Stuart v The Queen

Stuart v The Queen - [1974] HCA 54 - HCA 1974 case summary — Zoe

[12]

The trial was a long and difficult one but the facts which the jury must be taken as having found so far as they are material to the questions raised on this application can be stated quite shortly. In the early hours of the morning of 8th March 1973 - at about 2.08 a.m. - a fire broke out in a night club, the "Whisky-Au-Go-Go", causing the deaths of fifteen people, including Miss Davie. She died from carbon monoxide poisoning caused by the fumes she inhaled. The fire was lit by Finch who took two drums of petrol into the foyer of the night club (which was at ground level, the club itself being upstairs) and applied a match to them. Stuart was not at the night club when the fire was started. In fact he was at another night club, the "Flamingo", and was careful to make his presence there remembered so that he might have an alibi. However, the fire was lit by Finch in the execution of a plan which Stuart had formed and to which Finch had become a party. The plan had as its object the extortion of protection money from the owners of night clubs in Brisbane. In the execution of the plan Stuart disseminated the story that criminals from Sydney had come to Brisbane for the purpose of extorting money from night clubs and said that as a warning that they meant business they were likely to blow up or burn a night club - if necessary, one full of people - and that in particular they intended to bomb the "Whisky-Au-Go-Go". Finch's part of the plan was to light a fire to give some verisimilitude to this story. Stuart had brought Finch from England for the purpose and he counselled Finch to light the fire. It was no part of the plan that murder should be committed. There was no evidence that either Finch or Stuart intended that anyone should be killed or injured in the fire and it is possible that the action of the air-conditioning plants in the building had some effect in hastening the spread of the blaze and increasing the concentration of vapour containing carbon monoxide, and thus in causing the fire to have more serious consequences than Finch and Stuart in fact foresaw. On the other hand, Finch must have known when he lit the fire that the club was not empty; a notice outside the building stated that the club was open until 3 a.m. and in fact there were about forty people in the club when the fire broke out. Moreover, upon the evidence to which I shall later briefly refer, the jury were entitled to conclude that Stuart knew that Finch would light the fire at the time when he did in fact light it and that the patrons of the club were likely to be using it at that time.

[37]

The third element in s. 302(2) has sometimes occasioned difficulty. It appears clearly from the words of the section, and it has been laid down by this Court, that the act of the accused which caused the death cannot at once constitute the dangerous act and the unlawful purpose: "The paragraph relates to an act of such a nature as to be likely to endanger human life when the act is done in the prosecution of a further purpose which is unlawful." (Hughes v. The King [8] ). The facts of Hughes v. The King clearly exemplify this principle; the dangerous act causing death was a violent assault but the accused had no purpose other than to assault the deceased. If s. 302(2) had applied in that case it would, as Philp J. said in Reg. v. Gould and Barnes [9] , "make a man guilty of murder if, without any intent to do grievous bodily harm, he killed by an unlawful act which, in fact, was likely to endanger human life". The principle recognized in Hughes v. The King was extended inReg. v. Nichols, Johnson and Aitcheson [10] , to a case in which the death was caused in a fire started by the accused with the intention of burning down a hotel. Sheehy J. held that a verdict of murder was not open to the jury. He said that "that act which caused death, that is the setting fire to the hotel, which itself was arson, was the unlawful purpose" and that "the unlawful or dangerous act relied upon, setting fire to the hotel, is alleged to be at once the unlawful purpose and the dangerous act, and s. 302(2) does not apply". With respect, this was a misapprehension of the decision in Hughes v. The King [11] . In Reg. v. Nichols, Johnson and Aitcheson the dangerous act was the striking of a match and applying it to kerosene on the stairs of the hotel but the unlawful purpose was to commit arson by burning down the hotel; the dangerous act and the unlawful purpose were not the same. The decision in Reg. v. Nichols, Johnson and Aitcheson was not required by Hughes v. The King [11] and finds no support in other authorities on the Code. In Reg. v. Gould and Barnes [12] in which, following some earlier decisions, it was held that a verdict of murder was open when death was caused by a dangerous act done for the purpose of unlawfully aborting the deceased, no reference was made to Reg. v. Nichols, Johnson and Aitcheson [10] , but the two decisions cannot stand together. In Downey v. The Queen [13] , the Court of Appeal of New Zealand cast doubt on the decision in Reg. v. Nichols, Johnson and Aitcheson but did not find it necessary to decide whether that case had proceeded on an unduly narrow view of the ratio in Hughes v. The King. In my opinion Reg. v. Nichols, Johnson and Aitcheson was wrongly decided and should now be overruled.

[41]

A number of submissions were advanced on behalf of the applicant in support of the contention that it was wrong to direct the jury that it was open to them to find Stuart guilty of murder by applying the provisions of s. 8 of the Code. It is convenient first to consider the submission that the word "offence", where it occurs in s. 8, takes its meaning from the so-called definition in s. 2 which provides as follows: "An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence." It was said that applying this definition the "offence" within the meaning of s. 8 in the present case was the lighting of the fire and that s. 8 has the effect that Stuart is deemed to have committed arson but not to have committed murder. In my judgment the effect of s. 8 is not so limited. It is clear from the words of s. 8 that when that section speaks of "an offence" it cannot mean simply an act or omission viewed in isolation. In most cases an act or omission alone does not render a person liable to punishment; whether it does so may depend on the quality of the act, the intention which accompanied it, its consequences or other circumstances. In the present case, for example, it was not the lighting of the fire alone that made Finch guilty of murder; he committed that offence because the death of Miss Davie was caused by his act of lighting the fire and because the act was in the circumstances of such a nature as to be likely to endanger human life and because it was done in the prosecution of an unlawful purpose. If the word "offence" in s. 8 is regarded as defined by s. 2 it means an act or omission done or made in such circumstances as to render the person doing it liable to punishment - a punishable act or omission. Reading s. 8 in this way, it deems Stuart to have committed the punishable act done by Finch, and since Finch's act is punishable as murder, Stuart is deemed to have committed murder. In truth, however, to attempt to expand the text of s. 8 by reading into it the description of "offence" contained in s. 2 tends to obscure rather than illuminate its meaning. The words of s. 8 are perfectly clear as they stand. They have the effect, in the present case, that if Finch and Stuart formed a common intention to prosecute an unlawful purpose in conjunction with one another, and if in the prosecution of that purpose Finch committed the offence of murder, and if that offence was of such a nature that its commission was a probable consequence of the prosecution of such purpose, Stuart is deemed to have committed murder.

[45]

However, even on the view that the test under s. 8 is objective the submission was made that the murder was not a probable consequence of the unlawful purpose of extortion. The question is not one to be decided by reference to abstract concepts. It is not whether, viewed a priori, murder is a probable consequence of extortion. Under s. 8 it is necessary for the jury to consider fully and in detail what was the unlawful purpose and what its prosecution was intended to entail and what was the nature of the actual crime committed, and then to decide whether that crime was of such a nature that its commission was a probable consequence of the prosecution of that purpose. In the present case there was evidence on which the jury could have been satisfied that the murder committed was of such a nature that its commission was a probable consequence of the prosecution of the purpose which Finch and Stuart had in common; it was open to them to infer that Stuart and Finch formed a common intention that Finch should light the fire in the night club at the time when he did light it and when people were known to be in it. It is perhaps desirable to mention a few additional facts relevant to this question. In a number of conversations before 8th March, in which Stuart spoke of the activities of the alleged criminals from Sydney, he mentioned the possibility that a fire or an explosion might be caused in a night club when it was full of people. On the night of the fire Stuart set out in a car with Finch at about midnight and was together with Finch again soon after 7 o'clock on the following morning at the latest. In the meantime Stuart had taken pains to establish that he was at another night club at 2.16 a.m. In subsequent conversations he accused Finch of failing to keep quiet but never reproached him with having lit the fire while people were in the club. Once the jury concluded that the plan was to light the fire at about 2.08 a.m. when people were in the club it was a short step for them to be satisfied that the death of one of such persons was a probable result of the prosecution of the plan. It is not uncommon for deaths to occur when a fire breaks out in a building containing people. I have already mentioned that there was evidence that there were installed in the building air-conditioning plants which may to some extent have hastened the spread of the fire, and increased the concentration of carbon monoxide. This circumstance did not mean that the death was not a probable consequence of lighting the fire. Even had there been no air-conditioning plant, the death of one of the persons in the night club was a probable consequence of lighting the fire there.

[48]

Section 23 makes it plain that if B does an act which is done independently of the will of A the latter cannot be criminally responsible for that act. Similarly under s. 7(d) - if A counsels or procures B to commit an offence A is liable only for the actual offence he has consciously counselled or procured. This passage, if taken alone, completely ignores the effect of s. 9 of the Code. Later, Philp J. did mention that section in a passage contrasting the effect of ss. 8 and 9 with that of s. 7. He said [22] : Section 9 similarly extends the criminal responsibility of the counsellor or procurer to include responsibility for unwilled offences which are objectively the probable consequence of the counselling or procuring. That is a correct statement, but Philp J. immediately followed it by saying [23] : "In my view s. 7 is not intended to create responsibility for unwilled acts arising out of a plan or concert." Although in the present case it is not necessary to discuss ss. 7 and 23 generally, it seems right to say, with great respect to a judge very experienced in this branch of the law, that the views expressed by Philp J. as to the effect of those sections cannot all be supported. Where s. 7(c) is invoked the act of the accused which makes him criminally responsible is his act of aiding another to commit the offence; the first limb of the first paragraph of s. 23 does not have any exculpatory effect once it is established that the accused's act of aiding was not independent of the exercise of his will. Moreover, Philp J. seemed to have attributed to "act" in s. 23 the wider meaning which, although accepted by some members of this Court, cannot now be regarded as correct: see Kaporonovski v. The Queen [24] . The criticisms which in Murray v. The Queen [25] Burbury C.J. made of the judgment of Philp J. in Reg. v. Solomon [26] were justified. However, the only part of s. 7 with which we are now directly concerned is par. (d). The question whether one confederate has counselled another to commit an offence requires a consideration of what the former urged or advised the latter to do. If the latter then does commit an offence which is different from that which he was counselled to commit, the former is made liable by the combined effect of ss. 7(d) and 9 provided that the facts constituting the offence are a probable consequence of carrying out the counsel. Stuart having counselled Finch to light the fire at the time and in the manner which he did was liable if the offence of murder actually committed by Finch was a probable consequence of carrying out that counsel. The learned trial judge was correct in directing the jury accordingly. 1. [1959] Qd. R., at pp. 128-131. 2. (1936) 55 C.L.R. 253. 3. [1959] Qd. R., at p. 128. 4. [1959] Qd. R., at p. 129. 5. [1959] Qd. R., at p. 130. 6. (1973) 133 C.L.R., at pp. 216, 226-231, 240. 7. [1962] Tas. S.R. 170, at pp. 184-185. 8. [1959] Qd. R. 123.

[57]

It seems to me that there are a number of answers to this submission. The first and simplest is that when during the trial the purpose of extortion was spoken of, in relation both to the unlawful purpose under s. 302(2) and to that under s. 8, it was not extortion in the abstract but extortion planned to be effected in all the circumstances of the case, including the preliminary act of causing a fire in the building housing the night club. Counsel for the applicant submits that this is impermissible because of Hughes v. The King [8] in that it fails to keep separate the act of lighting the fire and the purpose of extortion, but, however broadly the reasoning in Hughes v. The King may be regarded, it does not appear to me that it justifies the proposition that the act and the purpose must in s. 302(2) be entirely disparate. Hughes v. The King does not support the wide proposition for which it has been claimed as authority. It was held in that case that when there is no purpose at all beyond the doing of the act which constitutes the offence, then there is no relevant "unlawful purpose" under the section. The facts of the case show how sensibly that principle applies. The act was an assault but, on a view of the facts which was open, there was no purpose beyond the making of the assault. This, it was held, was insufficient to make s. 302(2) applicable. However, many offences are and probably all can be of greater complexity in the purposes which may accompany them than an assault unaccompanied by any purpose other than the making of the assault. Arson may be taken as an example. If a man wilfully and unlawfully sets fire to a building he may have no purpose other than that of setting a fire. The motive may be a wish to see it burn, a mischievous glee or a dislike of the structure. Then the reasoning in Hughes v. The King is applicable. But more usually such an act is accompanied by a distinct purpose, such as, for instance, a purpose of causing some damage, not necessarily physical hurt, to the owner or occupier of the building. That purpose when it is prosecuted by burning of the building is unlawful. The purpose unrelated to the act of setting fire does not necessarily constitute a separate offence or attempted offence but there is nothing in Hughes v. The King which suggests that there must be a purpose of committing a distinct offence of which the act under s. 302(2) is not a constituent part. The unlawful purpose must in fact be prosecuted by the dangerous act but the unlawfulness of the purpose may appear from the act whereby that purpose is prosecuted. The dangerous act need not be itself an offence and the purpose unrelated to the dangerous act need not be an offence. It is when the combination of them results in an offence, but only when there is in fact a combination, that is to say, when a purpose can be discerned beyond the doing of the dangerous act itself that the requirements of s. 302(2) are satisfied. It is thus permissible to look at the act in the light of the purpose and likewise the purpose in the light of the act by which that purpose is prosecuted. I am of opinion that Reg. v. Nichols, Johnson and Aitcheson [9] was only a correct application of the decision in Hughes v. The King [9a] if in fact there was no purpose intended to be prosecuted by the act of setting fire to the hotel. We were informed during the hearing of this application that this was not so, but that on the facts there was a purpose of destroying the hotel so that its licence would be withdrawn. If this be correct then the decision of the trial judge was wrong when he held that a verdict of murder under under s. 302(2) was not open.

[81]

Although on these aspects the summing up was on the face of it favourable rather than unfavourable to the applicant, nevertheless it must be considered whether because there was no direction to the jury that a verdict of manslaughter was open exactly in this way in respect of the applicant there was any miscarriage of justice. In my opinion, in the circumstances of this case, no miscarriage of justice is disclosed. The evidence against the applicant in relation both to the counsellng and to the common purpose with Finch was such that if it was accepted by the jury and if all the other questions left to the jury in the careful direction of the trial judge were answered against the applicant it clearly appeared that the counselling or common purpose had a probable consequence that human life was not merely possibly endangered but was likely to be endangered. This is so because all the evidence if it was accepted showed a counsel or common purpose of setting fire to the night club at a time when it was open for business. There was the evidence that the applicant, in his forecast of events in which he falsely identified the originators of the plan of extortion as certain persons from New South Wales, clearly envisaged that a night club would be set afire when there were patrons attending it. There was the evidence that the night club was open for business until 3 a.m. and that it had a large notice outside to this effect. There was the evidence of the applicant's visits to the night club when he must have seen the notice. There was the evidence that the applicant and Finch were together until a late hour on the night in question and that then the applicant carefully established an alibi for himself at 2.16 a.m. by calling attention to his presence at another night club at that time. The fire, it will be recalled, was at 2.08 a.m. If none of these events were found to carry the implication against the accused which it was sought to establish there was no real evidence against him, but if they were accepted by the jury against him then the probable consequence of both the counselling and the common purpose was arson which was likely to endanger the life of persons in the night club. In the particular circumstances the failure to give the particular direction on manslaughter which was omitted resulted in no miscarriage of justice and no case is established for the granting of special leave to appeal. The application should be refused.

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