Wayne male % Harwood v R

Wayne male % Harwood v R - [1936] HCA 24 - HCA 1936 case summary — Zoe

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section is much more favourable to an accused than is the common Jaw. Under the common law where several persons engage in the pursuit of a common unlawful object and one of them does an act which the others ought to have known was not improbable to happen in the course of pursuing that object, all are guilty (Russell on Crimes and Misdemeanours, 7th ed. (1909), vol. 1, p. 114). The real issue raised by sec. 8 was not put to the jury. The jury negatived the fact that the caretaker's death was the probable result of a common design. So far as sec. 279 (2) of the Criminal Code is concerned, the jury, by bringing in a finding of manslaughter, must have found the element of accident, that is, that the death did not result from' any act on the part of the other two accused likely to endanger human life. Sec. 8 is the whole basis of the applicant's liability. The summing up does not make clear the two types of liability. Although it was suggested that the applicant's part was to keep watch, there was not any evidence that he kept watch ; the only evidence is to the contrary. The facts alleged against the applicant are capable of an innocent interpretation. This was not pointed 'out to the jury. Those facts are as consistent with his innocence as with his guilt. It is a misdirection to fail to point out to the' jury that an alternative innocent interpretation may be put on the proved facts (R. v. Vassileva (1) ). The summing up was inadequate in that the jury was not warned to keep distinct the accused, and not allow evidence admissible against one accused, sWay them in respect to another accused. Although in his summing up the trial Judge dealt with the question of reasonable doubt, he did not' warn the jury about circumstantial evidence (Peacock v. The King (2)). There is no evidence that the applicant knew there was a caretaker, or that the caretaker would need to be overpowered. 'The offence to which the applicant was sought to be thade a principal was an offence of manslaughter, not an offence of robbery. 'Apart from secs. 7 and 8, in order to make him a principal at law, either he must have had in mind the commission of that offence which was committed, or he must'have agreed with the others to aid such an unlawful object as had, as its result, the

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him up. Evidence was given that two of the persons charged, Flynn and Walsh, broke and entered the shop, seized the caretaker Whitfield, who struggled, and was killed during the struggle, and stole a considerable quantity of jewellery. One of the men, Flynn, gave evidence that he discussed raiding the shop with Walsh, and that it was arranged to overpower the caretaker, gag him and tie him up, and he also deposed that some rope and a black cloth were taken to the shop for the purpose. But he denied that Brennan was any party to the arrangement. The conclusion was, however, open, on the evidence given in the case, that the prisoner Brennan was a party to the scheme to break and enter the shop and over- power the caretaker if resistance were offered, and to steal. (See R. v. Dumn (1); R. v. Kalinowski (2).) His part was to keep watch outside the shop in order to prevent surprise, or to be ready, to give assistance, whilst the other men were in the shop stealing the jewellery. The learned Chief Justice of the Supreme Court of Western Australia, who presided at the trial, thus directed the jury : - ' First you have to consider the case of Flynn and Walsh, and the only question for your consideration in that matter is whether they were guilty 'of murder or manslaughter. If you come to the conclusion that the death of Whitfield was caused by the act or acts of Flynn or Walsh, or either of them, that were likely to endanger human life, then they are guilty of murder. If, on the other hand, you come to the conclusion that the death was the result of a fall without any such act on the part of Flynn or Walsh, then they are guilty of man- slaughter only. Having decided that, the next question for you to consider is whether you are satisfied that Brennan was a party to the robbery from Caris Brothers' establishment. If the Crown has failed to satisfy you on that point, then Brennan must be acquitted. If, however, you come to the conclusion that Brennan was a party to the breaking and entering, then your verdict will be that Brennan. is guilty of the offence which you have found against Walsh and Flynn. If you bring a verdict against Walsh and Flynn of murder, then your verdict against Brennan must be murder. On the other hand, if you say that Walsh and Flynn are guilty of manslaughter

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a probable consequence of carrying it out. The practical result is that the applicant would not be guilty of manslaughter unless he knew that his confederates whom he was aiding and abetting intended to commit at least a common assault upon the caretaker or, supposing that they had not that actual intention, then unless he foresaw that to carry out the plan of shopbreaking they would probably so injure him that death might be likely to result. Upon the jury's being satisfied beyond reasonable doubt that the applicant did keep watch as a confederate of the two prisoners who broke and entered the shop, the question would arise for the consideration of the jury whether these conditions of responsibility, or either of them, were proved. At the trial, however, no such question was submitted to the jury. In the Judge's charge the case was put to the jury as if it necessarily followed from the applicant's joining in the shopbreaking that he was guilty of the homicide, the murder or the manslaughter as the jury might hold it to have been. This was repeatedly stated in the course of the summing up. But it is enough to quote the final direction which the jury received at the end of the charge after the question had been dealt with whether the crime of the other two prisoners, whose names were Walsh and Flynn, was murder or manslaughter. The summing up goes on : - "Having decided that, the next question for you to consider is whether you are satisfied that Brennan" (the applicant) "was a party to the robbery from Caris Brothers' establishment" (the jeweller's shop). "If the Crown has failed to satisfy you on that point, then Brennan must be acquitted. If, however, you come to the conclusion that Brennan was a party to the breaking and entering, then your verdict will be that Brennan is guilty of the offence which you have found against Walsh and Flynn. If you bring a verdict against Walsh and Flynn of murder, then your verdict against Brennan must be murder. On the other hand, if you say that Walsh and Flynn are guilty of manslaughter, then your verdict against Brennan will also be manslaughter."

At a glance

Court

Decision date

Before

Source

Judgment (74 paragraphs)

Parties