Jeffrey v The Queen B15/1999 [2000] HCATrans 363 (21 June 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B15 of 1999

B e t w e e n -

ANDREW JOHN JEFFREY

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Brisbane No B16 of 1999

B e t w e e n -

STUART MICHAEL PASCOE

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Brisbane No B17 of 1999

B e t w e e n -

MARK NEIL DONALD

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 21 JUNE 2000, AT 11.55 AM

Copyright in the High Court of Australia

_______________________

MR G.P. LONG: If it please the Court, I appear for each of the applicants in these matters. (instructed by Legal Aid Office (Queensland))

MR D.L. MEREDITH: If it please the Court, I appear for the respondent in each of these matters. (instructed by the Director of Public Prosecutions Queensland))

GAUDRON J: I take it these three applications can be heard together?

MR LONG: Yes, it is the same - - -

GAUDRON J: Yes, thank you. Yes, Mr Long.

MR LONG: If your Honours please, in each instance the applications are firstly for compliance with Order 69A rule 3(1) to be dispensed with and for special leave to appeal.

GAUDRON J: Is that opposed, Mr Meredith?

MR MEREDITH: No, your Honour.

GAUDRON J: Yes, you have that leave.

MR LONG: Thank you. The background to these matters is this, that there were two separate trials, a joint trial involving the applicants Jeffrey and Donald and another youth who was involved in this particular incident who was discharged at the joint trial when some evidence was excluded but he was later convicted of manslaughter on his own plea. At Pascoe's trial it was the same incident or the same crime of murder which was at issue. The cases against each depended largely on the descriptions each had given as to the events that had occurred to police when they were interviewed. A major difference that emerged in the versions in Pascoe's case was that there was said to be no violence offered to the deceased on the second occasion when the men went to the scene of the crime. That perhaps explains why there was a separate trial.

The Crown case at each trial was that each of the applicants had been involved in a joint beating of the deceased. In relation to the applicant Donald, his involvement was also said to devolve from his driving each of the others to and from the scene on each occasion for the purpose of assaulting the deceased. It is accepted in the judgments in the Court of Appeal, and it is certainly my submission, that on the evidence at the trials, it was not in any of the cases possible to prove who struck the fatal blow or blows, as such, or on which occasion where - on the joint trial where there were, in the evidence, two occasions of blows being struck - those particular blows were inflicted. Therefore, in each case the Crown relied upon section 7(1)(b) and (1)(c) and section 8 of the Criminal Code.

GAUDRON J: Do you make any complaint about section 7?

MR LONG: Yes, in the sense that what the jury was never told, if the applicant's point is correct, is that what the jury had to be satisfied of was that the particular offender intended grievous bodily harm or death.

GAUDRON J: For section 7?

MR LONG: It applies in relation to section 7 as well, but for reasons that I have set out in my written outline, the crucial issue was in relation to section - - -

GAUDRON J: But is that a correct statement of the law?

MR LONG: If it is correct in relation to section 8 it would flow into section 7, in my submission.

GAUDRON J: That is not the case, though, is it, in all cases? Was it not the case that in Donald it was said the jury was instructed that they had to find - - -

MR LONG: In Pascoe's case.

GAUDRON J: In Pascoe's case, yes.

MR LONG: Yes, in relation to section 7 that is so, and initially - - -

GAUDRON J: So, there is no issue as to section 7 in Pascoe's case?

MR LONG: That is so, but in that particular case it is clear from the record that the jury asked for a redirection - - -

GAUDRON J: About section 8.

MR LONG: Yes, and it was after that that they reached - - -

GAUDRON J: How does section 7 involve itself in the other cases?

MR LONG: In each case it was left as an alternative basis on which the jury - - -

GAUDRON J: Yes, but how was it left? What do you say is the misdirection in the case of Jeffrey and Donald with respect to section 7?

MR LONG: In that the jury were told that the offender, the secondary offender, need only know of the intention of the principal offender to do grievous bodily harm.

GAUDRON J: Is that not correct?

MR LONG: If the correct interpretation of the judgment of this Court in Barlow is that one must focus on the intent of the secondary offender, it would follow into section 7 that the direction should be given in those terms rather than knowing of the intent of the principal offender. In any event, in both Jeffrey and Donald's cases section 8 was left as an alternative and it was one which on the cases as they were presented to the jury may well have been an attractive alternative to the jury to form a basis for conviction. In disposing of the appeals in the Court of Appeal each of the judges saw fit to deal with the application of section 8 in terms of the application of the proviso.

That, of course, occurred against the background that the Court of Appeal had rejected the argument which I am seeking to put to this Court and were only concerned with the misdirection which was to the effect that the secondary offender could not be convicted of manslaughter if the principal offender was guilty of murder or, put another way, if the jury was satisfied that in some way the deceased here was murdered, it was not open to them to convict of manslaughter. So, if in fact the correct application of the law is that the focus must be on the specific intent of the secondary offender, then that matter has not been decided either by the jury or against the applicants by the Court of Appeal.

GAUDRON J: But you put the issue wrongly, do you not? In relation to section 7 the issue was knowledge surely, and in relation to section 8 it is knowing of the probable consequence or perhaps not even knowledge itself.

MR LONG: It becomes an objective test as to whether it was a probable consequence.

GAUDRON J: So, it is not intention that we are talking about in either case, is it?

MR LONG: The intention which the Court of Appeal identifies as being the relevant intent is that of the primary offender, not the secondary offender, if I can use those terms to distinguish them.

GAUDRON J: Yes, what is wrong with that, in either section 7 or section 8?

MR LONG: Certainly in section 8 my submission is that the correct interpretation of the majority judgment in Barlow is that one must look to the intent of the secondary offender and that flows from - firstly looking at page 9 through to page 10, the majority said that the use of the word "offence" in section 8 makes it clear that it imports the definition from section 2 and that the focus is upon the acts or omissions and it is the acts or omissions of the primary offender which the secondary offender is deemed to have committed. The Court there goes on to say that because the same word is used in section 7 that the same meaning would apply in relation to section 7, so that is why I make the submission that if it is right in relation to section 8 it must also flow into section 7.

The emphasis which is made is that the word "offence" in section 8 is understood as referring to the conduct, that is, the acts or omissions of the primary offender. The passage that is on page 10, which is a passage which includes that which the Court of Appeal fastened upon in these matters, goes on to say that:

In the light of these provisions, "offence" in s 8 must be understood to refer to an act done or omission made. So interpreting the section, it deems a person falling within its terms to have done the act or to have made the omission which the principal offender -

has done or made. It fastens on the conduct of the principal offender:

but it does not deem the secondary to be liable to the same extent as the principal offender. It sheets home to the secondary offender such conduct (act or omission) of the principal offender as (1) renders the principal offender liable to punishment but (2) only to the extent that the conduct (the doing of the act or the making of the omission) was a probable consequence of prosecuting a common unlawful purpose.

It then goes on to say, and this is part of the passage which, in my submission, appears to cause the difficulty, together with the later passage that:

The secondary party is deemed to have done an act or made an omission but only to the extent that the act was done or the omission was made in such circumstances or with such a result or with such a state of mind (which may include a specific intent) as was a probable consequence of prosecuting the common unlawful purpose. Those circumstances, that result and that state of mind are factors which, either together or separately but in combination of with the proscribed act or omission, define an offence of a particular "nature". Thus the unlawful striking of a blow by a principal offender will constitute an offence the nature of which depends on whether the blow causes bodily harm or grievous bodily harm or death and on the specific intent - - -

GAUDRON J: Yes, but that does not require a specific intent on the part of the secondary offender.

MR LONG: When it is read in conjunction with what follows, I submit that it does, because there is then the passage which repeats that notion at the middle of page 11 and then what follows this is a passage that starts:

Thus, if a principal offender does an act or makes an omission in prosecution of an unlawful purpose -

and the judgment goes on to refer to a number of cases where the passages referred to do draw that distinction between the intent which is held by the principal offender and the secondary offender. In particular, a passage is drawn from Markby which is said to state the common law provision which is also consistent with that view that the reason why a differentiation might occur in relation to the verdicts returned depends upon the different states of mind of the different offenders. The majority in this judgment go on to say just that, in my submission, at page 12, where they say:

Both the common law and the Code draw a distinction between an unintended death that nevertheless occurs in consequence of the prosecution of an unlawful common purpose and an actual intention on the part of either party that death should occur. However, Markby expressed the common law; it did not interpret the Code. The Code is to the same effect. Section 302 prescribes the specific intent (not merely foresight, much less foreseeability, of death or grievous bodily harm) which must be entertained by an offender before the offender is guilty of murder.

GAUDRON J: So, you relate that to primary and secondary offenders both equally?

MR LONG: Yes. That is consistent as well with the later passage which is the one which Justice Pincus in the Court of Appeal identifies as the passage that was arguably open to the interpretation which begins at the bottom of page 13 through to page 14 where what the Court sets out is that the mind of the secondary party may be determinative of guilt.

GAUDRON J: Yes, but it is very difficult to relate your submission to what is then said in the final paragraph on page 13, is it not?

MR LONG: The difficulty that seems to emerge, if I can try to answer that question in this way, is what is meant by the nature of the offence in section 8. The judgments in the Court of Appeal proceed rather on the basis that what is being determined there is the legal nature, or what is being spoken of is the legal nature of the offence rather than the factual nature of the acts which comprise the offence. Remembering that the majority had started their judgment by identifying that what section 8 focuses upon in using the term "offence" is the conduct of the principal offender, it can be submitted that the phrase "an offence of such a nature" refers to the factual or practical circumstances surrounding the act such that some regard might be had to whether a particular act on the part of another person which in itself might be accompanied by an intent to do grievous bodily harm or kill by that person, that is an act of a different nature in a practical or factual sense from an act by that person that is not accompanied by that intent by him.

Different considerations might apply as to whether such an act on the part of another person would be objectively a probable consequence of a common intention to prosecute an unlawful purpose because, otherwise, the concluding words in section 8 which are that the secondary offender is deemed to have committed the offence, it is very difficult to read that in conjunction with an interpretation that what is being spoken about earlier is an offence of such a nature, meaning murder, because it would make more sense if what the legislature had said is that the person is then deemed to have committed an offence of such a nature rather than deemed to have committed - - -

GAUDRON J: But it talks about the probable consequences in objective terms.

MR LONG: Yes.

GAUDRON J: You seek to put a different construction on those words. You seem to make them mean intended the consequences, intended the probable consequences, in effect, do you not?

MR LONG: No. My submission is that what section 8 is focusing upon is deeming the secondary offender to have committed the acts or omissions of the primary offender where those acts or omissions are a probable consequence of the common intention to prosecute an unlawful purpose. The question of where there is an - - -

GAUDRON J: There is no doubt here that each of these three men intended that the victim would be assaulted.

MR LONG: Yes.

GAUDRON J: The only question is whether the probable consequence of the intended assault was that one or more would assault with an intention to do grievous bodily harm or worse.

MR LONG: My submission would be that the question as far as section 8 is concerned becomes whether it would be a probable consequence of that plan that someone would assault him so seriously as to cause death.

GAUDRON J: Why?

MR LONG: Because what section 8, and section 7 for that matter, is concerned with is deeming responsibility for conduct. That is, in my submission, what the majority said in Barlow. Then one must look to the intent that the secondary offender had at the time because section 302(1)(a) talks in terms of:

if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm -

That, in my submission, is what is borne out by the passage in the majority judgment in Barlow at page 12 read in conjunction with the analysis that if one goes through in those passages leading to the later passage where the majority clearly contemplate looking at the intent of the person they called "the mastermind" to sheet home a greater criminal responsibility, for instance, for an offence of murder rather than manslaughter where - - -

GAUDRON J: But on that construction one would never need to go to section 8, would one, or indeed, section 7?

MR LONG: Yes, because - - -

GAUDRON J: If each offender must have the intention of causing grievous bodily harm and each offender assaults with that intention and the person thereafter dies in consequence of the assault, that is ordinary murder.

MR LONG: If what section 8, consistently with what the Court decided in Barlow, is concerned with is deeming responsibility for conduct, the role of section 8, for instance in this case, would be once it is established that there was a common intention to prosecute an unlawful purpose of assaulting the deceased, the question is whether it was a probable consequence of that assault that someone would assault him so seriously as to cause death. It is that conduct which needs to be looked at as to whether that is a probable consequence of the common intention.

The authorities before Barlow in relation to section 8 largely were cases that related to the application of section 302(1)(b), and Stuart is an example of that, and for that matter so was Brennan, in relation to way in which the Crown presented murder at the trial. The things that flow from those judgments, or the principles that flow, which focus on the aspect of the objective likelihood or the probable consequence are not concerned particularly with the question of the state of mind of particular offenders where that specific state of mind has to be proved to prove a crime such as murder, because that is not required under section 302(1)(b).

It may be contrasted another way. If I can take the Court to, for instance, section 7(1)(a) to contrast the point there. This is a section which provides that:

every person who actually does the act or makes the omission which constitutes the offence -

is deemed to be guilty of committing it. Once again, the Court in Barlow, focusing on conduct as being what is deemed to have been done by the other person. Section 7(1)(a) is capable of applying, of course, where you have a situation where there are a number of people who separately do acts which together go combined to constitute the actus reus of the offence. It could not be suggested, in my submission, that it would not be necessary for the Crown to prove that each and every one of those had the relevant intent in order to prove, for example, murder, and it could not be the situation that simply proving that one of those persons who did one of the necessary acts it was accompanied in that case by an intent to do grievous bodily harm at least. They all would then be guilty of murder.

GAUDRON J: No, but that is not what the directions were, except perhaps under section 8.

MR LONG: Section 8 is the crucial aspect in this case and, as I say, the - - -

GAUDRON J: Yes, because that was not the direction under section 7(1)(c).

MR LONG: No, 7(1)(a) was not left by the trial judge in either case. I am sorry, that is not quite right.

GAUDRON J: Section 7(1)(a) was left but there is no complaint about that.

MR LONG: That is so and, as the Court of Appeal identified - - -

GAUDRON J: In so far as 7(1)(b) and (c) are concerned, the jury was instructed, was it not, that each must know that one other person, at least, was intending to assault to cause grievous bodily harm.

MR LONG: That is the difficulty in this case because it could not be identified who did that and when. There is a difficulty in applying that except in the abstract in saying that someone had that intent in the circumstances. That is why section 8 loomed as a more attractive option for the jury because there all they needed to - as the juries were directed, and I would say directed in both cases because there is that complication in Pascoe's case - but directed in both cases that all they needed to really consider was whether it was a probable consequence of the plan to assault the man that in the heat of the moment, effectively, someone would go so far as to seriously assault him with an intent to do at least grievous bodily harm. We do know, of course, that in Pascoe's case in particular, that is the very issue that the jury came back and asked the question about, where his Honour gave a redirection. That changed the basis on which it was put to the jury. I have noticed that the light is - I do not - - -

GAUDRON J: Yes. I think we will hear from your opponent.

MR LONG: Very well.

MR MEREDITH: Thank you, your Honour. If your Honours could go to the outline of the applicant at paragraph 3.2 of the outline which appears in Jeffrey's appeal at page 102, the second sentence in that paragraph is the basis of the argument by the applicant. This is in relation to section 8:

In this case therefore, before either applicant could be convicted of murder, the jury should have been required to find that the particular applicant had, at the relevant time, an intent to cause death or to do grievous bodily harm.

If that were the case, then there would not be any purpose in having section 8. It would be completely irrelevant.

GAUDRON J: No, but that is not precisely how the argument is put today. It is put by reference to section 302(1)(b), is it not, the act must be:

of such a nature as to be likely to endanger human life - - -

MR MEREDITH: Yes, well, 302(1)(b) did not arise here because they were engaged in an assault that went too far. It was not that they were engaged in a robbery in which someone was shot. It is not the same. It is a different offence.

GAUDRON J: Is it? Why?

MR MEREDITH: Where you engage in a robbery where people are armed and then they kill someone in the course of that, that is a situation that is usually covered by felony murders, whereas this was put before the jury - there was no reference to 302(1)(b), it was only 302(1)(a) and the application of section 8 and section 7, so 302(1)(b) does not really arise, I would submit. I do not know that my friend purported to put an argument on that basis.

Your Honour made a comment about the effect of section 7. My friend's argument makes most of section 7 then not particularly relevant, either. What is required under the law for section 7 is that you aid someone. Now, if you are not the principal offender, if you are not doing the acts that cause the death - and the problem here, of course, was that because there were no admissions that the jury could fasten on as to who caused the death, they could have concluded that all of them did something that caused the death but it would be more likely that they found that one or more of them did it and that the others did an act under sections 7(1)(b) or 7(1)(c).

It has never been my submission, and there is no authority for that proposition in Barlow or anywhere else, that the aider has to have the intent to cause death or grievous bodily harm. That is the point of being an aider. You could be, as was - - -

GAUDRON J: But you have to have knowledge.

MR MEREDITH: Yes, you have to have knowledge. Like in Beck's Case, as was quoted in the outline for the respondent at paragraph 3.8 quoting from Beck, Chief Justice Macrossan said:

It is possible, after all, to aid someone in the commission of an offence while harbouring feelings of disapproval of the offence and of the conduct involved in it.

You do not have to be a willing participant, you do not have to have the intent but, if you do anything knowing that someone else has the intent to cause death or grievous bodily harm, then you are a party and you will be convicted of murder if that is what the charge is. In my submission, the reading of the portions in Barlow that my friend has referred to do not bear out what he says, they just do not - - -

GAUDRON J: No, but even so, let us assume that they require simply that they participate in an assault, the probable consequence of which is that one party will form an intention to do grievous bodily harm, at least you concede it means that, that section 8 - - -

MR MEREDITH: Yes.

GAUDRON J: But that is not the way section 8 was left to the jury. It went to the jury without reference, did it not, to the probable consequence in Pascoe's case. It went on the basis that if one person had that intent then they were liable under section 8, had an intent of - - -

MR MEREDITH: Yes, the intent had to be a probable consequence of the plan or the evolving plan.

GAUDRON J: That is not exactly what was said, was it? If one person - - -

MR MEREDITH: I am saying that that is what it should be, yes.

GAUDRON J: Yes. So, there was a misdirection with respect to section 8 in both trials, was there not?

MR MEREDITH: It would not matter. It was not my friend's application, but that was not the argument that he was putting at first, certainly not in his outline. It appears at page - - -

GAUDRON J: The Court of Appeal has found against you. In all cases, the Court of Appeal found against you that there was a misdirection with respect - - -

MR MEREDITH: A misdirection in relation to section 8.

GAUDRON J: Yes, in all three cases.

MR MEREDITH: Yes, and in relation to - well, principally on the Barlow point that there was - - -

GAUDRON J: And you accept that? You do not challenge that?

MR MEREDITH: No, but that - - -

GAUDRON J: Then the question is: why should the proviso be applied in those circumstances?

MR MEREDITH: There was inevitability which all three judges found in the - - -

GAUDRON J: What does that mean?

MR MEREDITH: Inevitability of conviction for murder, given their admissions and not only - well, the best summary of the cases against each of them appears in Justice Davies' judgment, using Jeffrey's appeal record because the pages appear differently in each one.

GAUDRON J: It was inevitable that it was a probable consequence of the plan that one or more would form the intention to commit grievous bodily harm.

MR MEREDITH: Yes.

McHUGH J: But the judge seemed to have used the term "inevitability" because of Mraz's Case, that they were driven to it by Mraz, but speaking for myself, the time may have come when Mraz should be re-examined to see whether it properly states the law with respect to what is a miscarriage of justice. After all, in what until recently was called "the unsafe and unsatisfactory verdict" but is now regarded as a miscarriage of justice, the court itself examines the evidence to see whether or not there is a miscarriage of justice. Why, it might be asked, should not that same test apply to the term "miscarriage of justice" in the proviso. So, it is not sufficient to say, as Justice Fullagar said in Mraz, "Did the accused lose a chance of the jury acting - - -

MR MEREDITH: Yes.

McHUGH J: In other words, it is for the court itself to examine the whole of the evidence and see whether there really has been a miscarriage of justice having regard to a misdirection.

MR MEREDITH: I would submit that that is what the Court of Appeal did do, that they - - -

McHUGH J: I am not sure that they did, but if special leave is granted in this case and the proviso is an issue, I, for myself, would want to hear argument as to whether we should continue to follow Mraz.

MR MEREDITH: If special leave were granted in that, yes. In relation to your Honour's comment about whether the court did analyse it though, it is more fully in each of the judgments of Justice McPherson and in Justice Davies - I think Justice Pincus just adopts the analysis from Justice Davies, but if you go to page 6 of Justice Davies' judgment - that appears at page 73 of Jeffrey's application book - he sets out the evidence against each in quite some detail, stretching over to page 75. Then there is the concession by all three members that there was a misdirection in relation to the effect of section 8, not leaving open manslaughter, but then considering whether there was an inevitability about a conviction against each one of them as against those facts that Justice Davies has detailed.

Now, in my submission, all I can say is that they were correct. No reasonable jury could have come to any other conclusion, given that in Donald's case that he had driven them back there with the idea that they would render him unconscious and - - -

McHUGH J: But if Mr Long's point is correct, then it is hard to say that the applicants have not lost the chance of getting acquitted. The jury might have bought the argument on that basis.

MR MEREDITH: What, that they did not have the intent?

McHUGH J: Yes, well - - -

GAUDRON J: No, that it was not a probable consequence that one or more would form the intention at least of causing grievous bodily harm.

MR MEREDITH: Taking Donald's case, if you went back there with the intention of rendering him unconscious so that he could not remember who had attacked him, then I cannot see how any jury would come to the conclusion other than they intended to cause grievous bodily harm.

McHUGH J: That is not the Mraz test.

MR MEREDITH: No. It is inevitable, though - and leaving aside the Mraz test, just in the facts of this case, no reasonable jury, given Donald's admissions, could have come to any - accepting that his admissions were correct and that he made them and that they were to be relied upon, then once that was the case then they could not have come to any other conclusion that when he drove them back with that intention that there could have been anything other than - if death eventuated, anything other than intent to cause at least grievous bodily harm and that the death was a probable consequence of that.

In relation to the descriptions that each of the others give as to what - Jeffrey had the same view that they went back, returning on the second occasion to ensure the deceased did not remember who they were. He is similarly in that position. In relation to Pascoe, he says that there was only one series of assaults. The description that he gives of the assaults is such that things like, "but it just got out of hand" when he was part of it and that - admits to kicking him "a couple of times", "punching him a couple of times" which - and then other people doing it - and he knew that he might have broken some ribs. Given that - his comes on a slightly different basis but then that was no problem because there was a separate trial - the conviction for murder, given his admissions, was an inevitable one that there was no - no matter - that the misdirection, such that it was, would not have made any difference.

Whether the Court should be considering the Mraz test or not, this, I would submit, is not the vehicle for it, that none of these three would be in any better position if there was a different test applied. I do not know that I could expand on the outline any further.

GAUDRON J: Thank you, Mr Meredith. Yes, Mr Long.

MR LONG: I set out in the outline at paragraph 2.11 the observations of Mr Justice Davies about what might be concluded as to the knowledge and intent ought not be able to be concluded on the evidence in the case.

GAUDRON J: Yes, but knowledge and intent is really a long way from the misdirection that was found in this case.

MR LONG: Yes, but once again, it was a point which was sought to be identified as one that goes right to the heart of what is required to be established to prove offences against secondary offenders as to their states of mind, and it might be said that it is of more crucial relevance in relation to section 8 because the difference might arguably not in a given factual situation be great between a section 7 situation where one is looking at the intent of the secondary offender as opposed to intentionally aiding the primary offender, knowing of that person's intent to cause grievous bodily harm, but there may be cases in which there is a difference.

In relation to Reg v Beck, the short passage which is extracted by my learned friend from there at page 38 of the judgment of the court, it can be noted that that is concerned with section 7 obviously. The observation predates the decision of this Court in Barlow. It is an incidental observation in the course of a discussion of what may be required to amount to aiding and leading to a conclusion that some deliberate positive involvement is necessary. The then Chief Justice at the base of page 38 over to the top of page 39 says, and this follows shortly after the passage:

This, however, does not seem to be the occasion for any extended examination of the decided cases on aiding. This is also not the occasion for examining the correct limits of any principle that a person may be guilty of aiding another in committing an offence when he may know no more than the kind of offence which might result from the behaviour which he is aiding.

I will not take your Honours to it but I had included at least the unreported version of Reg v Barnes and Purnell where that very principle was at least doubted if not - it was decided by the Court of Appeal that knowing what offence might be intended is not enough. It would simply not be, as the respondent has submitted here, an extraordinary result for there to be a manslaughter verdict returned rather than murder in a situation where a secondary offender did not share the actual intent required to prove, for instance, the crime of murder.

Without again going to them in detail, there are passages in your Honour Justice McHugh's judgment in Barlow and Justice Kirby's judgment in the same case which refer to the general principle that such a result may well be consistent with general notions of culpability. Thank you.

GAUDRON J: Yes, thank you, Mr Long.

We are not satisfied that there has been any miscarriage of justice in these matters. Accordingly, special leave is refused.

AT 12.37 PM THE MATTER WAS CONCLUDED