASCA 185 at [67] that the issue discussed by the court in Campbell did not appear to have been the subject of submissions by the parties to that appeal.

40 Mr Campbell and four other people had been charged with murder. He had made an unsuccessful application for an order that he be tried separately from the other accused. The court was dealing with an appeal against the refusal of that application. All of the comments about joint criminal enterprise were obiter. McLure P made the following comments at [21]-[22]:

"21 A number of important points seem to be lost in the modern discussion of whether the common law doctrine of joint criminal enterprise in law has any application to s 7 of the WA Code or its equivalents. First, as a basis of liability, the sole focus is on direct liability under s 7(a), not derivative liability under s 7(c) or other categories of accessorial liability under the WA Code. Second, it has been authoritatively determined that s 7(a) has picked up the common law of joint criminal enterprise in law, in its various interchangeable formulations, in the circumstances in Wyles and Warren & Ireland [Warren v The Queen (above)]. Indeed, on a close reading of the reasons in Clarke v Tasmania, Wood J accepted that some common law principles had been picked up, the real issue being which parts of the common law had not been picked up under the direct liability provision in s 3 of the Tasmanian Code. Third, it is clear from the reasoning in Wyles and Warren & Ireland that the circumstances in those cases are just examples of the application of the principle underlying the common law doctrine of joint criminal enterprise in law. When there is a joint criminal enterprise in law (or its interchangeable equivalent) an actual s 7(a) act done by one or more parties to a joint criminal enterprise is also the act of other parties to, and participants in, the same joint criminal enterprise. The analogy is with the common law of agency, whereby a person may act by himself or by his authorised agent(s). 'Authority' in this context extends to adoption or ratification of the s 7(a) acts of others in the joint criminal exercise. That is, a party to a joint criminal enterprise in law becomes directly responsible for the s 7(a) acts of another party thereto.

22 In summary, s 7(a) applies when the s 7(a) acts of another become, at common law, the acts of the accused; the s 7(a) acts are joint acts; and the parties to, and participants in, the joint criminal enterprise are jointly liable under s 7(a). Section 7(a), on its proper construction, means:

Every person who actually does the act or makes the omission [by himself or by another party for whose acts or omissions he is liable at common law] which constitutes the offence."

41 Corboy J gave detailed consideration to the common law authorities as to joint criminal enterprise and acting in concert, the authorities relating to the interpretation of criminal codes, the history of the drafting of the Western Australian Code, that Code's provisions as to criminal liability, and the authorities relating to criminal liability. His Honour's concluding comments included the following, at [304]-[305]:

"304 As I have emphasised, the views expressed in these reasons are tentative. However, my preliminary view is that s 7 of the Code was intended to be, and is to be, interpreted by reference to common law principles of criminal complicity. The principles were deeply embedded in the common law by the time Sir Samuel Griffiths prepared his draft of the Queensland Code. They were capable of being shortly stated by language that was settled and which had acquired particular legal meanings. My preliminary view is that this approach to the interpretation of s 7 extended beyond the language employed in s 7(b) - s 7(d) to the wording of s 7(a). The expression 'the person who does the act ... which constitutes the offence' captured settled legal meanings and concepts in the same way as the words 'aids', 'counsels' and 'procures' conveyed an established legal meaning. In particular, the wording of s 7(a) was intended to give effect to common law concepts of joint criminal enterprise, the attribution principle and acting in concert - concepts exemplified by both Hurse and Bingley (to the extent the decisions in those cases might be explained by different principles). In particular, I consider that s 7(a), properly construed, embodies what I have referred to as the attribution principle.

305 At least two significant problems arise if s 7(a) is interpreted to exclude the application of that principle. First, there may be some cases in which it is impossible to identify and determine the criminal liability of an accused person according to the requirements of s 7 - to establish the knowledge and intention of the accused for the purpose of s 7(b) - s 7(d). That is the problem that the common law addressed by the concept of a joint criminal enterprise. Second, it may not be possible to rely on the co-conspirator's rule of evidence if it is not possible to allege that the accused were participants in a joint enterprise for the purpose of determining their criminal liability."

42 Buss JA however expressed the view, at [168], that the doctrine of joint criminal enterprise was not embodied in s 7(a) of his State's Code, and was not a basis for criminal responsibility under that provision. However his Honour opined, at [165], that s 7(a) had a more extensive operation than the Court of Appeal held it to have in L v Western Australia. He gave two examples:

"(a) Where two or more persons make or enter into an agreement or plan to commit a specific offence and, during the subsistence of the agreement or plan, one of them performs all of the acts or makes all of the omissions which constitute that offence with the authority of and therefore on behalf of all of the persons to the subsisting agreement or plan, each of them will have actually done the relevant acts or actually made the relevant omissions, as the case may be, and each of them will be deemed by s 7(a) to have committed the specific offence.

(b) Where two or more persons make or enter into an overarching agreement or plan to carry on a business involving ongoing criminal conduct for a definite or indefinite period (for example, the carrying on of a drug dealing business) and, during the subsistence of the overarching agreement or plan, one of them performs all of the acts or makes all of the omissions which constitute a specific offence pursuant to or in implementation of the overarching agreement or plan and with the authority of and therefore on behalf of all of the persons to the subsisting overarching agreement or plan, each of them will have actually done the relevant acts or actually made the relevant omissions, as the case may be, and each of them will be deemed by s 7(a) to have committed the offence."

43 Clarke v Tasmania (above) was another appeal against a conviction for arson. The Crown's case at trial was that Clarke and a man named Apted had entered a house with some diesel fuel that was then spread around and ignited in at least four rooms. The Crown contended that Clarke was criminally responsible for the arson either (a) by actually setting fire to the building, or (b) by aiding and abetting Apted in setting fire to the building, or (c) being a party to a joint criminal enterprise involving an agreement that the house be burnt down, and his presence when the fires were lit. Both Clarke and Apted gave evidence at the trial. Amongst other possibilities, it was open to the jury to be satisfied beyond reasonable doubt that the two men made an agreement to set fire to the house, and that Clarke was present when the fire was started, without being satisfied beyond reasonable doubt that Clarke physically participated in the starting of any fire.

44 Clarke was found guilty, and appealed against his conviction, asserting that the jury had been misdirected. However his counsel explicitly accepted that a participant in a joint criminal enterprise is a "person who actually commits the crime" within the meaning of s 3(1)(a) of the Code. As Estcourt J observed at [110], the one and only ground of appeal asserted that the jury should have been directed that, in order for Clarke to be guilty on the basis of a joint criminal enterprise, he must "either commit the agreed crime itself or, whilst present at the time the crime is committed and with knowledge that the crime is to be or is being committed intentionally assist or encourage another participant in the joint criminal enterprise". [Our emphasis.]

45 At [21], Porter J rejected the proposition that the concept of joint criminal enterprise does not fall within the ambit of s 3(1)(a) after considering R v Wyles, R v Webb, the judgment of Franklyn J in Warren v The Queen, and the judgment of Buss JA in Lacco v Western Australia. He went on to review the leading common law authorities as to the scope of the doctrine of joint criminal enterprise, and to reject the argument that the jury should have been directed as suggested in the ground of appeal.

46 Wood J concluded at [101] that the common law concept of joint criminal enterprise was not the law in Tasmania; that it was contrary to the correct approach to be taken with respect to construction of the Code; and that resort to the common law was without justification. She reached those conclusions after reviewing various Queensland cases, as well as the judgment of Franklyn J in Warren v The Queen. At [89], she made observations to the effect that R v Webb had significantly expanded the principle in R v Wyles and that this had been done with a lack of analysis. She concluded that the decision in Webb did not follow from the reasoning in Wyles. However she joined in the order dismissing the appeal because she concluded that there was no possibility of a miscarriage of justice, and that the proviso contained in s 402(2) of the Code therefore applied. She took the view that, if properly directed, the jury would inevitably have concluded that Clarke was guilty either as the person who started the fire or as an abettor.

47 Estcourt J concluded, at [149], that he could find no error in the trial judge's summing-up. He did not express a view as to the proper interpretation of s 3(1)(a), but said at [144] that there was no misdirection or error in the trial judge's references to "joint enterprise" in her summing-up or her memorandum to the jury. He said the following as to the criminal liability of a non-participating party to a joint criminal enterprise at [135]:

"135 It is impossible to my mind to envisage a situation where an understanding or arrangement between two people to commit a crime is still on foot, and has not been called off, and they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, but yet are not in a situation where they were 'intentionally assisting and encouraging each other'. The former necessarily includes the latter."

48 A person who intentionally assists the offender who actually commits a crime would be guilty of that crime under s 3(1)(b) of the Code as a "person who does any act or makes any omission for the purpose of enabling or aiding another person to commit the crime". A person who intentionally encourages an offender to actually commit a crime can be guilty by virtue of s 3(1)(c) as a "person who abets another person in committing the crime". The reasoning of Estcourt J was similar to that of Thomas J in R v Webb.

49 The concept of joint criminal enterprise was subsequently referred to in Edwards v Tasmania [2016] TASCCA 7, 26 Tas R 423. That was an application for leave to appeal against convictions on charges of causing grievous bodily harm and taking part in an affray. The applicant contended that the verdicts were unreasonable and could not be supported by the evidence. The trial judge had directed the jury that it was open to them to find the applicant guilty either as an abettor, or as a participant in a joint criminal enterprise, or on the basis of the prosecution of an unlawful common purpose (on the basis of s 4). There was no challenge to his Honour's directions. Blow CJ held that the evidence supporting a verdict based on s 4 was so forceful that the verdict should be regarded as unimpeachable. Pearce J agreed with his reasons at [82].

50 Edwards was not a case about criminal liability based on mere presence. The evidence was that a fight had started, and that the applicant joined in some time after it started, joining two other assailants in attacking another man. Consistently with the judgments of Porter J and Estcourt J in Clarke, Blow CJ accepted that participation in a joint criminal enterprise could be a basis of criminal liability. At [15], he said the following:

"[15] And I think the Crown must bear the burden of establishing an intention to cause grievous bodily harm in order for a person to be criminally responsible for grievous bodily harm as a participant in a joint criminal enterprise. If two or more people reach an understanding or arrangement that together they will commit a crime, and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the proposed crime, and one of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the intended crime, then each is guilty of that crime, regardless of what part each plays in its commission: Clarke v Tasmania [2013] TASCCA 11. If one or more of the applicant's companions caused grievous bodily harm to Mr Bannister while the applicant was involved with them in a joint attack on that man, he could be guilty of causing grievous bodily harm only if he intended such a consequence. If he foresaw such a consequence and was recklessly indifferent to that possibility, it could not be said that he had reached an understanding with anybody else that they would commit the crime of causing grievous bodily harm. Such an understanding or arrangement necessarily involves the forming of an intention to cause grievous bodily harm."

51 Because that was not a case about mere presence, it does not support the argument that s 3(1)(a) should be given an extended meaning as now asserted by the Crown.

52 Section 21(1) of the Criminal Code (Can) provides as follows:

"21 (1) Parties to offence - Every one is a party to an offence who

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

53 There do not appear to be any reported cases in Canada in which it has been held or argued that a non-participating party to a joint criminal enterprise can be a party who "actually commits" an offence. Our attention has been drawn to a case in the Manitoba Court of Appeal concerning the criminal liability of an inactive party to a criminal enterprise: R v Beardy 2016 MBCA 68. That case concerned an armed robbery. Four young men were getting into a vehicle when a van pulled up in front of them, four men got out of the van, and they were robbed. The men who got out of the van included the driver, a man carrying an imitation firearm with his face covered, a third man who took property from the victims, and a fourth man who may well have done nothing. Four men, including Mr Beardy, were charged in relation to the robbery, but Mr Beardy was tried alone, without a jury. He was found guilty. On appeal, one of his contentions was that the evidence showed no more than his mere presence and passive acquiescence at the scene of the crime, and that the verdict was therefore unreasonable. That argument was rejected by leMaistre JA, with whom Steel and Beard JJA agreed, who recited the essential facts and said, at [41]:

"On these facts, it was open to the trial judge to find that the accused had knowledge of the offence taking place and, at a minimum, encouraged the offence by his presence, which created strength in numbers equal to that of the number of complainants and, if he did not provide direct aid, he was ready to assist. His presence was therefore consistent with culpable involvement rather than merely being an innocent bystander."

54 It is significant that that analysis concerns abetting, and presence for the purpose of aiding, rather than criminal liability as a person who actually committed an offence. The common law doctrine of joint criminal enterprise appears not to have been mentioned in that case.

55 Section 66 of the Crimes Act 1961 (NZ) provides as follows:

(1) Every one is a party to and guilty of an offence who -

(a) actually commits the offence; or

(b) does or omits an act for the purpose of aiding any person to commit the offence; or

(c) abets any person in the commission of the offence; or

(d) incites, counsels, or procures any person to commit the offence.

(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose."

56 In New Zealand as well as Canada, there do not appear to be any reported cases in which it has been held or argued that a non-participating party to a joint criminal enterprise can be a party who "actually commits" an offence. That could be because those countries do not include jurisdictions where the common law doctrine of joint criminal enterprise still applies.

57 In Ahsin v The Queen [2014] NZSC 153, [2015] 1 NZLR 493, reference was made to two common law cases concerning the doctrine of joint criminal enterprise: R v Anderson [1966] 2 QB 110; Chan Wing-Siu v The Queen [1984] UKPC 27; [1985] AC 168. Ahsin was another case about the criminal liability of accessories and parties prosecuting an unlawful common purpose. There was no suggestion that a person who took no active part in the commission of an offence could be guilty under s 66(1)(a) as a person who "actually commits the offence". However it was held unanimously that s 66(2), the equivalent of our s 4, applied both to the commission of an offence that was intended to be committed and to other offences whose commission was a probable consequence of the prosecution of the common purpose: by McGrath, Glazebrook and Tipping JJ at [90]-[102], with whom Elias CJ agreed at [28] and William Young J agreed at [239]-[240].

58 A draft criminal code for Tasmania was prepared by Ewing J and presented to the Tasmanian Attorney-General in 1917. It was based on the Queensland Code, but contained significant innovations. The Ewing code was revised by a parliamentary committee which produced the Code that was enacted in 1924. See Petrow, Modernising the Law: Norman Kirkwood Ewing (1870-1928) and the Tasmanian Criminal Code 1924 [1995] UQLawJl 8; (1995) 18 (2) University of Queensland Law Journal 287.

59 The second reading speech for the Criminal Code Bill, delivered by the Attorney-General, the Hon A G Ogilvie, on 28 February 1924 was published in the Mercury the following day. By way of an overview, the Attorney-General said the following:

"In the framing of the Code, while the draft prepared some years ago by Mr Justice Ewing, and the Queensland Code, have been followed to a great extent, the draftsmen have drawn freely upon the Draft Code of 1879 prepared by the Criminal Code Commissioners appointed in England for the purpose and upon legislation recently passed in England to simplify and consolidate portions of the criminal law.

One of the principal objects that have been kept in view in this work has been to make the law of this State the same as that of England wherever it could be done consistently with the policy adopted in, and the circumstances of, the particular case. The result of this will be that as far as possible the authoritative decisions of the English Courts will be applicable in similar cases here - an incalculable advantage to both Bench and Bar, and to the public."

60 It seems clear however that s 3 was substantially based on s 7 of the Queensland Code. The Attorney-General said the following about s 3 in the second reading speech:

"Another innovation has been made in dealing with parties to crimes. Section 3 provides that any person actively concerned in any crime shall be a party to it and may be charged with committing it. This does away with any necessity for the employment of the term 'accessory before the fact' and simplifies the statement of the law."

61 It would appear that s 3 was intended to simplify, rather than restate, the law as it previously stood in relation to the criminal liability of parties to offences.

62 In Bank of England v Vagliano Brothers [1891] UKLawRpAC 6; [1891] AC 107, the House of Lords considered the proper interpretation of a provision in the Bills of Exchange Act 1882, which was intended to operate as a code relating to negotiable instruments. Lord Herschell said the following as to the proper approach to the interpretation of a code provision at 144-145:

"I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.

If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions, dependent upon a knowledge of the exact effect even of an obsolete proceeding such as a demurrer to evidence. I am of course far from asserting that resort may never be had to the previous state of the law for the purpose of aiding in the construction of the provisions of the code. If, for example, a provision be of doubtful import, such resort would be perfectly legitimate. Or, again, if in a code of the law of negotiable technical instruments words be found which have previously acquired a technical meaning, or been used in a sense other than their ordinary one, in relation to such instruments, the same interpretation might well be put upon them in the code. I give these as examples merely; they, of course, do not exhaust the category. What, however, I am venturing to insist upon is, that the first step taken should be to interpret the language of the statute, and that an appeal to earlier decisions can only be justified on some special ground."

63 In Brennan v The King [1936] HCA 24; (1936) 55 CLR 253, which concerned the interpretation of s 8 of the Criminal Code (WA), Dixon and Evatt JJ said, at 263:

"But it forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered (Cf, per Lord Herschell, Bank of England v Vagliano Brothers)." [Footnote omitted.]

64 Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56 concerned the mental element of the crime of wounding and the interpretation of ss 13(1) and 172 of the Criminal Code (Tas). In that case Windeyer J said the following as to the proper approach to the interpretation of provisions in the Code, at 75-76:

"The Code is to be read without any preconception that any particular provision has or has not altered the law. It is to be read as an enactment of the Tasmanian Parliament. And, interesting though it is to compare it with other codes, such as that of Queensland from which it is derived, or with projected codes such as Stephen's Code, they cannot govern its interpretation. But it was enacted when it could be said of the criminal law that it was 'governed by established principles of criminal responsibility'. And for that reason we cannot interpret its general provisions concerning such basic principles as if they were written on a tabula rasa, with all that used to be there removed and forgotten. Rather is ch iv of the Code written on a palimpsest, with the old writing still discernible behind."[2]

65 Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426 concerned the interpretation of provisions in the Criminal Code (Qld). The principal judgment was given by Gibbs J (as he then was), with whose reasons Menzies J and Mason J (as he then was) agreed. At 437, Gibbs J quoted the passage that we have quoted above from Brennan v The King, and continued:

"This passage does not mean that it is never necessary to resort to the common law for the purpose of aiding in the construction of the Code - it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground ... If the Code is to be thought of as 'written on a palimpsest, with the old writing still discernible behind' (to use the expressive metaphor of Windeyer J in Vallance v The Queen), it should be remembered that the first duty of the interpreter of its provisions is to look at the current text rather than at the old writing which has been erased; if the former is clear, the latter is of no relevance." [Some cases references omitted.]

66 The passages we have quoted from these four cases set out the principles to be applied in interpreting the provisions of the Criminal Code. They are the principles that were applied in L v Western Australia and by Wood J in Clarke.

Proper construction of s 3(1)(a) of the Criminal Code

67 There is nothing ambiguous or unclear about the words "every person who actually commits the crime" in s 3(1)(a). A person who desires a particular crime to be committed, enters into some sort of arrangement that he or she will participate in its commission, and is present at its commission, but without participating in its commission, would not be understood to actually commit the crime, in the ordinary sense of those words.

68 The words "person who actually commits the crime" have never acquired a technical legal meaning.

69 A person who, at common law, would be regarded as a party to a joint criminal enterprise, but who does not actively take part in that enterprise, might incur criminal liability as an abettor pursuant to s 3(1)(c). A person who is merely present at the scene of a crime will incur criminal liability as an abettor if he or she intends, by mere presence, to encourage the offender and if the offender is in fact encouraged by that person's mere presence: Hutt v The Queen (above) at [51] per Underwood J (as he then was), with whom Cox and Crawford JJ (as they then were) agreed. In Tasmania, by virtue of s 3(1), such an abettor is "deemed to be a party to, and to be guilty of, the crime". In the words of the heading to s 3, such an abettor is deemed to be a "principal in the first degree". At common law, that person would be deemed to be guilty of the crime as a party to (though not a participant in) a joint criminal enterprise.

70 There is one situation in which a person who intentionally offers encouragement to another person to commit a crime might not be guilty as an abettor. If the person who actually commits the crime is so intent upon committing it that he or she derives no encouragement from the person offering encouragement, then the person offering encouragement will not be deemed guilty as an abettor. Even if the two individuals have reached an understanding that the crime is to be committed, and both are present when it is committed, the person who does nothing but offer unnecessary encouragement will not incur criminal liability pursuant to s 3(1)(c).

71 There are other bases upon which criminal liability might be incurred by a person who, at common law, would be a non-participating party to a joint criminal enterprise. That person might incur criminal liability under s 3(1)(b) by going to the scene of the crime for the purpose of enabling or aiding the principal offender to commit the crime if that person needed assistance; or under s 3(1)(d) as an instigator. By becoming a party to the joint criminal enterprise, a person might commit the crime of conspiracy, contrary to s 297(1) of the Code. That crime is committed whenever one person conspires with another to commit any crime. In the light of those provisions, it cannot be said that s 3(1)(a) needs to be given an extended meaning in order to bring to justice individuals who, having taken no active part in the commission of a crime, would be criminally liable at common law as parties to a joint criminal enterprise.

72 In Campbell v Western Australia (above) Corboy J suggested at [305] that if that State's s 7(a) was interpreted to exclude the application of the joint criminal enterprise principle, "there may be some cases in which it is impossible to identify and determine the criminal liability of an accused person according to the requirements of s 7 - to establish the knowledge and intention of the accused for the purpose of s 7(b) to (d)". Those paragraphs deal with aiding, counselling and procuring. His Honour said, "That is the problem that the common law addressed by the concept of joint criminal enterprise." We disagree. There will certainly be cases when two or more individuals with criminal intent are present at the scene of a crime, and the evidence does not establish which of them did or did not participate in its commission. In such situations, the appropriate course is for the jury to be directed as to the various possible bases of criminal liability, and directed that, if satisfied beyond reasonable doubt that a particular accused must have either actually committed the crime or been criminally responsible for it on some other basis, then they should find that accused guilty, even though they cannot make a finding as to which basis of criminal liability is applicable.

73 In Campbell v Western Australia, McLure P noted at [15] that in R v Wyles, Lucas J observed at 176 that the Queensland Code had been construed consistently with the common law for nearly three quarters of a century. At [17], her Honour observed, "Reliance on joint criminal enterprise as a basis of liability under s 7(a) of the WA Code has been a feature of criminal trials in this State for many decades." However, the issue does not appear to have been directly considered as a matter of principle prior to L v Western Australia and Campbell.

74 In Campbell at [305], Corboy J also suggested that a literal interpretation of s 7(a) might prevent the Crown from relying on the rule of evidence known as the co-conspirators rule. We see no reason why any question as to the scope of that rule should make any difference to the interpretation of s 3(1)(a) or any similar provision. That rule was stated and explained by the High Court in Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87 in the following terms, at 94-95:

"... when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others. ... Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. ... The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business."

75 If s 3(1)(a) is held not to have an extended meaning that reflects the common law as to joint criminal enterprises, then anything said or done by one co-conspirator in furtherance of the common purpose would be admissible as evidence against a totally inactive co-conspirator. However the inactive co-conspirator might not be guilty of a crime, except perhaps the crime of conspiracy.

76 The various arguments advanced in Campbell do not warrant resorting to the common law doctrine of joint criminal enterprise. In our view it is clear that the words "every person who actually commits the crime" in s 3(1)(a) must be given their ordinary literal meaning, and must not be interpreted as including every person present when a crime is committed who has reached an understanding or arrangement with a person who actually commits the crime that it will be committed. In other words, s 3(1)(a) is not to be interpreted as somehow restating the common law as to the criminal liability of parties to joint criminal enterprises. The Crown's contentions as to the scope of s 3(1)(a) must be rejected. The learned trial judge directed the jury on an erroneous basis.

Proper construction of s 4 of the Criminal Code

77 Although the learned trial judge erred in relation to s 3(1)(a), it does not necessarily follow that the conviction on the arson charge should be quashed. It is necessary to consider the scope of s 4 of the Code.

78 During the hearing of the appeal, counsel for the appellant submitted that s 4 applies only to crimes that are not within the scope of the common unlawful purpose, but the Director of Public Prosecutions argued that the section also applies to crimes that are within the scope of the common unlawful purpose. We will refer to the Crown's contention as to the scope of s 4 as "the wider interpretation" and the appellant's contention as "the restricted interpretation".

79 In Clarke, the judgments of Porter J and Estcourt J made observations regarding this question of the ambit of s 4. While s 4 was not left to the jury in that case, it was raised incidentally in the Crown's arguments on appeal. Porter J noted that it was expressly asserted by the Crown that there can be a common purpose liability under s 4 where the unlawful purpose and the completed crime are one and the same. Porter J agreed with Estcourt J that the assertion was wrong. His Honour began with an observation that the "accepted approach in this State is that if two or more persons form a common purpose to commit crime X, and crime Y is committed, the liability of each is to be first assessed under s 3, with resort had to s 4 if necessary". Noting the subjective basis for liability under s 3 compared with liability under s 4 on the objectively assessed basis, his Honour further observed that "Where the common purpose is to commit crime X and crime X is committed, there is no need to go beyond s 3." After referring to a passage in R v Barlow (1997) 188 CLR 1 at 9, in which it was said that s 8 of the Queensland Code complements s 7 and "extends the net of criminal liability", his Honour said that that passage strongly suggests that s 4 has no operation in a situation covered by s 3. At [57] Porter J relied upon a statement of Kiefel J (as she then was) in R v Keenan [2009] HCA 1, 236 CLR 397 at [102] as putting the point "beyond argument".

80 His Honour referred to a Canadian authority of R v Simpson (1988) 23 BCLR (2d) 145, 38 CCC (3d) 481, in which a five member bench of the Supreme Court of Canada unanimously decided the point. His Honour concluded that the statement from Keenan and what was held in the Canadian case represents the law in relation to s 4. That is, s 4 only applies where the crime committed is different from the unlawful purpose.

81 Estcourt J regarded any doubt about the question as resolved by reference to the judgment of Kiefel J in R v Keenan and the same passage at [102], which he set out, with emphasis added:

"The purpose of s 8 is to extend the criminal responsibility of the parties to a common purpose to an offence other than that which was intended to be committed".

82 Before considering authorities bearing on this question, including those referred to by Porter J and Estcourt J in Clarke, it is necessary to begin with a consideration of the text. The starting point in the interpretation of s 4, as with s 3, is that the provision should be construed according to its plain and natural meaning. Interpreted in this way, criminal responsibility will arise when:

(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and

(b) a crime is committed in the prosecution of such unlawful purpose, and

(c) the crime committed is of such a nature that its commission is a probable consequence of the prosecution of the unlawful purpose.

83 Provided the requisite connection is established between the unlawful purpose and the crime, there is nothing in the text of the provision which suggests that its operation should be limited by excluding crimes which are included within the intended scope of the unlawful purpose. Obviously, the provision extends the ambit of responsibility beyond this, by applying an objective test of probable consequence. However, this prescribes the outer reach of the provision. It does not expressly or impliedly exclude intended crimes. Self-evidently, a crime which is intended will meet the objective test of "probable consequence".

84 Further, an interpretation which accords with the plain and natural meaning of the text is consistent with the role of the provision within the wider context of the legislative scheme by which the Code deals generally with criminal complicity. The scheme in question is contained in Chapter II, ss 3 to 6 inclusive. It is clear that these provisions are intended to codify the attribution of criminal responsibility where the commission of a crime involves more than one person. Although not intended to restate the common law, it is apparent that these provisions are modelled on the overall approach to criminal complicity developed by the common law. This is not surprising. The common law approach reflects the complexity of human relationships and the wide range of ways in which a person might contribute to criminal activity. Hence, the common law recognised criminal culpability arising from actual contribution to the commission of a crime (accessorial liability) as well as from participation in the execution of a joint plan or common intention to commit a crime. The latter is often described as joint criminal enterprise liability. The relationship between these separate bases of liability was recognised and explained by the majority of the High Court in Clayton v The Queen [2006] HCA 58, 81 ALJR 439, 168 A Crim R 174 as follows at [20]:

The history of the distinction between joint enterprise liability and secondary liability as an aider, abettor, counsellor or procurer of an offence has recently been traced by Professor Simester. As that author demonstrates, liability as an aider and abettor is grounded in the secondary party's contribution to another's crime. By contrast, in joint enterprise cases, the wrong lies in the mutual embarkation on a crime, and the participants are liable for what they foresee as the possible results of that venture. In some cases, the accused may be guilty both as an aider and abettor, and as participant in a joint criminal enterprise. That factual intersection of the two different sets of principles does not deny their separate utility. [Footnotes omitted.]

85 Under the common law as it is applied contemporarily in Australia, a party to a joint criminal enterprise will be guilty of crimes which are the object of the agreement or are contemplated as a possible incident of the execution of the agreement. This liability will also extend to crimes foreseen by the accused as a possible incident of the execution of the agreement, provided there is ongoing participation with that foresight. Although the latter is often referred to as extended joint criminal enterprise, it is in reality a component of the same concept, that is criminal responsibility for crimes committed during the prosecution by more than one person of a common unlawful purpose. This was concisely explained by the majority of the High Court in Miller v The Queen [2016] HCA 30, 259 CLR 380 at [3]- [4]:

"[3] Common purpose', 'common design', 'concert' and 'joint criminal enterprise' are expressions variously used in the Australian jurisdictions to describe one means of establishing the complicity of the secondary party in the commission of a crime. The expression 'joint criminal enterprise' is used in South Australia and it is the expression that generally will be used in these reasons.

[4] The law, as stated in McAuliffe, is that a joint criminal enterprise comes into being when two or more persons agree to commit a crime. The existence of the agreement need not be express and may be an inference from the parties' conduct. If the crime that is the object of the enterprise is committed while the agreement remains on foot, all the parties to the agreement are equally guilty, regardless of the part that each has played in the conduct that constitutes the actus reus. Each party is also guilty of any other crime ('the incidental crime') committed by a co-venturer that is within the scope of the agreement ('joint criminal enterprise' liability). An incidental crime is within the scope of the agreement if the parties contemplate its commission as a possible incident of the execution of their agreement. Moreover, a party to a joint criminal enterprise who foresees, but does not agree to, the commission of the incidental crime in the course of carrying out the agreement and who, with that awareness, continues to participate in the enterprise is liable for the incidental offence ('extended joint criminal enterprise' liability)."

86 The Code provides a comparable scheme of separate, but not mutually exclusive, bases of criminal responsibility. As with the common law, the scheme would seem designed to capture the full range of moral culpability associated with the commission of a crime. Section 3, as well as ss 5 and 6, are concerned with a person's contribution to the crime whether as the person who actually commits it, or aids, abets or instigates another in the commission of it, or assists another to escape punishment after its commission. The foundation of criminal responsibility under s 4 is the "mutual embarkation on a crime". The section establishes the ambit of criminal responsibility by participants while carrying out a common unlawful purpose. In contrast to the common law, the Code defines this ambit by requiring a connection of objective probability between the common purpose and the committed crime.

87 If ss 3 and 4 are interpreted literally and applied according to their terms, they complement each other and sit comfortably within the legislative scheme already described. Such an interpretation ensures that criminal liability is attributed for all conduct which falls within the ambit of either or both provisions. A restricted interpretation of s 4 will unreasonably and unnecessarily impact on the cohesion and efficacy of this scheme. In the example postulated by above, a person who has formed a common intention to prosecute an unlawful purpose with another, and who is present when the crime is committed, but is not liable under s 3 because of an absence of contribution to the commission of the crime in any way specified in that section, would under a restricted interpretation of s 4, escape criminal responsibility for the intended crime. However, that person could still be responsible under that provision for another crime which is unintended but is a probable consequence of the prosecution of the common purpose. We cannot accept that it is a reasonable or intended consequence of the legislative scheme that such a person should avoid criminal responsibility for the crime intended to be committed under the common purpose, but be responsible for a crime which is unintended but attributed to him or her because of its objective probability. While many examples postulated around the operation of these provisions depict the intended crime as less serious than the crime which is a probable consequence of the common purpose, there is no reason why this must be so. Whatever the relative seriousness of the crimes, the restricted operation is capable of leading to perverse and unreasonable outcomes. Such a construction should be avoided. It is avoided if the ordinary natural meaning of the text is adopted. The criminal responsibility of the person should be determined by application of the test prescribed by s 4 according to its terms. Under that test, a person will be responsible for any crime committed in the prosecution of the common purpose, provided that the crime is of such a nature that its commission was a probable consequence of such prosecution, including those where the test is satisfied because the crime was expressly agreed or contemplated by the common purpose. The intention of the provision is to attribute criminal responsibility to all such crimes, on the basis of their connection to the prosecution of the unlawful purpose, irrespective of the contribution actually made by the person as defined in s 3. The section defines the limits of criminal responsibility arising from the prosecution of common purpose. There is no justification for excluding crimes which fall within that ambit from attribution of criminal responsibility.

88 A further potential difficulty with a restricted interpretation of s 4 is its practical application. In R v Keenan (above), Kiefel J, with whom Hayne, Heydon and Crennan JJ agreed, explained the correct operation of s 8 of the Criminal Code (Qld), which for present purposes, is in identical terms to s 4, as follows:

"The operation of an identical provision was described by Dixon and Evatt JJ in Brennan v The King in these terms:

'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 inferences available as to what the common purpose may have been in a given case will depend upon the evidence, viewed as a whole. Section 8 does not require the connection, between the offence actually committed and the common purpose to be prosecuted, to be established at the point when the common purpose is determined as a fact. It provides for the requisite connection to be determined by the application of the test, whether the offence was the probable consequence of the common purpose, after that purpose has been ascertained."

89 This understanding of the operation of the provision highlights the difficulties associated with excluding intended crimes from its application. A common purpose will not always be constituted by an agreement to commit a specific crime or crimes. It may well be constituted by an intended course of conduct which necessarily includes, or at least contemplates, a spectrum of criminal conduct. In such a case, the crime actually committed may well correspond to the common intention, whether or not it was expressly discussed during its formation. This was in fact the case in Keenan. It is true that Kiefel J in a general introduction to the section at [102], referred by Porter J and Estcourt J in Clarke, described the provision as extending "the criminal responsibility of the parties to a common purpose to an offence other than that which was intended to be committed". However, her Honour did not actually say that the provision operates exclusively in respect of such offences. On the contrary, her Honour observed that the unlawful purpose will often not be detailed and include the specific means by which it is to be carried out. The unlawful purpose in Keenan was constituted by a plan formed by the several accused to do serious harm to the victim. The means by which this was to take place was not discussed by the participants, but there was evidence which justified a conclusion that the respondent knew that one of the participants was armed with a baseball bat. In fact, unbeknown to the others, including the respondent, one accused was armed with a firearm, and during the attack shot the victim, thereby causing grievous bodily harm. Irrespective of the means by which it was carried out, the crime committed, causing grievous bodily harm, was actually that which had been agreed as the common purpose. Keifel J dealt with this question at [135]:

"The Court of Appeal may have been concerned that if the offence was to be understood as involving the infliction of grievous bodily harm and the common purpose involved a similar objective, the jury might consider that it was obliged to conclude that that offence was a probable consequence of that plan. In such a situation the jury would have been so obliged. But such a conclusion would merely reflect the factual coincidence between offence and common purpose. That situation could only arise if the jury had found the common purpose to involve the infliction of such a level of physical harm. The means employed to achieve that level of harm, the shooting, does not assume significance to such a finding."

90 It is clear from those comments and the outcome of the appeal that her Honour proceeded on the assumption that the section will apply where the nature of the crime committed falls within the intended scope of the common purpose. This emphasises the point that her Honour's comments concerning the effect of the section were intended to describe the extended nature of the outer limits of its application, rather than to imply any limitation in that regard.

91 The facts in Keenan, and in particular the wide scope of criminal conduct potentially incorporated within the common purpose agreed by the participants, demonstrate the difficulty of determining which crimes are to be excluded from the section's operation under a restricted interpretation. Is it only crimes expressly agreed which are excluded from the section? Will it apply to crimes not expressly agreed but which are within the subjective contemplation of the parties, or one or some of them, or does it only apply to crimes not actually intended or foreseen by any of the participants, but which are objectively probable? It is highly unlikely that those planning to commit criminal conduct together will contemplate the execution of their plan by reference to neat legalistic boundaries and definitions. In this sense, it can be seen that in some cases, the restricted interpretation of s 4 could lead to unnecessary difficulties, and absurd and unreasonable outcomes.

92 Apart from Keenan, we are not aware of any Australian authority which bears directly upon this question. The High Court decisions of Brennan v The Queen (above) and Darkan v The Queen [2006] HCA 34, 227 CLR 373, were concerned with the extended operation of identical provisions under the Western Australian and Queensland Codes respectively, in circumstances in which the crime committed was different to that intended under the common purpose. Neither has anything to say about the question of whether intended crimes are excluded from the provision's operation. They certainly do not provide support for that proposition. On the contrary, in both cases, the High Court has emphasised the need to interpret and apply the provision according to the plain and natural meaning of its terms, and not on the basis that it has simply replicated or incorporated the common law. In Brennan, Dixon and Evatt JJ, observed that the provision "forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered". Their Honours then immediately described the operation of the provision by reference to a test which simply applied the section in its terms. See the passage referred to by Keifel J in Keenan which is reproduced above.

93 In Darkan, the question before the Court was the meaning of the term "a probable consequence" as it is used in ss 8 and 9 of the Criminal Code 1899, the equivalent of ss 4 and 5 under the Tasmanian Code. The primary issue concerned the trial judge's explanation of this term to the jury, and, in particular, whether it was sufficient to describe the test in terms of it being "a real possibility, or a substantial cause or a real chance that that event would happen". It was in this context that the majority conducted an historical analysis, commencing with the development of the common law concept of extended joint criminal enterprise, and progressing through to the drafting and legislating of the Code. The focus of the analysis was the formulation of the test with respect to the required connection between the common intention and the crime actually committed. The majority concluded the analysis with this observation (at [40]) on the relevance of the common law to the construction of s 8:

"The history thus briefly set out does not offer any decisive reason for selecting one rather than another construction for 'a probable consequence' in ss 8 and 9 of the Code. But it does serve as a reminder of how great the difference is between s 8 of the Code and the common law as now understood, for the common law stress on the need for 'a crime foreseen as a possible incident of the common unlawful enterprise' is quite different from Sir Samuel Griffith's requirement of a probable consequence. The history illustrates how Sir Samuel Griffith decided to adopt the entirely objective approach in Foster's Crown Law for the problem addressed by s 9 and extend it to the problem addressed by s 8. And the history also suggests that the failure of Sir Samuel's Draft Code to take up as an element in any test the mental state of the accused, or what the accused ought to have known, meant that very wide liability would potentially rest on accused persons if 'a probable consequence' were given a meaning extending to any possibility which might be described as real or substantial."

94 The Court ultimately concluded that the trial judge had erred by not directing the jury in the terms of the provisions as they appear in the Code.

95 Section 4 of the Code was not mentioned in the second reading speech of 28 February 1924. It is almost identical to Queensland's s 8. The only difference is that the Queensland section applies to offences whereas the Tasmanian section is confined to crimes. Thus the Tasmanian section does not apply to summary offences while the Queensland section does. It is clear from the historical analysis in Darkan that the Queensland section was an innovation on the part of Sir Samuel Griffith, and was not intended to be a restatement of the common law, even though the concept of a "probable consequence" had, for the purposes of the common law, been relevant only to crimes that were not within the scope of a common unlawful purpose.

96 There is conflicting authority in respect of this question emanating from other jurisdictions with similar legislation. In R v Simpson (above) the Supreme Court of Canada unanimously decided that s 21(2) of the Canadian Criminal Code, which is in similar terms to s 4, should be interpreted on the basis that the unlawful purpose must be different from the offence actually committed, as we have said. In Ahsin v The Queen (above), the Supreme Court of New Zealand unanimously held that the corresponding provision under the Crimes Act (NZ), s 66(2), applied to the offence which was intended as the subject of the common purpose, as well as non-intended offences caught by the extended definition. Section 66 is, in substance, identical to ss 3 and 4 of the Criminal Code (Tas), with the exception that s 4 applies a purely objective test whereas s 66(2) makes a person criminally responsible for a crime committed in the prosecution of the common purpose "if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose". The reasoning of McGrath, Glazebrook and Tipping JJ is typical of that expressed by the other members of the court. Their Honours noted that the common law principle of joint enterprise liability as it was then explained by the Privy Council in Chan Wing-Siu v The Queen (above) was "encapsulated in s 66(2)". Their Honours observed that "common purpose liability is a 'wider principle' that is not confined to cases where the intended offence is committed. Nor are intended offences to be excluded from its ambit". Their Honours went on to say:

"[94] The offence that was intended by the participants falls naturally within the scope of the words in s 66(2): 'every offence committed by any one of them ... that ... was known to be a probable consequence'. Although there is perhaps some infelicity in the language, Parliament cannot have contemplated that s 66(2) was confined to offences other than those intended at the time of entry into the common purpose. If that were so, there would be circumstances where participants in a common purpose resulting in the exact crime intended could not be charged under s 66 at all, because assistance or encouragement could not be attributed with certainty to any individual. Such participants are at least as culpable as those involved in a common purpose that results in an unintended but foreseen offence." [Footnotes omitted.]

97 In our view, this reasoning is apposite to s 4, despite the different test. Whether the ambit of culpability is defined by reference to subjectively foreseeability or objectively probable consequences, the crime intended by the parties "falls naturally within the scope" so defined.

98 The judgment of the Supreme Court of Canada in Simpson was delivered by McIntyre J. His Honour analysed a number of conflicting Canadian authorities on this point and then concluded as follows:

"[14] While acknowledging that the words of s 21 of the Criminal Code could be read to support either contention, and while not overlooking the fact that I was a member of the court in Wong and in Miller and Cockriell, which cases are said to express conflicting views on the question, I am of the opinion that the weight of the authorities supports the dissenting view of Seaton JA, to the effect that the unlawful purpose mentioned in s 21(2) must be different from the offence which is actually charged. In reaching this conclusion, I adopt the words of Craig JA, supra. The 'unlawful purpose' and 'the offence' committed in the course of the pursuit of the unlawful purpose are different. The two subsections of s 21 deal with different circumstances. Subsection (1) applies to make everyone a party to an offence who commits it or who aids and abets in its commission. Subsection (2) covers the case where, in the absence of aiding and abetting, a person may become a party to an offence committed by another which he knew or ought to have known was a probable consequence of carrying out an unlawful purpose in common with the actual perpetrator. I am of the opinion that the trial judge was in error in his charge to the jury with respect to s 21(2) of the Criminal Code."

99 This reasoning seems to rely largely on the "weight of authority", and contains little in the way of critical analysis. It does not deal with the difficulties of demarcation between the offences caught by each subsection, nor does it explain how it is that an offence known to be a probable consequence of carrying out a common unlawful purpose does not, as a matter of logic and plain meaning, include an offence which is actually discussed by the participants as part of the plan. In our respectful view, the wider interpretation is correct and Simpson should not be followed.

100 As already noted, a consequence of the wider interpretation is the potential for considerable overlap between ss 3 and 4, because in cases in which the crime committed is that which is intended by the participants, criminal responsibility will almost certainly arise under both provisions. We see no difficulty either in principle or in practical application with this outcome. In fact, we would consider it to be the expected and appropriate effect of provisions which attribute criminal responsibility to those complicit in a crime on more than one basis. Certainly, under s 3 it is common for criminal responsibility to arise under more than one provision. We accept that there is a practical danger that relying on both provisions in every case to which both may apply on the facts, could lead to unnecessarily complicated directions, and thereby create confusion for juries. Any such problem is capable of amelioration by the exercise of appropriate discretion on the part of the prosecution. As a matter of practice, resort should only be had by prosecutors to s 4 in cases where, on the facts, there may realistically be a need to rely on the extended ambit of the provision in order to attribute criminal responsibility, or where there is clear evidence of a preformed common unlawful purpose, which is additional to inferences drawn from the conduct of the parties in the commission of the crime. In any event, practical issues concerning the potential for overlap of the provisions will not "deny their separate utility".

"the learned judge erred in law in directing the jury that appellant [sic] could be criminally responsible on the basis of a joint criminal enterprise and/or failing to direct the jury as to the act or acts of the accused which were capable in law of attracting criminal responsibility."

102 The first part of that ground attacks the directions to the jury that permitted a finding of guilt against the appellant on the basis of the common law principle of joint criminal enterprise. Those directions were concerned with the liability of the appellant for the crime of arson. As we have said, this principle as applicable under the common law is not incorporated into the criminal law of Tasmania. It was necessary for the jury to be directed in accordance with the plain and ordinary meaning of the relevant provisions of the Code. Because the prosecution had expressly abandoned reliance on aiding, abetting and instigating under s 3, the only basis of criminal responsibility short of actually lighting the fire, was common purpose under s 4. However, because neither the judge nor the parties believed then that that provision was applicable, the jury was not directed as to its terms. Accordingly, the ground is made out. However, this does not necessarily mean that the appeal will succeed. For reasons that are stated below, we have concluded that the appellant's contentions that the learned trial judge erred in failing to direct the jury as to the act or acts of the appellant that were capable in law of attracting criminal responsibility, and that the verdicts were unsafe and unsatisfactory, must be rejected. It will therefore be necessary to consider whether, notwithstanding the error as to the applicability of the doctrine of joint criminal enterprise, the appeal should be dismissed under s 402(2) of the Code "because no substantial miscarriage of justice has actually occurred". We will deal with that question after considering the other contentions relating to the appellant's convictions.

Acts of the appellant capable of attracting criminal responsibility

103 Before the hearing of the appeal, ground 1 was amended by adding the alternative assertion that the learned trial judge erred in "failing to direct the jury as to the act or acts of the accused which were capable in law of attracting criminal responsibility".

104 The appellant's submissions in relation to this contention were advanced in anticipation of a ruling that the common law doctrine of joint criminal enterprise was applicable under s 3(1)(a). The appellant's argument is encapsulated in his counsel's outline of submissions at par 36, in the following sentence:

"The jury was not directed that in order to find the appellant guilty, in circumstances where he did not light the fire, they would have to be satisfied beyond reasonable doubt that he was present pursuant to the agreement and not merely present."

105 The appellant's contentions as to joint criminal enterprise have not been rejected. There was no need for the learned trial judge to give a direction as asserted.

106 In his notice of appeal the appellant contended that the guilty verdicts on both charges were "unsafe and unsatisfactory". It has often been said that those words are misleading or inappropriate when a verdict is challenged on appeal: Gipp v The Queen (1998) 194 CLR 106 at [17] and [120]-[126]; Fleming v The Queen (1998) 197 CLR 250 at [12]; R v Giam [1999] NSWCCA 53, 104 A Crim R 416 at [31]- [44]; Loone v Tasmania [2008] TASSC 7, 17 Tas R 378 at [96]- [98]; Lin v Tasmania [2012] TASCCA 9 at [215]; Lin v Tasmania [2015] TASCCA 13 at [146]; Anderson v Tasmania [2020] TASCCA 11 at [125]. However it is clear from his counsel's submissions that the appellant contends that the evidence against him lacked probative force to such an extent that the jury should have had a reasonable doubt and he should be acquitted on both charges. The relevant principles were stated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 494-495 as follows:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618-619; Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 at 443-444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (supra) at 443, 451, 458, 461-462)."

107 As we have said, the property in question was owned by the appellant, subject to a mortgage. He, Mr Wells and Ms Coleman were jointly charged with arson. The particulars of the charge, as set out in the indictment, alleged that they unlawfully set fire to the house. The appellant's ownership of that house did not provide him with a defence because of s 267(1) and (2) of the Code. Those subsections read as follows:

"(1) Every injury to property which is caused with intent to defraud is unlawful, although caused by the owner of such property.

(2) No person is justified in causing any injury to property by the fact that he has a partial interest therein."

108 In relation to the arson charge, the Crown bore the burden of proving beyond reasonable doubt that the fire was deliberately lit, that it was lit with an intention to set fire to the building, that it was lit with an intention to defraud the appellant's insurer, and that the appellant was criminally responsible for the commission of the crime.

109 Section 252A(1) of the Criminal Code provides that, "Any person who by any deception dishonestly acquires for himself or for any other person any financial advantage is guilty of a crime." Section 299 of the Code provides that, "Any person who attempts to commit a crime is guilty of a crime."

110 The appellant, Mr Wells, and Ms Coleman were jointly charged with attempting to dishonestly acquire a financial advantage, contrary to ss 252A(1) and 299 of the Code. The particulars of the charge, as set out in the indictment, alleged that they "between on or about the 27th day of June 2016 and on or about the 12th day of January 2017, attempted to dishonestly acquire a financial advantage from IAG Limited trading as Coles Insurance, by making false representations in support of an insurance claim, knowing those representations to be false."

111 There was uncontroversial evidence that the appellant had a fire insurance policy with IAG Limited, which traded as Coles Insurance, and that he made a claim on that policy following the fire. The Crown contended that the fire was deliberately lit by Mr Wells and/or the appellant pursuant to a plan to set fire to the building and make a fraudulent insurance claim, that the appellant dishonestly pretended not to know that the fire had been deliberately lit, and that he told lies about matters of detail, for the purpose of obtaining a payment from the insurance company. At the hearing of the appeal, the appellant accepted that the evidence proved beyond reasonable doubt that the fire had been deliberately lit, but contended that the evidence showed beyond reasonable doubt that Wells had lit it, using accelerant. He contended that the evidence was insufficient to establish beyond reasonable doubt that he was a party to an agreement to set fire to the house; or that he knew that the fire was deliberately lit, or that anything that he said or did was dishonest.

112 The Crown relied on circumstantial evidence in arguing that the fire was started pursuant to an agreement or understanding between the appellant and Mr Wells. In particular, the Crown relied on evidence as to the appellant's financial position, the closeness of his relationship with Mr Wells, indications of a plan to set fire to the house and make a fraudulent insurance claim, communications between the appellant and the insurer before the fire, representations made by the appellant and Mr Wells after the fire. The extent to which that evidence supported the Crown case must also be assessed. The evidence of dishonesty was wholly circumstantial. In order to assess the strength of the Crown case on the second charge, it is most important to consider the evidence as to what happened on the evening of the fire, and the evidence relating to the extent of the appellant's knowledge about the starting of the fire.

113 CCTV footage from a house across the road was tendered on the trial and played to the jury. The camera operated intermittently, activated by motion sensors. The camera also recorded times. It was established by reference to Tasmania Fire Service records that the camera's clock was a few minutes fast. The footage showed that the appellant and his companions left the house at 5.58pm (corrected time). The view from the camera did not include the front door, but it included a driveway within a few metres of the front door. The first person to come into view on the driveway was there for only 30 seconds before the other two came into view. The appellant and Mr Wells left in one vehicle, followed by Ms Coleman in a second vehicle.

114 Ms Coleman gave evidence to the following effect. Before 4pm she was talking with Mr Wells when he told her that he was going to burn the house down. She left the house at around 4pm and returned later. They all left the house at 6pm. Mr Wells and the appellant went out the front door first. Mr Wells asked her to hang on a minute and walked back inside. She walked in behind him. The appellant remained outside the front door. Mr Wells got a towel from the clothes rack and put it over the flame of a candle on the hearth. The front door was open at that time. The appellant was still outside. She and Mr Wells went out and closed the front door. They got into the cars and left.

115 Four expert witnesses gave evidence as to the cause or causes of the fire. Their expertise was not challenged. Their opinion evidence was unshaken, uncontradicted and largely unchallenged. Matthew Lowe, a senior station officer with the Tasmania Fire Service gave evidence that he conducted an investigation on the day after the fire and concluded that it had been deliberately lit, with four separate areas of origin. All four were in the living area. The front door opens from the living area onto a porch. Three of the areas of origin were very close to the front door.

116 A consultant forensic fire investigator named John Lording gave evidence that the damage caused by the fire was not consistent with it originating from a single point of origin such as the clothes on the clothes horse or a piece of clothing catching alight as a result of an exposed candle. He concluded that the fire was deliberately lit, and that its spread was accelerated by the use of ignitable liquid.

117 A forensic scientist, Dr Walter Stern, gave evidence that he analysed samples of carpet taken by Mr Lording and found that they contained petroleum hydrocarbon compounds. Dr Michael Manthey of Forensic Science Service Tasmania conducted a different type of analysis which did not reveal evidence of an accelerant.

118 The expert evidence, particularly that of Mr Lowe and Mr Lording, is inconsistent with the hypothesis that Mr Wells started the fire on his own, without the appellant's knowledge, after the appellant left the building. The porch outside the front door is not visible on the CCTV footage. If the appellant had been on the porch while Mr Wells started the fire at four different points, he would inevitably have seen what was happening. He could only have left the porch by walking down some steps which took him into the view of the CCTV camera. When he left the porch and stepped into view of the CCTV camera, only 30 seconds elapsed before he was joined by Mr Wells and Ms Coleman. Mr Wells would not have had time to start four fires, and would have been seen by the appellant.

119 There was uncontroversial evidence at the trial of the following facts:

• The appellant purchased the property in 2008 for $168,000. He financed that purchase by obtaining a mortgage loan from ING Bank (Australia) Limited in the sum of $162,960.
• On 18 December 2015, some six months before the fire, the appellant made a hardship application to ING. Previous hardship applications in March 2014 and September 2015 had been successful. His mortgage payments were in arrears to the extent of $379.86. He stated that his income was $3,100 per month, but his expenses were recorded to be $4,344.21 per month. He told ING that Mr Wells would be moving in as a boarder in the new year and paying him $225 per week as well as assisting with bills. ING agreed to capitalise the mortgage arrears and not to require fortnightly payments for eight weeks.
• Mr Wells did not move in as a paying boarder in 2016. He rented a residence near Dover. He was a disability support pensioner.
• The property was insured with a different insurer, Youi Pty Ltd, until 12 March 2016. Youi wrote to the appellant on 11 February 2016 telling him that it would not renew his policy. A witness from Youi, Mr Russell Mills, gave evidence that it was not renewed because of numerous missed payments.
• The appellant told the police that he had spent nearly $40,000 in relation to a family law dispute, trying to get his daughter back, that he had a personal loan for that amount, and that he was paying $100 per fortnight or per week in respect of that loan. More detailed information emerged during the interview conducted by Ms Webb. The appellant agreed that he had consolidated his debts into a single loan from a company named Debt Free Pty Ltd and was paying that company $125 per week with effect from 9 January 2015. The payments were to continue until 27 December 2019.
• The appellant told the police that he was paying child support.
• The appellant told the police on 14 July 2016 that he had then been unemployed for three or four months. He told the police that he had received no assistance from the Government for the first three months after becoming unemployed. Ms Webb showed him a bank statement which revealed that he commenced to receive payments from Centrelink two days after the fire. He told the police and Mr Paramanathan that he had income protection insurance. He agreed with Ms Webb that income protection insurance payments of just under $3,000 per month started in July 2016, after the fire.
• The appellant made no mortgage payments to ING between 2 March 2016 and the day of the fire. The amount owing to ING at the time of the fire was $156,342.62.
• At the time of the fire the appellant had an ING savings account, but he had not used it for months. It had a credit balance of $2.19. He had an NAB savings account with a credit balance of $5.81. He had a Mastercard, but it was over its credit limit by $515.51 at the time of the fire. He had superannuation, but did not know how much.

120 Plainly the appellant was in serious financial difficulties at the time of the fire. The Crown contended that his financial difficulties gave him a strong motive to set fire to the building and make a dishonest insurance claim. It was certainly open to the jury to conclude that he had a strong motive to make a dishonest claim.

121 The appellant told an insurance investigator, Ms Webb, that he and Mr Wells were best mates and that he had known Mr Wells for 15 years.

122 At the trial Ms Coleman gave evidence to the following effect. She had known the appellant since he was 5 years old. She had known Mr Wells for 13 years. There was a time when Mr Wells lived in Queensland. She probably spoke to him a couple of times a week while he was in Queensland. He then returned to Tasmania and she saw him nearly every day. The appellant and Mr Wells were "very good mates". They had nicknames for one another. Mr Wells told her that he did all of the appellant's "financial stuff". Prior to the fire Mr Wells and the appellant had been living together in Dover for about 12 months. She sometimes stayed there.

123 There was evidence of SMS messages sent from Mr Wells to the appellant. On a unknown date prior to 9 April 2016 he sent the appellant messages as follows:

• At 8.28pm, "Stop going shy on me".
• At 8.29pm, "I got your favorite too so that should be bonus points for me".
• At 8.38pm, "Love ya toolbag".
• At 9.11pm, "I want your tool in my gob lol".

124 On 10 June 2016 Mr Wells sent an SMS message to the appellant as follows:

"I need to know where I stand with you as my patience is starting to wear very thin think you forget I'm dealing with things too you know

We had a such a good thing going then you just decided to stop it it's like and you make me feel as if your punishing me I doing alot behind the scenes to take pressure off you but you are more than welcome to do it if you want too

125 The appellant's savings account statements for the period from July 2014 to the date of the fire were tendered at the trial. They showed that between 22 July 2014 and 27 April 2016 he made a series of payments to Mr Wells totalling over $18,000. One statement shows that on 19 November 2014 the appellant transferred $150 to Mr Wells with a message reading, "Love You".

126 When the appellant made his financial hardship application to ING in December 2015, he submitted with it a handwritten letter from Mr Wells from an address in Queensland. In that letter Mr Wells referred to the appellant as his partner.

127 In her closing speech at the trial, the prosecutor told the jury that Mr Wells and the appellant were "the closest of friends". It was plainly open to the jury to draw that inference. It was open to them to conclude that Mr Wells was unlikely to have set fire to the appellant's house without his knowledge and approval.

128 At the trial an insurance investigator, Mr Paramanathan, gave evidence as to the business records of Coles Insurance in relation to the appellant's policy. He gave evidence that the policy was taken out by telephone with effect from 15 March 2016. The building was insured for $250,000. The contents were insured for $80,000. The premium payments were $88.66 per month, payable in advance on the 15th day of each month. There was evidence that the appellant's policy with Youi covered the building for $185,000 and the contents for $70,000. The Crown argued that the fact that the appellant took out a new insurance policy at a time of extreme financial hardship, and the fact that he substantially increased his cover, were both pieces of circumstantial evidence that supported its case.

129 The business records showed that, when the policy was taken out in March 2016, the minimum amount of cover that Coles was willing to provide for the building was $219,450. However there was no evidence that the appellant asked to insure the building for a higher amount, or that he was told that he could insure it for a lower amount than $250,000. In the circumstances we do not think any reliance should be placed on the evidence that the building could have been insured for the lower figure.

130 On 17 June 2016, ten days before the fire, the appellant phoned Coles Insurance to make a monthly payment by phone and keep the policy current. A payment had been due on 15 June. A direct debit arrangement was in place, but apparently the appellant realised that he had insufficient funds in his bank account for the payment to go through. An audio recording of his conversation was tendered and played to the jury. The Crown argued that he had rung up and made the payment, despite financial hardship, because he was planning for the house to be set on fire.

131 During an interview conducted by another insurance investigator, Mr Burley, the appellant said that there was a smoke detector in the property, but that the battery had gone flat, and that he removed it a couple of days before the fire and placed it on the kitchen table to remind himself to get another one. During the interview conducted by Ms Webb he said that there were two smoke alarms, that he had removed the batteries from both on the day of the fire because they started beeping, that he had put them on the table, and that he was going to get new batteries the next day. The Crown suggested that he might have removed the batteries because of a plan to set the house on fire. It certainly seems unlikely that both batteries would have started beeping at about the same time.

132 The appellant had removed his car, his cat and his dog from the house before the fire, and left them at Mr Wells' home near Dover. In our view those arrangements were equally consistent with innocence. Since the appellant was living at Mr Wells' home, it made sense for him to have his car, cat and dog there. Further, he told Ms Webb that he had a goldfish in his house at the time of the fire.

133 The evidence as to the appellant's representations to representatives of the insurance company was as follows:

• The appellant made four phone calls to Coles Insurance on the night of the fire. Audio recordings of those calls were tendered and played to the jury. In the first call, at 7.18pm, the appellant said that he needed to know if his insurance was up to date. He was told that it was. He elected not to speak to a member of the company's claims team at that time. In the second call, at 8.42pm, he told a claims officer that he wanted to put through a claim, but he became angry with her when she asked if he had "tried to turn out the fire", and said that he would call her back. In the third call, at 10.09pm, he was asked to hold the line, and was apparently cut off after that. In the fourth call, at 10.14pm, he gave details for the purposes of a claim. He said that he was not sure how the fire started, that the scene was being investigated, and that it was thought that the fire might have been accidental, resulting from a clothes horse with clothes on it being near the wood fire.
• Mr Paramanathan, who investigated the fire for Coles Insurance, gave evidence that he had a conversation with the appellant on 29 June, two days after the fire. He said that the appellant talked about what occurred on the afternoon of 27 June, summarising his account as follows: "He explained that after arriving at the address, Mr Shaw, and Mr Wells consumed alcohol with Ms Coleman, and sat around talking, and he remained at the address till approximately 5.30 when they left in Mr Ben Wells' vehicle. Leanne Coleman left at this time in her vehicle, and returned home."
• An insurance loss adjuster, Mr Brent Mills, gave evidence that he also had a conversation with the appellant on 29 June. His role was to assess the claim in relation to the contents of the building. He gave evidence that he had a conversation with the appellant as to his understanding of the cause of the fire, and that the appellant advised him that he had received information "that the fire started near the wood heater in the lounge room area, probably due to clothes or the like".
• Mr Burley, who also acted as an investigator for Coles Insurance, interviewed the appellant on 4 July 2016. An audio recording of the interview was tendered at the trial and played to the jury. During that interview the appellant told Mr Burley the following things about the events on the evening of the fire. He, Mr Wells and Ms Coleman had a few alcoholic drinks at the house. He and Mr Wells planned to go to the airport after those drinks to pick up a friend named Kylie who was buying Mr Wells' car. She was flying in from Melbourne. They got to the airport. Then Mr Wells got a phone call from the appellant's next door neighbour's daughter saying that the house was on fire. He was sitting beside Mr Wells in the car waiting for a text message from Kylie when Mr Wells got the call. As a result they did not pick Kylie up. They left the house for the airport at about 5.30 or 5.45pm. It took 15 or 20 minutes to go to the airport. When they left the house, he was the first person to come out of the door. He was not sure who came out second. The fire brigade reckoned that the fire was caused by the clothes horse being too close to the fire.
• Ms Webb, a third investigator acting for Coles Insurance, interviewed the appellant on 12 January 2017. An audio recording of that interview was tendered at the trial and played to the jury. By the time of that interview, the appellant and Mr Wells had both been charged with arson and with attempting to dishonestly acquire a financial advantage. The appellant told Ms Webb the following things during the interview. He and Mr Wells did not burn the house down. Before he left the house on the night of the fire he was outside having a smoke. He did not know who was the last person to leave the building. He would be disputing the charges against him. He did not accept that four separate fires had been started. He still believed that clothes on the clothes horse had accidentally caught fire. He did not light the fire. He was sure that neither Mr Wells nor Ms Coleman lit the fire. He was not involved in the fire in any way.

134 The central question for the jury in relation to the second charge was whether the appellant acted dishonestly in relation to his insurance claim, not whether he was involved in starting the fire. The particulars of the charge did not allege that he had been responsible for starting it. They alleged that he had acted dishonestly by making false representations in support of his insurance claim, knowing they were false, over a period commencing on the day of the fire and ending on the day of the interview with Ms Webb.

135 Mr Paramanathan gave evidence that the insurance policy contained an exclusion clause whereby there was no cover in respect of an "unlawful, malicious or deliberate act by you or someone who has entered your home or site with your consent ...". If the fire was started by the appellant and/or Mr Wells, there was no cover. However there was no evidence at the trial, apart from circumstantial evidence, as to the appellant's knowledge or understanding as to the relevant terms of the policy. Although he was formally interviewed on three occasions, none of the interviewing detectives and investigators ever asked him what he thought his insurance rights might be in circumstances where the fire was deliberately lit. The Crown case depended on the jury inferring that the appellant must have known that the fire was deliberately lit, that he must have believed that providing information to that effect to representatives of the insurer would be detrimental to his claim, and that he therefore decided to make dishonest representations as to what happened.

136 At the trial the Crown contended that the appellant had told a number of lies after the fire. It relied on Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, contending that there was independent evidence that assertions made by the appellant were lies, and that his lies were told because he knew that the truth would implicate him in the crimes charged.

137 The CCTV evidence, together with the evidence of the correct time at which the first firefighters arrived, established that the appellant and his companions left the house at 5.58pm. However there was evidence that the appellant told many witnesses that he had left earlier than that. One firefighter, Mr Suhr, gave evidence that he spoke to both Mr Wells and the appellant, and that one of them said they had left at 5.30pm. In the statutory declaration that he made on the night of the fire, the appellant said that he left between 5.30 and 5.45pm. Mr Paramanathan gave evidence that the appellant said he left at approximately 5.30. The appellant told Mr Brent Mills that he had been away from the property between 5.30pm and 6.45pm. In his police interview on 14 July 2016 the appellant said twice that he left at about 5.30 to 5.45pm. The appellant told Ms Webb that he left the house between 5.30 and 5.45pm. The only stated reason for the appellant and Mr Wells leaving the property was that they had to pick up the woman at the airport, whose flight was due to arrive at or after 6.30pm. The Crown contended that the appellant, who had left the property at 5.58pm, repeatedly asserted that he had left significantly earlier because truthful information would put him at the scene of the fire at the time it started.

138 The Crown contended that the appellant lied about not knowing whether his insurance policy was current. As we have said, he phoned Coles Insurance on the night of the fire at 7.18pm and enquired whether his insurance was up to date. A police officer was present for at least part of that conversation. However there was evidence of the phone call on 17 June, ten days before the fire, when the appellant made sure his premium payments were up to date. On 17 June Coles Insurance wrote to him advising that his next payment would be due on 15 July. The letter was tendered as an exhibit. It was reasonable to infer that the appellant would have received it before the fire. The Crown contended that he must have known at the time of the fire that his policy was current, and feigned ignorance in order to create an impression of innocence.

139 At the trial the Crown contended that the versions of events given by the appellant and Mr Wells to investigators and police officers contained identical false statements, and that the similarities between their versions of events indicated a joint plan to procure a payment to the appellant by his insurer. The Crown relied on the co-conspirators rule. Like the appellant, Mr Wells made a statutory declaration shortly after the fire, was interviewed by Mr Burley, and was interviewed by police officers. Like the appellant, Mr Wells claimed to have left the house at around 5.30pm to 5.45pm. Like the appellant, he suggested that the clothes on the clothes dryer might have caught fire as they were close to the wood heater. Like the appellant, he asserted that he knew nothing about the fire until receiving a phone call after reaching the airport. The Crown contended that he said these things dishonestly for the purpose of supporting the appellant's insurance claim.

140 The appellant contends that the evidence left open a reasonable hypothesis that was consistent with his innocence on both charges, namely that Mr Wells set fire to his house without his knowledge.

141 The evidence clearly established that only three people had an opportunity to start the fire - Mr Wells, the appellant and Ms Coleman. The CCTV footage showed that nobody else was there. The firefighters gave evidence that the front door was locked when they arrived and had to be broken open.

142 Having regard to the evidence as to the four points of ignition and the movements of the appellant and Mr Wells in the minutes leading up to their departure, the suggestion that Mr Wells could have started the fire alone without the appellant's knowledge defies common sense. Mr Wells had nothing to gain from setting fire to the house. Although he had been drinking, there is no suggestion that he started the fire in a moment of drunken stupidity. If he had wanted to set fire to the house without the appellant's knowledge, he could no doubt have found an opportunity to do so when the appellant was not with him. If he had started to set fire to the house in the living room when the appellant was just outside the front door, there would have been a very serious risk of the appellant coming back in and seeing what he was doing. In our view it was reasonably open to the jury to infer that the appellant and Mr Wells had made a plan for the house to be set on fire so that the appellant could make a claim on his insurance policy. The evidence was sufficient for it to be open to the jury to convict the appellant of arson on the basis that he and Mr Wells formed a common intention to prosecute an unlawful purpose in conjunction with one another, that the crime of arson was committed in the prosecution of their common purpose, and that that crime was of such a nature that its commission was a probable consequence of the prosecution of their purpose.

143 Further, in our view the evidence compelled an inference that, by the time the appellant and Mr Wells set out for the airport, the appellant at least knew that the fire had been deliberately lit. The evidence as to the appellant's financial position, his relationship with Mr Wells, the various things that he said to investigators and others after the fire, the removal of the smoke alarm batteries, and the similarity of the false statements made by the appellant and Mr Wells provided very strong support for the Crown case.

144 It must follow that it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of arson, and that he dishonestly pretended that he knew nothing of the fire being deliberately lit, that he was trying to deceive Coles Insurance into accepting that the fire had started accidentally, and that he was dishonestly attempting by deception to obtain a substantial payment for himself. The only motive for dishonesty and deception was that he believed, correctly, that the company would not be liable to pay if the fire had been deliberately lit. It was reasonably open to the jury to infer that he committed the crime charged for that reason. The "unsafe and unsatisfactory" ground must therefore fail. The misdirection in relation to the doctrine of joint criminal enterprise could not possibly warrant the quashing of the conviction on the charge of attempting to dishonestly acquire a financial advantage. The Crown needed only to prove that the fire was deliberately lit, that the appellant knew it was deliberately lit, that he made dishonest assertions to the police and the various investigators, and that he made those assertions for the purpose of obtaining a financial advantage for himself in the form of a payment from the insurance company. There was ample evidence of all of those matters. The conviction on count 2 must therefore stand.

145 The evidence on the arson charge did not lack probative force as asserted by the appellant. The "unsafe and unsatisfactory" ground must therefore fail.

146 Because of the misdirection as to joint criminal enterprise, the appellant's conviction on the arson charge must be quashed unless this Court decides to apply the "proviso" contained in s 402(2) of the Code. Identical or very similar provisions exist in the criminal appeal legislation in many jurisdictions. Section 402(2) reads as follows:

"(2) The Court may, notwithstanding that it is of the opinion that the point raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

147 In Kalbasi v Western Australia [2018] HCA 7, 264 CLR 62, the High Court was concerned with a case in which it accepted that there had been a misdirection on a question of law. The error involved an element, the proof of which had been removed from the jury's consideration by agreement between the parties. The court considered that the error accordingly would have had no effect on the outcome of the trial and the proviso was therefore correctly applied. The majority distinguished the case from that of Handlen v The Queen [2011] HCA 51, 245 CLR 282, a case in which a jury had been directed that it could determine criminal responsibility on the basis of joint criminal enterprise when that principle was not then applicable under Commonwealth law. It had been held that the direction was such as to preclude the operation of the proviso. The majority in Kalbasi (Kiefel CJ, Bell, Keane and Gordon JJ) said this at [52]:

"[53] In Handlen the accuseds' trial was conducted upon the common, mistaken, assumption that liability would be established on proof that each was a party to a joint criminal enterprise to import a commercial quantity of border-controlled drugs. At the date of the trial, however, the general principles of criminal responsibility for offences against Commonwealth law made no provision for liability as a participant in a joint criminal enterprise. It was held that the intermediate appellate court erred in dismissing the accuseds' appeals against their convictions under the proviso. The holding took into account that the trial had been conducted on a basis for which the law did not allow, on evidence which should not have been adduced, and the verdicts did not establish that the jury must have been satisfied of the facts necessary to establish guilt." [Emphasis added.]

"[55] None of the factors which were critical to the decision in Handlen are present in this case. The appellant was tried for an attempt to commit an offence contrary to s 6(1)(a) of the MDA. The jury was correctly instructed of the four elements which together make up liability for that offence. The error was in instructing the jury of the s 11 presumption on the trial of a charge of attempted possession of prohibited drugs with intent to sell or supply to another. It is less clear the extent to which if at all the balance of the direction, including that the jury should give the fourth element a tick, involved legal error. The omission to direct on an element of liability as in Quartermaine, or a direction which effectively removes proof of an element from the jury's consideration, may not amount to legal error, much less occasion a substantial miscarriage of justice, if proof of the element was not a live issue in the trial.

[56] It may be accepted that in any case in which an appellate court concludes that an accused was 'not in reality tried for the offences for which he was indicted' there will have been a substantial miscarriage of justice within the meaning of the proviso. And it may also be expected that in such a case there will be a contest as to whether that conclusion is appropriate: to say that an accused has not in reality been tried for the offence for which he or she has been indicted is a vivid way of expressing the conclusion that a misdirection as to the elements of an offence amounts to a substantial miscarriage of justice for the purposes of the proviso, but it does not aid the analysis of whether the error is of such gravity as to warrant that conclusion.

[57] A misdirection upon a matter of law is always contrary to law, and it is always a departure from the requirements of a fair trial according to law. But sometimes a misdirection on a matter of law will prevent the application of the proviso; and sometimes it will not. Krakouer was a case of a misdirection on a matter of law which reversed the onus of proof in relation to the intent with which the 'drugs' were possessed, effectively requiring the jury to find that element established; and yet, were it not for other circumstances of the case, the proviso may have been applied. The question is always whether there has been a substantial miscarriage of justice, and the resolution of that question depends on the particular misdirection and the context in which it occurred."

148 In this case, the critical question, in our view, is whether the verdict establishes that the jury must have been satisfied of the facts necessary to establish guilt. This will be determined by whether the directions given to the jury were adequate to place the relevant issues raised by s 4 in the circumstances of the case before the jury for its determination. As we have said, in the memorandum provided by the trial judge to the jury as part of the summing-up, joint criminal enterprise was explained in this paragraph:

"If you are satisfied beyond reasonable doubt that the accused DAVID SHAW, and the other accused, Michael Wells, acted together pursuant to an understanding that they had reached to commit the crime, the accused DAVID SHAW is guilty of the crime, and it does not matter what part he and Michael Wells played in its commission."

149 During his oral charge to the jury, the trial judge stated on a number of occasions that the prosecution case was based on the existence of a preformed plan to burn the house down and claim the insurance money, and that the issue for the jury was whether it was satisfied beyond reasonable doubt of the existence of the plan, and that the acts were committed pursuant to that plan. His Honour pointed out that the prosecution case was that the jury could infer the existence of such a plan from the circumstantial evidence. His Honour explained that "joint enterprise is just a fancy name for a plan". He made it clear that the allegation of a plan meant that the jury had to be satisfied that "there was an understanding between the two men ... an agreement can form very quickly, it can form on the spot ... it's not necessary for you to find that there was some formal process around that, but it is necessary that you are satisfied based upon the evidence that you find that such agreement was established between the two men ...".

150 The critical nature of the existence of such a plan was also highlighted to the jury by the submissions of counsel. In his closing address, counsel for the appellant emphasised that the essential issue was the existence of the plan, and whether the appellant participated in carrying it into effect. This reflected similar comments made by counsel for the prosecution.

151 In the light of this focus by judge and counsel on these discrete issues, we do not think that the failure to explain s 4 in its terms renders the directions inadequate to the point that there has been a substantial miscarriage of justice. In the particular circumstances of this case, criminal responsibility under s 4 could only have been be attributed to the appellant if the jury was satisfied that the two accused had formed a common intention to prosecute an unlawful purpose in conjunction with one another. Although the jury was not directed to that question in those terms, satisfaction beyond reasonable doubt that the two men had formed a plan or understanding, as explained to the jury by the trial judge, in the particular circumstances of this case, necessarily satisfied that element of s 4. Further, the jury was clearly directed that, before it could find guilt on the part of the appellant in respect of either crime, it needed to be satisfied that that crime was committed pursuant to the plan. If the jury was satisfied of this matter, then the only possible conclusion was that the crime in question had been committed in the prosecution of the common unlawful purpose. If the jury was satisfied of those matters, then it must also necessarily lead to the conclusion that the crime was "of such a nature that its commission was a probable consequence of the prosecution of" the common purpose. In these circumstances, it seems to us that, although the jury's attention was not directed to the elements of s 4 in the terms expressed in that provision, the summing-up was adequate to convey to the jury the essential issues for its determination. Accordingly, we are satisfied that, irrespective of the error, the jury's attention was directed towards the critical issues, and the verdict of guilty on the arson charge would have been inevitable even if the jury had been directed in accordance with the precise terms of s 4.

152 It is not suggested that injustice arises from the way in which the parties conducted the case, having regard to the identified error. It is clear that all concerned, judge and counsel, proceeded on the basis of a belief that Clarke was authority for the principle that a person incurred criminal responsibility under s 3(1)(a) by participating in a joint criminal enterprise, as understood under the common law. The prosecution restricted its case on the arson charge to this principle, and the defence did not suggest that it was not available to found a finding of guilt on that charge. Given that the primary issue was the existence of a joint plan, and the appellant's knowledge of the actions of the co-offender, it seems to us that the outcome of the case has not been affected by the legal error. Accordingly, there has not been a substantial miscarriage of justice and we would not uphold the appeal on the basis of ground 1. The conviction on the arson charge must stand.

153 As we have said, the appellant was sentenced to two years' imprisonment, with a non-parole period of one year.

154 His crimes were committed in an attempt to defraud his insurance company. In his sentencing comments, the learned trial judge stated that the total cost of repairs to the appellant's property had been estimated to be in excess of $260,000. That figure has not been challenged. Apart from the scale of the attempted fraud, there were a number of aggravating factors:

• In committing the crime of attempting to dishonestly acquire a financial advantage, the appellant repeatedly made dishonest representations to police officers and insurance investigators over a period of more than six months, even after becoming aware of the strength of the evidence that the fire had been deliberately lit.
• A significant consequence of the commission of the crime of arson was that the interests of the mortgagee were affected. When the appellant purchased the property, he obtained a mortgage loan for 97% of the purchase price. As we have said, the amount owing to the mortgagee at the time of the fire was $156,342.62.
• The crime of arson was committed with a view to the appellant obtaining a financial benefit, after he had lost his job and become unable to service the mortgage.
• When these crimes were committed the appellant was on bail, on serious though very different charges. He had been charged in 2016 with producing child exploitation material, possession of child exploitation material, and two counts of aggravated sexual assault, and was on bail on those charges.

155 The appellant was 31 years old at the time of the fire and 34 years old when he was sentenced. He was unemployed, and had no dependents.

156 A number of common mitigating circumstances were absent in this case. The appellant was not a youthful offender. He did not plead guilty. He showed no sign of remorse.

157 However a number of mitigating factors were present. Those factors, and our comments in relation to them, are as follows:

• The appellant had no relevant or significant prior convictions. In particular, he had no convictions for offences involving dishonesty or damage to property. However it could not be said that he was a person of entirely good character, since he had committed sexual crimes that were the subject of pending charges.
• The appellant had a good employment record. He had been continuously employed in the motor vehicle repair industry for many years from the time he left school. However he had left his job after being charged with the sexual crimes.
• The plan to set fire to the house and make a fraudulent insurance claim was not a sophisticated one.
• There was little risk of the fire spreading to neighbouring properties. The house was free standing. The fire occurred on a cold, wet evening in winter. In fact the fire self-extinguished.
• The learned trial judge sentenced the appellant on the basis that he did not personally light the fire.
• The learned trial judge accepted that the crimes were committed at a time when the appellant's mental health was declining.
• The Crown accepted that the plan for the fire and the insurance claim was masterminded by Mr Wells, and the appellant was sentenced on that basis.
• The appellant lost his home and much of his personal property as a result of the fire. However those were foreseeable consequences of his own conduct.
• After committing the crimes in question the appellant had spent 10 months in prison, and had applied himself to his rehabilitation diligently during that time. He was sentenced to 20 months' imprisonment commencing on 6 July 2018. He was released on parole after completing half of that sentence. The fact that the appellant spent that time in prison is relevant, as are all of his personal circumstances, but this is not a case in which it is appropriate to apply the totality principle, as discussed by the High Court in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59. The 2008 sentence was imposed in relation to unrelated and very different crimes, committed in and before the year preceding the fire.
• The appellant was making reasonable progress towards his rehabilitation. After being paroled he had started a small panel beating and spray painting business with his brother.
• The appellant's commission of the crimes was out of character. Personal deterrence was not an issue.

158 In determining whether the sentence was manifestly excessive, the critical question is whether it was "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499 at 505; Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, 28 Tas R 1 at [8]- [9]. Having regard to the relevant factors, particularly the need for general deterrence, the size of the insurance claim, and the impact on the mortgagee, we consider that the appellant's sentence was a reasonable one. It was not manifestly excessive.

159 Ms Coleman pleaded guilty to the two charges and received a wholly suspended sentence of 15 months' imprisonment. The sentence was suspended on conditions that she not commit an offence punishable by imprisonment for 18 months, and that she be subject to the supervision of a probation officer for 12 months.

160 Ground 5 of the notice of appeal asserts that "the learned sentencing judge failed to consider or properly consider parity of sentence".

161 His Honour did consider parity of sentence. He said the following in his sentencing comments:

"I have regard to the sentence imposed on your co-offender. She received a sentence of 15 months' imprisonment, wholly suspended for a period of 18 months. However, her involvement was of very short duration, though she allowed the dishonesty to continue. I also note that she pleaded guilty and, as such, was entitled to a reduction in her penalty for doing so. Whilst I am required to have regard to the parity principle that principle does not require courts to ignore differences in the circumstances of the offenders or impose an inadequate sentence. There are relevant differences in terms of prior offending and the degree of participation and behaviour undertaken by each of you as compared to hers.

In the circumstances there is a basis for imposing a longer sentence on Mr Wells than that which ought be imposed on Mr Shaw. Principally because of his antecedents, but in part his role in this offending as instigator of the plan."

162 The learned trial judge sentenced Mr Wells to two years nine months' imprisonment, with a non-parole period of half of that sentence.

163 This Court has a discretion to reduce a sentence that is not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender, but should only exercise that power "if it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done": Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 per Gibbs CJ at 610.

164 This is not a case in which those criteria are satisfied. Ms Coleman's involvement in the crimes was relatively brief. She was not a participant in the plan of the appellant and Mr Wells. She was sentenced on the basis that she abetted the commission of the crime of arson by turning a blind eye when she saw the fire being lit. She lied to one of the insurance investigators, but only once. She did not seek to gain anything from the commission of the crimes. She pleaded guilty. She was willing to give evidence on the trial of her co-offenders. At the time of sentencing she was 56 years old, and had no relevant prior convictions. She had children, grandchildren, and a strong employment record. She resigned from her employment as a result of the charges. Having regard to all those circumstances, particularly the limited involvement, the plea of guilty, and the willingness to give evidence, it was appropriate that Ms Coleman receive a much more lenient sentence than the appellant. The disparity between their sentences was quite reasonable.

166 The appellant. David Shaw, has appealed against his conviction and sentence of two years' imprisonment, following jury verdicts of guilty upon his trial on indictment for a first count of arson and a second count of attempting to dishonestly acquire a financial advantage.

167 The grounds of his appeal against conviction are first, that the learned trial judge erred in directing the jury that the appellant could be criminally liable on the basis of a "joint criminal enterprise" and in failing to direct the jury as to the act or acts of the appellant which were capable in law of attracting criminal responsibility (Ground 1), and second, and in the alternative, that the verdicts were unsafe and unsatisfactory (Ground 3). Ground 2, which impugned the learned trial judge's decision that the appellant had a case to answer, was abandoned.

168 The grounds of appeal against sentence are first, that the sentence was manifestly excessive (Ground 4) and second, that the learned trial judge failed to consider or properly consider parity of sentence (Ground 5).

169 The Crown case against the appellant on the count of arson was that he was present at a house owned by him at 131 Mockridge Road in Clarendon Vale at about 6pm on 27 June 2016, together with Michael John Wells, pursuant to an agreement between them to set fire to that house, and that one or both of them lit a fire or fires inside the building.

170 The Crown case against the appellant on the count of attempting to dishonestly obtain a financial advantage was that, subsequent to the commission of the crime of arson, he attempted to dishonestly claim upon a policy of fire insurance he held in respect of the house and its contents, issued by Coles Insurance.

171 On the count of arson, the case was ultimately left to the jury by the learned trial judge on the basis of "joint criminal enterprise" alone. The memorandum to the jury stated, relevantly:

"If you are satisfied beyond reasonable doubt that the accused DAVID SHAW, and the other accused, Michael Wells, acted together pursuant to an understanding that they had reached to commit the crime, the accused DAVID SHAW is guilty of the crime, and it does not matter what part he and Michael Wells played in its commission."

172 On the count of attempting to obtain a financial advantage, the case was left to the jury on the basis that the appellant committed the crime, or alternatively, the memorandum read:

"The crime as alleged was committed by the other accused, Michael Wells in the course of a joint enterprise with DAVID SHAW to commit the crime."

173 There was a good deal of evidence on the trial about the enduring, if somewhat ambiguous, relationship between the appellant and Mr Wells; as to the appellant's dire financial circumstances and the circumstances of his house insurance lapsing and being reinstated, and also his post-offence conduct, from which it was said the jury might reasonably have inferred that the appellant had a motive to agree with Mr Wells to suffer his house to be deliberately burned down and to falsely claim on his fire policy.

174 The relevant evidence is canvassed in the respondent's written submissions as follows:

Aside from the evidence of Ms Coleman as to the living arrangements of Mr Wells and the appellant prior to the fire, further evidence was led at trial that the men were close, and possibly in a relationship.

The evidence generally established that Mr Wells had resided in Queensland until early 2016, and after returning to Tasmania, had resided with the appellant, either at the house at Mockridge Road or at the Dover house.

Other evidence probative of a relationship between Mr Wells and the appellant included photographs of messages from the phone of Mr Wells, which showed a conversation between Mr Wells and the appellant over the period of time prior to the fire. This included the following messages:

(a) On 10 June 2016, a message sent from Mr Wells to the appellant: 'I need to know where I stand with you as my patience is starting to wear very thin think you forget I'm dealing with this too you know ... We had such a good thing going then you just decide to stop it's like and you make me feel as if your punishing me I doing a lot behind the scenes to take pressure off you but you are more than welcome to do it if you want too ... But i would like to know where I stand with you'. (EB0079)

(b) On an unknown date, prior to 9 April 2016, messages sent from Mr Wells to the appellant: 'Stop going shy on me'; 'I got you your favourite too so that should be bonus points for me'; 'Love ya tool bag'; 'I want your tool in my gob lol'. (EB0080).

Evidence of this close relationship was also led through financial documentation which established that over the course of 2014, 2015 and 2016, the appellant had transferred a large sum of money to Mr Wells in periodic instalments (EB0217 - EB0304), totalling in excess of $18,000 over that period of time. One of those transactions, on 19 November 2014 (EB0231) appeared with the annotation 'Love you' directed at Mr Wells.

Further, a financial hardship form submitted by the appellant to ING encompassed a letter provided by Mr Wells in which he asserted to be the appellant's partner (EB0310).

Finally, the Crown relied on phone records produced by Tony Burley, the insurance investigator assigned by IAG Ltd to investigate the ultimate claim made against the insurance policy, to suggest not only that there was contact between the appellant and Mr Wells over the period leading up to the fire (EB0322-EB0327), but that the appellant's mobile phone operated on a number of occasions from a location marked as 'Dover' (EB0327).

In total, the Crown relied on this evidence to suggest that the appellant and Mr Wells had shared motives to commit the crime of arson, and ultimately to make an insurance claim; and that the leasing of the home at Dover, and subsequent attempts to buy it, were more consistent with a plan to divest themselves of the house at Mockridge Road than to maintain two residences.

At trial, the Crown tendered a significant number of documents relating to the appellant's financial position and his insured status at the time of the fire.

The appellant was insured, at the time of the fire, with Coles Insurance (the parent company for whom is IAG Ltd). Ganesh Paramanathan gave evidence of business records held by IAG Ltd relating to appellant's insurance policy, including audio records of calls made to and from the insurer. Evidence was also led from Russell Mills, an employee of Youi Insurance, with whom the appellant had held a previous insurance policy.

The appellant's previous policy, in place between March 2014 and March 2016, providing building insurance in the sum of $185,000 and contents insurance in the sum of $70,000 (EB0136 - EB0141). This policy had been cancelled due to 10 missed policy payments in the insured period (T352).

In March 2016, the appellant insured his property through Coles Insurance. The policy taken out at that time was for building insurance in the sum of $250,000 and contents insurance in the sum of $80,000. There was evidence on the trial that the minimum insured value of the house at the time the policy was taken out was $219,450 (T322, L10-12).

Mr Paramanathan's evidence was that no payment would be made on an insurance policy where damage had been caused by an 'unlawful malicious or deliberate act by you [the policy holder] or someone who has entered your home or site with your consent...' (T313 L 1-7). That is, it was contended, the appellant would have been unable to claim on his policy by indicating that Mr Wells been responsible for the fire while at the premises with his consent.

Tendered through Mr Paramanathan were a number of documents and audio calls related to the appellant's insurance policy. These included:

A letter and certificate of currency dated 15 March 2016 confirming the policy and its terms (EB0119 - 120).

A schedule of payments, showing two dishonoured payments on the policy between March 2016 and the date of the fire (EB0126).

A letter dated 17 June 2016 (10 days prior to the fire) sent to 131 Mockridge Road, addressed to the appellant, confirming the currency of his policy, payment schedules and insured values (EB0129).

Audio calls dated 17 June 2016 (1) and 27 June 2016 (3) relating to the policy and/or claims on the policy (these were not transcribed prior to trial and were tendered upon a USB) (EB0127).

The audio call dated 17 June 2016 related to a person, identifying themselves as the appellant, making a payment upon the insurance policy to bring it up to date. This appeared to be linked to the letter of the same date.

The calls on 27 June 2016 relate to claims made against the policy following the fire. During the first of those calls, the person speaking identifies themselves as the appellant and enquires about the currency of the insurance policy relating to the house. This enquiry was relied upon, by the Crown, as post-offence conduct; that is, having had the insurance policy confirmed as at 17 June 2016, the appellant's assertions that he did not know about the currency of his policy on 27 June 2016 was a lie evidencing a consciousness of guilt (T467).

In relation to the appellant's financial position, tendered at trial were bank records relating to the appellant's mortgage account and a spending account held with ING (EB00164 - 304).

Also tendered through ING witness Taylor Smith were hardship application forms related to the appellant's mortgage account (EB0306 - EB0319). As at 18 December 2015, approximately six months prior to the fire, these attested to the appellant's precarious financial position as it related to his mortgage repayments. As noted above, these also formed the basis of the evidence relating to the relationship between Mr Wells and the appellant.

The hardship application form included information that this was the third hardship application made by the appellant (also supported by account information), that the application was made due to 'over commitment', and that the appellant 'advised he has a new boarder coming next year which will improve his financial position.' (EB0306)

Generally speaking, the Crown relied on evidence that the appellant's financial position, while precarious in 2014 and 2015, while the appellant was employed, had worsened significantly in 2016. Further, the Crown relied on the inference to be drawn from the hardship application, that Mr Wells was intended to contribute positively and improve the appellant's financial position, as unable to be maintained in light of both the significant financial transactions to Mr Wells, and Mr Wells' decision to move to the house at Dover sometime prior to the fire.

Statements made after the fire/post-offence conduct/admissions

A significant part of the Crown's case against the appellant related to his statements to police, agents of IAG Ltd (including two insurance investigators) and others in the period following the fire. Also led were statements made by Mr Wells to police and agents of IAG Ltd during the same period.

The evidence of statements made by the appellant fell broadly into four categories:

Evidence of Edwards-style lies, relied upon as demonstrating a consciousness of guilt, the most prominent being the assertion that the appellant, Mr Wells and Ms Coleman had left the house between 5:30 and 5:45pm.

Evidence of statements made that were designed to support an innocent explanation for the fire; that is, statements made that were suggestive that the fire was started because of clothes left by the wood heater.

Admissions against interest, including that the appellant had taken the batteries from the smoke alarms, and had left his pets and car at the Dover house.

Evidence of the comparative statements of the appellant and Mr Wells which supported a finding that the men acted with a common purpose, in that the versions of events given by the men after the fire were identical in their material particulars.

The appellant made the following statements as to the circumstances of the afternoon of 27 June 2016:

(a) Statutory declaration to police while at the house on 27 June 2016 (EB0061-EB0062). Evidence relating to the taking of that statement was given by Detective Senior Constable Andrew Peterson (from T159).

(b) Video recorded interview conducted by Tasmania Police on 14 July 2016 (AB004).

(c) Audio recorded interview conducted by Tony Burley on 4 July 2016 (AB064).

(d) Audio recorded interview conducted by Belinda Webb on 12 January 2017 (EB0389).

The appellant also spoke to other witnesses about the circumstances of the fire, who included:

(a) Mark Suhr, Tasmania Fire Service (T146 L39 - T147 L5) (noting that Mr Suhr's evidence was that he spoke to both Mr Wells and the appellant, and was told that they left at 5:30pm and the wood heater was on, but could not recall which of the men told him that.

(b) Ganesh Paramanathan, IAG Ltd (T317 L8-13) - the appellant tells Mr Paramanathan that they left the house at 'approximately 5:30'.

(c) John Lording, fire investigator (T328-329) - the appellant spoke to Mr Lording about potential sources of ignition and mentioned 'the slow combustion wood heater which had been lit during the day, and mentions also made of a close [sic - clothes] horse which had items of clothing and other material near the heater'.

(d) Brent Mills, loss adjuster (from T352) - the appellant spoke to Mr Mills and indicated that 'the information he received, was that the fire started near the wood heater in the lounge room area, probably due to clothes or the like'. The appellant told Mr Mills that he had been away from the property between 5:30pm and 6:45pm (T355 L43-46).

In each statement where time was queried, the appellant indicated that he had left the house on the evening of the fire between 5:30 and 5:45pm. This was relied upon as an Edwards-style lie. The Crown in particular relied on the appellant's agreement during his interview on 12 January 2017 with Belinda Webb that he left the house on 27 June between 5:30 and 5:45 (page 68 of the interview), at which time he had already been alerted to the existence of the CCTV footage and the fact that it depicted he, Mr Wells and Ms Coleman leaving the house at approximately 6pm. When asked about the discrepancy, he says he doesn't have any comment, except that it's 'a little bit late, type thing' (page 69). The appellant maintained his certainty, during that interview, that Mr Wells and Ms Coleman did not light the fire and that he was sure about it (page 72).

Further, in a number of statements, including the original statutory declaration, the appellant drew attention to the existence of clothes on a clothes rack near the wood heater as a potential fire hazard, relied upon as post-offence conduct in that the appellant deliberately drew attention to a potential accidental cause of the fire.

As noted at paragraph [110] above, the Crown also relied upon the appellant's contention that he did not know whether his insurance policy was current as an Edwards-style lie.

In respect of other evidence relating to the appellant's post-offence conduct, attention was drawn to the demeanour of the appellant during police interview while he was informed of the existence of the CCTV footage, in particular, his lack of surprise when informed about the existence of the CCTV footage which showed he, Mr Wells and Ms Coleman at the house at the relevant time period.

The Crown also relied upon the appellant's admission in interview that he had removed the smoke alarm batteries from the smoke alarm at 131 Mockridge Road a few days prior to the fire. He admits this in interview with both Tony Burley (AB069 para 91-100) and Belinda Webb (page 18).

The Crown relied on the comparison between the statements made by Mr Wells and the appellant as evidence of a common purpose to defraud the insurance company after the fire.

The evidence relating to statements made by Mr Wells comprised:

(a) Statutory declaration to police made on 28 June 2016 at Bellerive Police Station (EB0064-0066). Evidence relating to the taking of that statement was given by Detective Constable Damien McVilly (from T167).

(b) Video recorded interview conducted by Tasmania Police on 14 July 2016 (EB0390).

(c) Audio recorded interview conducted by Tony Burley on 14 July 2016 (EB0320).

A comparison between the representations made by each of the appellant and Mr Wells demonstrated that they were consistent in their accounts of what time they left the house prior to the fire (a demonstrable lie) and also consistent in asserting that the clothes were dry and placed close to the wood heater.

The evidence also demonstrated inconsistencies between the appellant's accounts, which were relied upon as far as those impacted on the appellant's credit.

(a) Inconsistencies in the amount of time the washing was said to have been drying on the clothes horse. The appellant tells Ms Webb that the clothes had been drying since Friday 24 June (page 34 of the interview transcript) and says in his statutory declaration that the clothes had been there for a few days. However, when speaking with Tony Burley on 4 July 2016, he indicates that the clothes had been there for a couple of weeks (AB080), and tells police during his video interview that the clothes had been there for 'weeks'.

(b) Inconsistences in what the appellant claimed that he and Mr Wells had planned for the evening of the fire if the house had not been burnt. The appellant indicates in interview with Ms Webb that they were returning to Mockridge Road, where he was planning to stay for at least one night, but maybe a week (page 31-32 of the interview transcript). The Crown relied on this as a lie impacting upon his credit, pointing to the appellant's assertions that he had not brought his set of keys with him, did not have a car at Mockridge Road (and had in fact left it at Dover) and had left his pets at Dover. The account in relation to returning to Mockridge Road were generally relied upon as lies, told to explain the wood heater being left on and the clothes being left before it.

In summary, the Crown's case involved a comparison between the versions of events told by the accused across a number of interviews and/or statements made in the aftermath of the fire. Lies told with respect to the time leaving the house and the knowledge of the insurance policy were relied upon as Edwards-style lies demonstrating consciousness of guilt. Further, the accused's statements were used to consider in light of the version told by Mr Wells, as evidence of statements made in furtherance of a common purpose; one to both disguise the true cause of the fire, and to maintain a version of events which would ultimately result in payment of the insured amount."

175 The only direct evidence as to the appellant's physical presence at the scene at the moment the fire was lit came from a witness, Leanne Coleman. Relevantly, she said that on the afternoon of the fire she was at the property with the appellant and Mr Wells, and that Mr Wells had said to her that "he was going to burn David's house down".

176 Ms Coleman went on to give the following evidence, describing a time when the appellant had just left the house and was outside, and she and Mr Wells were inside and about to leave:

"MS ANSELL: (Resuming) Sorry, your Honour. Where was Mr Shaw at this time?........He was outside the front door.

And, he's indicated - you've indicated that Mr Wells said, 'Hang on a minute', what happened next?........He got the towel from the clothes rack.

If I could ask - pause on that moment, where was the clothes rack?........It was near on the side of the wood heater.

On the side - ?........On the side, the wood heater's there, just on the side...

MS ANSELL: (Resuming) So, it was in front of the heater?........On the side of the heater.

On the side of the heater. And, you've indicated a towel, and where was the - the towel came from that?........The towel was over the clothes airer.

Who - do you know who put the clothes on there originally?........No. I don't

Was - were they there when you first arrived that day?........Yes.

The - he's picked up the towel, what's he done next?........He's picked 25 up the towel and put it over the flame of a candle.

What do you mean by that?........On the corner of the hearth, near the clothes airer...

Would it be fair to call it like a stand for the wood heater, like a raisedbrick area?........Yeah, raised brick area. Sorry, I just call it a hearth so.

HIS HONOUR: Well it's exactly what it is. It's a hearth. I think we know what a hearth is, Ms Ansell.

MS ANSELL: Sorry, your Honour. (Resuming) - There was a candle there?........Yes.

What did Mr Wells do - sorry, just to return?........He went over to the clothes airer, grabbed a towel and put over the top of the candle.

What did he do with it. Did he keep holding the towel, or what did he do - ?........Kept holding the towel till it caught, and I said, 'What are you doing?' He said, 'Let's go.'

What did you do next?........I went. I went out the front door."

177 There was forensic evidence that there were four seats of the fire where accelerant had been spread, one of them being just inside the front door. There was evidence that the appellant was not far from the front door as Ms Coleman and Mr Wells left, the fire having been lit. There was also evidence that the appellant had removed batteries from the smoke alarm of his house a few days prior to the fire. He told police in an interview that he did so because they were flat and needed replacing.

178 The evidence as to the time of the fire and its cause was canvassed in the respondent's written submissions as follows:

The evidence at trial established that at 6:01pm, a neighbour of the appellant, Daniel Duggan, had viewed smoke coming through the window of the house and called 000 (T136-137). His evidence was that, between seeing the fire and calling 000, there had been 'only a couple of minutes'. The 000 call was adduced as evidence at trial and an agreed fact was tendered about the timing of the 000 call (EB0054).

At trial, the TFS call sheets were used to determine the time on the CCTV footage (EB0057-0059). TFS call sheets indicated that the fire truck had arrived at the house at 6:13pm (EB0057). The fire truck could be seen on the footage arriving at 6:17pm. There was therefore approximately 4 minutes' difference between the CCTV time and real time. As such, on the CCTV footage, the call was made by Daniel Duggan at 6:05pm.

It was contended at trial that the CCTV footage showed the following:

(a) Between 5:50pm (5:46pm real time) and 5:57pm (5:53pm real time) there is movement outside the house which causes a security light to turn on and off, and occasionally a figure was seen coming in or out of the house. The Crown's assertion was that no one person had left the house and remained outside it over that period of time, and that when the light is on at times, it is clear that no one is outside the house.

(b) At 6:01:23pm (5:57:23pm real time) a security light goes on and a person can be seen near the front steps of the home, moving down the front steps away from the house. The Crown's case was that this shows the appellant's departure from the house.

(c) At 6:01:53pm (5:57:53pm real time) two further persons can be seen moving away from the house. The Crown's case was that this showed Mr Wells and Ms Coleman leaving the house.

(d) At 6:03:07pm (5:59:07pm real time) Ms Coleman's car, having left the driveway moments earlier, drives along Mockridge Road away from the house. At approximately that time, the security light at the house turns off and light can be seen inside the lounge room, suggestive of a fire.

It was therefore the Crown's contention that within two minutes of the appellant, Mr Wells and Ms Coleman leaving the house, Mr Duggan had both seen the fire and called 000. Further, it was the Crown's case that, based on the CCTV footage, Mr Shaw had only left the house 30 seconds prior to Mr Wells' departure, and during that time, had remained outside the open front door to the house. Given the evidence about the deliberate nature of the fire and its setting, the Crown's contention at trial was that it was outside the realms of human experience that the appellant was unaware of, and not a party to, the plan to burn down the house at 131 Mockridge Road.

Evidence relating to deliberate nature of the fire

Evidence was led, largely unchallenged by the appellant, that the fire had been deliberately lit. Further, it was led from fire experts that there had been multiple areas of origin of the fire. The expertise of this witnesses was not challenged.

Matthew Lowe, a Senior Station Officer with the Tasmania Fire Service, gave evidence that he had conducted a fire investigation at the house on 28 June 2016 (T202 L3). Based on his observations (led at length in his evidence) he identified four areas of origin to the fire (T206 L 42-45). His evidence was that, 'after discounting possible accidental or natural causes, [he] deemed the fire to be deliberate in nature due to being separate seats of fire.' (T218 L35-40).

John Lording, a consultant fire investigator, also gave expert evidence in relation to the cause and origin of the fire. His opinion, based on his investigation, was that the damage caused by the fire was not consistent with a fire originating at a single point of origin. The fire was 'consistent with a fire that was potentially accelerated with ignitable liquid' (T337 L39-44).

Walter Stern, a chemist and forensic scientist, gave evidence that samples of carpet taken by John Lording were analysed and found to contain an accelerant, described as a 'petroleum hydrocarbon fraction and ignitable liquid which was indicated to be, a charcoal lighter or similar mixture' (T185 L14-19; T187 L6-11).

Forensic Science Service Tasmania also conducted an analysis of samples taken from the scene of the fire (those taken by Matthew Lowe) and did not find evidence of accelerant in those samples. However, as Dr Manthey explained in evidence, the difference in results was explicable due to the different type of analysis and different samples being tested (T196 L15-20)."

179 At the conclusion of the Crown case, counsel for the appellant made a submission that the appellant had no case to answer which the learned trial judge rejected.

180 In her closing address to the jury, Crown counsel made no mention of the appellant aiding or abetting or instigating Mr Wells to commit the crime of arson and, as a result, the learned trial judge, on the application of the appellant's counsel, and with the acquiescence of Crown counsel, amended his proposed memorandum to the jury to refer only to joint criminal enterprise as the basis for the appellant's criminal liability.

181 Sections 3 and 4 of the Criminal Code (Tas) provide:

"3 Which parties to crimes to be deemed principals in the first degree

(1) Where a crime is committed, each of the following persons is deemed to be a party to, and to be guilty of, the crime, and may be charged with actually committing it:

(a) every person who actually commits the crime;

(b) every person who does any act or makes any omission for the purpose of enabling or aiding another person to commit the crime;

(c) every person who abets another person in committing the crime;

(d) every person who instigates any other person to commit the crime.

(2) Any person who instigates another to do any act or make any omission of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted a crime on his part, is guilty of the same crime as if he had himself done the act or made the omission; and may be charged with himself committing that crime.

4 Crimes committed in prosecution of common purpose

Where 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose a crime 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 crime."

182 In Clarke v Tasmania [2013] TASCCA 11, 24 Tas R 384, Wood J in her dissenting judgment at [64], held that:

"It is my conclusion that the common law concept of joint criminal enterprise is not the law in Tasmania; that resort to the common law concept was neither necessary nor desirable, and that by directing the jury in accordance with it, the learned trial judge has erred."

183 Porter J held to the contrary and, whilst I accepted that the trial judge had not erred in directing the jury in accordance with the concept of a joint criminal enterprise (as I considered that the direction required the jury to make findings according to the terms of s 3 even if the common law doctrine did not apply), Corboy J correctly observed in Campbell v State of Western Australia [2016] WASCA 156, 50 WAR 331 at [295], that I "did not exclude the possibility that the doctrine of joint criminal enterprise and in particular, the attribution principle, were incorporated into s 3 on a proper construction of the section".

184 The ratio decidendi of Clarke is thus somewhat problematic and it may well be that Porter J's conclusions as to joint criminal enterprise are obiter dicta. Nonetheless, in Edwards v Tasmania [2016] TASCCA 7, 26 Tas R 423, Blow CJ with whom Pearce J agreed, said at [15]:

"If two or more people reach an understanding or arrangement that together they will commit a crime, and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the proposed crime, and one of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the intended crime, then each is guilty of that crime, regardless of what part each plays in its commission: Clarke v Tasmania [2013] TASCCA 11"

185 In any event, it is clear that this Court is not bound to follow Clarke or Edwards, either as a result of the doctrine of stare decisis or out of judicial comity.

186 In Clarke, the ambit of s 4 of the Code was also considered. At [146]-[148] I said:

"[146] In my view, in the present case, where there was scant evidence of the appellant actually lighting a fire that set alight to the fabric of the building and where the State could not designate which acts were committed by each man, it was not inappropriate to utilise the notion of joint criminal enterprise to explain one of the bases of the appellant's potential criminal liability to the jury. In R v Walton and Harman [2001] QCA 309 at [30] Thomas JA and Jones J observed that whilst the language of joint criminal enterprise is not usually helpful in terms of criminal liability under the Queensland equivalent of the Code, s3, it could nonetheless be relevant in circumstances such as the present, where each of two persons charged could either be the person who actually committed the crime or an aider or abettor. Moreover, in the present case both counsel for the appellant and counsel for the respondent conducted their respective cases at trial by reference to the concept, (see Doggett v R (2001) 208 CLR 343 at 346, [2]).

[147] This case is precisely the sort of case where it was appropriate to do so. As was noted by Hunt CJ in R v Tangye (supra) in the following passage at 556:

'The Crown needs to rely upon a straightforward joint criminal enterprise only where - as in the present case - it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose, only where the offence charged is not the same as the enterprise agreed. This Court has been making that point for years, and it is a pity that in many trials no heed is taken of what has been said.'

[148] It is also clear from that passage that counsel for the respondent's written submission (not expressly abandoned on the hearing of the appeal), that the Code, s4, has application where the unlawful purpose and the completed crime are one and the same is not correct. Any doubt about that is resolved by reference to the judgment of Kiefel J, with whom Hayne, Heydon and Crennan JJ agreed, in R v Keenan [2009] HCA 1; (2008) 236 CLR 397 at 428. There, her Honour said of the Criminal Code (Qld), s 8, which is for practical purposes identical with the Code, s4:

'The purpose of s 8 is to extend the criminal responsibility of the parties to a common purpose to an offence other than that which was intended to be committed'."

"[55] It is expressly asserted by the Crown that there can be a common purpose liability under s 4 where the unlawful purpose and the completed crime are one and the same. Although it is not necessary for the purposes of resolving this appeal to decide the point, and it was the subject of argument, I want to make some observations about it. I do so because it is an assertion often made in criminal cases in this State. In my view, the assertion is wrong. I agree with Estcourt J in this respect.

[56] It seems to me that the accepted approach in this State is that if two or more persons form a common purpose to commit crime X, and crime Y is committed, the liability of each is to be first assessed under s 3, with resort had to s 4 if necessary. The assessment under s 3 proceeds on the subjective basis of whether the accused contemplated that crime Y was a possible incident of carrying out the intention to commit crime X: Frost v R [1979] Tas SR 172 per Crisp J (Chambers J agreeing) at 180 - 181; Murray v The Queen [1962] TASStRp 18; [1962] Tas SR 170. If that is not made out, the accused may be liable under s 4 on the objectively assessed basis. Where the common purpose is to commit crime X and crime X is committed, there is no need to go beyond s 3."

188 Much has been written as to the operation of the equivalent provisions of ss 3 and 4 in other Code States, but perhaps the most exhaustive analyses of the history of those sections is to be found in two decisions of the Western Australian Court of Appeal. In particular, Clarke has been considered by that Court in two cases, namely L v The State of Western Australia [2016] WASCA 101, 49 WAR 545 and Campbell v The State of Western Australia (above).

189 In those cases the Court was considering Chapter II of the Criminal Code (WA), in particular ss 7 and 8:

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

(a) Every person who actually does the act or makes the omission which constitutes the offence;

(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) Every person who aids another person in committing the offence;

(d) Any person who counsels or procures any other person to commit the offence.

In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.

A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.

8 Offences committed in prosecution of common purpose

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

(2) A person is not deemed under subsection (1) to have committed the offence if, before the commission of the offence, the person -

(a) withdrew from the prosecution of the unlawful purpose;

(b) by words or conduct, communicated the withdrawal to each other person with whom the common intention to prosecute the unlawful purpose was formed; and

(c) having so withdrawn, took all reasonable steps to prevent the commission of the offence."

The issue raised in this appeal is whether the common law doctrine of joint criminal enterprise provides a basis for criminal liability for the charged offences (as opposed to an evidentiary rule). For reasons explained below, the appellants' criminal responsibility is to be determined by reference to s 7 ‑ s 9 of the [Code], which do not incorporate the common law doctrine, and not otherwise [5].

Sections 7 ‑ 9 of the Criminal Code do not refer to 'joint criminal enterprise', or define criminal liability by reference to entry into an understanding or arrangement to commit a crime. Participation in a joint criminal enterprise may be relevant in giving rise to, or assisting the drawing of, an inference that a person aided, counselled or procured the commission of an offence. However, it is the aiding, counselling or procuring of an offence, rather than an unlawful agreement or arrangement, which gives rise to criminal liability [41].

7 In reaching this view, the court in L adopted what Davies JA said in R v Palmer [2005] QCA 2 and agreed with the reasons of Wood J in Clarke v Tasmania [2013] TASCCA 11 for concluding that s 3 of the Tasmanian Criminal Code (which is in similar but not identical terms to s 7 of the WA Code) does not incorporate the common law doctrine of joint criminal enterprise.

8 The issue in Palmer was the role (if any) of the doctrine of joint criminal enterprise in establishing accessorial liability under the Queensland Code equivalents of s 7(b) ‑ (d) of the WA Code. However, the central issue in L and Clarke v Tasmania was the scope of the principal offender category of liability, being s 7(a) of the WA Code. Section 7(a) relevantly provides:

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

(a) Every person who actually does the act or makes the omission which constitutes the offence.

The language of s 7(a) of the ... Code is clear. It only attaches criminal liability to a person who 'actually does the act or makes the omission'. A person will only be taken to have committed an offence under s 7(a) if he or she has done an act (or one or more of a series of acts) or made an omission (or one or more of a series of omissions) which constitutes the offence. Otherwise deliberate assistance or encouragement of the kind referred to in s 7(b) ‑ s 7(d) is required. Participation in a joint criminal enterprise will not render an accused criminally liable under s 7 of the ... Code unless he or she either:

1 does at least one act or makes at least one omission which, alone or in combination with the acts or omissions of another person (at least where they are acting in concert), constitutes the offence; or

2 deliberately aids another person to commit the offence, or does or omits to do any act for that purpose; or

3 deliberately counsels or procures another person to commit the offence [53].

10 It is difficult to reconcile the statements in [53] with the statements in pars [5] and [41]. In my respectful opinion the statements in L on the subject of joint criminal enterprise, which are obiter, are misconceived."

191 Before commencing the analysis underpinning her Honour's reasoning, McLure P observed in short at [11]-[12]:

"11 In summary, and for the reasons given below, the only scope for the adoption of the common law doctrine of joint criminal enterprise as a basis of liability under the WA Code is in s 7(a), which provides for direct liability. To avoid terminological confusion, I will refer to the doctrine as 'joint criminal enterprise as a basis of liability' or 'joint criminal enterprise in law'.

12 In broad terms, the doctrine of joint criminal enterprise in law requires proof of, inter alia, the existence of a joint criminal enterprise in fact, being an agreement, arrangement or understanding, express or implied (agreement) between two or more parties to commit a particular offence, and participation by a party to the agreement in the performance of that joint criminal enterprise. It is unnecessary and inappropriate in this appeal to identify the outer limits of the requirement of 'participation'. It is sufficient for present purposes to note that it covers at least some, if not all, acts that would, but for the existence of a joint criminal enterprise in law, give rise to accessorial liability under s 7(b), (c) or (d). The possibility that the evidence enlivening the doctrine of joint criminal enterprise as a basis of liability under s 7(a) may also be relevant in proving the factual elements necessary to establish accessorial liability under s 7(b), (c) or (d) is no obstacle to the analysis. Accessorial liability, is derivative not direct. In the case of derivative liability, it is necessary to establish that someone else (the principal) committed the offence with which the aider has been charged." (Emphasis added.)

192 Before returning to McLure P's analysis, which is somewhat compelling to my mind, it should be noted that Corboy J in his reasons in Campbell arrived at a similar conclusion to her Honour, stating at [304], that his "tentative" view was that the expression "the person who does the act ... which constitutes the offence" captured settled legal meanings and concepts in the same way as the words "aids", "counsels" and "procures" conveyed an established legal meaning. In particular, his Honour said the wording of s 7(a) was intended to give effect to "common law concepts of joint criminal enterprise, the attribution principle and acting in concert".

193 The third member of the Court, Buss JA, while concluding that the doctrine of joint criminal enterprise or common purpose at common law is not embodied in s 7(a) of the Code and is not a basis for criminal responsibility under s 7(a), stated he was satisfied that s 7(a) has a more extensive operation than that identified by the court in L. His Honour gave two examples at [165]. They were:

"(a) Where two or more persons make or enter into an agreement or plan to commit a specific offence and, during the subsistence of the agreement or plan, one of them performs all of the acts or makes all of the omissions which constitute that offence with the authority of and therefore on behalf of all of the persons to the subsisting agreement or plan, each of them will have actually done the relevant acts or actually made the relevant omissions, as the case may be, and each of them will be deemed by s 7(a) to have committed the specific offence.

(b) Where two or more persons make or enter into an overarching agreement or plan to carry on a business involving ongoing criminal conduct for a definite or indefinite period (for example, the carrying on of a drug dealing business) and, during the subsistence of the overarching agreement or plan, one of them performs all of the acts or makes all of the omissions which constitute a specific offence pursuant to or in implementation of the overarching agreement or plan and with the authority of and therefore on behalf of all of the persons to the subsisting overarching agreement or plan, each of them will have actually done the relevant acts or actually made the relevant omissions, as the case may be, and each of them will be deemed by s 7(a) to have committed the offence."

"166 Those examples of the scope of s 7(a) reflect the application of the statutory text of s 7(a) to the relevant facts and circumstances, including:

(a) the terms of the agreement or plan;

(b) the relationship between the two or more persons created by, pursuant to or in the course of implementing the agreement or plan; and

(c) the authority of one or more of the persons to act or speak in furtherance of the agreement or plan on behalf of the other or others.

167 The operation of s 7(a), which I have described, dovetails comfortably with the operation of s 8."

195 In that way, by introducing the notion of "authority" Buss JA was able to fix the non-actor who was party to the agreement to commit the crime with direct and not derivative liability and, as will be seen, accommodate one of the concerns of McLure P, namely the raison d'etre of s 8 if the doctrine of joint criminal enterprise was not embodied in s 7(a).

196 Returning to the judgment of McLure P, her Honour's analysis is set out at [13]-[24] of her reasons as follows:

"13 The general principles governing the relationship between the common law and the WA Code (and other statutory codes) are well known. See in particular, Brennan v The King [1936] HCA 24; (1936) 55 CLR 253, 263; Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56, 74-75; and Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, 437.

14 The starting point is always the statutory text, context and purpose. However, the influence and adoption of common law principles and doctrines in the construction and application of the WA Code is in fact widespread. It is reflected in many provisions, including s 8 (R v Barlow (1997) 188 CLR 1, 9, 11 12); s 22 and s 24 (He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, 559 and Sgarlata v The State of Western Australia [2015] WASCA 215 [37]-[45]); s 280(1) (Callaghan v The Queen (1952) 87 CLR 115, 124); former s 31 (Smith v The State of Western Australia [2010] WASCA 205 [9]); and s 409(1) (Bolitho v The State of Western Australia [2007] WASCA 102 [152]).

15 It is significant that Sir Samuel Griffith's note to s 8 in his draft Queensland Code, which became s 7 of the Queensland Code (and which is in materially the same terms as s 7 of the WA Code), reads simply 'common law'. As Lucas J noted in R v Wyles; Ex parte Attorney-General [1977] Qd R 169, s 7(a) of the Queensland Code had been construed consistently with the common law for nearly three quarters of a century (176).

16 At issue in Wyles, was the proper construction of s 7(a) of the Queensland Code. Two co accused were charged with the same offence (breaking and entering) which had two 'acts' constituting the offence for the purpose of s 7(a), with one accused doing only one act (breaking) and the other doing only the other act (entering). Relying on the common law, the court held that where several persons, acting in concert, each do some act so that the actions in totality will cover all of the acts (and omissions) required for the offence, each person would be liable as a principal offender under s 7(a) of the Code. Hoare J said:

'[W]hen The Criminal Code refers to a person "who actually does the act ... " it should be construed in the light of the very clear [common] law which then applied. It seems to me reasonably clear that ... the Code should not be construed in a restrictive way so as to exclude persons who participated in the offence in such a way that the law at the time the Code was enacted treated them as principals because of actual participation in events which, as it were, constituted part of the events which together made up the completed offence (182).'

17 Reliance on joint criminal enterprise as a basis of liability under s 7(a) of the WA Code has been a feature of criminal trials in this State for many decades. To my knowledge, it was never challenged until the matter was raised by the court in L. Not infrequently, the State relies on joint criminal enterprise as the basis of liability under s 7(a), with a fall back alternative of accessorial liability under s 7(c).

18 As Porter J correctly observed in Clarke v Tasmania, the doctrine of joint criminal enterprise in law was applied in this State in Warren & Ireland v The Queen [1987] WAR 314 and Lacco v The State of Western Australia [2006] WASCA 152 and was accepted as applying in Santos v The State of Western Australia [No 2] [2013] WASCA 39, Michaels v The State of Western Australia [2009] WASCA 174 and Heaton v The State of Western Australia [2008] WASCA 32. In Santos and Michaels, as well as in Punevski v The Queen [2000] WASCA 71, the issue was whether there was a sufficient evidentiary foundation of a joint criminal enterprise in law to enliven the application of the so called 'co conspirators rule' by which evidence in the form of acts done or words said, outside an accused's presence, by a person alleged to be a party to the joint criminal enterprise is admissible to prove the participation of the accused.

19 The facts in Lacco raised the same issue as in Wyles. In Lacco there was more than one act or omission constituting the offence for the purposes of s 7(a) (s 7(a) act) and different parties did different s 7(a) acts which together covered all acts required for the offence. In Warren & Ireland, two accused were charged with causing grievous bodily harm to a victim in circumstances where both accused participated in inflicting injuries on the victim but the State was unable to prove which of the two inflicted the blow (or blows) that caused the grievous bodily harm. The Full Court held that the co accused were 'joint perpetrators', having in effect acted in concert, and each was directly responsible under s 7(a) of the Code, there being no question of derivative responsibility under s 7(c). There could be no derivative liability under s 7(c) because that requires proof that someone other than the 'aider' committed the offence in question (grievous bodily harm).

20 It is well accepted that the concept of joint criminal enterprise is interchangeable with the concepts of 'common purpose', 'common design' and 'in concert': McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108, 114; Likiardopoulos v The Queen (2012) 247 CLR 265 [19].

21 A number of important points seem to be lost in the modern discussion of whether the common law doctrine of joint criminal enterprise in law has any application to s 7 of the WA Code or its equivalents. First, as a basis of liability, the sole focus is on direct liability under s 7(a), not derivative liability under s 7(c) or other categories of accessorial liability under the WA Code. Second, it has been authoritatively determined that s 7(a) has picked up the common law of joint criminal enterprise in law, in its various interchangeable formulations, in the circumstances in Wyles and Warren & Ireland. Indeed, on a close reading of the reasons in Clarke v Tasmania, Wood J accepted that some common law principles had been picked up, the real issue being which parts of the common law had not been picked up under the direct liability provision in s 3 of the Tasmanian Code. Third, it is clear from the reasoning in Wyles and Warren & Ireland that the circumstances in those cases are just examples of the application of the principle underlying the common law doctrine of joint criminal enterprise in law. When there is a joint criminal enterprise in law (or its interchangeable equivalent) an actual s 7(a) act done by one or more parties to a joint criminal enterprise is also the act of other parties to, and participants in, the same joint criminal enterprise. The analogy is with the common law of agency, whereby a person may act by himself or by his authorised agent(s). 'Authority' in this context extends to adoption or ratification of the s 7(a) acts of others in the joint criminal exercise. That is, a party to a joint criminal enterprise in law becomes directly responsible for the s 7(a) acts of another party thereto.

22 In summary, s 7(a) applies when the s 7(a) acts of another become, at common law, the acts of the accused; the s 7(a) acts are joint acts; and the parties to, and participants in, the joint criminal enterprise are jointly liable under s 7(a). Section 7(a), on its proper construction, means: Every person who actually does the act or makes the omission [by himself or by another party for whose acts or omissions he is liable at common law] which constitutes the offence.

23 Accordingly, joint criminal enterprise liability for the acts of others is a sufficient, but not essential, basis of liability under s 7(a) of the WA Code. Further, the evidentiary rule is not, and cannot be, separate and independent from the liability rule that underpins it. The evidence in question is only admissible if there is a sufficient evidentiary foundation for a finding that the accused's liability under s 7(a) is sourced in the acts or omissions of others in accordance with the doctrine of joint criminal enterprise in law and its equivalents.

24 This construction of s 7(a) is consistent with s 8 of the WA Code, which incorporates an extended version of the common purpose or joint criminal enterprise liability. Involvement in a joint criminal enterprise under s 7(a) involves an agreement, arrangement or understanding to commit a particular offence, which agreement is performed according to its terms. All the parties to the joint criminal enterprise must intend that the particular offence be committed. To establish liability under s 8, there must be a common purpose to commit a particular offence, during the performance of which common purpose a different, but objectively probable offence, was committed. It would be odd indeed for the legislature to include the extended version of joint criminal enterprise but exclude the core doctrine from the scope of s 7(a) of the WA Code." [Emphasis added.]

197 Corboy J commenced his reasons for judgment (expressed as tentative because of the lack of argument on appeal as to the correctness of L), by providing a summary of the matters he thereafter went on to discuss in detail. At [221]-[227], his Honour said:

221 It will assist if I commence by summarising the effect of the matters discussed below. It is clear that, at common law:

(a) The acts and statements of one party to an agreement to commit a crime or to prosecute an unlawful purpose (a joint criminal enterprise) may be attributed to the other participants in the enterprise. I shall refer to that principle as the 'attribution principle'.

(b) The criminal liability of an accused person can be established by the application of that principle. The principle does not attribute every act done by a participant in a joint criminal enterprise to every other participant. Rather, the principle attributes the act or acts that constituted the offence charged - the actus reus - to all who participated in the joint criminal enterprise. Accordingly, each participant in the joint enterprise is a principal in the first degree - a person who did the act or acts (a person who committed 'the fact' (sic)): Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [75], [81] (McHugh J) and see Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434 [37] (the Court) and Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282 [4] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

(c) Criminal liability pursuant to a joint criminal enterprise arises from the making of the agreement and the offender's participation in its execution: Huynh [37]. Although, the High Court in McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 did not limit the circumstances in which a joint criminal enterprise could be alleged, it has often been said that the prosecution should only rely on the allegation in circumstances where it is not possible to prove criminal liability by the 'ordinary' principles of principal and accessory: see, for example, the comments of Hunt CJ at CL in R v Tangye (1997) 92 A Crim R 545, 556. However, there are cases in which, at common law, it is necessary to allege a joint criminal enterprise to determine the liability of all of those who were apparently implicated in the commission of an offence.

(d) The attribution principle may make the acts and statements of one participant in a joint criminal enterprise admissible as evidence against the other participants provided that the acts and statements were done or made as part of the enterprise: Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1. It is convenient to refer to this application of the attribution principle as the co conspirator's rule of evidence, although the reference is a misnomer in the sense that the rule is not limited to conspiracy cases: see the comment of plurality in Handlen [4].

222 However, there are some points of uncertainty or contention about these matters. First, the accepted view is that, for the purpose of attributing criminal liability, a person participates in a joint criminal enterprise by being present when a crime is committed pursuant to the agreed enterprise_: Osland_ [73] (McHugh J, citing Tangye). However, Gaudron and Gummow JJ queried in Osland whether presence was required [27] (one answer may be that other forms of participation would be sufficient to establish criminal liability according to the common law principles of principal and accessory).

223 A second area of uncertainty concerns a long established line of authority that recognises that two or more persons may combine to do the act that constitutes an offence so that each person is liable as a principal in the first degree. R v Bingley (1821) R & R 446; [1821] EngR 48; (1821) 168 ER 890 is an example. The act that constituted the offence in that case was the production of a forged document. Four persons were involved, each performing a different step that resulted in the production of the document. The steps were performed independently so that not all of the offenders were present at each step or when the act of forgery was completed. However, each offender was regarded as being a principal in the first degree - that is, as a person who had committed the act that constituted the offence. The offenders' liability as principals could not be determined according to the doctrine of joint criminal enterprise if participation in the enterprise could only be established by presence. Further, it is not clear whether their liability as principals was explained by the attribution principle.

224 Third, there may be an issue as to whether the existence of the co conspirator's rule can be divorced from the attribution of criminal liability by participation in a joint criminal enterprise; that is, whether it is possible to have one without the other. There appears to have been a difference between the plurality and Heydon J on that issue in Handlen.

225 The words 'aids', 'abets', 'counsels' and 'procures', when used in statutes concerning criminal liability, have always been interpreted and applied according to common law principles. Consistent with that approach, s 7(b) and s 7(c) of the Criminal Code (WA) and Criminal Code (Qld) have been interpreted according to the common law requirements for accessorial liability. Further, it has been common for courts to have recourse to common law principles to resolve issues concerning the application of the Code to particular circumstances.

226 In this State, and in Queensland, common law principles and cases have been referred to and adopted to hold two or more persons criminally liable for an offence pursuant to s 7(a). However, the basis on which the courts have proceeded is not entirely clear. In particular, it was suggested in L that the application of the doctrine of joint criminal enterprise to Western Australian statutory offences has been assumed rather than authoritatively determined. This apparent uncertainty over the proper construction of s 7(a) of the Code (read with s 7(b) (d) and s 8) raises a number of questions, including: to what extent, if at all, does s 7 embody the common law; if only parts of the common law relating to criminal complicity are incorporated, what is the principle of construction by which those parts have been delineated; if the doctrine of joint criminal liability does not apply, are there possible 'gaps' in the application of s 7 to determine the criminal liability of multiple accused; and what is the status of the co conspirator's rule if the doctrine of joint criminal enterprise does not apply to offences created by Western Australian statutes?

227 As I have indicated, the purpose of what follows is not to express a concluded view on those questions. Rather, it is to explain why I consider that those questions may arise on a review of L and the judgments to be delivered in this appeal."

198 As to Corboy J's point about whether the existence of the co‑conspirators rule can be divorced from the attribution of criminal liability by participation in a joint criminal enterprise, his Honour further explained at [273] of his reasons as follows:

"273 It has been generally accepted that the co conspirator's rule may be applied in such cases to determine the evidence that is admissible against the accused (but see below). However, the acts and statements of one accused admitted against another merely form part of the circumstances relied on by the prosecution to establish the guilt of the second accused; that is, the acts and statements of one accused will only have an evidentiary or factual significance in the case against another or other accused. The agreement or joint enterprise between the accused will provide the foundation for evidence to be admitted pursuant to the co conspirator's rule but the attribution principle is not otherwise engaged to determine the criminal liability of the accused. That is, the criminal liability of the accused is determined by what they actually did and not by attributing the act or acts of one accused to another accused."(Emphasis added.)"

199 Then, at [304]-[306] his Honour expressed his preliminary view in the following terms:

"304 As I have emphasised, the views expressed in these reasons are tentative. However, my preliminary view is that s 7 of the Code was intended to be, and is to be, interpreted by reference to common law principles of criminal complicity. The principles were deeply embedded in the common law by the time Sir Samuel Griffiths prepared his draft of the Queensland Code. They were capable of being shortly stated by language that was settled and which had acquired particular legal meanings. My preliminary view is that this approach to the interpretation of s 7 extended beyond the language employed in s 7(b) s 7(d) to the wording of s 7(a). The expression 'the person who does the act ... which constitutes the offence' captured settled legal meanings and concepts in the same way as the words 'aids', 'counsels' and 'procures' conveyed an established legal meaning. In particular, the wording of s 7(a) was intended to give effect to common law concepts of joint criminal enterprise, the attribution principle and acting in concert - concepts exemplified by both Hurse and Bingley (to the extent the decisions in those cases might be explained by different principles). In particular, I consider that s 7(a), properly construed, embodies what I have referred to as the attribution principle.

305 At least two significant problems arise if s 7(a) is interpreted to exclude the application of that principle. First, there may be some cases in which it is impossible to identify and determine the criminal liability of an accused person according to the requirements of s 7 - to establish the knowledge and intention of the accused for the purpose of s 7(b) s 7(d). That is the problem that the common law addressed by the concept of a joint criminal enterprise. Second, it may not be possible to rely on the co conspirator's rule of evidence if it is not possible to allege that the accused were participants in a joint enterprise for the purpose of determining their criminal liability.

306 Finally, I note two further matters that may be relevant. First, it was held in R v Webb [1995] 1 Qd R 680 that the final paragraph in s 7 of the Queensland Code provided for the circumstance of an offence committed by an innocent agent. Second, the question of participation may require further consideration if the doctrine of joint criminal enterprise does apply to s 7. That is not only for the reason adumbrated by Gaudron and Gummow JJ in Osland but also because aiding has not been interpreted as requiring presence under s 7 of the Code and the Queensland Code: see Gilles P, The Law of Criminal Complicity (1980) 29."

200 His Honour then concluded at [308] as follows:

"308 My preliminary view is that, as Buss JA has stated, s 7(a) has a more extended operation than the court suggested in L and that, in particular, s 7(a) would apply in the way that his Honour identified in the above examples [given by Buss JA at [165] and set out by me above] . However, it will be apparent that I have formed that view on a different analysis of the meaning of s 7(a) to that adopted by his Honour. In particular, my preliminary view is that s 7(a), properly construed, incorporates what I have referred to as the attribution principle."

201 Although it does not arise for determination on this appeal I pose, for my own general consideration, the question of whether the views expressed in Clarke (above), by me and by Porter J, should be revisited as a result of the resolution of the issue that does arise for determination of this Court. I think not. Those views were to the effect that the only purpose of s 4 of the Code is to extend the criminal responsibility of the parties to a common purpose to an offence other than that which was originally intended to be committed.

202 In that regard it is useful to recall the statement of Kiefel J (as she then was) as to that proposition in R v Keenan [2009] HCA 1, 236 CLR 397 at 428 [102] (Hayne, Heydon and Crennan JJ agreeing). Her Honour there said of the Criminal Code (Qld), s 8, which is, for practical purposes, identical with the Code, s 4:

"The purpose of s 8 is to extend the criminal responsibility of the parties to a common purpose to an offence other than that which was intended to be committed." [Emphasis added.]

203 That case concerned in essence, whether the trial judge was correctly of the view that, properly interpreted, s 8 of the Code required the jury to decide whether an offence committed by the respondent to inflict a serious assault on the victim, was sufficient, although the respondent was a secondary offender, to render him liable for the offence of attempted murder committed by his co-accused.

204 The case is authority for the proposition that s 8 does not require the connection, between the offence actually committed and the common purpose to be prosecuted, to be established at the point when the common purpose is determined as a fact. It provides for the requisite connection to be determined by the application of the test, "whether the offence was the probable consequence of the common purpose, after that purpose has been ascertained", (Kiefel J at [117]).

205 Stephen's Draft Code of 1879 which covered every offence which was a probable consequence of the prosecution of a common purpose is in the following terms:

"Every one is a party to and guilty of an indictable offence who -

(a) actually commits the offence or does or omits any act the doing or omission of which forms part of the offence

(b) aids or abets any person in the actual commission of the offence, or in any such act or omission as aforesaid; or

(c) directly or indirectly counsels or procures any person to commit the offence, or to do or omit any such act as aforesaid.

If several persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of such common purpose, the commission of which offence was or ought to have been known to be a probable consequence of the prosecution of such common purpose."

206 There is no reason to suppose that the drafters of the Griffiths code or the Ewing code intended to alter the effect of that compendious statement in the Stephen draft. Indeed, having retained the words "every person who actually commits the crime" in s 3(1)(a) of the Tasmanian Code, that section and s 4 complement each other if s 3(1)(a) is confined to cases where two or more persons actually commit the crime, either literally, in the sense of severally doing all things necessary to satisfy each of the elements of the offence, or jointly by doing or omitting to do any act, the doing or omission of which forms part of the offence. Section 4 then picks up cases where two or more persons form a common intention to prosecute an unlawful purpose and in the prosecution of that purpose a different crime is committed, which crime was a probable consequence of the prosecution of the purpose.

207 The principal question in this appeal is whether Wood J was correct in holding in Clarke that that the common law concept of joint criminal enterprise is not the law in Tasmania. On careful reflection, notwithstanding what I regard as the persuasive obiter statements on this issue by McLure P in Campbell, I am of the view that the conclusion of Wood J in Clarke is correct and should be adopted by this Court.

208 I have had the very considerable advantage of reading the joint judgment of the plurality in draft form and I respectfully agree with their Honours' conclusion, to the same effect as Wood J in Clarke, namely, that the words "every person who actually commits the crime" in s 3(1)(a) of the Code must be given their ordinary literal meaning, and must not be interpreted as including every person present when a crime is committed, who has reached an understanding or arrangement with a person who actually commits the crime, that it will be committed. In other words, I agree with their Honours to the extent that the joint judgment holds that s 3(1)(a) is not to be interpreted as restating the common law as to the criminal liability of parties to joint criminal enterprises.

209 It follows that ground 1 of the notice of appeal is made out.

Unsafe and unsatisfactory - attempt to obtain a financial advantage

210 My conclusion in relation to the crime of arson does not dispose of the second charge against the appellant at trial, namely, that of attempting to dishonestly acquire a financial advantage. The Crown case was that the appellant actually committed that crime by making a series of false representations for the purpose of acquiring a payment from his insurance company and thus it is necessary to consider the question of whether the appellant's conviction for that crime was unsafe and unsatisfactory.

212 In Tatnell v Tasmania [2020] TASCCA 13, which was decided after the decision of the High Court in Pell v The Queen [2020] HCA 12, 94 ALJR 394, Brett J, with whom Blow CJ and Pearce J agreed, stated the relevant principles in appeals involving the appellant's Ground 3, at [24]-[25] as follows:

"[24] The imprecision of a ground of appeal which alleges that the verdict is unsafe and unsatisfactory was recently discussed by Porter AJ, with whom Blow CJ and I agreed, in Anderson v Tasmania [2020] TASCCA 11 at [124]- [125]. Although, as his Honour noted, such a ground can encapsulate and conflate various bases of this Court's jurisdiction to interfere with the verdict under s 402 of the Criminal Code, in this case it is clear enough that the sole basis of the appeal is that the verdict is 'unreasonable, or cannot be supported having regard to the evidence.'

[25] The question for this Court in respect of such a ground has been restated in a number of recent decisions, for example Paite v Tasmania [2019] TASCCA 5, 30 Tas R 73; Finnegan v Tasmania [2020] TASCCA 5; Anderson v Tasmania (above). There is no need to repeat those principles in detail. The essential question for this Court is whether, after making its own independent assessment of the evidence, 'it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty': M v The Queen [1994] HCA 63; (1994) 181 CLR 487. This is a question of fact."

213 In Tringrove v Tasmania [2014] TASCCA 7 at [5]- [6], Blow CJ and Pearce J, with whom Wood J agreed, set out the relevant legal principles as follows:

[5] Each of the appellants has appealed in respect of every verdict, asserting that the verdicts were 'unsafe and unsatisfactory' or 'unsafe and unreasonable'. The test ordinarily to be applied by an appellate court when considering whether a verdict is 'unsafe or unsatisfactory' was explained by Mason CJ in Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 at 442-443 as follows:

'It is now well settled that a verdict may be set aside as unsafe or unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted ... In deciding whether a verdict should be set aside as unsafe or unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused ...'.

[6] In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said at 494-495:

'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618 - 619; Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 at 443 - 444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (supra) at 443, 451, 458, 461 - 462)'." (Emphasis added.)

214 Again I note that I have had the considerable advantage of reading the draft reasons of plurality on this question. I gratefully adopt their Honours' comprehensive analysis of the relevant evidence. For the reasons they give I agree, having regard in particular to the evidence as to the four points of ignition of the fire and the movements of the appellant and Mr Wells in the minutes leading up to their departure from the house, that the appellant must have known that Mr Wells started the fire. It was thus reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant dishonestly pretended that he knew nothing of the fire being deliberately lit, in order to attempt to deceive his insurer, and that in so doing he was dishonestly attempting to obtain a financial advantage.

215 It follows that ground 3 of the notice of appeal fails.

216 For those same reasons, I respectfully agree with plurality that the outcome of the case has not been affected by the legal error arising from the misdirection asserted in ground 1 of the notice of appeal. Accordingly, there has not been a substantial miscarriage of justice and I too would not uphold the appeal on the basis of ground 1. The conviction on the arson charge should stand.

217 On these grounds, grounds 4 and 5 of the notice of appeal, I again respectfully agree with the plurality that there was no reasonable disparity between the appellant's sentence and that of Mr Wells and that "having regard to the relevant factors, particularly the need for general deterrence, the size of the insurance claim, and the impact on the mortgagee ... the appellant's sentence was a reasonable one". It was not manifestly excessive.

[1] There is no reason why that case should not be followed in Tasmania in relation to crimes that are constituted by two or more acts. For example, the crime of robbery is constituted by (a) stealing and (b) using or threatening to use violence: Criminal Code, s 240(1). If two offenders together confront a person, one threatens to use violence with the necessary intention, and the other steals something from the person, they have between them committed the crime of robbery. It is significant that Tasmania also has a legislative provision that "words in the singular shall include the plural" in the absence of a contrary intention: Acts Interpretation Act 1931, s 24(d). A provision to that effect was in force when the Code was enacted in 1924: Acts Interpretation Act 1906, s 10(II). It should be noted that there is the additional factual scenario treated as falling within s 3(1)(a) of two or more offenders actively and directly carrying out together the act which constitutes the crime with a shared purpose, as in a joint attack with weapons: Lyons v The Queen (1992) 1 Tas R 193. While an extended meaning is given to s 3(1)(a) in this context, it is again consistent with treating the singular as including the plural ("person" includes persons) and consistent with the natural meaning of the text ("actually commits").

[2] "Tabula rasa" is Latin for "scraped tablet", denoting a tablet with the writing erased. The Macquarie Dictionary gives two meanings for the term: "1 the mind at birth, regarded as having no innate conceptions 2 an opportunity to make a clean break or a fresh start". It defines "palimpsest" as "a manuscript written over a partly erased older manuscript in such way that the old words can be read beneath the new".