R v Keenan [2008] HCATrans 347 (1 October 2008)

Last Updated: 3 October 2008

[2008] HCATrans 347

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B23 of 2008

B e t w e e n -

THE QUEEN

Appellant

and

FRANCIS ROBERT KEENAN

Respondent

KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 OCTOBER 2008, AT 10.16 AM

Copyright in the High Court of Australia

MR W. SOFRONOFF, QC (Solicitor-General of the State of Queensland): May it please the Court, I appear with my learned friend, MR R.G. MARTIN, SC, for the appellant. (instructed by Director of Public Prosecutions (Qld))

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR A.J. KIMMINS, for the respondent. (instructed by Price & Roobottom Solicitors)

KIRBY J: Yes, Solicitor.

MR SOFRONOFF: May it please the Court, what I propose to do, if it is convenient to the Court, is to go firstly to some passages in the transcript, appreciating that your Honours are no doubt cognisant of the facts of the case, and then to go to the sections, chapter 2 of the Code and to analyse. After looking at that, I wish to make some submissions about the construction that we advocate of section 8 and the overarching principle that we will submit supports that construction, and then to take your Honours to the cases in an endeavour to demonstrate that the construction that we advocate is consistent with authority in this Court and elsewhere.

KIRBY J: Will you at some stage, particularly for those from non-Code States, take us, as was suggested in the special leave hearing, to the history of the Code?

MR SOFRONOFF: I will do that, your Honour. The history was covered comprehensively in the decision of this Court in Darkan, and I will take your Honours to the passages in that.

KIRBY J: I am not suggesting that be done now. You do it in your own time and the right space. That is something we will need to have in our minds.

MR SOFRONOFF: Yes, I will deal with that, your Honour. Then finally, your Honours, after going to the authorities I will go to the reasons of the Court of Appeal in this case and take your Honours to the passages that we contend are erroneous. Could I take your Honours to volume 1 of the appeal book firstly. As your Honours are aware, the facts of the case began when a Mr Coffey agreed to deliver a parcel for the respondent, Frank Keenan, whom he had known for some time, and having delivered the parcel he was to receive some money for it and give the money to Keenan. Instead of delivering the money to Keenan he decided to keep the money and he and his partner Vonda Muir then began to live in various places. We can pick up the story, your Honours, with the evidence of Vonda Muir. I am looking at the pages at the foot of the book, page 234 of the transcript, page 154 of the appeal book.

KIRBY J: There is no contest to the basic facts in the case. I think the respondent accepts your statement of them.

MR SOFRONOFF: Yes.

KIRBY J: They are a little complicated, but when you get them in your mind it is not so difficult to understand what happened.

MR SOFRONOFF: They are essentially simple. At page 234, having taken the money, then Uncle Frank, who is the respondent, from time to time rang his niece, Vonda Muir, and left messages and she describes the kind of messages that he left her. In relation to Coffey, at line 30:

he was going to hurt him, was going to cave his skull in and stuff.

Over at page 235 at about line 30:

Just that he was – it’s a small world. I can’t really remember too much, sorry.

Then we can go to page 292 - - -

KIRBY J: Who was Mr Vasta appearing for?

MR SOFRONOFF: He was the Crown Prosecutor.

KIRBY J: I see.

MR SOFRONOFF: At page 292 evidence was given by a Mr Jupp. Mr Jupp was an accomplice. There were four of them who ultimately went to where Coffey and Muir lived. Jupp was one of them but he gave evidence for the Crown. At line 45 on page 292 he described what happened after he had informed Keenan through Spizzirri that he had located where Coffey lived. At about line 45:

Frank Keenan had said that he would drive down and pull up in his silver WRX and let out his passenger –

Could I pause there. The passenger was identified as a person called Booth, and I will call him Booth - - -

KIRBY J: Can I just ask you to pause there for a little logical query that I have in my mind. Booth and Spizzirri were acquitted?

MR SOFRONOFF: Yes.

KIRBY J: By the verdict of the jury. We are proceeding on an assumption that the facts are that they performed the acts which lead to the debates in our Court. Is that inconsistent with the jury’s acquittal on them?

MR SOFRONOFF: No, your Honour.

KIRBY J: Can we proceed on that footing?

MR SOFRONOFF: Yes, for two reasons. On the facts of this case, Booth, it seems, was acquitted because the defence of Booth involved a challenge to his identification. Booth was not known previously to Jupp, the person who identified him. Booth was only seen relatively fleetingly by Jupp. There was a challenge made to that identification. It formed a focal part of Booth’s defence and Booth was acquitted and, one infers, because of that.

KIRBY J: He was acquitted and therefore there is a verdict of the jury acquitting him. I just have a sense of anxiety that we are proceeding and may say things which reflect on the jury’s verdict.

MR SOFRONOFF: I am going too quickly, your Honour. I understand. Booth was acquitted, but there was no doubt that there was a person, whatever his name was, on Jupp’s evidence and on Coffey’s evidence and on Vonda Muir’s evidence, we will call him Booth, but whoever he was, there was a person who accompanied Keenan in his car, who had a bat, who used the bat and who later decamped with them. The issue is whether it was the accused, Booth, or whether it was somebody else. So when one looks at the transcript, there is no challenge to Vonda Muir’s evidence that there was a man with a bat, said to be Booth, that was in contest. No question that there was a man with a bat.

CRENNAN J: But she had some bruises, did she not, in relation to the bat?

MR SOFRONOFF: She had bruises. She was hit by the man with the bat.

CRENNAN J: Hit by the bat, yes.

MR SOFRONOFF: So there is no doubt there were three people. There is no doubt that Keenan was one of them. That is not in issue. What was in issue was whether Booth was one of them and whether Spizzirri was one of them. Now, Spizzirri was known to Jupp over the course of a long time, so identification was not in issue. What was in issue was whether Jupp was lying about Spizzirri being the gunman. It was put to Jupp over a lengthy cross-examination that he was lying. There was evidence also that he was a drug user and that his mind might have been affected in terms of memory and so on. But the substance of the defence of Spizzirri, as I understand it, was to attack Jupp’s credit directly on the footing that he was not telling the truth, he having turned police informant.

Spizzirri was not convicted at that trial; the jury could not reach a verdict. He was later retried and acquitted. Now, that is what actually happened, so in terms of considering the facts, I will keep calling them Booth and Spizzirri just as a matter of convenience, but really they are Mr X and Mr Y.

KIRBY J: I raised it because you will remember we had to consider it recently, what Chief Justice Barwick said, that courts must be, in a sense, consistent with and respectful of the verdicts of juries and not by what they do cast doubt on jury verdicts. It may just be a way, in the matter, of expressing the problem, because neither party raised this, but I just felt a little anxious about proceeding on an exposition of facts which might appear to be inconsistent with the jury verdicts.

MR SOFRONOFF: It is a peculiar case because there is no doubt that Coffey was shot and rendered paraplegic. There is no doubt that three men were involved, indeed four, because Jupp admits that he was one of them. There is no doubt about this because Vonda Muir gave evidence about there being three men and also entirely independent witnesses – names of which escape me at the moment, they are in the transcript – neighbours saw all this happening. They were not called to identify anybody, but they were called to describe what had happened. So there is no doubt that four men appeared. There is no doubt that one of them was Jupp. There is no doubt that one of them was Keenan. The identity of the other two is a mystery, but that there were those two other men and that one of them carried a bat and used it and one of them carried a gun and used it is also not in doubt.

KIRBY J: But we can work on the assumption that whoever it was it is not suggested that it was Mr Keenan who shot the victim.

MR SOFRONOFF: Quite. That is right. Yes, Keenan did not carry the gun or shoot it. Keenan did not carry the bat or use it.

CRENNAN J: And was never charged as a principal?

MR SOFRONOFF: Spizzirri was charged as the party under section 7(1) as the person who did the act of shooting causing grievous bodily harm. The other two were charged by virtue of section 8. There was some discussion of the parts of section 7, aiding, but ultimately it was a section 8 case.

HAYNE J: But that is the matter of presentation. It is not the matter of indictment?

MR SOFRONOFF: Correct, that is right.

HAYNE J: The indictment is standard form.

MR SOFRONOFF: The indictment charges them as principals, that is right.

KIRBY J: Well, charged them with an offence.

MR SOFRONOFF: That is right, as the committers of the offence. Your Honours will find the indictment at page 1.

KIRBY J: It is 1A actually.

MR SOFRONOFF: Page 1A and B, yes. So, your Honours, if you go then to page 292 in volume 1, we can see where Jupp, having described how he had come to see that Coffey was living at a particular place, informed Spizzirri. Spizzirri then directed him to attend at a meeting. Keenan was at the meeting. At page 292, having each of them driven to a meeting in their respective cars, line 45:

Frank Keenan had said that he would drive down –

to where Coffey was living –

and pull up in his silver WRX and let out his passenger who would then go and beat Darren Coffey and Dion –

that is Spizzirri –

and I in the red Commodore would be sitting behind five metres away waiting for the passenger in the silver WRX to hop in after he’d finished beating up Darren Coffey.

If your Honours go to 294, they then pull up outside Coffey’s house and at the top of page 294 Jupp says:

I saw Frank’s passenger –

Frank Keenan –

get out of the car and run around the back of the white van.

Coffey and Vonda Muir were living in a white van parked in front of somebody’s house –

From then I couldn’t really see much at all.

He is asked the question:

He was holding a bat of some sort . . . Looked like a bit of wood, turned wood.

Your Honours, that bat must be here somewhere, but we will obtain it in due course.

HAYNE J: I assume it is in the post pack which sits above the trolley.

MR SOFRONOFF: Could I see it, your Honours?

KIRBY J: Yes. Show the bat to the Solicitor. The Court of Appeal remarked that they saw this instrument.

MR SOFRONOFF: Yes.

KIRBY J: What is the purpose of your investigation of it?

MR SOFRONOFF: Your Honour, it is material in considering whether the offence of grievous bodily harm with intent was a probable consequence of the prosecution of the common purpose to appreciate that which was - - -

KIRBY J: Show it to the Solicitor. There is no contamination by DNA being added to the bat?

MR SOFRONOFF: No, your Honour. DNA was found on cigarette butts but not on the bat. So that was the instrument, or one like it, that Mr Jupp saw.

KIRBY J: How do you interpret what is said at 294, because there was at least some suggestion that the bat was or might have been found in the caravan and that when they were going to beat up the victim, that at least might be consistent with an intention at the outset to use their fists?

MR SOFRONOFF: Yes. I will take your Honours through these passages of the transcript which will answer your Honour’s question, but in summary, Jupp says he saw Booth – I will keep calling him Booth, your Honours – get out of Keenan’s car with this bat. Jupp saw Booth run towards Vonda Muir with this bat. He tried to hit Coffey with it. She stood between them and she got hit herself. Later, after the events, Booth got into Keenan’s car with the bat and Jupp saw the bat being flung out of the window of the car and later police recovered this bat. Your Honours, the bat is relevant - - -

KIRBY J: Do you understand there to be any dispute now in this Court that the bat was taken to the scene by a Mr Booth?

MR SOFRONOFF: Your Honour, we can put it this way. The evidence from Jupp was that the bat was taken to the scene because Booth got out of the car with it. The evidence of Muir, to which I will come, was that she first saw the bat in Booth’s hand and does not know where it came from. It could have come from the van. So she does not assert the contrary.

The bat is relevant for two reasons. The first is that there was evidence available to the jury from which they could conclude that Keenan knew of the intended use of the bat to carry out the beating and the second is that, looking at the size of it, one can understand the inference that was before the jury that Keenan must have known of the presence of the bat because his passenger had it in his car and it is difficult to understand how the bat could have been invisible in the car. Your Honours, if you then go back to page 294, Jupp describes it, Booth has the bat, and then at line 30:

it was more to where the Daihatsu is –

he is looking at a photograph –

where he come from, around the back of the Daihatsu, around the tree and around the back of the van . . .

I could only see his arm drawn back and swinging . . .

I started to hear a female scream. She was screaming, “No.” a lot, pretty loudly.

If your Honours go to page 295, at line 40, Jupp then hears the shots. He sees Coffey running, hears the shots and sees Coffey fall to the ground. At 296, just below line 30, he sees Keenan and his passenger – that is Booth – run back to the silver WRX. Over on page 297, just to finish the story from Jupp’s point of view, at line 30, he gets back in the car and there is a verbal exchange between him and Spizzirri.

KIRBY J: What do you take that to mean, “I never miss a whole clip”?

MR SOFRONOFF: It is a particularly stupid comment, your Honour, meaning that when he has a whole clip of ammunition, which on the evidence might contain anything between 10 or more rounds, when he uses them all he tends not to miss what he is aiming at. That is all.

HEYDON J: “I never miss with a whole clip”?

MR SOFRONOFF: Yes. Your Honours, at page 298 line 20, Jupp:

Saw a bat get thrown out the passenger window out of the silver WRX –

and then there is evidence later that the police found the exhibit. If one then goes to - - -

KIRBY J: Your theory of the case would result in Mr Keenan being convicted by dint of section 8, while Mr Spizzirri and Mr Booth walk away?

MR SOFRONOFF: No, your Honour, that is not my theory. My theory would result in the conviction of all three of them, but the identification evidence was weak and so Booth escaped, and Jupp’s credit was impugned and so Spizzirri escaped, but there is no doubt that there were two other guilty men, whoever they were, and as your Honour would - - -

KIRBY J: They could only have been, in that there were only four men, Mr Jupp himself, or somehow the victim conspiring in his own shooting, or one or other of Mr Booth or Mr Spizzirri.

MR SOFRONOFF: Your Honour, the essential facts are not in dispute, that there were four men, that Keenan and Jupp were there - - -

KIRBY J: I just call to your attention that the outcome for which you argue is one which – it may be required by law, but it is a slightly disturbing outcome.

MR SOFRONOFF: No, your Honour, with respect, we are dealing here with the construction of section 8 and what it means for Mr Keenan’s complicity. Mr Keenan’s complicity assumes the guilt of the shooter. That Spizzirri was acquitted was not due to any construction of section 8. Spizzirri was charged as a principal offender under section 7(1) as the person who did the act, which was either attempted murder or an attempt – with intent to cause grievous bodily harm, doing grievous bodily harm. Spizzirri’s acquittal did not depend upon any construction of section 8.

KIRBY J: I realise the logic of it, but from the very beginning of common purpose liability it can throw a blanket which picks up people whose moral culpability, though perhaps existing, is not as great?

MR SOFRONOFF: That is not this case, your Honour.

KIRBY J: Anyway, it is really irrelevant, but I just call it to your notice.

MR SOFRONOFF: Could I draw this to the Court’s attention? If the identity of the shooter and the man carrying the bat was unknown – entirely unknown – and nobody had been arrested, but Keenan had been, then upon proof of these facts at his trial alone Keenan could have been convicted, assuming the law, as we advocate it and so on. So it does not depend upon the justice or injustice of his two accomplices being convicted or not convicted. They might be acquitted because of the poverty of identification evidence. They might never be charged because they are never found and it makes no difference, as long as Keenan is culpable by virtue of his own conduct.

The law now, your Honour, as it has been since I think the Accessories Act of 1863 in England, does not require the conviction of the principal offender in order to support the conviction of an accessory. Of course, it is unfortunate, to put it at its least, that where undoubtedly Coffey was shot by a person and undoubtedly there was an assister there, another accomplice with a bat, those two offenders have not been convicted, whoever they are, but we have Keenan here, and it is his case with which we are concerned there being no doubt that the other events occurred.

If your Honours would then go to the evidence of Muir at page 237, which now links in with Jupp’s evidence. At the top of page 237 she and Coffey had been asleep in the van, she decided to get up, and at line 10, she:

Got out of the van and closed the van door and opened the front door up of the van . . .

Then a man came around, like around the back of the van to me.

She had never seen him before. If you go down to line 30:

He just asked if I was going inside to have a shower.

and she gave a non-committal reply –

Then after he said that, he’s opened up the side of the van . . .

And looked in and seen Darren in there, and then he had a bat.

Now, what sort of bat was that?-- It was a wooden bat. I’m just not sure like where he got the bat from, if he already had it or it come from in like the van . . .

Then once he had the bat, he went for Darren but I stood in the way of the man and Darren . . .

He didn’t want to hit me but he did hit me just couple of times on my left shoulder . . .

With a wooden bat.

Over the page, she is trying to defend Darren, and your Honours can read down to line 20 where Uncle Francis comes and pushes her out of the way. His purpose in so doing was a matter for the jury, whether he was, as the defence contended, trying to protect her or, as the prosecution contended, trying to assist Booth. Then over at page 239 Coffey has run away and, just below line 1 on page 239, she hears five pops. They are the shots. Then at line 20 she is on the ground having been knocked there by Keenan. Line 20:

I just remember being on the ground and hearing the pops and jumping up.

At line 30, she saw Uncle Frank in his car, Subaru, that is the WRX. Just below line 30:

Now, what, if anything, has he done as you’ve seen him in the car?-- He smiled at me and took off.

She describes a kind of smile and then she ran to Darren Coffey. If your Honours then go to page 211, there he gives the evidence about the delivery of the package and getting the money. At line 40 he describes that he decided to keep the money for himself.

If your Honours then go to page 214, just below line 10 – after Vonda Muir goes out of the van that morning, he looks up to see what was happening. Just below line 10, he slid the door open –

I realised he had a baseball bat. He slung it a few times at me -

suggests that he had the bat outside the van and could not have got it from inside the van, if that matters -

I am not sure if it connected – I can’t remember, as this is all in seconds. I perhaps would have seen – like, and as that happened Frank came around from the back of the van and grabbed Vonda and pulled her out of the way . . .

after the baseball bat and seen Frank pull Vonda out of the way, I thought it was time to get out of there, so I was going to run through the inside of the house –

That is the house in front of which they are living – decided not to do that. Then line 30:

I opened the door and I saw, as I stepped out, whoever it was was swinging the baseball bat, so I am not sure if I got hit or I managed to kick it out of his hands, or I am not quite sure. So I was - I was pretty much in flight the minute I hit the ground . . .

And where was the person with the baseball bat? . . . Oh, stepped out of the van and if I was to look to the house, just to the left-hand side . . .

Then if your Honours would go to page 216, he runs away, and at the top of page 216:

I remember hitting the ground and, ah, realising that I was sort of stuck, I couldn’t move.

That is because his spinal cord had been injured. So that was the core of the evidence. None of that was very controversial. What was controversial was what Keenan’s involvement was. Was he there trying to help Vonda Muir or get her out of the way so that the attack could be effected? Of course, there was a dispute about whether it was Spizzirri and whether it was Booth.

Could I take your Honours then to Chapter 2 of the Code and to section 7? Section 7, your Honours, first takes a particular offence that has been committed and then binds in the people who are criminally responsible for committing that offence. So first it is the doer of the act, and there are six categories of people referred - - -

HAYNE J: Well, that is to be understood, is it not, in light of the definition of “offence” in section 2?

MR SOFRONOFF: Yes.

HAYNE J: You have to begin in 2, do you not?

MR SOFRONOFF: One begins with the definition in 2, yes.

HAYNE J: Which is:

An act or omission which renders the person doing the act or making the omission - - -

MR SOFRONOFF: Yes.

HAYNE J: Yes.

MR SOFRONOFF: In section 7 then, one takes the relevant act or omission which gives rise to criminal liability, and section 7 brings in a set of six categories of people who are parties as principal offenders. First, in (a), the doer of the act – I will stick with “act”, your Honours, and ignore “omission” because it is the act that is relevant in this case; secondly, an enabler to commit the offence – and would your Honours notice the word “to”; thirdly, an aider to commit the offence; fourthly, an aider in the commission of an offence. The distinction between (b) and (c) is probably this, that an enabler or aider to commit need not be present at the offence whereas an aider in committing usually would be. An enabler or aider might be somebody who provides the equipment or the necessary information, for example.

HAYNE J: How?

MR SOFRONOFF: I am sorry?

HAYNE J: The aider or enabler in (b) again requires identification of the doing or omission to do any act. It hinges about act.

MR SOFRONOFF: Yes, and then in (d) counsellors or procurers to commit the offence are brought in. Subsections (2) and (3) then are procedural in the sense that they do not draw in any other persons and we can pass over them. Subsection (4) brings in another category of person, a procurer, but a procurer of a person who might be an innocent agent. Subsection (4) relates to:

Any person who procures another to do . . . any act –

and if the act were done by the procurer the procurer would be “guilty of an offence”. The agent might be innocent. Compare 7(1)(d) procuring a person to commit an offence where the procurer and the person procured are each – I will start again - where the person procured commits the offence, himself or herself, rendering the procurer equally liable.

So the effect of section 7 is to take an offence by reference to the doing of an act or making of an omission. In (c) and (d) the expression used is “in committing the offence” and “to commit the offence”. It renders those people liable in the commission of that offence. It can be said then that the section categorises the people liable for a stated offence and that it is dealing with offences that are intended to be committed by all of the parties referred to in section 7. Section 8 is concerned with - - -

KIRBY J: Your predecessor was asked whether there had been any amendments to the sections in this chapter in the history of the Code. Are there any relevant amendments to section 7?

MR SOFRONOFF: There have been, your Honour. Not relevantly, that is to say, for example - - -

KIRBY J: Just draw any amendments to our notice as you go through this.

MR SOFRONOFF: I will bring any relevant ones, your Honour, but there are not any relevant ones except for section 10A, I think which does not bear upon this case. But section 7, for example - - -

KIRBY J: Section 10A is not in this? Yes, there it is.

MR SOFRONOFF: No, it is in this pile.

KIRBY J: Yes, we have it.

MR SOFRONOFF: If your Honours go to section 8, section 8 takes persons and brings in offences and the offences it brings in are offences which might not have been intended to be carried out, but were in fact carried out in the circumstances described in the section. What it requires is for the Crown in prosecuting a person by virtue of that section to establish an unlawful purpose, a common intention on the part of two or more persons to prosecute that purpose, to do so in conjunction that as a consequence an offence is committed and the offence committed is of such a nature that its commission was a probable consequence. The offence that is committed is of such a nature that its commission was a probable consequence.

So section 8 directs attention away from what might have been the intended offence which might be armed robbery – it is usually armed robbery or assault, they are the most common offences to which section 8 is applied. It catches the parties who will be liable for the directly unintended consequences.

Now, some of the people who will be caught by section 8 will be people referred to in section 7, thus procuring an offence to be committed by another person would usually, one would think, involve the forming of a common intention to prosecute an unlawful purpose. So if the offence procured is committed then section 7 makes both of them liable and if an unintended offence is committed section 8 makes both of them liable, not just the actor but also the procurer.

But a procurer of an innocent agent, under section 7(4), would not have a common intention with the person procured because the person procured, being innocent, would have no intention to prosecute an unlawful purpose. So some but not all of the section 7 offenders might be caught by section 8 if an unintended offence is committed. An aider to commit an offence might not have a common intention to prosecute an unlawful purpose; the purpose might be the immediate one to sell a weapon to be used in an offence, but the seller, the aider, or enabler, to commit an offence might have no interest in prosecuting any purpose and the interests of that person might cease upon the sale of the weapon. An aider in committing an offence would usually have a common intention but need not.

So if a different offence is committed by a party than that which had been procured or aided or enabled, but for section 8, the procurer, aider or enabler would not be liable for the commission of the unintended offence. Section 8 renders that person liable, notwithstanding that an offence different from that intended by procurement, aiding or enabling was committed.

Now, a counsellor is in a different category. If we go to section 9, a counsellor is a person who, according to the long-stated policy of the law, instigates an offence and ought be responsible not only for the offence committed but for the probable consequences of it. A counsellor will usually – it is hard to think of cases where a counsellor who is not also an aider would be liable under section 8, because a counsellor would, in general, counsel the offence but would not be a party to a common endeavour of prosecuting the unlawful purpose, hence the necessity for section 9.

One can think of an example where a gang member counsels another gang member that is a matter of pride - A counsels B that B, as a matter of pride, really must take revenge and assault C. A has no interest in pursuing the common endeavour, has no interest in aiding or assisting, is merely counselling, would be liable for the assault but, if an incidental offence is committed, section 8 would not apply because there is no common intention to prosecute an unlawful purpose. Section 9 does the work, as long as the facts constituting the offence actually committed are a probable consequence of carrying out the counsel. It does not matter if a different offence is committed and it does not matter if the offence was committed in the way counselled or in a different way.

The policy that we submit underlies sections 8 and 9 is that which was set out in the old work of Foster to which we have referred in our outline and which was referred to at length in Darkan, a decision of this Court. The policy was stated in these terms:

The advice, solicitation, or orders in substance were pursued, and were extremely flagitious on the part of A. The events, though possibly falling out beyond his original intention, were in the ordinary course of things the probably consequences of what B did under the influence, and at the instigation of A. And therefore, in the justice of the law, he is answerable -

Now, against that description of how sections 7, 8 and 9 interlock, could I take your Honours back to - - -

HAYNE J: Before you do that, how does 10A fit in, 10A(2) particularly?

MR SOFRONOFF: Would your Honour read me 10A(2)?

HAYNE J: “Under section 8, a person’s criminal responsibility extends”, ex cetera. Do you have that?

MR SOFRONOFF: Yes, thank you, your Honour.

HAYNE J: How does that fit in?

MR SOFRONOFF: That section was inserted, I think, after this Court’s decision in Barlow – I am sorry?

KIEFEL J: No, I think it was before. As a result of Jervis, I think, Mr Sofronoff.

MR SOFRONOFF: That is right. It was done as a result of dicta of the Court of Appeal which were rendered redundant after this Court decided Barlow.

HAYNE J: But it goes in 1997, I think, does it?

MR SOFRONOFF: In 1997, your Honour, yes.

HAYNE J: So it is in force at the time of these events and these proceedings, is it not?

MR SOFRONOFF: It was, your Honour.

HAYNE J: What is 10A(2) saying about how you approach 8?

MR SOFRONOFF: I will come back to that, your Honour.

HAYNE J: When you do, bear in mind, does 10A(2) provide support for the view that focus of 8 is upon acts or omissions rather than upon legal categories of offence.

MR SOFRONOFF: Your Honour, we will not submit that the focus of 8 is not upon acts and omissions. So if that is a matter of concern, it need not be because our submissions do not depend upon advocating a view different from that which was determined in Barlow in that respect. I will come back to 10A(2), if I may, your Honour?

KIRBY J: So you do not seek any refinement or re-expression of what the majority of the court held in Barlow?

MR SOFRONOFF: No, your Honour. Could I say this about Barlow just by way of introduction?

KIRBY J: The joint reasons were written by Justices Brennan, Dawson and Toohey, two of whom, Justices Brennan and Toohey, were Code State lawyers?

MR SOFRONOFF: Quite right, your Honour, yes. Your Honour, could I say this about those cases. Barlow was concerned with the meaning in section 8 of the word “offence”. Darkan, the recent decision of this Court, was concerned with the meaning in section 8 of the word “probable”. This case, as we would wish to develop our submissions, will be concerned with the words in section 8 “of such a nature” which have not been the subject of any direct consideration by this Court.

KIRBY J: Well, on one view Barlow necessarily required consideration of what “of such a nature” meant.

MR SOFRONOFF: Of course it did, your Honour. That is right, it did and I will come to the - - -

KIRBY J: Justice de Jersey had been the trial judge in Barlow. He did not seem to think very well of our handiwork there, having regard to his article 71 ALJ 716 which I keep very close by me at all times.

MR SOFRONOFF: I take responsibility for my submissions, your Honour. But section 8, as your Honours see, contains with it words which contain within them a great deal. That must be so because Chapter 2 of the Code, like Chapter 5 are the two chapters of the Code upon which everything else hangs. They contain provisions of general application - Chapter 2 relating to parties, Chapter 5 relating to criminal responsibility, which must do work in an infinite varieties of factual circumstances and must work with respect to every offence in Queensland.

KIRBY J: But is not the big issue in this appeal whether or not – as I understood you to be contending – the focus of attention in section 8 is upon what has been called the generic offence, the category, or is upon the acts and omissions, picking up section 2 and Barlow elected by majority for the latter view?

MR SOFRONOFF: That way of looking at the problem appealed to the members of the Court of Appeal. In our respectful submission, the error that their Honours made in the Court of Appeal was not to consider the meaning and effect of the words “of such a nature”. Could I develop that, your Honours, it is a little difficult to - - -

KIRBY J: But that is of such a nature as the offence and that takes you back. Is the offence talking of the category - - -

MR SOFRONOFF: Of course, your Honour.

KIRBY J: - - - the legal classification or is it talking of the actual acts and omissions by which the legal category was effected? That seems to be the big debate and was the debate in Barlow and there are arguments both ways. But Barlow determined that if because of section 2 you pick up the actual acts and that has the advantage of not stretching or pushing further the blanket which is thrown over common purpose.

MR SOFRONOFF: I do not want to argue that Barlow in that respect was wrong or put a gloss on it or anything of that kind. I want to direct the Court’s attention to the words “of such a nature” and make some submissions about them because, in our respectful submission, what the Court decides about the meaning and effect of those words in that section will determine the outcome for this case, whichever way it might be.

Could I go directly to that. Section 8 makes complicity in an offence depend upon the connection between the prosecution of the unlawful purpose and the nature of the offence that was committed for which liability is sought to be ascribed. Section 8 makes complicity depend upon the connection between the prosecution of the purpose and the nature of the offence. Those words are not mine. They are the words of Justices Dixon and Evatt in Brennan in a passage to which I will come.

One sees that it is important in any case in which section 8 is sought to be engaged to consider what is the nature of an offence. Sometimes the nature of the offence will depend upon the type of offence committed, that is to say, to take the usual kind of case where section 8 is sought to be engaged, two people decide to commit a robbery. They will each be liable as parties under section 7. But in the course of a robbery another offence is committed. The other offence might be deprivation of liberty. That is a type of offence. It might be an assault. That is a type of offence. It might be a rape, which is a type of offence. The nature of the offence will then assist in determining whether an offence of that nature “was a probable consequence” of the plan to prosecute the unlawful purpose of committing a robbery. Deprivation of liberty, yes; assault, yes; rape, probably no, depending upon the facts of the case.

Secondly, in our submission, the nature of an offence might depend upon a state of mind, so that, again, to take the unlawful purpose of committing a robbery, an assault would be a type of offence that would be a probable consequence. But an assault might give rise to the doing of grievous bodily harm, and that might be an offence – or a killing. The nature of that offence will differ, depending upon the state of mind of the actors. So the state of mind might determine the nature of the offence and furnish the connection or determine the absence of a connection giving rise to liability or no liability.

KIEFEL J: Mr Sofronoff, do you approach section 8 to determine the nature of the offence as a stand-alone question, or do you approach it bearing in mind the facts relevant to the common purpose so that effectively you know what you are looking for in the nature of the offence?

MR SOFRONOFF: One determines the nature of the offence as a stand-alone question because it is the matter that one needs then to put alongside the prosecution of the unlawful purpose and the facts surrounding that in order to see if an offence of that nature was a probable consequence of the prosecution of that purpose. But until one has determined the nature of the offence, one has nothing to work with.

KIEFEL J: Does it not work the other way as well – unless you know what the common purpose is?

MR SOFRONOFF: Quite. One needs both. One needs to determine the scope of the purpose and one needs to determine the nature of the offence and then to apply judgment – the jury will apply the judgment – in determining whether the commission of the offence of that nature was probable, as that word “probable” was interpreted by this Court in Darkan.

KIEFEL J: I am taking it a little bit out of sequence, but where do you say essentially the Court of Appeal went wrong?

MR SOFRONOFF: They did not consider the nature of the offence.

KIEFEL J: At all, just the act.

MR SOFRONOFF: They looked at the act, and I will come to that. If one goes further, the nature of the offence might depend upon the consequence or the outcome or, as section 23 puts it, the event. So to stick with robbery, the outcome might be grievous bodily harm, the outcome might be a killing, and the prosecution of the common purpose of robbery might have involved an assault but it might not have involved an assault with the consequence of doing grievous bodily harm or, in the more common case, it might not have involved the consequence of killing, which would involve the participants in liability for manslaughter or, as the case may be, murder if the other element, intention, is also there.

The nature of the offence I do not submit is limited to those matters, but it certainly depends upon a consideration of the offence in question, the acts that comprise the offence and whether the nature, given the type of offence or the state of mind, if that is the relevant matter, or the outcome, if that is the relevant matter, gives rise to a conclusion when one places the offence against the unlawful purpose and asks the question, was the commission of that offence, an offence of that nature, a probable consequence of the prosecution of the unlawful purpose?

HAYNE J: That is a single complex question which, in hindsight, might be analysed into a series of separate parts, but it is important, is it not, not to let the subsequent analysis into parts mask the fact that you are concerned with a single complex question of relationship between the offence committed and the prosecution of the common purpose?

MR SOFRONOFF: Between the nature of the offence committed and the prosecution.

HAYNE J: I put it as I did to connect the offence that is committed with the prosecution of common purpose, to put together the elements of nature and probable consequence as together identifying the conjunction or connection that must be identified. You are seeking, as I understand this branch of the argument, to push nature aside. Let us identify nature in all its pristine beauty, and then let us consider the connection that is encompassed by probable consequence. The point I am putting to you for your consideration is that nature, probable consequence are themselves bound up as a singular connecting factor.

MR SOFRONOFF: I respectfully agree with your Honour if what your Honour is putting to me is that section 8 involves a compound consideration of the facts and circumstances arising from the plan, its pursuit, what is known to the parties and the nature of the offence that is committed, the acts and circumstances – as was put in Barlow, the state of mind, the acts and the circumstances. Ultimately it is a compound judgment, but that does not deny, we respectfully submit, the necessity, in considering criminal responsibility of a person under section 8, to give consideration to its components before - - -

HAYNE J: What I am putting to you, Mr Solicitor, can be put this way. Is a trial judge going to be telling the jury ultimately, did the accused do something which happens to be a punishable offence, a punishable piece of conduct, that was a probable consequence of the common purpose these people had agreed on. It is a simple question, and convey it to a jury. It is not a great piece of sophisticated analysis. What did the accused do? Did what the accused do amount to a probable consequence of what they had agreed upon?

MR SOFRONOFF: Yes, but one would need to say a little bit more than that, in my respectful submission. One would have to tell the jury to look at what the principal actor did and to give consideration to what was done and to ask whether something of that nature that was done was a probable consequence of what was known or taken to be known by the parties at the time that they were doing the things that were done and whether as a consequence the commission of that offence was a probable consequence of the prosecution of that purpose.

So I would not shy away from any – or wish the Court not to think that I am submitting that a jury would be instructed to break things into its component parts and to approach it as though section 8 were a formula, but nevertheless, in this Court’s consideration of this case, our complaint is that when the Court of Appeal looked at the matter, it failed to consider what was the nature of the offence that Spizzirri committed in determining whether Keenan was responsible because that was an offence that was committed as a probable consequence of the carrying out of their plan.

HAYNE J: What do you say in this case was the relevant nature of the offence?

MR SOFRONOFF: The degree of force applied, that is to say, force sufficient to break a man’s spinal cord.

KIRBY J: But it is unlikely, is it not, that the degree of force that would be applied, say, by hands or fists or even by the baseball bat is going to have the consequences that were inflicted on the victim?

MR SOFRONOFF: That is not what the Court of Appeal thought, your Honour, and one only has to feel the bat to see that the nature of the injuries that the wielder of the bat, at least, was willing to risk causing, if not intend causing, would have encompassed a broken spinal cord, and we are all familiar with cases of assault which kill people, so it is not by any means a stretch to submit that this was not a case where they were going to hit him with fists. This is a case where they all went with a view to Booth hitting him with the bat, and one of them did something else, and the question is whether the degree of violence which resulted in the consequence was something that was comprehended by the plan.

KIRBY J: I suppose behind the purpose of the Code and, indeed, the common law doctrines is the fact that when people go out to do violent things, the experience of humanity is that things often get out of hand?

MR SOFRONOFF: That is, with respect, precisely right, your Honour, and that is why there are dicta in English cases that when you know somebody has a pistol – the typical case of an armed robbery with a pistol – despite the fact that there is a tacit or express agreement not to use it except to threaten, we know that things get out of hand and that people become frightened or nervous and they come to be used.

KIRBY J: On the evidence here, one possibility at least is available, and that is that those who went into it went into it with a view to dusting-up the victim, but that out of his pocket came Mr Spizzirri’s sawn-off rifle – that that was, as it were, escalating the offence that was committed.

MR SOFRONOFF: One view - - -

KIRBY J: There was no evidence at all, was there, that the other participants knew that Mr Spizzirri had a gun?

MR SOFRONOFF: That is right. So one possibility for the jury to consider was that Spizzirri was on a frolic of his own and deviated largely from the plan – and that was before them.

KIEFEL J: Remind me, please, Mr Sofronoff. There was evidence connecting Spizzirri to the common unlawful purpose?

MR SOFRONOFF: Yes.

KIEFEL J: He was part of the discussion.

MR SOFRONOFF: Yes. He was the one whom Jupp telephoned first to say, “I found Coffey”. Spizzirri said, “I’ll get back to you”. He rang him back in five minutes and said, “Come to Keenan’s house”. Jupp went to Keenan’s house and met Spizzirri there. They went from there to meet Keenan at another place. Keenan was in his WRX Subaru. There they made the plan to drive past Coffey’s premises, then come back, and then Booth would get out and beat him up. As Jupp explained, he got out with a bat to beat him up and Vonda Muir saw the bat.

Your Honours, could I go back to the path of my submissions? I submitted that when one looks at the nature of the offence that was committed, one might be looking at the kind of offence, whether it is a sex offence or an offence of violence or an offence of deprivation of liberty – and section 8 must apply throughout Code land, as it were. So it might apply to treason, sedition or any possible offence. So the type of offence itself may be a factor to consider in determining whether the offence is of such a nature that its commission was a probable consequence.

State of mind might be, and that was considered in Barlow. As your Honour, Justice Kirby put to me, in Barlow the Court had to consider the nature of the offence in considering the matter that was the centre of gravity of the case. Intent was an issue as a factor – and I have put it as a consequence, as the third aspect of the nature of an offence that might arise. But sometimes one might think of it as the degree of violence. So the fact that a pistol is brought signifies that the degree of violence which would render an offence of such a nature that its commission was probable will be high, that is to say, one can take - - -

KIRBY J: That is true, but they are not the facts here.

MR SOFRONOFF: Can I come back to the facts here, your Honour?

KIRBY J: Yes, because here at least, arguably the four, except for Mr Spizzirri, went into the enterprise intending to punch him up, dust him up, use violence, use a bat, but not to use a gun and that the introduction of the gun by Mr Spizzirri, at least arguably on the evidence, was an unexpected and gross escalation. This is not the armed robbery where people go in with a gun not intending to use it but do. This is a case of dusting-up that is escalated by Mr Spizzirri’s individual action. That, at least, is one interpretation.

MR SOFRONOFF: Granted that the gun was unexpected – as we must accept because there is no evidence anybody knew he had it, but the other part that your Honour put to me whether Spizzirri was responsible for an escalation of violence beyond that which was probable, that was a matter for the jury, and it was open for them to conclude, as they must have concluded, that having regard to a number of things - and the two obvious ones are Keenan’s threats – “I’ll cave his skull in” – and the known presence of the bat as the means by which he was to be beaten - there was no escalation of violence. Certainly the method employed was unexpected, and the injury suffered was idiosyncratic in the sense that it was a bullet that pierced his spinal cord.

But the gravity of the injuries occasioned – it was open to the jury to conclude, as they must have done, that that was something that was probable. The nature of the offence, the causing of grievous bodily harm by some means which would render Coffey paraplegic or fracture his skull if that had happened or fracture his knees and elbows if that had happened – whether the bat was used as intended or whether some other instrument was taken to hand or was brought along was something that was likely to happen.

HEYDON J: Mr Sofronoff, there is one factor you have not mentioned. In volume 2, page 538, the first two sentences, Chief Justice de Jersey in his remarks on sentence says:

This conviction has the very disturbing stench of gangland retribution. You were powerful enough to organise others to inflict the blows and wounds.

Is that an exaggeration or is it supportable in the evidence? Because on one view, if you read the evidence, it looks as though there are some people who ended up behaving very badly, but they were, as it were, amateurs, innocent people to begin with, not likely to know about other people having guns or being probable that other people would have guns. But if those hired were actually part of the gangland, it is common for people who are within the gangland to have guns.

MR SOFRONOFF: Well, it was a justifiable statement by his Honour, if one relies only on these things and we will look for some others. But, firstly, a package was delivered in return for which six or $7,000 was to be received and handed in cash to Keenan, which is an unusual transaction. Secondly, the failure of Coffey to return to deliver the money resulted not in threats to collect the debt or threats to sue or threats to sell the chose in action to a factoring agency, but threats to cave his skull in, which is remarkable. Thirdly, as soon as Jupp helpfully told Spizzirri where Coffey was, it was possible to arrange for four people on the instant to attend to do and assist in doing violence. Fourthly, the violence that was to be done was not just fisticuffs, it involved the use of a weapon capable of killing. Fifthly, there is this passage, for what it is worth, from Mr Jupp’s evidence at page 286 in volume 1.

KIRBY J: Page 286?

MR SOFRONOFF: I am sorry, 205 in the top right-hand corner, your Honour. I keep wrongly using the transcript pages. He just informed Spizzirri that he knew where Coffey was and in the middle of the page Spizzirri said “I’ll ring you back”:

When he told you this, what sort of tone of voice was it?-- He was pretty quick, pretty rushed about it.

Then he rings back five or 10 minutes later, line 40:

He told me to get up to Frank Keenan’s house which was the one next to Dean Spizzirri’s ASAP, basically.

Okay. What, if any , reason was given that you had to go there?-- To – to – well, let them know where it was at that time.

Meaning, where Coffey was –

Okay. Now, tell me this: did you feel as though you could just ignore what was being requested of you?-- No, they’re not the type of people that you just ignore. Basically when they tell you to do something, you do something.

So it would not have been open to his Honour to conclude that this was a gang enterprise and retribution for frustrating a gang enterprise, but it was open for his Honour to conclude that it had a gangland stench about it because, indeed, it did have a gangland stench about it. One can understand anybody of a violent disposition being upset by having, in effect, the $6,000 stolen and one can - - -

KIRBY J: Chief Justice de Jersey, at 537 of the record, in sentencing said:

The only explanation for what occurred was your vengeful motivation to teach Coffey a serious lesson for having had the audacity to betray you.

MR SOFRONOFF: Yes.

KIRBY J: So that was the view that he took of the motivation. But it is one thing to be – after all, this man was living with his niece; the amount of money was not huge.

MR SOFRONOFF: I do not know, your Honour.

KIRBY J: Seven thousand dollars. We are talking in the world’s terms of several hundred billion dollars. Seven thousand dollars is not a lot of money.

MR SOFRONOFF: We are not talking about that world, your Honour, we are talking about this world. It is not that so much as the insult, whether it is $10 or $7,000.

HEYDON J: Can one take into account the respondent’s criminal record or was that excluded from evidence at the trial proper; manslaughter and assault on a prison officer?

MR SOFRONOFF: Your Honour, the criminal record was not led at the trial.

KIEFEL J: But when his Honour is speaking on sentencing, he has already read it.

MR SOFRONOFF: He is aware of it by then.

KIEFEL J: He is aware of it and that probably conveys something of the hugely violent background of the person.

MR SOFRONOFF: Quite, yes.

KIEFEL J: That might convey something about the world in which he operates.

MR SOFRONOFF: Yes, although that was not before the jury.

KIEFEL J: No. But the Court of Appeal did not cavil with his Honour’s directions to the jury that the common purpose involved the infliction of serious harm.

MR SOFRONOFF: No, and nor, as I understand it, was that a matter of complaint on the appeal.

KIRBY J: But the question is whether that was a correct direction and then a next question is, whether, if it was not, the correct answer in this case was to order that a correct direction be given to a jury and the matter retried.

MR SOFRONOFF: That is a different question, your Honour.

KIRBY J: You have to get to that in due course, not with too much time, I hope.

MR SOFRONOFF: I will move on, your Honour. Your Honour, could I just say this then before going to the cases. When one is considering the nature of the offence and one is giving consideration to an offence that involves as part of its elements a consequence, a death or killing or the infliction of grievous bodily harm, then one can either regard the consequence dictated by the Criminal Code as bearing upon the nature of the offence or, as is often done as a proxy for that, one has regard to the degree of violence apprehended by the parties as bearing upon the nature of the offence. So that the greater degree of violence apprehended by the parties, as might probably be employed, will tell us something about the nature of the offence, which could be a probable consequence of the prosecution of the unlawful purpose.

When one then looks at the cases – and I will put this proposition which we would seek to sustain by an examination of the cases – when one has regard to the cases dealing with offences of violence, one sees that the courts deciding those cases often examine the degree of violence apprehended by the parties as might be employed, one sees the court having regard to the state of mind of the parties which might bear upon the nature of the offence, but one does not see importance being attached to the method by which the violence is administered to the victim.

KIRBY J: Are you talking about cases under the common law or Code cases?

MR SOFRONOFF: Principally Code, but both, your Honour, both.

CRENNAN J: Brennan’s Case was certainly an example of your first proposition, I think, was it not?

MR SOFRONOFF: As was Barlow, to which I will come. I will go to the cases, your Honours, but my purpose in taking your Honours to them is to demonstrate to your Honours that when courts speak of section 8 and whether an offence is or is not a probable consequence, the aspect that they look at in connection with offences of violence is the degree of violence, not the method by which it might be administered.

The method by which it might be administered, a pistol, will indicate the degree of violence. I think an example we give in our written outline is, assume you go into a bank with a loaded pistol and it fails to discharge, it misfires, and something else is taken up to subdue the resistor, the presence of the pistol will tell us the degree of violence that was to be employed and will determine the nature of the offence that was a probable consequence. Now, it would not be a defence to say that a typewriter was used to beat the victim into submission or the gun itself.

So could I take your Honours to the cases in chronological order and firstly to Brennan [1936] HCA 24; (1936) 55 CLR 253. If your Honours are looking at our book of authorities, it is in tab 6. Brennan was a decision under the Western Australian Criminal Code. Two men called Flynn and Walsh - - -

HEYDON J: We do not have a book of authorities, if it matters. We have the authority.

MR SOFRONOFF: It does not matter, your Honour. I will refer to the tab in case anybody does. In Brennan, three men, Flynn, Walsh and Brennan decided to rob a jewellery store. Flynn and Walsh were going to go into the jewellery store. It was known that there was a caretaker in there and the plan was that they would go in there, overpower the caretaker, gag him, tie him up and steal the jewellery. Brennan was to watch outside. The caretaker was killed during the execution of the robbery and the jury convicted all three of manslaughter. If your Honours go to page 263 of the report, at the foot of the page, Justices Dixon and Evatt said:

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 required connection is that the nature of the offence must be such that its commission is a probable consequence of the prosecution of the purpose.

Then their Honours spoke about homicide and the nature of homicide.

KIRBY J: Is the form of the Western Australian Code, or was it at the time, the same as the Griffith Code?

MR SOFRONOFF: I think the answer is, yes, your Honour. It is set out in Justice Starke’s reasons. Your Honours will see it relevantly in the headnote at page 253:

“when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature –

et cetera.

HAYNE J: Now, do I understand your case, in effect, to be a simpler case than Brennan’s? In Brennan the common purpose was theft or robbery or some offence of dishonesty with respect to property. Do I understand the common purpose alleged here to have been the common purpose of infliction of actual bodily harm?

MR SOFRONOFF: Serious harm.

HAYNE J: At least some form of harm?

MR SOFRONOFF: Yes.

HAYNE J: Thus, do I understand your case to be that the infliction of grievous bodily harm by whatever means was the probable consequence of the carrying out of a purpose to inflict harm?

MR SOFRONOFF: In the circumstances of this case, yes.

HAYNE J: And that the complication presented by Brennan, where the purpose is a purpose related to property, to steal, – a consequence of effecting that purpose by dealing with the caretaker who happened to be in the way is a slightly more complex application of section 8 from that which now arises.

MR SOFRONOFF: No, your Honour. It would probably help me to agree with your Honour, but Brennan was a case in which it was known that there would be a caretaker there and in which it was known that he would be overpowered and gagged. The question that arose was whether his killing, as murder or manslaughter was a probable consequence. If your Honours look at page 264 - - -

CRENNAN J: At point 7 there is a passage which I think - - -

MR SOFRONOFF: That is the part, your Honour.

CRENNAN J: Yes.

if the purpose in which the applicant concurred made it likely that his confederates would, if necessary, use violence and such a kind or degree –

That is, as I understand it, the reasoning upon which you are relying in relation to the facts of this case.

MR SOFRONOFF: Yes. The passage halfway at point 5, “It therefore raises the question” down to the sentence ending “cause death” at about point 8. If your Honours look over at the next page, page 265, the second line:

While, under sec. 8, he would be guilty of manslaughter only if the plan was of such a nature that the use of enough violence to cause death appeared a probable consequence of carrying it out.

There is no examination in the reasons of their Honours as to the method by which the caretaker came to be killed. What was necessary to be examined was whether the nature of the offence was such that it was a probable consequence because the prosecution of the common purpose involved the use of enough violence to render it a probable consequence. From the fifth line:

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.

KIRBY J: Yes, but their Honours at page 264 lay emphasis on – they say “would, if necessary, use violence”. That was definitely present here. They then go on to say:

and such a kind or degree of violence as would probably cause death.

MR SOFRONOFF: Yes, “kind or degree” could be relevant.

KIRBY J: Here there is no doubt that they were out to do violence to the victim, but the question is whether it was such a kind or degree of violence as would cause the offence that in fact unfolded.

MR SOFRONOFF: Yes. In the terms in which the Chief Justice directed the jury, that was precisely what they had to consider.

KIRBY J: I can understand that the law would impose liability on people who go in knowing a caretaker to be present and knowing that they are likely to have to gag him and that in the course of that a death might ensue. But to say that people who go to dust somebody up and use their physical violence and a bat suddenly moves into the league of firing a gun is a slightly different kind or degree of violence that would probably cause the type of injury that happened.

MR SOFRONOFF: That is certainly a question that would need to be articulated to the jury so that it could consider whether or not to accept that conclusion and acquit an accused.

KIRBY J: Lurking in the background is always the possibility that Mr Spizzirri was an excitable type who took it on himself to carry a gun. Was that explained to the jury that that is what they actually had to focus on what Mr Spizzirri did and then see if the link was provided by section 8 that rendered - - -

MR SOFRONOFF: I will come to his Honour’s directions, your Honour, but his Honour directed them that they had – I do not want to misquote it, your Honour, but - - -

KIRBY J: No, well you do it in due course when we can look at the actual text.

MR SOFRONOFF: When one speaks of a kind or degree of violence it is important to bear in mind in particular cases both kind and degree, because if one goes in with fists, then as your Honour Justice Kirby observed, if somebody brings out a pistol that may involve such an escalation that an offence involving the use of a firearm was not a probable consequence, it is part of the nature that its commission was such a probable consequence of the plan. But that is a matter of fact and it depends upon what the parties took with them and what degree of violence they intended to effect.

KIEFEL J: In cases of this kind is not the critical question more likely to be the extent of the unlawful common purpose, rather than trying to find different ways of focusing on what the offence was?

MR SOFRONOFF: Your Honour, one important question will always be, as it is often put, the scope of the common purpose.

KIEFEL J: Because there cannot really be much doubt about what was involved in the offence. The more difficult question is usually going to be - - -

MR SOFRONOFF: What was the scope of the plan?

KIEFEL J: - - - what was the scope of the plan?

MR SOFRONOFF: That is always a matter of inference, of course, unless somebody - - -

KIEFEL J: Could it be said here that the Court of Appeal may not have just looked at - as you would say just focused upon an action, but did not – although referring subsequently I think a passage or two later, after the critical passage that you identify – refer to the infliction of serious harm, do not really attend to the extent of what was involved in the common purpose itself, in its essential elements in order to determine whether or not even the act of shooting had the requisite connection?

MR SOFRONOFF: That is so, your Honour, and we submit that that is so because the curious thing is when we come to look at their Honours’ reasons on a particular page in which they are dealing with directions about inferences their Honours concluded that if grievous bodily harm of this kind – the broken back – had been caused by this bat Keenan might well have been liable. But because it was caused by the pistol he was not. Now, if one accepts the first proposition, in our submission, the second does not necessarily follow. It is a jury question as to whether - - -

KIRBY J: Yes, but the answer which the Court of Appeal gives is he was not in fact injured by the bat. You focus on the actual acts or omissions and he was injured by a pistol and if he is injured by a pistol then that is a horse of a different colour, by the application of the statute, which is the duty - - -

MR SOFRONOFF: That is the outcome of the decision, yes.

KIRBY J: - - -we have to fulfil. We have to apply the words used by Parliament.

MR SOFRONOFF: Whether their Honours did or not correctly is the question your Honours will decide.

KIRBY J: Exactly, but you have not contested that the focus is to be on the actual acts or omissions – that it is because section 8 must be read with section 2, the theory is, and Barlow seems to say it, unless I am wrong, that you look to the actual acts and omissions, and that is the criterion. That is the discrimen that you are focusing your attention on?

MR SOFRONOFF: Yes.

KIRBY J: We have to be a little careful here, because this is a sort of deemed or fictitious liability and we are extending the liability of persons for acts that they did not do. We are making them, as it were, vicariously liable for the acts of someone else and therefore, to the extent that the law does that, one would think it would need to do it with some degree of clarity and particularity.

MR SOFRONOFF: Certainly, your Honour, but equally it must be done with one eye upon ensuring that those who are morally culpable within the policy of the law, as manifested by this provision, are caught. If one were to put it to a jury, one would say that Mr Keenan’s defence is this. He goes with others in order to inflict serious harm upon Coffey. It can be taken, for the purposes of argument, that the infliction of grievous bodily harm is likely to happen because of the intended use of this weapon. We then learn that Coffey, having been assaulted by this group of men, has a broken back. The answer is obvious. Keenan is liable. But Keenan says, “But his back wasn’t broken with a bat. We used something else” – and that is a defence.

KIRBY J: Well, no.

MR SOFRONOFF: The question for your Honours is whether that is good.

KIRBY J: I think he says it was not broken by a bat. In any case, a bat, though a possibility of causing this type of injury to the spine, is much less liable to cause injury than shooting a gun at a person’s spine, and that “I am not liable in this case vicariously because it has not been proved that I was aware that a gun was going to be suddenly pulled out and used” – and that that is what you have to focus on by the terms of the Code and by the authority of Barlow.

MR SOFRONOFF: But in addition, your Honour, one has to focus upon not just the pulling of the trigger; one focuses upon all of it, which is the pulling of a trigger causing an injury that amounts to grievous bodily harm with intent. But could I go through the cases and then engage with your Honours to the extent that your Honours feel necessary?

HEYDON J: Does it not come to “probable”, in the sense that it could well happen?

MR SOFRONOFF: Yes.

HEYDON J: You would submit that is good enough for you?

MR SOFRONOFF: Yes.

KIRBY J: You will not forget the Court’s request that you help us with the history of the Code and with the relevance of section 10A?

MR SOFRONOFF: No, I will not forget that. Yes, I will come back to that.

KIRBY J: If you by chance forget it, I will keep reminding you.

MR SOFRONOFF: No, I will not forget, your Honours. Could I then take your Honours to Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426. The facts of Stuart are far removed from the present. Stuart formed a plan to extort money from nightclubs. He did it by spreading the story that southern criminals would come to Brisbane and, if they were not paid, they would set fire to nightclubs. Stuart procured Finch to come from England and procured him to set fire to a nightclub, which he did, and the result was disastrous. The fire spread and many people were killed. No doubt Finch was liable as a murderer, and the question was whether Stuart was liable.

The arguments that were raised in that case do not bear upon the present problem, except that if your Honours go to the foot of page 442 – and this echoes, to a degree, what your Honour Justice Hayne was putting to me earlier:

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 is 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 -

So your Honours see again what was said in Brennan, that one must have regard to the connection between the prosecution of the unlawful purpose and the offence and the nature of the actual crime committed in order to determine whether the offence was of such a nature that its commission was a probable consequence of the prosecution of that purpose. If we then go to Varley - - -

KIRBY J: That is a different set of facts here because - - -

MR SOFRONOFF: A quite different set of facts.

KIRBY J: - - - a fire of its nature can get out of control. A baseball bat cannot turn itself into a shotgun.

MR SOFRONOFF: It can turn itself into a crippling instrument.

KIRBY J: At best, it is much less likely to penetrate the spine and cause spinal injury.

MR SOFRONOFF: But the question for the jury was whether the act of causing grievous bodily harm was an offence of such a nature - - -

KIRBY J: Now you are getting close to your theory of a generic - - -

MR SOFRONOFF: No, your Honour, by whatever means, because if one had to prove the precise means by which the offence would be committed, section 8 would have little work to do, because circumstances are infinite and the purpose of section 8 is not to fix liability for that which can be foreseen but that which is foreseeable. Your Honours, could I move then to Varley which is a decision under the common law.

KIRBY J: Are you finished with the baseball bat now - - -

MR SOFRONOFF: Yes. I will have it put away, your Honour.

KIRBY J: - - - or are you going to use it forensically from time to time to make some points?

MR SOFRONOFF: No, not at all, your Honour.

KIRBY J: That can be returned to the court officer.

MR SOFRONOFF: It was relevant to the issue of Keenan’s knowledge and it is highly relevant to the degree of force.

CRENNAN J: It was certainly right to show it to us, Mr Sofronoff.

MR SOFRONOFF: Thank you, your Honour. If your Honours look at Varley (1977) 51 ALJR 243, if your Honours have the ALJ version, at I think it is 246, the right-hand column. There are a number of grounds of appeal raised but ultimately the question that concerns the Court today is involvement in a common purpose. If your Honours look at the sentence beginning:

The appellant and two police officers went to the deceased’s residence to beat him up in order to compel him to pay over part of the proceeds of illegal transactions . . . The deceased was a man of considerable physical size –

and able to defend himself. They went on –

The plan involved “roughing” him up. The two police officers were to do so. There was evidence that a police baton was in the vehicle which took all three to the residence of the deceased: and that a baton called by one witness in recounting an admission made by the appellant a “cosh”, was used in the assault –

There was no evidence, your Honours, that the appellant knew of the presence of the baton in the car. That appears a little later. Then if you drop down a few lines after the reference to the “$20,000”:

if during that enterprise the police used a degree of violence which was not what he had expected – there is nothing to indicate that he knew that the police were going to use batons to bash Burton; he thought it was ordinary fisticuffs or some form of physical punishment not amounting to grievous bodily harm – but there is this unlawful joint enterprise to assault, and if during that assault the other two committed acts of excessive violence which resulted in the death of Burton, that may well be murder in those two but it would not be murder in Varley because he did not have the necessary intention –

After quoting the judge’s summing-up, the Chief Justice went on:

The appellant’s submission is that the use of the baton, or cosh, was beyond the scope of the common enterprise, so that the appellant was not criminally liable for the consequences of such use: and that, in any case, the jury ought specifically to have been told that they must be satisfied that the use of a baton or cosh was within the scope of the common enterprise.

I am clearly of opinion, however, that, even on the assumption that the appellant did not know of the availability of the baton or cosh, or of its intended use . . . it could not reasonably be held that the use of such an instrument or weapon as a baton or cosh was not in all the circumstances within the scope of the common design to beat or “rough up” the deceased. The judge, in my opinion, placed the use of the weapon in its correct perspective when he treated it, if its use was not foreseen by the appellant, as no more than an unexpected incident in carrying out the common design.

So what his Honour was saying there, in our respectful submission, is that one is concerned upon the evidence with the degree of violence and the possible consequences that might ensue, not with the incidental means that might be employed to administer the degree of violence intended or the degree of violence which was a probable consequence; in our case, a degree of violence that could cripple somebody. If your Honours would then go to Markby [1978] HCA 29; (1978) 140 CLR 108 at 112. At the foot of page 112, in the reasons of the Acting Chief Justice:

If the principal assailant has gone completely beyond the scope of the common design, and for example “has used a weapon and acted in a way which no party to that common design could suspect”, the inactive participant is not guilty of either murder or manslaughter . . . If however the use of the weapon, even if its existence was unknown to the other party, is rightly regarded as no more than an unexpected incident in carrying out the common design the inactive participant may be convicted of manslaughter.

Again, facts do not matter, but that dictum is consistent with the proposition that one has regard to the nature of the offence and in the cases of offences of violence one has regard to the degree of violence that is a probable consequence of the intended prosecution of the unlawful purpose.

KIRBY J: This is, of course, a common law case arising, as did Varley, in New South Wales.

MR SOFRONOFF: Yes, it is, but it is, we submit, nice if the common law and the Code were consistent, although if they are not, so be it.

CRENNAN J: I am just inspired by those two cases. Can I ask you this. Are you contending that a pistol or a gun was clearly a likely means of carrying out the common purpose of – you are not confining it to “touching up” or “roughing up” or however it was described?

MR SOFRONOFF: The defence case, and there was some evidence given, that it was only intended to “rough him up”, that is to say, limited to bodily harm. But our submission is that it was open to the jury to conclude that the intentional infliction of grievous bodily harm by whatever means were to hand was a probable consequence and the means that happened to be to hand were the pistol, but it might have been something else. It might have been the intended bat, but it might have been something else. It happened to be a pistol. If the degree of violence that was actually employed in the commission of the offence, the offence itself being a probable consequence – “the offence”, I mean the elements of the offence; doing grievous bodily harm – it is no defence to say, “But I didn’t know he’d use that method”. No case, except this one, in the Court of Appeal says it is, because the form of criminal endeavours is infinite, as is their scope, and the danger to which people are exposed by the risks undertaken by those people are varied and infinite and it could not, we respectfully submit, be the policy of the law, reflected in the words of the Code, that one can raise as a defence that although the commission of the actual offence was likely, the precise method used was a complete surprise.

Could I take your Honours briefly to McAuliffe [1995] HCA 37; (1995) 183 CLR 108,which was another common law case – the facts are at page 111. I will tell your Honours briefly what they were. Two brothers, David and Sean McAuliffe, with their friend Davis decided to go to an area of Sydney at Bondi to find somebody to bash up and rob. Davis had a baton with him, Sean McAuliffe had a hammer and David McAuliffe was unarmed. There is no evidence that anybody knew that Sean McAuliffe had a hammer. They approached two people, a person called Sullivan and the deceased. They beat up Sullivan. They beat up the deceased so severely that the deceased fell from the footpath to some rocks on a ledge below on the cliffs that were there. The next day the deceased was found in the ocean, having died from the injuries sustained by falling from the cliff and drowning. That conclusion appears at the top of 112.

If your Honours go to 112 the second paragraph beginning there concentrates upon the degree of violence up to grievous bodily harm:.

The prosecution case was that the common purpose of all three youths was to rob or roll someone. It was, so the prosecution contended, expressly or tacitly part of that common purpose that the victim or victims would be attacked by one or more of the group with an intention to inflict grievous bodily harm, that is to say, serious bodily injury. Alternatively, the prosecution contended that each of the youths contemplated the intentional infliction of grievous bodily harm as a possible incident in carrying out a common purpose to assault someone . . . However, it was the defence case that the intention, at least of the McAuliffe brothers, did not extend to the infliction of grievous bodily harm.

So their Honours are examining the case upon the footing of the degree of violence that was probable and, as we apprehend it, doing so in order to determine what was probable by reference to the nature of the offence that was committed and the prosecution of the common purpose and what that entailed.

If your Honours go to page 118 their Honours concluded in the paragraph beginning on that page:

For these reasons, the trial judge was not in error in directing the jury that if the appellants were engaged in a joint criminal enterprise with Davis, a shared common intention – that is, a common purpose – to inflict grievous bodily harm or an individual contemplation of the intentional infliction of grievous bodily harm as a possible incident of the venture would be a sufficient intention on the part of either of them for the purpose of murder.

Their Honours are concerned with intention as a facet of the nature of the offence and with the degree of violence to be offered to the victim, the infliction of grievous bodily harm. In fact, the deceased, as I have said, died not from the beating but from the injuries sustained when he fell off the cliff, as appears at the top of 112. If I could take your Honours then to Barlow - - -

KIRBY J: So your theory of the operation of the section, and indeed of the common law, is because things can get out of hand – and that is the common experience of humanity – you do not look to how the actual violence was perpetrated and that the section and the common law only do not apply where something that is of a different character occurs, such as a rape in the course of an armed hold up of a petrol station or some environmental crime or something of that kind.

MR SOFRONOFF: No, or, your Honour, a knife in a fist fight or a shooting in a fist fight. If we go to inflict bodily harm upon each other - - -

KIRBY J: Really, in this age where quite a lot of young people have knives in their boots, would one say that necessarily?

MR SOFRONOFF: That is an evidentiary matter, your Honour.

KIRBY J: Because once you concede escalation from fist fight to knife, it is very easy then to reason from baseball bat to gun is a different character.

MR SOFRONOFF: It depends on the evidence, your Honour. If we take an example where two men are going to assault another with their fists and all the evidence points to that being the only knowledge which the accused has and then his co-accused gets a knife from somewhere, from another accomplice let us say, well, that would be a case where - - -

KIRBY J: There have been cases like that. In Western Australia there was the person who saw the knife in the kitchen, picked it up, used it. I forget the case.

MR SOFRONOFF: Quite, and that would be a case where the nature of the offence would be such that it was not a probable consequence of the prosecution of the common purpose which was a man to man fist fight. It depends on the facts. This was a case where the facts were not like that.

Could I take your Honours to Barlow (1996-1997) 188 CLR 1. Barlow was the case in which Mr Barlow, who was a friend of the deceased, Vosmaer, persuaded him to go to the gym. Vosmaer was an informant. That does not appear in the reasons. It might have appeared in the reasons of the Court of Appeal, but that was the motive for the prison killing. Vosmaer’s friend, Barlow, asked him to go to the gymnasium and when he was in there a large group of prisoners then beat him until he died. The question arose whether Barlow, whose involvement was limited to getting him to go to the gymnasium, was a party under section 8 or not. The Court was principally concerned with the meaning of the words “an offence”, as your Honours are aware, but it was necessary for them to consider the nature of the offence which was committed, being murder.

Could I mention this, your Honours, that through the reasons of the members of the Court who decided that case it said repeatedly that Vosmaer was to be beaten and that the blow was struck and so on. I think it is in the reasons of your Honour Justice Kirby the reference is made to the gymnasium equipment. But as one knows, from the decision of the Court of Appeal from which this was an appeal, what actually happened was that free gymnasium weights, dumbbells, were used and the bars to which dumbbells are attached were used in a variety of ways. The bars were used to beat Vosmaer to death, to club him to death, and some of the weights, 25 kilogram weights, were lifted and repeatedly dropped on him, no doubt as the attack continued as a matter of sport to watch the weight being dropped.

So what one finds absent in the reasons of the members of the High Court who gave reasons in the case is any consideration about the method that was used. What was important was whether Barlow knew that Vosmaer was going to be taken to the gymnasium with a view to having a very serious assault committed upon him, the precise method whether they beat him to death with their fists, as they might have done, or strangled him, or whether they did what they actually did in some respects in a peculiar way was beside the point. Because, as we see from page 5 in the paragraph in the middle of the page, third line:

Pursuant to s 8, the jury were directed to consider whether the intentional killing of Vosmaer by Barlow’s co-accused was a probable consequence of the execution by the co-accused of a plan to which Barlow was a party.

Your Honours see from the italicisation of the word “intentional” that that is an aspect of the offence that was committed which bears upon the nature of the offence that was committed and their Honours are concerned with that aspect of the nature of the offence. Then after referring to the judges’ summing up, just below it:

Pursuant to this direction, it was open to the jury to convict Barlow of manslaughter if the striking and resultant death of Vosmaer were unlawful and were a probable consequence of the execution by the co-accused of a plan to which Barlow was a party, whether or not the co-accused intended to cause Vosmaer’s death or to do him grievous bodily harm.

Here their Honours are isolating in shorthand the nature of the offence insofar as it is borne upon by the degree of violence that was apprehended.

If your Honours go to page 10, which is the key page in these reasons, their Honours are mostly concerned with the meaning of the word “offence”, of course, that being the question for determination, but if one looks then at about point 4, the last word on the right-hand side:

Those circumstances, that result and that state of mind are factors which either together or separately but in combination with a proscribed act or omission, define an offence of a particular “nature”.

The factors that their Honours look at are set out above in about the eighth line:

It fastens on the conduct of the principal offender, but it does not deem the secondary party 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 of that conduct (the doing of the act or the making of the omission) was a probable consequence of prosecuting a common unlawful purpose. 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 . . .

What their Honours are addressing there, in our respectful submission, are those matters that give rise to the nature of an offence. At the end of that paragraph, when they speak of bodily harm – whether the blow caused bodily harm or grievous bodily harm or death – they are speaking about the degree of violence and when they speak about the specific intent they are speaking about the state of mind as a facet of the nature of the offence. But nowhere does one pick up any interest in the precise method by which the killing was effected. Indeed, towards the foot of the page, at about point 9:

Was the nature of the blow actually struck such that its infliction was a probable consequence of the prosecution of the relevant unlawful purpose? The jury must be taken to have found that the striking of a blow which was not justified or excused and which caused death was a probable consequence -

as the jury must have done here. Finally, your Honours, could I take you to a decision of the Queensland Court of Appeal in R v Johnston [2002] QCA 74. This case is important for two reasons. The first is that it deals with section 8 and the second is that the Court of Appeal in this case paid regard to it and drew from it support for the reasoning of the Court of Appeal.

If your Honours go to page 6 of the reasons, or at least paragraph 24, could I tell your Honours briefly what the facts were. There was a man called Ware, who was the deceased. Ware got into a plan to make amphetamines and he hid them somewhere. The police happened to find them, so he rang one of his criminal accomplices, Harvey, and said he wanted them back; he wanted Harvey to get them back from the police and if Harvey did not do that Ware was going down to the police station to get the things himself.

That evidently engendered the view that Ware was going to become an informant, and so Johnston, the appellant, was engaged to persuade Ware by a ruse to go to a car, and that appears at paragraph [8]. He told them a pack of lies about some assistance with something, so Johnston went down to the car and he, Johnston, got into one car – I am sorry, Ware got into one car – the deceased – and Johnston got into the same car. They drove a distance, Johnston gets out – so he is no longer present – and Ware continues with his criminal friends.

They begin to abuse him and threaten him with violence for turning informant and other things, and they take him to an isolated place where a man called Anderson, with his friends, ties Ware’s hands together, gaff tape his eyes and mouth, and Anderson then cuts Ware’s throat with a knife and Ware goes limp, pretending he is dead, and Anderson thinks he is dead, and then remembers that he needs to take the fingers for proof to somebody, so he tries to cut some fingers off and succeeds to a degree, and they leave Ware who survives, and survives to give evidence.

The question was to what degree was Mr Johnston, who set up this episode, guilty, and if your Honours go to paragraph [24], the terms of section 8 are repeated as part of the submissions of the appellant’s counsel, and the submission then is made in paragraph [25] in the second paragraph:

“... the question really for the jury is whether cutting the complainant’s throat and then cutting off his fingers in order to – to demonstrate that he’d been killed, whether those acts were acts of such a nature which were contemplated by the common plan.”

In short, Johnston was saying that, “I might have set him up for something”, but it was not a conceivable part of the plan that this narrow act was done, the cutting of the throat and the amputation of the fingers. If your Honours go to paragraph [28] Justice Davies said:

I think that Mr Hamlyn Harris was saying no more than that “an act of that nature” means an act of cutting Ware’s throat -

as here, the shooting of a bullet –

that an act of doing serious harm by whatever means or even of doing serious harm with a knife was not sufficient.

That is to say, it was too wide:

In my opinion that is too narrow a construction of the requirement that the offence must be of such a nature that its commission was a probable consequence of the purpose. In the first place, an offence of that nature cannot mean merely the precise act which was done; it must mean an act of serious wounding with a knife. Secondly to see whether an act of that nature was a probable consequence of the prosecution of the common purpose it is necessary to examine more closely what that common purpose was.

Then his Honour observed in the next paragraph that it “was to inflict serious harm on Ware” and he set out the reasons why that was so, and then in the last four lines of paragraph [29]:

It may be inferred accordingly that a probable consequence of the prosecution of this plan would be that serious injury would be inflicted on Ware by whatever means seemed appropriate to achieve those ends. In my opinion that included the use of some weapon such as a knife.

In short, the degree of violence contemplated to be inflicted upon Ware meant that the use of a weapon was likely to happen and that it happened to be a knife, and that the knife happened to be used in the particular way it was was beside the point. If one then goes to paragraph [31] we can see the trial judge’s direction to the jury:

So you have to be satisfied that an injury which constitutes grievous bodily harm ... whatever manifestation, so long as it falls within that definition of grievous bodily harm, was a probable consequence of entering into the preconcert to take him away –

and his Honour then observed:

the criticism seems to be that her Honour should have told the jury that it was not sufficient that grievous bodily harm was a consequence . . . it was necessary to say that, in order to convict Johnston, the jury must be satisfied that grievous bodily harm by cutting Ware’s throat was a probable consequence . . . This submission must fail for the same reason as the previous submission failed; that it was sufficient for liability pursuant to s 8 that Johnston was a party to a plan to take Ware to a remote location and there do him serious harm by means which might include the use of a knife.

It may well be –

and then his Honour made a very important observation which was relied upon by the Court of Appeal –

where there is a plan to do an act of a specific kind to a person, for example to assault him by punching him, an act of an entirely different kind, for example by shooting him, would not be an act of such a nature that its commission was a probable consequence of the prosecution of that plan.

In short, where there is a plan to inflict violence upon a person of a particular degree and kind then violence of a different kind by shooting him might be considered to be not an act of such a nature. Against that background, your Honours, could I take you to the reasons of the Court of Appeal - - -

KIRBY J: What do you make of that last statement?

MR SOFRONOFF: That it is a matter of fact in every case to determine what was the scope of the plan relevantly in a case of killing or doing grievous bodily harm. What was the degree of violence that was the probable consequence and that will tell us then whether the offence committed was of such a nature that its commission was a probable consequence.

So in the example that I have given your Honour and that your Honours referred to earlier this morning, if one has a certain level of violence intended to be inflicted upon somebody in the course of commission of a prosecution of an unlawful purpose, the escalation of that level of violence to a new degree might be regarded as outside.

KIRBY J: Fist to knife?

MR SOFRONOFF: Quite, fist and - - -

KIRBY J: Query bat to gun?

MR SOFRONOFF: Jury question, your Honour.

KIRBY J: So long as the jury are correctly instructed.

MR SOFRONOFF: Quite, yes, and in particular the question is well, assume for the purposes of the hypothesis that the actual harm caused was of a kind that could have been inflicted by the means apprehended - assume that, then does it matter - - -

KIRBY J: May I ask at this stage how is your argument going in terms of the allocation of time?

MR SOFRONOFF: Your Honour, just thinking out loud, I need to deal with their Honours’ reasons and then my learned - - -

KIRBY J: There were some other grounds in your appeal.

MR SOFRONOFF: Yes, Mr Martin was going to deal with them briefly, your Honour.

KIRBY J: There was one matter which it was noted had not been advanced in written argument and assumed that it was no longer in contest. Is that correct or not? This is at the end of the respondent’s submission.

HEYDON J: There was silence in the special leave submissions.

MR SOFRONOFF: I am sorry, your Honour?

HEYDON J: Justice Kirby may be referring to paragraph 45 of the respondent’s written submissions - - -

KIRBY J: Yes, I may - - -

HEYDON J: - - - which deal with the alternative verdict question on which you had brief written argument and Mr Walker notes that there is brief written argument, but nothing in the special leave submissions.

MR WALKER: There is also paragraph 4, your Honour, of my written submissions.

HEYDON J: Does that not march with paragraph 45, though?

KIRBY J: It does not look as though you are going to finish before lunch so that - - -

MR SOFRONOFF: I think I can finish before lunch. Mr Martin will still have something to say about the additional grounds of appeal. I will go, your Honours, to - - -

KIRBY J: You will not forget those two matters the Court was keen to get - - -

MR SOFRONOFF: I will look at them over lunch and come back, your Honour. Could I take your Honours to the appeal book, volume 2? If your Honours would go first to page 565 of the appeal book, after referring to Barlow at length and Johnston, the case that I just took your Honours to, at paragraph [43] their Honours refer to the section in the first half of paragraph [43] and recite the effect of some passages in Barlow that I have taken your Honour to. Then after footnote 13 – I am sorry, at line 5:

It follows that the “offence . . . of such a nature” under s 8 is here, not the generic offence of doing grievous bodily harm with intent as the learned primary judge told the jury. It is the act which rendered Spizzirri liable to punishment, namely, discharging a bullet or bullets and so causing grievous bodily harm. To convict Keenan under s 8, the jury had to be satisfied beyond reasonable doubt that he, and either or both Booth and Spizzirri, formed a common intention to unlawfully cause Coffey serious harm; and that Spizzirri’s act of shooting resulting in grievous bodily harm was a probable consequence of the prosecution of their joint common intention.

Would your Honours notice that the words “was of such a nature” do not appear there? Their Honours then instruct themselves in paragraph [44] as to the terms of the relationship between section 8 and section 7 and there they do refer to the words “of such a nature”. But then they go on, at paragraph [45]:

The learned primary judge nowhere made clear in the jury directions that, before convicting Keenan of the offence of doing grievous bodily harm with intent by way of s 8, they would have to be satisfied that Spizzirri’s act of shooting causing Coffey grievous bodily harm was the probable consequence of the prosecution of Keenan’s common intention, formed with either or both Booth and Spizzirri, to unlawfully cause –

Could we make two observations about that. The first is that, again, there is no reference to Spizzirri’s act of shooting causing Coffey grievous bodily harm was an offence of such a nature that it was a probable consequence, and also the use of the word “the”, which is quite important because the offence only has to be “a” probable consequence. So the criticism that we respectfully make of paragraphs [43] and [45] is that their Honours directed attention, as was necessary to do, to the act of shooting, but their Honours did not direct attention to whether the act of shooting causing grievous bodily harm was an act of such a nature as to render the commission of the offence of causing grievous bodily harm with intent to be a probable consequence.

If your Honours go then to page 571, there are two passages here which appear in a different part of their Honours reasons. They appear in the reasoning of the court relating to a retrial. But if your Honours would look firstly at paragraph [61], the second sentence:

Had the grievous bodily harm in the present case –

namely, the spinal injury –

been effected with a baseball bat rather than a gun, then s 8 may well have extended Keenan’s criminal liability for Coffey’s injuries: cf Varley.

KIRBY J: That is consistent with their Honours’ view, is it not, that you ask first, what is the way the injury was done?

MR SOFRONOFF: Yes.

KIRBY J: Then you ask, can, under section 8 plus section 2, you render the accused vicariously liable for that injury having been done?

MR SOFRONOFF: We respectfully accept that sentence as a correct statement.

KIRBY J: Yes.

MR SOFRONOFF: But then if we go to paragraph [60]:

To convict Keenan the prosecution had to establish on the evidence that he formed a common intent with either or both Spizzirri and Booth to prosecute an unlawful purpose, a probable consequence of which was that Coffey would suffer grievous bodily harm by shooting.

So their Honours accept, as one must accept, that causing grievous bodily harm was probable, that causing “the” grievous bodily harm with a baseball bat, it is a matter for the jury, could have been concluded to be probable. However, causing it by shooting was out. In our respectful submission - - -

KIEFEL J: If you read particularly that paragraph [60] with paragraph [45], are their Honours saying that the common purpose had to extend to shooting and that is really where the ambit of their Honours’ decision lies?

MR SOFRONOFF: Yes.

KIEFEL J: Then they have linked that to the offence being an offence of shooting, whereas you would say the offence, by whatever description, leading to criminal responsibility does not require reference to shooting.

MR SOFRONOFF: Yes.

KIEFEL J: So they have done it at both ends.

MR SOFRONOFF: Yes. As Justice Davies pointed out in Johnston, the nature of the violence that was going to be inflicted upon Ware was known to be sufficient to make sure he never went to the police and that it happened to be by the use of a knife was by the way. The key passages, your Honours, in their Honours’ reasoning are the passages at [43] to [45], to which I have taken your Honours.

Other than that, their Honours set out the trial judge’s summing-up and quoted at length from the reasons of the court in Barlow and the Court of Appeal in Johnston and then concluded as they did in [43] and [45] and, in our respectful submission, did not give the consideration that ought to have been given to the nature of the offence that was committed in order to render the judgment as to whether its commission was a probable consequence of the prosecution of the unlawful purpose possible.

Your Honours, if the Court pleases, Mr Martin will address the Court on the other aspects.

HEYDON J: What about section 10A?

MR SOFRONOFF: I will come back, if I may, after lunch on 10A.

KIRBY J: For your information, we will be adjourning at 12.45 and resuming at 2.00 pm.

MR SOFRONOFF: Thank you, your Honour.

KIRBY J: It would be expected that this matter will conclude today.

MR SOFRONOFF: I do not see why it would not, your Honour.

KIRBY J: Neither does the Court.

MR MARTIN: Your Honours, there were three bases by which the Court of Appeal said that error emerged in this case. The grounds of appeal address each of those bases. There is a fourth ground dealing with the issue of whether there should be a retrial, but that really is derivative of the ultimate outcome. I do not propose to take that any further, except to the extent that your Honours will have to reflect upon how to respond.

The Crown’s primary concern is, of course, with section 8 and the extent to which abstraction emerges from the words “of such a nature” and I do not propose to cover that again. But if the Crown succeeds on the section 8 point and his Honour’s summing-up on the point was correct and it is consistent with his actual summing-up which arose in Barlow and consistent with the actual summing-up that emerged in Johnston’s Case, then my respectful submission is that there would be then a restoration of the conviction, subject to the other grounds of appeal, and it is to those that I now turn, because if those other two grounds of appeal or other two bases for finding error existed by themselves, then the Court of Appeal would, one would have thought in the ordinary course, merely have ordered a new trial. They related to those sorts of detail.

KIRBY J: What is the provision of the Code that allows you to appeal against an order of acquittal? I assume that that exists, but I think we should be informed of the provision.

MR MARTIN: It does. I will have a look, your Honour, but certainly that happened in Barlow’s Case. The matter was then sent back - - -

HAYNE J: It is not the Code that gets you here. You do not get here by the Code.

MR MARTIN: There are provisions in the Code that do talk about a right of appeal to the High Court, but I will have a look in the Judiciary Act in the - - -

KIRBY J: I am thinking of those cases of this Court about the interference or disturbance of an order that has discharged a person of a criminal offence and the presumption that the law originally did not provide a remedy against such an order.

MR MARTIN: As to the detail of where it is found, I simply say that that is what occurred in Barlow. There were some further orders – the matter was remitted to the Court of Appeal for further orders to be made, but the decision of the Court of Appeal in Barlow was set aside, as it were, and that is why I derive some confidence in making the assertion that I do.

KIRBY J: Yes.

HAYNE J: What is the relief you are seeking in this Court?

MR MARTIN: Ultimately there is a series of alternatives. The first is that the conviction be restored, but the matter has to be referred to the Court of Appeal for further orders because there was an appeal against sentence, and that has not been dealt with.

HAYNE J: At some point before your submissions conclude, I would like identified clearly the form of order you are seeking.

MR MARTIN: Yes. My short answer to that is - - -

KIRBY J: Somewhere here you asked for us to issue a warrant for the arrest of - - -

MR MARTIN: Yes. I have reflected upon that. What I will do is ultimately come to this. The formal order in Barlow, which is at the end of the case, is really the formal order that is necessarily applicable here.

KIRBY J: It is unlikely that in Barlow the Court made an incorrect order, given that Justice Brennan was the principal, or was one of the authors of the joint reasons. But just the same, if there are provisions in the Code or some other Queensland statute, or if you are simply relying on the Constitution, then we ought to know, and if you want ancillary relief such as the issue of a warrant for the arrest of Mr Keenan, we will have to know the basis of our doing anything like that.

MR MARTIN: Yes. The warrant I have to put aside because it is derivative of the ultimate success of the appeal against conviction which will have to be dealt with by the Court of Appeal, so your Honours will necessarily have to remit that to the Court of Appeal.

KIRBY J: We also would need to know because the Court of Appeal did not deal with the appeal against sentence, but it indicated in short form that it thought the sentence imposed was excessive. Now, we would want to know whether or not, in your submission, at the very least in this case, the matter would have to be sent back to the Court of Appeal to determine that outstanding question.

MR MARTIN: It does, your Honour. It manifestly does, in my respectful submission, and the issue of a warrant is dependent ultimately on the outcome of that matter, so that is why I no longer persist with the application - - -

KIRBY J: I think you have to sort out between now and when we resume at two o’clock exactly what relief you seek and on what basis.

MR MARTIN: Yes, I understand. The subsequent grounds, or the other matters the subject of criticism are these. Can I deal first with the ground about inferences. The suggestion was that his Honour misdirected the jury as to inferences or, rather, failed to direct them in accordance with what was necessarily arising from the trial. There are two aspects.

KIRBY J: Could you just tell me in a sentence or so why, in the event that their Honours were of the view that there was a misunderstanding of the operation of section 8 and a misdirection by the trial judge on that section, their Honours felt authorised to enter a verdict of acquittal?

MR MARTIN: They felt so because they took the view that it was impossible, and my leader has mentioned that, they took the view that it was impossible, bearing in mind their view of section 8, for any jury to be satisfied of the nexus between the plan and the shooting.

KIRBY J: In short, that the uplift from a baseball bat to a shooting, on their view of section 8 and section 2 of the Code, that that could not ever on those facts fall within an offence of the nature that was required.

MR MARTIN: That appears substantially at paragraph [62] at page 571. If one goes to the bottom of paragraph [60] on 571 one sees the reasoning derived from section 8 and there is almost a straight line from that reasoning, which the Crown says is erroneous, to the conclusion in paragraph [60] to proceed. That is how one comes to that conclusion. The reason we raise the other grounds is simply this, that it will impact upon the ultimate conclusion. If the other grounds are successful, then a conviction will be potentially at least restored. If they are not, then a retrial might be - - -

KIRBY J: I know you have held out that seductive possibility now three times, but we have to think through the possibilities of various combinations of arguments that may be different.

MR MARTIN: I understand. If we succeed on the section 8 point but not on both of the other two, then one would have thought the logical consequence was a retrial. It is only if we succeed on both of the other two and section 8 that there is any possibility of what happened in Barlow, that is to say, the Court of Appeal’s order acquitting being set aside. I have drawn your Honours’ attention to the passage which gives rise to that conclusion. At page 568 of the record, paragraph [51] of the Court of Appeal’s judgment, one sees a passage in which it is suggested that there was a need for a Knight direction. Something like a Knight direction was said to be necessary. Copies of Knight’s Case, I think, have been distributed to your Honours.

KIRBY J: I am still not entirely clear in my mind why, assuming for the moment that the direction on inferences did not reach the Knight standard, that would itself not be a reason for entering a verdict of acquittal. That would be again a matter for a retrial, would it not?

MR MARTIN: Quite so. It is only if I succeed on this point, persuading your Honours that his Honour’s directions were not that sound, that there is - - -

KIRBY J: Yes, well, you had better move on. We are running out of time and we have to try and plant in our minds the correctness of his Honour’s directions on inferences.

MR MARTIN: Yes, the short point is this. Knight’s Case does not say that the direction of the sort that says you can:

only find by inference an element of the crime charged if there were no other inference or inferences which were favourable to the appellant reasonably open upon the facts.

It simply says:

A direction in those terms is often called for where the prosecution relies upon circumstantial evidence –

“often called for” and his Honour - - -

KIRBY J: This is a reference to Knight [1992] HCA 56; (1992) 175 CLR 495 at 502.

MR MARTIN: Thank you, your Honour. At 476 one sees a passage that, although it appears to focus factually on – this is about line 20 onwards – the intention to kill, it picks up many elements of Knight’s Case, only it does not speak about hypotheses consistent with innocence and so forth; it uses more direct language. Can I move from there to the specific - - -

KIRBY J: Where exactly in his Honour’s charge to the jury is there a direction of the kind required by Knight?

MR MARTIN: My submission is that at line 20 at 476:

Importantly, if two or more inferences are equally open, you must draw the inference more or most favourable to the accused. You must be satisfied beyond reasonable doubt that the inference of an intention to kill Mr Coffey is the only reasonable inference open on the evidence you accept.

Now, while that is directed to intention, it is clear that his Honour is speaking generally and just using that as an example.

KIRBY J: One would assume that there would be a bench book that contains a Knight-type direction and that his Honour was reading from it.

MR MARTIN: There is, and my submission - - -

KIRBY J: You say that that conforms to the Knight standard. We can read Knight and we can read that and we will reach our conclusion on that.

MR MARTIN: Of course.

KIRBY J: Is there anything else you wanted to say on that proposition?

MR MARTIN: With respect, their Honours seized upon a specific narrow factual hypothesis dealing with circumstances that arose out of evidence by Jupp that he was to drive the van away. The suggestion was that it emerged from that that the inference to be drawn favourable to the defence, which was not advanced by the trial judge to the jury, was that the taking of the van may have been in....and my respectful submission is that the Crown’s point on why he was to drive away was relatively neutral in its scope. It is set out in my outline.

The point about whether there was another explanation for that is really neutral, yet the Court of Appeal seemed to think that it was so significant that it was elevated to the level of mandatory, even though nobody asked for it at the trial, and there are other reasons in my outline why I respectfully submit that it was simply wrong to elevate it to that level. I will not take that any further. I am sorry, I will take it a moment further.

The error is to make what I will call the “piecemeal” error which is identified in Hillier’s Case. A copy of that has been provided. The issue with respect to failure to lead grievous bodily harm simplicita to the jury engages the last ground of appeal that I want to address. Respectfully, the Court of Appeal did not consider the sort of reasoning that arose in Harwood’s Case where the question of whether there was in fact a miscarriage of justice arising. In Harwood’s Case a - - -

KIRBY J: I think their Honours said if there was an incorrect decision on section 8, it was a clear miscarriage of justice.

MR MARTIN: Yes, and more than that. They said there should be a retrial for the reasons articulated. So these lesser points are ones where the Court of Appeal has not considered the issue of miscarriage of justice as arose in Harwood. I have given your Honours Harwood as an example of a case where even though a lesser included offence was not left, it was a miscarriage of justice. Your Honour accedes to the point by my saying it, there is not much to be gained by taking it further. While in general terms it is clear that in many cases it will be an error that requires a retrial, it is not inevitably so and the court simply did not give effect to - - -

KIRBY J: This is a proviso point, is it?

MR MARTIN: Yes, I suppose because it certainly was so in Harwood. The court considered that it was a miscarriage of justice.

KIRBY J: Do you actually argue that? I do not remember seeing a proviso-type argument in the written submissions. Perhaps you did, but I do not remember it.

HAYNE J: Page 14, paragraph 75, last sentence.

MR MARTIN: Thank you. Your Honours are seized of the matters. The authorities are set out in the written material. I am not sure there is much to be gained by any more, except to give your Honours the answer - - -

KIRBY J: Yes, we know most of those authorities, I think.

MR MARTIN: I am sure you do. I will answer your Honour’s questions more specifically about the orders sought after lunch.

KIRBY J: Thank you, Mr Martin. We will come back at two o’clock for the purpose of hearing the balance of the Solicitor’s arguments. Solicitor, I ask a question for myself and that is this. If at the end of the day in considering the submissions of both sides in this case we have before us, as I think I accepted in Barlow there was before the Court there, interpretations either of which were arguable, why would one not prefer the approach of the Court of Appeal on policy grounds in that, if the Parliament of Queensland wishes to extend the ambit of the Code to a case of derivative liability such as this, it needs to do so in more clear terms and any ambiguity in criminal liability should be construed in favour of the accused as a matter of policy? I do not ask you to deal with that now, but if you would add that to the shopping list that you have to deal with after 2.00 pm, very briefly, because we will expect to give Mr Walker a bit of time. We usually do in this Court give people a fair go.

MR MARTIN: Section 8 is classic in that it is a provision of general application that has stood there for 100 years and one would be loath to think that tinkering at the edges is an easy task by redrafting - - -

KIRBY J: It stood there before common law developments of common purpose liability that have extended that quite considerably and therefore the question is whether, especially reading section 10A, we should do the job that at least the Court of Appeal thought had not been done by Parliament. Anyway, come back and deal with that, if you would, just as a matter of policy after two o’clock.

MR MARTIN: I will, your Honour.

KIRBY J: The Court will adjourn now until two o’clock.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

KIRBY J: Yes, Mr Martin.

MR MARTIN: May it please your Honours, as to the orders sought, can I take you to the last page of Barlow which provides a model to which I will make some modifications. The orders sought are the three orders which appear at the end of page 46, to which I would add:

4. Set aside so much of the order of the Court of Appeal of Queensland of 11 December 2007, entering verdicts of acquittal and order a new trial –

and I should have said that commences with the words “Alternatively to (2) and (3).

KIRBY J: I know that is what the court did, but the question was is that just done under the Constitution or is it done under - - -

MR MARTIN: Under section 37 of the Judiciary Act. Could I take your Honour to page 44 where your Honour Justice Kirby spoke about the issue briefly:

That reasoning led to the entry of an order of acquittal in his case. It was not suggested that it was not competent for this Court to re-open the order of acquittal.

There was reference to section 37 of the Judiciary Act which creates the power:

to affirm reverse or modify the judgment appealed from, and may give judgment as ought to have been given in the first instance, and if the cause is not pending –

and so forth and, of course, the Court of Appeal of Queensland had the power to dismiss the appeal at first instance.

KIRBY J: Anyway, there is no dispute on the record about this.

MR MARTIN: There does not appear to be.

KIRBY J: I have not seen anything in Mr Walker’s submissions that contest it. Yes, thank you, Mr Martin. Yes, Solicitor.

MR SOFRONOFF: Could I deal quickly, your Honours, with the history first. One begins with the common law and it is usual to begin with Sir Michael Foster’s treatise – it is often called Crown Cases. The edition I have is that which was published in 1809. Your Honours will see that that treatise was referred to at length in Darkan. It is only necessary to mention one part of it. At page 369 of Foster the author is speaking about accessories before and after the fact and at 369, section 2, he said:

But if the principal in substance complieth with the temptation –

that is to say, the actual offender does the thing that he was counselled or procured to do –

varying only in circumstance of time or place, or in the manner of execution, in these cases the person soliciting to the offence will, if absent, be an accessary before the fact, if present a principal. For the substantial, the criminal part of the temptation, be it advice, command, or hire, is complied with. A. commandeth B. to murder C. by poison, B. doth it by a sword, or other weapon, or by any other means, A. is accessary to this murder: for the murder of C. was the object principally in his contemplation, and that is effected.

Then one goes to Stephen’s Digest of Criminal Law and, relevantly, Article 38 said:

When several persons take part in the execution of a common criminal purpose, each is a principal in the second degree, in respect of every crime committed by any one of them in the execution of that purpose.

If any of the offenders commits a crime foreign to the common criminal purpose, the others are neither principals in the second degree, nor accessories unless they actually instigate or assist in its commission.

Then there is a corollary to that in Article 40:

When a person instigates another to commit a crime, and the person so instigated commits the crime which he was instigated to commit, but in a different way from that in which he was instigated to commit it, the instigator is an accessory before the fact to the crime.

KIRBY J: I think the question about the history was directed more to what Griffith had in mind when he was designing the Queensland Code and you remember Justice Gummow asked that question on the special leave hearing.

MR SOFRONOFF: Then one goes immediately to Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373. In Darkan if your Honours go to page 386 after referring to Foster, Stephen’s Digest, two bills that were built upon Stephen’s Digest, their Honours then went to the adoption of that as a model by Sir Samuel Griffith. At the foot of page 386, paragraph 37 it said “Section 10”, which is section 8 of our now Code, “of Sir Samuel Griffith’s Draft Code was identical to s 8 of the present Code . . . and s 11 was identical to s 9(1)”. Then their Honours refer to, very importantly, the fact in paragraph 38 that, although Sir Samuel made a marginal note in the draft that he delivered to the Minister to the effect “Common Law. Bill of 1880, s 72”, four lines from the foot:

Section 10 of Sir Samuel’s Draft Code did not correspond with the common law as it is now understood to be, namely that the principal offender’s crime must be foreseen by the accessory “as a possible incident of the common unlawful enterprise”. It did, however, bear some resemblance to the statement of the common law to be found in the 1896 edition of Russell (46) –

which their Honours quote –

Nor did s 10 of Sir Samuel’s Draft Code correspond with s 72 of the Criminal Code Bill 1880, since it omitted the words “or ought to have been known to be”.

And so on. So what one sees from that is that there was a policy underlying the common law. It came to be reflected in Stephen’s Digest and then the model codes in England. It was picked up in Queensland.

The form of section 8, section 10 of the draft code in Queensland that was adopted by Sir Samuel Griffith, did not model itself upon the common law and it certainly bears marked differences from the common law today. Section 8 has not been changed since it was enacted in 1899, nor has section 7 except to tidy up the paragraphing. We can see the immediate predecessor in Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426 at 435 and 436. It is not necessary to look at that, your Honours. The paragraphing has been changed to make it appear clearer, but the substance of it has not been changed. So that is the history of section 8.

KIRBY J: What do you get from that history? Is there anything you wish to advance?

MR SOFRONOFF: There is nothing to be drawn from it, your Honour, except that section 8 is longstanding, was interpreted in its Western Australian form in Brennan - - -

KIRBY J: I suppose the fact that it was not exactly mirroring the common law is another reason why one should be a bit careful to stray from the language of the code.

MR SOFRONOFF: Quite. I was going to come to that in response to your Honour’s last request for submissions. I will come back to that.

KIRBY J: Yes, all right. We will deal with 10A. We have been so anxious to hear what you have to say about that.

MR SOFRONOFF: I will deal with 10A. Section 10A was enacted because the law in Queensland had been that a person charged as an accessory under section 8 might be convicted of manslaughter, for example, although the principal was convicted of murder.

Then in a decision called R v Hind and Harwood [1995] QCA 202; (1995) 80 A Crim R 105, the Court of Appeal decided that if the principal was guilty of the offence of murder, then the accessory could only be convicted of murder, not manslaughter. This excited the Parliament to pass section 10A. Section 10A(1) deals with section 7 and section 10A(2) deals with section 8. Its purpose was to reverse the effect of that decision. It was introduced into the Parliament before Barlow came to the High Court. It was enacted just after Barlow was decided by the High Court, so in the result it was not necessary.

I have caused to be handed up to your Honours’ associates a copy of the decision of the Court of Appeal of Queensland of R v Sullivan and Marshall, [2000] QCA 393. If your Honours go to paragraph [27], Justice Pincus set out there the explanatory note to clause 9, which became section 10A. The effect of the explanatory note was that the intention of the section was to restore the interpretation of section 8 to the interpretation as it had existed before Hind and Marshall. His Honour, and Justice Davies as well in that decision, sharply criticised the language of section 10A as being difficult to follow and difficult of application.

It does not bear upon the outcome of this case because its intent and its language is directed towards attempting to ensure that if a person is sought to be made liable under section 8 as a party to a common plan, that if the principal offender is convicted of the more serious offence, the accessory can, nevertheless, be convicted of a lesser offence such as are justified by the facts and so that is section 10A.

Your Honour Justice Kirby asked me before we adjourned what ought the Court do if it decided that there was some ambiguity in the meaning of section 8 such that the meaning ascribed to it by the Court of Appeal was fairly open, but that another meaning was also fairly open. In our respectful submission, if the Court came to that view, the Court should decide the meaning that it thinks is correct, that is to say, what the text means. The Code, of course, does not conform to the common law, so there is no imperative to ascribe meanings to words where various meanings are available such as would make the Code conform to the common law, because the task is hopeless. It cannot be done.

KIRBY J: That does not quite address the question.

MR SOFRONOFF: I am sorry, I misunderstood it.

KIRBY J: The question was addressed to whether or not in the event that one interpretation expands criminal liability and the other does not expand criminal liability, why would one not prefer the interpretation that does not, leaving it to the Queensland Parliament, if it wished to, to make it clear that which the Court of Appeal of Queensland did not hold to be clear.

MR SOFRONOFF: Your Honour, that supposes two interpretations which as a matter of pure language are equally open. It is difficult to accept that that could arise, and it is difficult to accept that two equally open interpretations as a matter of English language could arise in section 8, but if they did, then the Court ought to prefer the meaning which it thinks is correct, given the other parts of the Code and it ought not prefer one meaning because of an a priori view that the scope of the operation of section 8 ought to be lesser rather than larger. It is what it is.

KIRBY J: I do not want to extend this because it is not really very fruitful, but the problem with that proposition is it sounds very much like a reversion to the linguistic interpretation of legislation as distinct from trying to discern the purpose of Parliament and what it was getting at, and in that matter, the way in which one approaches the language can sometimes affect where you end up at the end of the process.

MR SOFRONOFF: Your Honour, we would respectfully submit that one would not approach the language with any preconceived notion that the language ought to be rather narrower than wider. One ought to seek to ascribe the meaning to the language consistently with conformity with the other provisions of the Code and, to the extent that it is helpful, its history in the policy of that particular provision.

KIRBY J: Yes.

MR SOFRONOFF: An understanding of that policy can be informed by a study of Foster and of Stephen in the examples given and, indeed, the old case that we cited in our outline, which I obviously will not go to now, but where a long time ago Lord Justice Denman said that parties to resistance to lawful authority will be liable if one of them shoots an officer of the law. He did not say this, but he did not ascribe any part of his reasoning to any consideration as to whether it was known that there was a rifle, as in that case there was, or not. What was important was that criminal responsibility will attach to people who ally themselves to a plan to prosecute an unlawful purpose and that plan has a particular scope involving the administration of violence to somebody. If the form of violence that was actually administered conforms to that plan, then that is the end of it.

KIRBY J: Have you said everything you want to say about your ground 2(e), that is to say, how you could render the respondent liable directly or as liable for grievous bodily harm simpliciter?

MR SOFRONOFF: Yes, your Honour.

KIRBY J: Unless one has it by the root provided by sections 8 and 2 of the Code, this is, as it were, fixing him simpliciter with liability for the action taken in shooting the victim.

MR SOFRONOFF: He could have been charged with committing grievous bodily harm simpliciter because Barlow tells us that the greater encompasses the lesser.

KIRBY J: Is there anything else you wish to say?

MR SOFRONOFF: No, your Honour, thank you.

KIRBY J: Thank you.

CRENNAN J: May I just ask you this, I am not certain about it. Is Mr Keenan in custody or was he released from custody?

MR SOFRONOFF: No, he is not in custody on this offence. That is all I can say, your Honour.

MR WALKER: He is not here because he is not in custody for this offence.

KIRBY J: I did not hear the last word.

MR WALKER: He is not here listening to his case being argued because he is not in custody for this offence and, indeed, as I understand it, he is not in custody for any offence proven.

KIRBY J: We will simply act on the record.

MR WALKER: Of course, but in answer to Justice Crennan’s question, may I, in attempting to map the way the issues are presented and the way the various grounds may interact with each other, section 669 of the Code in subsection (1) provides the power to order a new trial which, in the way I am about to explain, we do understand to be potentially live in this Court. Subsection (2) of section 669, I hope, answers part of Justice Crennan’s curiosity because were an order made for retrial, subsection (2) of section 669 will put in train the process of law by which an accused is taken into custody.

Section 668E, with which the Court is very familiar, provides, of course, for the grounds of appeal against conviction in subsection (1) and it is in subsection (3) that one sees an order of acquittal provided as what appears, at least as a matter of language and layout of the statute, to be the primary response of the Court of Appeal upon upholding an appeal against conviction.

KIRBY J: I think that is the common form of the proviso, is it not?

MR WALKER: No, not the proviso. Subsection (3) provides that if an appeal is upheld - - -

HAYNE J: Subsection (2) quashed the conviction or directed a new trial be had, is it not, or is it (3) at the relevant time, is it?

MR WALKER: I think it is subsection (2). I am so sorry, your Honour. It is the third subsection, yes it is subsection (2), yes. It leads in Queensland to section 669 for the new trial. Now, the issues fall out in this way with the various grounds as we will put it to the Court. If we succeed in maintaining the position in relation to the section 8 issue reached by the Court of Appeal then all this Court does is to dismiss the appeal to this Court.

We need to recognise, subject to the view this Court takes about live grounds raised by the Crown, that complaint might be made – we are not sure whether it is made – that even if the Court of Appeal were correct about section 8 there should not have been an acquittal. There should have been a new trial. We have tried - - -

HEYDON J: On what charge?

MR WALKER: Your Honour, it would be as we understand it – and I have the disadvantage here of seeking to impute to our learned friends a position that is, to put it mildly, not explicit. There is no argument about the new trial. I think the answer - - -

KIRBY J: I thought the Solicitor said that there was an argument because it was a jury question as to whether a bat equals a gun.

MR WALKER: Unquestionably, your Honour, it is by reason of comments of that kind in address that we understand we should confront it, which is why I am confronting it at the very outset. However, I note there is nothing about it in the special leave application or argument on that. There is nothing in the written submission in this Court which embraces the possibility that the Court of Appeal was right about section 8. In other words, the main point which opened the special leave application as being the black letter law point, that is lost by the Crown. We have not seen any written argument, but we have heard the comments that Justice Kirby has just noted to the effect that even so it should not have been an acquittal, there should have been a new trial.

Now, it does raise the question, with great respect, that Justice Heydon has asked me. It will be recalled that at the trial the jury rejected the case of attempted murder. It will be recalled that on the other side of the range of seriousness the jury did not have left to them so-called grievous bodily harm simpliciter. So the question arises as to what would be the new trial, if indeed one is sought by the Crown, assuming they are wrong about section 8. This is where we are struggling to know precisely what it is the case we are meeting in this Court.

HEYDON J: Can I just say something? Even if you win on section 8, it does seem a little strange that your client’s conduct cannot be examined in a trial by reference to count 3. Are the only arguments that you have arguments that it was not wrong of Chief Justice de Jersey to withdraw that from the jury and not leave it as an alternative verdict?

MR WALKER: Unless I am much mistaken, there has been a nolle entered on count 3.

HAYNE J: See page 2 of the appeal book, the annotation.

MR WALKER: Yes. I will just check that. End of the Crown case a nolle prosequi on that count. In answer to Justice Heydon, that does not actually answer, with respect, the point your Honour’s raised with me. I accept that, but that is an event that has occurred.

HEYDON J: You say, if that nolle prosequi had not been entered, then there might be a possibility of a new trial, but it having been entered, that is the end of that. It was an option adopted by the prosecution and it cannot be revisited?

MR WALKER: That is the position we take. I hope this is not completely unmeritorious, that is, it is a position brought about by the other side, not by us. The record of that nolle being entered is found in volume 2 of the appeal book in this Court at page 439 starting at about line 55.

HEYDON J: I do not want to waste time, but is a nolle prosequi binding?

MR WALKER: It is one of the reasons why I am not quite sure what I am actually facing in this Court. No, your Honour, it is not res judicata.

HEYDON J: It is not res judicata.

MR WALKER: No, as your Honour appreciates.

HEYDON J: It is not binding in any other way?

MR WALKER: It can be revisited. It very rarely is, but then Crown appeals against acquittals are relatively rare too. Your Honour, I do not think there is anything more, within my brief, that I can properly say about that without changing sides on the Bar table.

HEYDON J: Are you going to go to section 8?

MR WALKER: Yes. Before I go to section 8, which is what I want to spend nearly all my time on, could I concede that if we were to fail on section 8 but to succeed on the direction as to inferences or even conceivably on its own as to the failure to leave grievous bodily harm simpliciter, as it has been called, then each of those points are of course new trial points. That really goes without saying but I should make it clear at the outset.

Could I then complete what I wanted to say about each of those two points so that that is disposed of. I can devote the rest of my address to section 8. On the alternative verdict point, as I hope we have made clear in our written submission, it is inextricably linked, as I think Justice Heydon noted before the luncheon adjournment, with the retrial, the new trial point. Their Honours make that clear in the Court of Appeal. It is a concrete point only if there is to be a new trial, and they went on, of course, to hold that there should be not be a new trial, there should be an acquittal.

If we were to get to that point, then I have already conceded there would be a new trial at best for us. The question as to whether that alternative verdict should be left brought then by the exigencies that would forensically at the relevant time in any such new trial. Nothing more really requires to be said about it except to repeat by way of emphasis that we accept, with respect, that the tactics or strategy that may lead an accused through counsel not to ask for an alternative to be put, might in a proper case be very germane to the appellate question whether there was an error of a kind calling for an appeal to be upheld committed by the judge not leaving the alternative verdict.

Whether to leave an alternative verdict is for the judge. It is not a party-autonomous decision at all. However, we accept what has been put in writing against us in relation to the possibility of tactics playing a part in the appellate response to that position. There is nothing further that can or should be said about it because it was not the subject of any further comment apart from what we have noted by the Court of Appeal themselves.

Can I then move to the question of the inferences. I am going to come to passages in the summing-up in relation to section 8 fairly soon in my address on section 8. When I do that, I will take your Honours to the particular passages that we have referred to in our written submission in this Court where we say there was an erroneous failure to warn the jury about the need to draw inferences indicating or inculpating the accused only if they were the only reasonable inferences, that is, to qualify as a reasonable inference, as enough to inculpate, is a dangerous misdirection for the reasons the Court of Appeal pointed out in the passages we have indicated in our written submission because one can have reasonable inferences in opposite directions.

KIRBY J: What is the best passage that you attack?

MR WALKER: The best passage, your Honours, is really the only one I want to take you to and that is in volume 2 of the appeal book starting at page 491. Picking it up at about line 40 or thereabouts – I stress, as we have noted in our written submission, this is not just about whether the van was the object of a serious commercial endeavour by way of self-help, and any inferences that might be available for that. This was right at the heart of the case in relation to the nature or scope of the common enterprise. At about line 40 the Chief Justice says:

Is there anything in the circumstances warranting a conclusion they did misinterpret the plan, or exceed its bounds -

which goes to the very heart of section 8, of course:

If not, is it a reasonable inference –

and it should have been the only reasonable inference:

is it a reasonable inference . . . If so, you could proceed on that basis.

Then over to the top of the next page, 492, in the appeal book:

I stress, however –

and this is where the emphasis and the conclusory nature of this is so important:

that this is a primarily factual type of analysis. The matter which I should ultimately emphasise, and I do so again, is that in determining the scope of any plan you are absolutely limited to what you conclude, drawing only reasonable inferences –

Now, the word “only” appears there, but of course, in quite the wrong way, with respect –

was any common intention shared by all three.

You could draw only reasonable inferences, but of course, draw them recognising that there are other reasonable inferences inconsistent with guilt, and that is the whole point of the Knight-style direction, to which I will come in just one moment.

Now, in our submission, the Court of Appeal correctly, in volume 2 of the appeal book, page 568, paragraphs 50 to 51 – I will not take you to it – drew to attention the deficiency that I have tried just now to identify in that very important part of the direction on inferences.

My learned friend, Mr Martin, I think, took you to page 476 in volume 2 of the appeal book, about line 35 or thereabouts, where there is a Knight-style expression:

You must be satisfied beyond reasonable doubt that the inference of an intention to kill Mr Coffey is the only reasonable inference open on the evidence you accept.

That is the attempted murder, obviously. Now, that is a long way away from the climax and emphasis and repeated stress in the conclusion on the section 8 case as to the way in which inferences should proceed, and it is in contrast to what I submit is the deficient form of expression found on pages 491, 492.

HEYDON J: What you are calling the Knight direction is R v Hodge, Baron Alderson. Sometimes that is analysed simply as a way of stating the standard of proof, and the Chief Justice did give a standard direction on the standard of proof at the beginning, “beyond reasonable doubt”.

MR WALKER: Yes, but I have no complaint, as your Honours will have observed, about the standard of proof.

HEYDON J: Is not everything to be read together?

MR WALKER: Unquestionably, your Honour.

HAYNE J: The phrase “reasonable inference” takes it meaning from 469, lines 20 to 33, does it not?

MR WALKER: Yes, it does, your Honour, yes:

You may only draw reasonable inferences. There must be a logical and a rational connection . . . You must not indulge in intuition or guessing.

HAYNE J: Do I read that as saying that the expression “reasonable inference” is used in contrast with “intuition or guessing”?

MR WALKER: In that passage at 469 yes, your Honour. But, of course, you can have two reasonable inferences from some facts and only one of them consistent with guilt or, I should say, one of them consistent with innocence. That is the importance about proceeding when by an inference inculpating an accused, proceeding only if you are satisfied beyond reasonable doubt that that is the only reasonable inference.

HAYNE J: Yes, that was the next paragraph of his Honour’s directions, was it not?

MR WALKER: If your Honour is referring to 469 there are two paragraphs, one starting at line 40 and one starting just after line 50, going on to the next page which most certainly by repetition emphasised where the burden lies, though one does not find that in those paragraphs in the explanation of the need to proceed to inculpate only when the inference to that effect is the only reasonable one available. That is the point that we were making.

Now, it was said against us this morning in relation to Knight’s Case that it was misunderstood, in effect, that it does not stand for the proposition for which the Court of Appeal cited it. We would respectfully submit to the contrary. At [1992] HCA 56; 175 CLR 495 at 502 in the passage that you were taken to, your Honours will recall that it includes the quotation from Justice Dixon’s judgment in Martin v Osborne and in our submission it goes well past the comment at 502, namely a direction in those terms is often called for where the prosecution relies upon circumstantial evidence.

In our submission that is not licence to put something which is very different from that direction without committing error and, in our submission, the law cannot be that it is true that you can proceed only where the inculpatory inference is the only reasonable one, and also that the law is to the contrary of that. It is one or the other, it is clearly the first and for those reasons any direction not consistent with that is a misdirection on a critical question. The passage from Martin v Osborne which is quoted at the foot of page 502 of 175 CLR to the top of page 503 is, in our submission, precisely to that effect.

The passages to which Justice Hayne has drawn attention in the earlier parts of the summing-up by the Chief Justice in this trial do not make that point explicit at all. They are, with respect, unexceptionable in relation to the location and standard of the burden of proof, but they do not make the point about reasonable inferences needing to be the only reasonable inference if they are to inculpate.

HEYDON J: If you had two reasonable inferences – possible reasonable inferences - pointing in opposite directions, the prosecution would not have satisfied the standard of proof, would it, on an element of the crime?

MR WALKER: That is what Sir Owen Dixon, with respect, is saying and what this Court said Sir Owen Dixon was saying at that passage I have drawn to your attention in Knight. Yes, your Honour. It follows from the nature of the location and standard of the prosecution’s onus, yes.

HEYDON J: I suppose one view is that what he said at the beginning of the judgment corrects any error later.

MR WALKER: Yes.

HEYDON J: The other view is that the later error outweighs the earlier correct statement and you take the latter stand.

MR WALKER: Naturally I take the latter. There are a number of reasons why it is important. I have drawn to attention where this comes in the summing-up. It is right at the heart of the section 8 questions. It is in emphatic language; it is the language – to use an old-fashioned expression – of instruction to a jury. This is a passage at the foot of 491 and the top of 492. It is, in our submission, quite a long time after the earlier passages to which attention has been drawn and I stress it is right on the point upon which we were convicted. It is on the section 8 case, not on the case of which we were not convicted, the attempted murder.

Now, it is for those reasons, in our submission, that giving full weight to the need fairly and in context to read the whole of the summing-up before, from counsel’s point of view, nitpicking - this is no nitpicking to point out that at the climax of the jury instruction on the point there is a failure to emphasise that which the law requires.

HEYDON J: I do not want to be tedious about this, but immediately after the offending passage, 492, line 30, it says:

If you are satisfied beyond reasonable doubt there was a common intention - - -

MR WALKER: Yes.

HEYDON J: What the summing-up is talking about is a common intention problem.

MR WALKER: Your Honour, may I make it crystal clear. We make no complaint about any diminution of the usual and standard language repeatedly employed by his Honour concerning “beyond reasonable doubt”. It is where one comes to a component in the way the jury satisfies that standard, namely, inferential reasoning, upon which there were also very largely standard directions given, that there is the departure that we have identified at the foot of 491, 492. The Court of Appeal, in our submission, was correct to identify that as a departure. We have tried to add this contribution, namely, that it is a significant part of the summing-up on the charge on which we were convicted, and it is for those reasons - - -

HAYNE J: As a matter of fact, what were the competing possibilities that were in play?

MR WALKER: The inferences that are being spoken about in this passage are both as to what is called scope of common enterprise and also as to what might be called probable consequence.

HAYNE J: I agree those are the two subject matters.

MR WALKER: Yes.

HAYNE J: What were the factual possibilities that were alive and in play in this trial?

MR WALKER: The one that was very much in play was what I will call the unexpected gun on the probable consequence point. That was very much in play.

HAYNE J: The joint enterprise, the common purpose? What was in play there? It seemed to be evidence at least to go and, what, “give him a touch up”, was it, or - - -

MR WALKER: Your Honours appreciate that, although that expression is to be found in evidence to which I am about to go, it can only be understood as a gruesome and perverse irony. It is not a “touch-up” in any mild sense at all. A beating is a more literal and correct description and we do not resist that at all. That is why we do not resist – I regret I did not - - -

HAYNE J: “Go and hurt him”.

MR WALKER: Quite. That is why I do not resist. I regret I did not put this in the written submission. We do not resist the serious harm, serious injury, manner in which our learned friends have put it. However, as the cases show and as section 8 contemplates, there needs to be a consideration of the actual offence committed by the so-called principal offender, who in this case is, for convenience, called Spizzirri but is the man to whom the accused Spizzirri was - - -

HAYNE J: The shooter.

MR WALKER: The shooter. Now, the inferences that are important, which made this misdirection on inferences important in the appellate disposition of this case, was first whether or not what the shooter did was so outside the scope of the common enterprise, the common unlawful purpose, as to defeat proof beyond reasonable doubt of the probable consequence requirement in section 8. That is part of the direction on which I have been arguing.

The other obvious part of that is, what was the scope? That is where the word “beating” is important because the obvious choice illustrated by the cases, as the Court of Appeal recognised in an important passage at paragraph [60], to which I will come, the cases throw up the possibility, where there is a venture to hurt someone, that it ought to be held that the common purpose encompasses whatever means come to hand to achieve the injury. That is why in a case where an unexpected, if you like, gun can be produced, it may be merely incidental. But that is not a matter of law; that is a matter of fact to be held, nearly always, by inference from the available evidence and the circumstances of the particular case.

In answer to Justice Hayne’s question, they were the competing inferences, the reasonableness of which and the uniqueness of which were critical in relation to a proper direction on proceeding by inferences to find guilt. So that if there was a reasonable inference from the evidence to which I am about to come that the scope did not include using whatever means but had as its essence fisticuffs, as it is called, if that is a reasonable inference, it is an illegitimate route to conviction to say that there is also a reasonable inference that if fists did not prove damaging enough, something else might be resorted to. Now, if they are both reasonable inferences, the jury has to be instructed that so long as the first exists and remains open, then they cannot beyond reasonable doubt find that section 8 element for the guilt. That is the error and the miscarriage which is produced by the misdirection at 491 and 492.

KIRBY J: In the actual text of section 8, it talks of:

and in the prosecution of such purpose an offence is committed of such a nature –

So we are looking at not the actual offence, but an offence of such a nature.

MR WALKER: Yes.

KIRBY J: Had it been the purpose of Parliament to require the exact offence or factual content of the offence, it could have just said such purpose an offence is committed, whose commission or the commission of which was a probable consequence. So it is looking at the nature of the offence. The difficulty I presently have is why, in those circumstances, would one get tied down into the exact factual incidents of the offence as distinct from looking at a circle around the offence and its factual ingredients that are of nature the same; gun, roughly the same as - - -

MR WALKER: I wonder if your Honour would excuse me if I deferred fully answering that question until I develop what I wanted to about section 8 on the basis of the material before the jury. In short, this is a factual inquiry. One starts with the actual – and I stress the word “actual” – offence which has been committed by the player who is conveniently called the principal offender, and one does ask a question about its nature and one does ask whether there is the requisite connection, namely, is it a probable consequence, as that expression has been construed by this Court? It might well happen, is the test. Is that kind of connection present with such purpose, namely, – this is what the word “such” does – it calls up the full description, namely, an unlawful purpose in conjunction with one another.

KIRBY J: By definition the section is only invoked where there is some difference. It will not apply at all if there is no difference. You do not need it. Therefore, on one view, given that the purpose was to do violence to the victim and physical violence to his person, then on one view the nature was to do that. Whether you do it with a bat or a gun does not matter much. They are both very serious physical violence. So why is that not the nature of the offence?

MR WALKER: If one abstracts the section 317 offence, which is that which is imputed to the principal offender here – if one says of that that it is pith and essence – that is its nature is violence, and that violence is also the pith and essence of the unlawful purpose in conjunction with one another, if I may just call that the common purpose, then at that level of abstraction by section 8 there will never be any need for a jury to concern itself about probable consequence because at that level of abstraction violence includes violence.

That is why, with respect, the Crown has very properly said it involves matters of degree, and we respectfully accept that that must be so. That is, there will be some common enterprises involving threatened violence, intended violence, which is sufficiently remote in its nature from the nature of what actually happens – classically a killing, where these cases are stretched to their breaking point, and quite often a killing by the kind of terrible accident – I should not call it an accident, the terrible combination of circumstances, as you see for example in McAuliffe where the man may well have survived if he had not in his wounded state fallen off the cliff into the water.

Given the probable consequences answered by asking via that mythical and unusual beast, the reasonable person in the position of the accused, asking in that objective way – given that common purpose is the offence which was actually committed one which might well have happened – that is what Darkan says probable consequence requires – in our submission that will always be a factual question always involving, as the learned Solicitor has, with respect, correctly put, questions of degree. That is enough to dispose of the notion that as soon as you have violence on both sides – common purpose and the actual offence – then there is section 8 liability.

Parliament has not said that. Parliament correctly, as my friend has put it – has enacted something which does not apply only to offences of violence, but again as my friend correctly put it, section 8 applies almost the paradigm in terms of its most common application is crimes of violence.

KIRBY J: Yes, but where in the particular case it is a crime of violence, why does one then not say, well, the nature of the crime was violence and whether it is by a gun or by a very heavy bat, it is still going to do an awful lot of damage to a human body?

MR WALKER: Yes, your Honour, and I accept that that is a proper mode of reasoning and it is a factual mode of reasoning, not a proposition of law, that is, it is not a proposition of law that you can attribute the abstract quality of violence to the common purpose, attribute the abstract quality of violence to the principal offender’s offence and say there is the match. There is no difficulty with probable consequence because a plan for violence begat violence and that is an end of it. That is not how section 8 operates.

KIRBY J: All of this seems to be leading to a suggestion that Chief Justice de Jersey did not correctly instruct the jury on this matter which presents the difficulty for you that that leads only to a retrial and it is not something you urged at trial. Your predecessor did not ask for any redirection on this point?

MR WALKER: No, we do not understand that as an objection to an error being found. It is clearly a serious kind of error if there is a misdirection. The Court of Appeal did identify this as a misdirection.

KIRBY J: Where did they do that?

MR WALKER: I was going to come to this later, but it is convenient to go to it now, 2 appeal book 566, paragraph [45]. Now, this follows the important paragraph [43] to which you have already been taken. In paragraph [45] they point out that his Honour:

nowhere made clear in the jury directions that, before convicting Keenan of the offence of doing grievous bodily harm with intent by way of s 8, they would have to be satisfied that Spizzirri’s act of shooting causing Coffey grievous bodily harm was the probable consequence of the prosecution of Keenan’s common intention, formed with either or both Booth and Spizzirri, to unlawfully cause Coffey serious harm. It cannot be said that no miscarriage of justice has resulted from this misdirection. The appeal must be allowed and the guilty verdict set aside.

Then they move to the question as to whether there should be retrial. I accept what your Honour the presiding judge has pointed out that if that is where it remained it is headed for a new trial. That is where misdirection appeals normally ought end up.

HAYNE J: It would be necessary to compare what is said in paragraph [45] with what appears at pages 492 and following of the appeal book, but before we get to that point, can I keep you at section 8?

MR WALKER: Yes, please, your Honour.

HAYNE J: What do you say is the offence that was committed by the shooter when we come to the consideration of the application of section 8? Section 8 requires, does it not, the identification of the offence committed, in this case by the shooter?

MR WALKER: Your Honour, the easiest answer for me to give is in fact the same offence of which my client was convicted. I would be bound to point out that on the evidence against my client it is difficult to see why it was not attempted murder. Then on Barlow’s Case, of course, that does not mean attempted murder is what we would have committed. We would have committed the acts, in the Barlow sense, so as to be guilty of an offence under section 317.

HAYNE J: But is it a starting point, not the starting point, is it a starting point for your argument that the shooter, whoever he was, did act - - -

MR WALKER: At least intended grievous bodily harm and plainly inflicted it.

HAYNE J: But did act, which constituted the intentional infliction of GBH?

MR WALKER: Yes. In section 2 terms, the shooter’s acts rendering him liable for punishment where the acts of shooting, with everything that can be inferred as to the intent lying behind that, together with what one must then put in for section 317, namely - - -

HAYNE J: The consequence.

MR WALKER: - - - the actual consequence and that produces, at least for the shooter, section 317. I hasten to say because Barlow means that this does not endanger my client more than would otherwise be the case, it might be the shooter could be guilty of something more serious, as was charged in this case, attempted murder.

Now, what Justice Kirby has been putting to me, with respect, is a view of section 8 which in a violence case, which is by no means a border line or unusual application of section 8, it is actually the heartland, really renders the notion of needing a probable consequence connection quite otiose because you simply saying you have violence in the common enterprise, you have violence in the actual offence, there you are.

HAYNE J: No, you have the purpose of the enterprise, being the infliction of violence, not the abstraction of property or - - -

MR WALKER: But one asks about the particular offenders and the particular offence. Although probable consequence is described as an objective test, it is, as your Honours appreciate, an objective test asked of somebody in the position of the accused. It is subjective in that sense. That is why knowledge of a gun or ignorance of a gun in what appears to be the classic case that reaches appellate courts in this area, both common law and Code, is always relevant and never irrelevant.

It may not work for the accused in a particular case because it might be like Markby where that which is circumstantially demonstrated to the jury’s satisfaction is that these were people who, regardless of whether they knew of a gun or not, ought to be taken to be contemplating that whatever was to hand to cause the degree of serious harm intended by them might well happen to be used and the “might well happen” satisfies the probable consequence and thus, you can be correctly convicted though you never knew of a gun and thought that it was all going to be accomplished with fists, so long as the circumstances of the evidence are such as to persuade the jury that the connection, the probable consequence connection, is the only reasonable conclusion to draw.

KIEFEL J: That focuses attention upon the need for there to be a specific plan and for there to be a consequence if there is not a specific plan.

MR WALKER: I hope not, your Honour, in the sense that these are not articles of co-venturing that people are drawing up with particulars of what is in and out of their enterprise.

KIEFEL J: Does not the probable consequence simply look to what the objective – I know one should not use other words – but the objective of the two or more people are – what the objective is, I should say – and is not the objective then the degree of harm to which you have conceded as relevant?

MR WALKER: Your Honour, I think, in reality my unadorned answer to that is “yes” and “yes”. Could I just qualify the first one though. The objective, if one means by that an end or aim expressed in relatively abstract terms, is not the entirety of the inquiry, and the inquiry is, or should be, factually specific. It is the particular case.

KIEFEL J: I know what you are trying to say, but the section inquires about an objective, and are you not adding a gloss or a limitation by saying objective by reference to the means by which it was to be ascertained?

MR WALKER: I hope not, your Honours. The word “purpose”, of course, is at the very heart of section 8, and “purpose” can be expressed at different levels of abstraction or generality. One could, from exactly the same evidence of exactly the same enterprise, say that its purpose is to hurt someone, its purpose is to hurt them grievously, its purpose is to kneecap him with a gun. Now, those three descriptions may be all accurate, valid descriptions of exactly the same thing.

In our submission, there is no gloss expressed by reading section 8 as requiring a judicial focus of the jury and a jury decision entirely with respect to the particular facts before them. You do not, as it were, evaporate the essence from the story told to the jury by witnesses and say, “Well, now you can ignore what X, Y and Z talked about, how they talked about it and your assessment of them in the witness box”. We have to boil down the essence of the purpose, which is violence or extreme violence, for example.

KIEFEL J: I know you are trying to put stronger factual elements into the notion of the objective, but is not the concern of the section the unlawful nature of the purpose?

MR WALKER: Yes.

KIEFEL J: Is not the bridge then that is sought to be obtained between what gives it the element of unlawfulness, harm, degree of harm and the bridge to the offence, which again might be to degree of harm, and then leaves for consideration whether or not the degree or an element is missing?

MR WALKER: Yes, your Honour, but not in what I would call a bloodless or abstracted fashion. It still has to be expressed in terms of the facts of the case and that is why, as gruesome as these scales may be, the facts of an intended beating as opposed to an intended kneecapping as opposed to an intended skewering or whatever else, is relevant, though, of course, never a priori decisive. I say “never a priori decisive” because it may well be that the circumstances are such as to show the jury that these are people who may very well say, “Well, a kneecapping will suffice. That’s what we’ll do”. But the way they talk, the way they act and the jury’s assessment is such that the jury holds that it is a probable consequence of something expressed in terms of a kneecapping that the gun’s muzzle may move to another more fatal target. In that case, such a person who is going out on what he thinks is a kneecapping expedition may well and very properly find himself convicted of murder under section 8.

KIEFEL J: I am probably repeating myself. Is that not to read the objective or purpose, which is the conclusion, really, what is sought to be obtained, as referable to– I think it has already been said – the method, the mode by which - - -

MR WALKER: No.

CRENNAN J: But why would that not be so? This is related to what Justice Kiefel is saying. I think she raised the point this morning too about whether or not the Court of Appeal was really requiring that the common purpose extend to shooting, because the Court of Appeal accepts that grievous bodily harm is a probable consequence.

MR WALKER: Can I say it would be an error had they done so.

CRENNAN J: But then to say a bat is within the common purpose and shooting is not within the common purpose does seem to raise this issue of the method being part of the common purpose.

MR WALKER: I accept that entirely.

CRENNAN J: It is a scope argument in a sense.

MR WALKER: Yes. Just on that scope argument, I am not going to go to Canada or New Zealand and address any more than my friend did, but they have been mentioned in the written submissions. So, particularly in deference to what Justice Kiefel raised, as noted by Justice Crennan just now, before the luncheon adjournment, in the Canadian decision to which your attention was drawn, the Ontario appeal decision of R v Vang, 132 CCC 3^rd 32, in paragraph [18] there is a passage – I will not read it in full – that, although it is, we respectfully suggest, right on the point that has been raised with me by both Justices Kiefel and Crennan, in a manner I cannot explain or justify his Lordship says that this does not turn on the scope of the joint venture.

I am really only drawing it to your attention because I am going to be arguing to the contrary of that and I thought I should draw to your attention that there is that comment rather against what I am putting. It also seems, with respect, to be to the contrary of the suggestion that Justice Kiefel has raised with both of us.

KIEFEL J: What it might raise is the question of which approach, the method approach or the degree of harm as objective approach, is more consistent with objective or subjective purposes. I think it might be against you slightly or quite a lot.

MR WALKER: Yes. I am bound to say that the end of that paragraph, which is the passage my learned friend has drawn to attention about what weapon, if any, was used to inflict bodily harm being not of fundamental concern, is of course the reason that it is relied upon against us. What I draw to attention at the beginning of that passage is that they say it is not really a question of the scope.

Section 8 means it is always a question of whether you can form the probable consequence connection between the common unlawful purpose and the committed offence. The committed offence is actual. That is what “committed” means. You have its actual facts. You have the evidence from which the jury makes findings about what the unlawful purpose is. Then one sees whether there is the probable consequence connection. No case hitherto has reasoned that if you can abstract a quality of each of them, such as violence, you have answered the probable consequence connection.

The Crown argues here, with respect correctly, that of course matters such as degree or seriousness or gravity or viciousness are called in aid, hence the reference in all the authorities to the possible difference – Johnston is a very good example – the possible, factual consequence in a particular case of the unexpected production of a gun, where fists were all that had been spoken of, and less obvious escalation, such as the production of a knife, where only sticks had been spoken of or carried. Your Honours will have seen the references we made somewhat gingerly to the English position. As it happens, one of the cases is called English [1991] - - -

KIRBY J: That is the one that is quoted in Vang.

MR WALKER: Yes.

KIRBY J: Where the House of Lords found that the appearance of the knife led to the conviction being unsafe because it was something that had not been anticipated as part of the ambit of the joint venture.

MR WALKER: That pair of cases reported at [1999] 1 AC 1 is instructive because in Powell the escalation, if I can call it that, did not defeat the conviction, was not enough to do so, but in English it was.

KIRBY J: We just have to be a bit careful, have we not, because we are not in the realm of the common law? We are in the realm of - - -

MR WALKER: Your Honour anticipates my next comment.

KIRBY J: It is very easy for people who have been brought up in the field of the common law or an ordinary statute to slip into that way of thinking, whereas we have to construe the statute, the Code.

MR WALKER: Quite, and I do not want to be understood to be putting any contrary argument. Why we have argued it both in writing and I hope in address is that your Honours may, just may, find some assistance in relation to an understanding of the desirable scope of the criminal net which is flung by section 8 in companion common law jurisdictions’ discussions of their approach not only under Code equivalents, but even that must be understood very carefully because this is, as my learned friend points out, a centuries old provision and the common law that I have just noted in 1999 is nearly a century younger than that, so it is different times as well as different places.

KIRBY J: But in this particular case – let us get back to this particular case – it is, I think, as you have been saying, a matter of fact for the jury to decide whether, if you unleash three miscreants with a very angry person who has threatened to cleave a person’s head and with a bat, which can do terrible damage to a human being, then it is open to a jury, subject to proper legal directions, to hold, is it not, that the offence that was committed by Spizzirri was of the nature that its commission was a probable consequence of the prosecution of that purpose simply because you are setting a group of people who are not gentle concert goers on the path to do a lot of physical violence to an individual. The common experience of humanity is some of them may use knives and some of them may use a gun and then it is for the jury to say in this particular fact situation, was the offence committed by Spizzirri of such a nature that it was a probable consequence of the prosecution of this particular purpose by these particular people?

MR WALKER: That is right.

KIRBY J: It could be so held by a jury, could it not?

MR WALKER: Your Honours appreciate that one of my tasks is to try to maintain the acquittal.

HAYNE J: That depends on maintaining the reasoning in paragraph [60], does it not?

MR WALKER: I think it does, your Honour, yes.

HAYNE J: Do you seek to support paragraph [60]?

MR WALKER: Yes, I do. May I do that soon rather than now?

HAYNE J: Of course.

MR WALKER: But, yes, that is the challenge or the killing ground, as the case may be, yes. In particular, may I flag that we will be urging on your Honours a reading of that, we think different from the one Justice Kiefel raised with my learned friend as a possible reading, and it is something that we have to confront and will.

So that in answer to Justice Kirby’s last point, to maintain the acquittal, yes, I have to say, and I will be saying in elaboration of what we have put already in written submissions, that this was an escalation – to use the jargon of some of the cases and articles – which prevented, on a reasonable view of the evidence, that is, jury acting reasonably in terms of section 668E, and on the reasonable view of the evidence, prevented a section 8 conviction.

But your Honours appreciate from what I have been putting about the requirement to focus the jury on the facts concerning the unlawful common purpose, and the facts concerning the committed offence by the principal offender – the shooter in this case- that I have nowhere to run on the question, is it a matter for the jury? Of course it is, and without any qualification. Now, that means if there is only a misdirection on the point and I cannot go further in 668E terms, then it should not have been an acquittal. It should have been a new trial. That must follow from the text and meaning of section 668E and section 669. We accept that.

KIRBY J: Have you any other part that you have not taken us to which you contend was a misdirection on this issue to the jury? Is there anything else that you want to take us to?

MR WALKER: Yes, I am going to go slightly more extended to the misdirection. I wonder if your Honours will forgive me if I could go back to the transcript I wanted to start with?

KIRBY J: My misfortune is I can see the clock behind you.

MR WALKER: I can see the one in front of me, your Honour.

KIRBY J: Yes, well let us both keep our eye on it.

MR WALKER: Yes. Your Honours, in volume 1 of the appeal book – and this is by way of supplement to the material my learned friend started with, this is supplementing what he has told you. Now, Mr Jupp, about whom he has already told you, was the only source of evidence about the nature of the unlawful common purpose, and what Jupp says at 219 to 220, starting at about line 35 at 219 - he is being cross-examined by Mr Hardcastle for my client:

no discussion about the use of a bat or any other sort of a weapon whilst you were in that car . . .

You knew that something was going to happen . . .

there was going to be some sort of a punch-up or a touchup . . .

Yes. And as far as you were concerned there might have been going to be some fisticuffs . . .

And that’s when you were hearing . . . the alleged plan –

and that is overhearing people said to include my client. Lines 10 to 15 on page 220:

even then with this plan, they were talking about a fisticuffs rather than a full on assault with a bat, isn’t that correct?---That’s correct.

Yes. And in fact there was no suggestion of a bat at all, was there?---No, there wasn’t . . .

you were surprised when the, as I say, when the firearm came into play . . .

equally surprised when this bat was produced by the man heading toward the van?---That’s fair in saying.

Because you hadn’t seen any bat –

et cetera. So that is the material before the jury. Now, if we could then go over to page 309. The same witness has been cross-examined by my present junior, Mr Kimmins, but who was then appearing for Mr Spizzirri. At about line 15 he is being asked about what he said at the committal. I am not quite sure he accepts it as crisply as one might have hoped, but you see that he is being reminded of a version he gave about “a bit of a touchup but not cause serious injury”. On the top of page 310 about lines 1 to 15 “talking about the touchup”. Then pages 331 to 332 starting at about line 55:

They were going to pull up, the male in the passenger seat that was in Frank’s car was going to jump out and give Darren a bit of a touchup and then jump back into Dion’s car and that was meant to be it. Does that accord with your memory? -- That’s right. That was meant to be-----

And so far as the bit of the touchup was concerned, I think you conceded yesterday that was not meant to – that involved a physical assault, possibly punches, but no serious injury as you understood it? -- To my knowledge.

Now, there can be no question that in terms of section 8 and the inquiries required as to the unlawful common purpose, the comparison or the actual offence, the offence committed by the shooting, and the connection required by the words “probable consequence”, there can be no doubt that that was evidence which was centrally relevant. Of course, it is for the jury to assess how much they believe of it and what weight they give it, et cetera, but that - - -

HAYNE J: How they compare it with his evidence in-chief.

MR WALKER: All of that, your Honour, yes.

HAYNE J: Wait for the passenger to hop in after he had finished beating up Darren Coffey.

MR WALKER: I think I have made it already clear the word “beating” is an appropriate word to have been in the minds of the jury, no question about that. Now, your Honours, where that leaves - - -

KIRBY J: Well, there is certainly some material there then on the basis of which the jury might conclude that the offence that was committed was not a probable consequence of the prosecution of the purpose. They might conclude otherwise by the look of them silent in the dock and by the nature again with a bat and the rather suspicious nature of the transaction that led to the money that is not, as it were, an activity between people on the stock exchange.

MR WALKER: Well, again, with all the danger it obviously has for the acquittal, of course, those are matters for the jury. Yes. But your Honours see that that was relevant material on the question whether what occurred, the actual offence committed, whether that shooting was something which had the requisite connection. Could it be said, albeit beyond reasonable doubt, that objectively speaking my client ought to have regarded it as something that might well have happened during the prosecution of that which has been talked about in the terms I have just taken you to?

Now, the other centrally relevant piece of evidence in this case, as in all such cases, where it turns out that somebody has been killed or grievously injured by a weapon, knowledge of that weapon or equally lethal weapons or any lethal weapons, is also relevant on the same question of the connection. The fact that it is relevant and that they are matters for the jury tells strongly against the fact that one simply abstracts and sees violence on both sides, that is, on the side of the common purpose on the side of the actually committed offence, and says, well, there is your connection.

There is violence and violence and there are matters of degree which become sufficiently differences of nature, to use the word in section 8, so as to defeat in terms of proof beyond reasonable doubt the section 8 liability, the deemed committing of the same acts or omissions which would render the principal offender liable to punishment.

Could I take your Honours in volume 2 of the appeal book to page 488 during the summing-up. This is just to touch on some matters then about weapons because it is, with respect to the Chief Justice, subject to one immaterial slip, an accurate summation of where the matters stood in terms of the evidence. At about line 5 or thereabouts on 488 they are directed – obviously subject to the usual caveats that they are the judges of fact – that:

there is ground for possibly concluding, depending on how you assess Jupp’s evidence -

and it says “Jupp”. That is an error, which I am sure by then the jury understood to be an error, for Booth –

that if Jupp – [or Booth] – had the bat in the car Keenan would have been aware of it. That, again, is a matter for your consideration. You have seen the bat, or an object apparently very like the bat . . . But, in any event, that Booth took the bat, if you accept that occurred, supports a view . . . that so far as he personally was concerned Booth contemplated inflicting some serious harm upon Coffey.

Now, we cannot complain about that either as to the form of the direction or as to its accurate summation of the material.

KIEFEL J: It is an example of deducing an objective by reference to the intended means.

MR WALKER: Yes, and that is why anybody who takes a gun has close to Buckley’s chance of saying it was only there to frighten someone. The potential of the means or the tools or the equipment that you have will combine with all the other circumstances, including your declarations of intention, including your rather perhaps naïve declarations of an intent to limit your conduct, all of that will be taken into account by the jury. For Spizzirri, for example, the Chief Justice, with respect, in the manner just noted by Justice Kiefel, at lines 30 to 35 makes that very point about going armed with a gun. Inferentially also contemplating inflicting some serious harm upon Coffey. We cannot possibly object to any of that and we do not. Then at the foot of page 488:

But there is no direct evidence that in the case of one accused, the other two knew off his position. There is no evidence, for example, that Keenan and Booth knew that Spizzirri had a gun – if that was the case. There is no evidence that Booth and Spizzirri knew of Keenan’s vengeful motivation, if you are satisfied that he had it. There is no evidence that Keenan and Spizzirri knew that Booth had a baseball bat – if you are satisfied he had it. Although there may be a basis for an inference of that in the case of Keenan.

and that is the passage that I started with on the top of page 488. Now, in our submission - - -

KIRBY J: Do you contest that last sentence?

MR WALKER: No. It makes very important the direction about inferences. In other words, the inference that he knew of a bat would have to be the only reasonable inference, so the jury should have been told, but they were not – not a reasonable inference but the only reasonable inference. Then that moves into the section 8 direction or misdirection, as I have put it earlier in the argument. I, of course, rely upon this and draw it to attention for my section 8 argument, but I have already dealt with it fully in relation to the first part of it which starts halfway down page 491. It goes over the top of 492.

Could I come to the second part of it. It starts at about line 20 on page 492. With respect, the trial judge properly refers to the way the defence put the question of what had been talked about. Mr Jupp’s reference to a “touch-up or fisticuffs”, that what occurred was not meant to happen. He reminds them of the:

only direct evidence . . . as to what was said in relation to the treatment of Coffey, is contained in what was said, on Jupp’s evidence, at the end of the street.

That is the evidence I have taken you to.

On Jupp’s evidence Keenan spoke then of the administration of a beating. If you are satisfied beyond reasonable doubt there was a common intention to prosecute an unlawful purpose, and what that was –

and those are critical words – “and what that was” – “you must find that”. It is not simply the fact that it is unlawful in the abstract. Then:

you must ask if you are satisfied beyond reasonable doubt that an offence of attempted murder or, alternatively, doing grievous bodily harm with intent, was committed in the prosecution or furtherance or carrying out of that purpose.

That may not have been quite germane to the section 8 direction, but it is not a matter about which we would complain. It is immaterial if it - - -

KIRBY J: You say the vice here is dealing with it generically in terms of the offence as distinct from, say, directing their attention to whether they confer that pulling out a gun was within the ambit.

MR WALKER: Yes. This is to make good what the Court of Appeal held at their paragraph [45] to which I have taken you at page 566.

HAYNE J: Whether that argument is good or bad, it must confront page 490 at line 28 and following.

MR WALKER: Yes.

HAYNE J: Where the Chief Justice emphasises to the jury, “You should continually bear one thing in mind” and then gives a number of possibilities.

MR WALKER: If your Honour is asking me about the passage commencing:

Now, you should continually bear this in mind - - -

HAYNE J: Yes.

MR WALKER: That is in particular, of course, and appropriately, at that point, referring to the jury’s approach to the intention of Spizziri and Booth.

HAYNE J: No, it is identifying what the common purpose is.

MR WALKER: Also this notion of independently departing from a common intent pitched less threateningly.

HAYNE J: Yes.

MR WALKER: In our submission, what that meted was to concentrate on the committed actual offence, which one does not find talked about as the point of departure for the entirety of the comparison necessary for the probable consequence connection. It is the actual offence committed – the word “committed” is used in section 8 – which, for the reasons we have put in our written submission, concentrates on what translates on the facts of this case to the shooting, which are required to have the status of something that might well have happened to the objective person in Keenan’s position judged by reference to what had been spoken of as the common purpose taking into account the seriousness, including what might be on the cards, if not positively intended, of the purpose.

Its height, in our submission, is a beating. It was proper, with great respect, for the Chief Justice to instruct the jury on the possibility that that beating may have included, to Keenan’s knowledge, the possibility of a bat. That was a matter that made inferential reasoning very important. One does not find either on 490 or on the three succeeding pages the appropriate focus on the actual offence committed with which the probable consequence connection had to be drawn. I have already taken your Honours to the culmination of the direction in relation to the facts on that point at 492. It finishes at about line 50.

His Honour then moves to some directions concerning probable consequence. There is, with great respect, nothing wrong with them nor with it appearing, but it only serves to emphasise the correctness of the Court of Appeal’s observation that nowhere in the direction was there focus on the actual offence committed as that with which the probable consequence connection had to be drawn.

HAYNE J: How was that to be done when Spizzirri was standing trial? We are all looking at this through the prism of hindsight. What was the trial judge to do in prospect?

MR WALKER: One thing the trial judge – I am sorry, your Honour?

HAYNE J: In prospect, where Spizzirri is standing his trial.

MR WALKER: He is, and, furthermore, attempted murder, as your Honours can see, is one of the balls still in the air.

HAYNE J: Yes.

MR WALKER: That is why there are lots of passages in this summing-up that neither of us has gone to because they have to do with the important intentionality elements for attempted murder. The first thing, of course, to note is that where there are multiple accuseds, there are always some complexities introduced. They may be great or small; it depends. Now, that is one of the reasons why, whether there should be trials together of more than one accused, there is a discretion to be exercised precisely with an eye to the kind of problems that may arise. We make no complaint about that in this case. In answer to Justice Hayne’s question - - -

KIRBY J: I did not read that in this case there was any application for separate trials.

MR WALKER: We make no complaint at all. What is significant, in our submission, is that if section 8 criminal liability is alleged against any person, be they tried alone or tried together with other people, there must be an identification of what I will call the principal offender, there must be an identification of the committed offence, that is, the actual offence, and there must be a direction of a kind that his Honour, with great respect, put properly at the foot of 492 and on to the first third of 493 about how to understand that connection of probable consequence and there must be all of that, notwithstanding the principal offender is himself or herself also facing trial and not necessarily with section 8 being used.

Perhaps the principal offender is being tried with section 8 as well, in which case, no doubt there will be an added layer of complexity. But in prospect, a trial judge instructing a jury to consider their verdict on evidence, much of which will be in against all accused but which has to be considered for section 8 – see section 10A – with respect to each accused only, there will need to be nonetheless a direction which names the offence.

In our submission, it has to be named in the terms that section 2 and section 8 mandate, that is, there has to be identification of the act or omission, what might be called conduct, which renders in this case, the shooter, liable to criminal punishment.

Now, characterising that in terms of a provision of the Criminal Code may produce, as I said in answer to Justice Hayne earlier this afternoon, a variety of possibilities which probably need not complicate the direction to the jury, because on any view of it, it will be the offence with which the accused under section 8 stands charged that needs to find its echo by the principal offender.

So subject only to the Barlow effect whereby the principal offender might be liable for something more serious than the section 8 offender, there has to be that reflection. That, after all, is what section 8 does in its closing words. It deems the section 8 offender, as I am calling him, to have committed the same acts or omissions that the principal offender committed.

That, in our submission, is unavoidable as the task of a judge summing-up in a section 8 case, and because in this case there has not been that identification, there was not what we have called the requisite focus, and that, in our submission, is a serious matter. There is no proviso argument raised in this Court about it. It is a serious matter which on any view of it, in our submission, should produce the reversal of the conviction.

HEYDON J: The Chief Justice went into a reasonable amount of detail into the evidence at the time of the actual shooting – I am looking at pages 478 and 479. He cannot repeat every important point on every occasion, it seems to me. Cannot you take 478 and 492 and accept that the jury may have taken them together?

MR WALKER: We would never propose that there be either the prosecution or the defence or the judge’s own permissible view of the facts repeated when it comes to identifying what we have called the principal offender’s committed offence, but it does have to be described, and it can be described in very few words. The Court of Appeal has done it in its paragraph [43], for example, and that is all that needed to be done, so that the jury was confronted, appropriately directed as to inferences, namely, that they could convict only by an inference that was the only reasonable inference rather than simply any reasonable inference, any one of a number, not all of which were consistent with guilt.

HAYNE J: So that the complaint you make can be sufficiently identified for this purpose, can it, by focusing on page 492 at line 38?

MR WALKER: Yes.

HAYNE J: Where his Honour the Chief Justice said “doing grievous bodily harm with intent” you say that is deficient because the means of doing GBH with intent was not there identified?

MR WALKER: No, not the word “means”. Whether it be “method”, “means”, “way” or “mechanism” they are words that we do not adopt.

CRENNAN J: The fact of shooting?

MR WALKER: If it is either “fact”, which you would borrow from section 9, though that is not really appropriate here, or “act or omission”. It is “act” here.

HAYNE J: By your reference to paragraph [43], do I understand that efficiency to be identified as failing to describe it as:

discharging a bullet or bullets and so causing grievous bodily harm?

MR WALKER: That is right, your Honour, yes.

KIRBY J: I think you indicated that a similar deficiency in your argument was on page 493 at the bottom of that page – towards the bottom of that page where what was identified was, as it was put, the generic offence of “attempted murder or, alternatively, doing grievous bodily harm with intent” rather than focusing on the scaling-up issue of was it a touch-up with a bat, but one that took on a new dimension by the use of the gun?

MR WALKER: Yes. I think I have omitted a reference in my answer to Justice Hayne. I intended my answer to encompass, as the location of the error, specifically both those sentences starting at line 30 and ending at line 50. It is particularly the second of them that is what I will call the section 8 question:

If you are so satisfied, then you consider whether you are satisfied beyond reasonable doubt that the nature of the offence committed –

Its reference is in the previous sentence. That has the vice that I have argued in response to Justice Hayne’s last question as well as otherwise. It is a vice obviously not cured by the next sentence, which is simply a general reference back. Justice Heydon’s question to me, with respect, raises a matter that is always a live consideration in the hindsight criticism of summing-up. Just as it has been said that counsel should always remind themselves that both administrative decision-makers and judges can entertain more than one idea at once, so it is to be supposed that a jury is listening and listens as the direction going on, building by way of their information and instruction on what has preceded. We accept that. That is why, for example, what is at page 476 is something that has to be weighed in the balance and weighs against us. But it is a balancing exercise. If at the critical point, the conclusion or climax, there is an error then that is enough, in our submission, to require a retrial.

On the point about section 8, in our submission, one cannot avoid needing to name the act rendering Spizzirri liable to punishment – that is section 8 in light of section 2 – simply because earlier there has been a summing-up about which we do not complain putting both the judge’s view plus the prosecution and defence case concerning the facts. That would not be called for in any sense by way of repetition. We stress it would simply be as concise and as focused as the Court of Appeal put it in their paragraph [43].

And, for the reasons we have put in written submissions and which I will elaborate very slightly now, that is in accordance with the way in this Court, as well as in other courts, a similar Code question – a section 8-style question – is addressed. The question is asked in terms of the Act – striking for example – rather than the legal or legislated category, thus for example causing GBH with intent.

The latter is not the offence for the purpose of section 8, though it is of course an offence in ordinary English. It is natural to talk about the offence created by section 317 of the Code. But “offence” in section 8 does not mean a legal category of that kind, it means what section 2 says it means. That is why in the cases which I can go through very quickly without needing to take your Honours, I think, to any of the passages, you find repeatedly references of that kind.

For example, in Harwood, which followed Barlow and was the subject of an extension of time for special leave because of Barlow – I will not take your Honours to it but you will find the reference at [2002] HCA 20; 188 ALR 296 – at page 300, paragraphs [15] and [16] are examples where one finds, for example, the description of the act, the offence there as “The deliberate discharge of a gun at or near a place”. Thus, for example, in Stuart it is the setting of the fire in the nightclub at the time when people were expected. That is the offence within the meaning of section 8 because that is the act or omission in terms of warnings within the meaning of section 2 which have to - - -

KIEFEL J: It was in Stuart that Justice Gibbs said it was not necessary to read section 2 into section 8, is that not right? That it tended to obscure rather than illuminate what was meant by “offence” there. I do not think anyone is suggesting an inconsistency or a view to the contrary.

MR WALKER: No. Your Honour, I confess it had not occurred to me that there is an expunction of section 2 from section 8, as it were, by a contrary intention, which is required by any holding in Mr Justice Gibbs’ reasoning.

KIEFEL J: The top of 441:

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.

But it is not pressed here that there is any inconsistency with Barlow because of that observation.

MR WALKER: Yes. The sins that follow I am bound to observe with some irony that one of them is the words of section 8 are perfectly clear as they stand.

HAYNE J: It is your brief to obscure them, Mr Walker.

MR WALKER: It rather makes us supererogatory, I am afraid.

CRENNAN J: Your argument does not leave much work for “probable” to do though, does it?

MR WALKER: I hope it does, your Honour. Again, I am forced to say that is for the jury.

CRENNAN J: With the correct direction 492 would have been doing grievous bodily harm with intent by shooting. There is not much - - -

MR WALKER: No, it is not the “by shooting”. The act which renders Spizzirri liable to punishment is shooting the man in the back with the result that occurred.

CRENNAN J: Discharging the bullet so that grievous bodily harm was done. What work does “probable” have to do in those sort of circumstances?

MR WALKER: Well, we know from Darkan that the work it does do is to objectify the inquiry but with what I will call the subjective limits of knowledge and appreciation, not moral appreciation, but a subjective knowledge of the offender, that is, the section 8 offender, and it also adds to the word “probable”, with all the possibilities that that word poses in the law and has been determined, to invite the question, is this a consequence that such a person with that objective view would regard as one that could well have happened?

We are not doing anything to reduce that work of probable – and, as we understand it, that is what the word is there to do. It has to be a sufficient connection in terms of what has been called in some of the discussions elsewhere “foresight”. It has to do with a quality of that foresight by reference to, I do not know, a degree or cogency of predictability including that things may go wrong, including that people may lose their nerve or get frightened, et cetera. Hence, the exotic example of the typewriter being used to brain a person in a bank robbery when a gun jams is something for the jury to consider. Obviously somebody who goes for a gun, ready to fire it is, as it were, someone that a jury may well regard as, he and his companions – regarding that whatever will be to hand to cause the requisite damage or the desired damage will be used.

But, of course, we do not stand here to say that an accused would have the ghost of a chance by saying, “But I went like a proper bank robber with a gun. I wouldn’t do something with a typewriter”. That would be absurd and would be treated appropriately both by judicial direction and by, no doubt, jury conviction. But that is because the going with a gun, known of, imports something about a preparedness to use a lethal force which, no doubt, could be translated as anything from fists up, boots, et cetera.

In Stuart, I stress it was the fire – just before that passage to which Justice Kiefel has drawn to attention, we do call in aid, for the purposes that I have been putting when I have been criticising a resort to excessive abstraction, that is, simply seeing violence on both sides, the sentence by Justice Gibbs, namely, the question is not one to be decided by reference to abstract concepts.

We add, in context, his Honour is directing attention to what is to be supposed as between Stuart and Finch, bearing in mind that the fire was to be set, where it was to be set and when it was to be set with the circumstance that there would be, of course, patrons present and no warning, et cetera.

In Varley – and maybe this is – and this is non-Code now I have moved to. In Varley – and this may be a New South Welshman speaking, but we are talking about a planned attack with policemen – well, police batons. That was, for the reasons the Chief Justice points out, precisely the kind of matter that a jury could take into account notwithstanding Varley’s protestations, which may not have been believed, of course, that he did not know anything about the presence of a baton or cosh. In short, it has to do with a consideration of all the circumstantial evidence, including the specifics, and then asking, at that level which is required by the word “nature”, whether there is the connection.

I should say, just for completeness, in Brennan – your Honours will recall my friend took you to it this morning – similarly, the enquiry was about the detail of the common enterprise including the limits, if any, to be observed for the purpose of the section 8 equivalent, given that the accused in question was keeping watch rather than going inside. All of those are matters which, in our submission, mean that one looks to the act or omission which constituted the committed offence and asks the question of those facts concerning the connection with the common enterprise as found by the jury.

Could I then come to the Court of Appeal reasoning that has been the subject of criticism by my learned friend. Paragraph [43], unless I misheard my friend in which case I apologise, I think my learned friend said that in that rather important passage in their Honours’ reasoning the critical phrase “offence of such a nature” was not used. Maybe I did mishear because it is very obviously used – one sees it at lines 3 and 5 for example. It is used in such a way that it explains the sentence in question to which my learned friend went in particular, starting at about line 45 on the page, namely:

It is the act which rendered Spizzirri liable to punishment, namely, discharging a bullet or bullets and so causing grievous bodily harm.

That is their supplied answer to the question which they have asked in, with respect, the unglossed statutory terms, namely the offence of such a nature. So that section 43 shows no departure and no gloss of the Code provision. In our submission, that is virtue not vice. Being a Code matter, gloss ought to be resisted if at all possible.

The question then posed at the foot of that paragraph commencing, “To convict Keenan under s 8” is one which, in our submission, unimpeachably describes the way in which section 8 ought to operate. It includes the indefinite article, namely “a probable consequence” and my learned friend, with respect, correctly points out that the definite article is then used in paragraph [45]. But with respect, just as one should read a summing-up in whole so one should read appellate reasons in whole and if there is a difference it is not apparent how it caused any deflection from the true road as between paragraphs [43] and [45] and there is no error shown by that use of the definite article in the fourth line of paragraph [45]. In context, for example, it clearly should not be read as meaning “the only one”.

Paragraph [44], again one sees in line 5 that the focus of their Honours’ attention is to ask the question required by the statute, namely whether the offence is of such a nature. Far from ignoring the statutory language, their reasons at this critical part pivot on asking and answering the question which the section poses. With respect, their Honours correctly point out that there is a schematic coherence produced – my expression – with sections 9 and 10A, to which I have made some reference in our written submissions and I will not further elaborate. Could I then come to the question in relation to retrial?

CRENNAN J: Do you want to deal with paragraph [60] of the Court of Appeal?

MR WALKER: That is where I am going to do that, that is why I am going to do that, because everything I have been putting, both in my submissions and in my attempt to answer your Honour’s questions, I am bound to recognise really produces a retrial point. I am now moving to an intellectually distinct part of the argument, the failure of which does not, in our submission, prevent the propriety of a retrial. So it is not acquittal or nothing.

KIRBY J: Can I just get this clear. You are not seeking to support the acquittal entered by - - -

MR WALKER: I am, I am about to do so, but if I fail to support the acquittal, then what I have been putting ought to produce a retrial. In short, there is a ground of appeal in relation to a retrial. We notice there is no argument that says, well, there should have been a retrial, but we are volunteering that it follows from section 669 and the nature of things that if we are right on section 8 in the main argument but fail to hang onto the acquittal, then it is inevitable, in our submission, that the Court of Appeal should have ordered a retrial.

Their Honours recognise that by their own demarcation of the acquittal issue from the section 8 issue indicated by the way their reasons are set out. It starts at the foot of page 568, “Should a retrial be ordered?” in paragraph [55]. The critical paragraph is, with respect, in paragraph [60], and it is the vindication of that with which I wish to conclude.

We submit, for the reasons I do not want to repeat, that the first sentence is plainly correct. It is a succinct summary of what their Honours had reasoned to in relation to the central requirement of identifying the act, here very concisely called shooting causing grievous bodily harm. So the first sentence so far so good. The second sentence equally is capturing what they have reasoned about what I will call the Knight point on inferences, equally, unexceptionable, with respect, correct and a useful matter to observe in relation to the issue they are now confronting, retrial or acquittal.

Their Honours then turn, in the sentence “Alternative rationale inferences” et cetera, to a consideration which 668E will always render relevant, namely, in relation to the reasonableness of a verdict or the view that can be taken of the evidence. Then there is a reference to the Jupp evidence to which I have already taken your Honours. You have “punch up”, “fisticuffs”, “highest, with a baseball bat” and thus far I am bound to recognise that this is where the jury question about the probable consequence is involved. Their Honours say, as a possibility:

that Spizzirri’s use of the gun was entirely outside the unlawful common plan instigated by Keenan.

Attention has already been drawn to the fact that the Chief Justice so instructed the jury of that. Then:

There was no evidence of a broad plan to injure Coffey by whatever means any of the participants might find available or bring to hand –

And the shorthand of referring to Markby of course conjures up the kind of case where the surprising production of a gun by people armed with sticks will not defeat section 8 culpability.

KIRBY J: It does seem as though, with respect to their Honours, they are intruding into factual evaluations here by saying that there was no evidence of a broad plan to injure Coffey.

MR WALKER: But they are doing so, I should say, incontestably correctly. It is not intruding for judges to look at the record. Indeed, section 688E requires this to be done. It is not intruding to look at the record and say this offence needed evidence of element X. I look at the record, there is no evidence of element X. That is a classic criminal appeal. That is not intruding.

KIRBY J: Yes, but given the nature of the relationship of the miscreants, the circumstances that are triggered in the first place, the fact that they knew that one of them had gone with a baseball bat, the intent to do very serious physical injury, I just find it difficult to say that there was no evidence that a jury could reasonably infer that there was no intention to injure the victim by whatever means. A jury might well conclude that.

MR WALKER: I may have misunderstood the question your Honour asked me. It is not clear to us that the appellant argues that there is such evidence. There seems to be no trace of this in the written submission against us.

KIRBY J: I do not know, I think some of the answers given by the Solicitor in his submissions indicated that he was asserting that these are jury questions.

MR WALKER: Your Honour, I am here to answer an appeal against an acquittal of my client in the Court of Appeal. The case ought to be clearer than what might be gathered from some answers to questions during addresses. But the point I make is the Court does not have formal or assembled arguments, so far as we can see, by the appellant that their Honours were in error in making that statement about no evidence.

So my first point is, perhaps that is not an issue before this Court. It is not alleged that that was an erroneous statement. That is the first point. The second point is if it were a correct statement then what follows is the acquittal for which I am about to conclude my argument. But – and here is where I may have misunderstood Justice Kirby – if it was incorrect, if your Honours are satisfied that is an error in the Court of Appeal to say there was no evidence of that, then paragraph [60] is untenable and the consequence that flowed from paragraph [60], namely acquittal, should not be maintained.

Now, that is why it is important to know whether there is – and perhaps it can be indicated in the written submission where it said that there was evidence of such a broad plan to injure by whatever means any of the participants might find available.

HEYDON J: Say you are right about that, the sentence beginning, “The drawing of such an inference,” that does not seem correct to me, that sentence.

MR WALKER: I am so sorry, your Honour.

HEYDON J: I think it is the third-last sentence in the paragraph.

MR WALKER: Yes, I have it, thank you, your Honour, yes.

HEYDON J: It begs the question whether any available version of the plan, and you exclude one version of the plan when there are – there is force in what you say no doubt – you have to compare the versions of the plan with the actuality.

MR WALKER: Yes, that is right.

HEYDON J: Now, it is for a trier of fact to do that comparison.

MR WALKER: Yes.

HEYDON J: It cannot be said that it will be an utterly unreasonable jury who performed it.

MR WALKER: Could I have one attempt, your Honour, to see whether I can salvage that position?

HEYDON J: Yes.

MR WALKER: Their Honours are reasoning, as we read this part of the paragraph, starting “A reasonable jury properly instructed” and then going to “Such an inference was” and then “The drawing of such an inference”, as Justice Heydon has drawn to attention. In those three sentences their Honours are noting what they call “sudden decamping” and what is called “the abandonment of the plan for Jupp to take Coffey’s van”, of which Jupp had given evidence. They are saying that that is an available inference and, it being available, it means one could not, to use their Honours strong language, honestly exclude what follows from that, the reasonable inference that that plan, which involved the process of taking a van – which presumably cannot be done as quickly as jumping in a red Commodore can be done - - -

HEYDON J: It shows that they were shocked by what happened. That is not the test in section 8. A probable consequence can be one which shocks the participants.

MR WALKER: I accept that.

HAYNE J: There is no evidence, is there, of “what did you do that for”?

MR WALKER: There is actually - - -

HAYNE J: Is there some of that?

MR WALKER: I think my friend drew your Honour’s attention to a not very satisfactory conversation, that is, between Jupp and Spizzirri and Mr Jupp’s venturing of a psychological description of Mr Spizzirri not seeming at all worried.

KIRBY J: Yes, we were taken to that. He sort of said, “What did you do that for?” or something to that effect.

MR WALKER: It was an unexpected shooting. The Crown accepts that. They put that in their written submission. It clearly was.

KIRBY J: It does not attribute it to Mr Keenan.

MR WALKER: To try and grapple with a point Justice Heydon has raised with me, logically it is correct. Logically it follows that section 8, asking the question about what could well happen, does not exclude a connection with undesired, unexpected, on balance of probabilities, unsought consequences. Indeed, the whole purpose, one would have thought, from the point of view of the law-abiding community of section 8’s wider net for criminal liability is to ensure that those things which are inherently risky in the sense that section 8 contemplates, probable consequence, will be appropriately punished.

HEYDON J: It is to try and encourage people not to get themselves into that sort of position.

MR WALKER: That is right, I accept that. So that is why it follows, and I am bound to concede this, that being unexpected does not logically drive everything else from the field, which brings me to the expression “fatal flaw” in the next sentence but it may be that it is now being used in a different way from the way their Honours use it.

KIEFEL J: Mr Walker, at a factual level could I ask you – I meant to earlier – whether or not you dispute what appears in paragraph 71 of the appellant’s submissions in relation to the van? It was not entirely clear from your paragraph 43.

MR WALKER: No, paragraph 71 is correct. Your Honour I think I refer to the van. Yes. The passage that I have criticised about inferences has nothing to do with the van at all.

KIEFEL J: You are not really relying – to the van, that is what you are saying. Yes thank you for that.

MR WALKER: Paragraph 71 is correct, which is why I have not made any written response to it. But my learned friends do rather focus on the van and its peculiar status or lack of value in an open market, although it may be the sheltered life my learned friends lead in terms of what kind of markets there are for stolen vans. That was rather designed to say, well, it does not matter about the inference direction.

KIEFEL J: Yes, now I follow. Thank you.

MR WALKER: I was content to say, no, a very critical point about section 8, nothing to do with the van. Your Honours, it is for those reasons, in our submission, that properly understood in paragraph [60] what their Honours are observing is that there were available inferences consistent with this being beyond a probable consequence which could not be excluded on the standard of proof that applies and, for those reasons, there should be no retrial. If, but only if, your Honours were to see error in the proposition that you could not exclude those available inferences, then the acquittal could not stand. But it is only if you reached the position, a strong position not supported by any factual argument, in our submission, only if you reached the position that you could exclude those available inferences.

It is an available inference. It does not logically become the only one, for the reasons I have put in answer to Justice Heydon’s question, but it is an available inference. From the way things fell out, the jumping into the cars and rushing off rather than taking the van, that what had happened was way beyond what was considered as something that could well happen – could well happen – namely, the shooting. If that is an available inference it does not - - -

KIRBY J: That is a very difficult thing for a court to decide. I mean, that is a jury question, whether you infer from the fact that the offenders or the group of them ran away because of what had happened or because it shocked them, that they did not expect the gun to be used.

MR WALKER: Your Honour, as far as I can put it is this, it is an appropriate appellate function not only in considering whether to acquit or to retry but also to consider what used to be called unsafe and unsatisfactory, whether the evidence considered by a jury properly instructed could exclude inferences inconsistent with guilt, because that, after all, is what it means for the onus to be on the prosecution to prove guilt beyond reasonable doubt. If you can show that there must have been an unexcluded inference consistent with innocence, then in New South Wales, the section 6 in Queensland, the section 668E appeal will be allowed. If it is the kind of case where there is no call to give the Crown a second go, then the primary relief of acquittal will follow. None of that is an intrusion. That is the duty imposed by Parliament on the criminal appellate Bench.

KIRBY J: Yes, we know all this.

MR WALKER: But your Honour that puts to me that that is intruding into factual – no, it is doing, at the appellate level, the factual work that the judges are required to do. If it remains the case, as we submit the state of the argument in this Court to this point shows, that there is no reason to exclude as an available inference what could be drawn – need not be, but could be drawn reasonably from the immediate aftermath of the shooting – then, in our submission, the acquittal was the proper response. Your Honours will have, I hope, gathered that there is very recent English consideration of this. We drew to attention R v Rahman - - -

KIRBY J: Would you put it on the record now?

MR WALKER: Yes, [2008] 3 WLR 264. In our submission, but for a very important matter, we could call that in aid very strongly. We can, we think, consistent with principle, simply draw it to your Honours’ attention in case the policy of the very current common law in England and Wales strikes your Honours as providing a satisfying explanation of the purpose or intent, the real meaning, of the words used 100 years ago in section 8. Now, that is a difficult connection to draw. We do not join with our learned friend with the proposition, “It would be nice if the common law is the same as the Code” because there is more than one common law and it changes with time, as well as differing from place to place.

KIRBY J: Yes. Whose decision was that? Was that the Court of Appeal or the House of Lords?

MR WALKER: It is the House of Lords.

KIRBY J: I see.

MR WALKER: All the opinions, with great respect, of their Lordships are important. Lord Bingham might be called the leading opinion, but there are very important comments by the others.

KIRBY J: Yes. We will have a look at that, of course. Thank you very much, Mr Walker.

MR WALKER: There are differences among their Lordships, but I stress it is common law. May it please the Court.

KIRBY J: Yes. Anything in reply, Solicitor?

MR SOFRONOFF: Very briefly, your Honours. On the topic of inferences, if your Honours would go to appeal book 2, page 648.

KIRBY J: Yes.

MR SOFRONOFF: As appears from the passage from the Chief Justice at the top of page – I am sorry, at page 459, your Honours, the top right-hand corner. As appears from the passage of the transcript at the top of the page, the Chief Justice had his summing-up typed out in draft and given to the legal representatives for their perusal and comment before he delivered it.

That perusal then took place over the course of the next few pages when each counsel said one or two things about it. Nobody complained to his Honour that his Honour was not putting competing reasonably open inferences to the jury that ought to be put. In particular, if one takes the two examples that were relied upon by our learned friend - if your Honours would go to page 567 of the record, paragraph [48] of the reasons of the Court of Appeal, their Honours were of the view that:

An alternative rational inference open –

as to the plan to take the van was that it would be taken –

in satisfaction of Coffey’s debt to Keenan.

The judge did not mention it. The reason the judge did not mention it is that nobody else mentioned it, it was not considered - - -

KIRBY J: Yes, well, you made that point in your written submissions.

MR SOFRONOFF: Yes. So with respect to the inferences argument, his Honour put the inferences that were open to be drawn by the jury. The fact that the accused did not give evidence did not assist in raising any opposing explanations for inferences. That is to say, there was a void there. So when the inferences consistent with guilt appeared there was simply nothing which could be raised against it and nobody at the trial suggested that there could in the respects now complained about.

As to the reasons of Justice Gibbs in Stuart, his Honour mentioned that one has to consider section 8 not in the abstract but in respect of a particular case, and so it might be said that murder by arson is not a probable consequence in the abstract of the unlawful purpose of extortion, but it was in that case on the facts there. So the question in every case is whether the unintended offence was a probable consequence of the prosecution of the unlawful purpose on the facts of that particular case.

As to paragraph [60], in our respectful submission, paragraph [60] contains a great deal of reasoning which, with respect, is part of the jury’s function and not part of the function of the court. If one goes from six lines from the top of paragraph [60] on page 571, the alternative rational inferences outlined there that the common plan was only to engage in:

“fisticuffs” or, at its highest, with a baseball bat –

was, of course, a matter put by the Chief Justice and was considered by the jury and evidently rejected by it. It is said there was no evidence of a broad plan to injury Coffey by whatever means any of the participants might find available. Those means are summarised by reference to his Honour’s summing-up in our paragraph 66. In support of a submission along those lines our learned friend made the statement that Jupp was the only source of evidence of the plan. That, with respect, is not correct. Jupp was the source of evidence of his understanding of the plan. The other source of evidence of the plan, that is to say, evidence from which the plan might be inferred, was the evidence of Vonda Muir who gave evidence about the threatening text messages. The evidence of the presence of the bat in Keenan’s car, given its size and quality and the unlikelihood that it was hidden, all of those matters that of course his Honour put to the jury for their consideration.

We would wish to remind your Honours of what was said in Darkan, Darkan being a case where the second appellant, a woman, wanted her husband “fixed up” was the expression. The plan was to fix him up. In Darkan [2006] HCA 34; 227 CLR 373 at 404, in considering the effect of the proviso, their Honours drew attention to some observations made by Justice Keane in the Court of Appeal.

In that case she wanted him fixed up. He was lured to a garage where somebody picked up an available pick handle and beat him ultimately to death with it. There was also kicking. There was no evidence that the procurer of this offence, the second appellant, had directed the use of the pick handle or any particular weapon. But what bore upon her guilt was that the beating was administered in her presence proceeding to her satisfaction. A compelling case that the beating administered proceeded to her satisfaction his Honour was correct. At about line 10 of paragraph 104:

There was uncontradicted evidence that she was there at the start, because she arrived with the deceased. She was there when the punching started, she was there when Bowen saw her watching the deceased being hit on the legs with the pickaxe handle, and she was there at the end when she drove away. It may be presumed that she remained at the site in the intervals between these points. There is no evidence that she did not . . . She could infer their propensities –

the assailants –

from the fact that they were prepared to beat up a stranger for money. While she was at the site she would have learned more about their propensities, their footwear and the pickaxe handle.

Similar considerations arise here, and I need not repeat them because they are obvious, completed by the evidence of Vonda Muir that upon the sudden departure her Uncle Keenan, the respondent, gave her what she called a cheeky smile.

Now, it was said against our case that they left on the sudden and it might be that they were shocked. Indeed, all of them might have been shocked by what they had accomplished. Indeed, all of them might not, as a matter of fact, have foreseen the dreadful nature of the injury and the way it was carried out in the event. But the test is an objective one based upon the subjective plan that they entered into, and the fact that, as a matter of fact, they did not appreciate that such a consequence could have occurred and were shocked when it did is, in our respectful submission, beside the point.

So when one looks at all of the evidence relating to the plan, not only Jupp’s evidence but also the facts from which it can be inferred, including Keenan’s conduct while the offence was being carried out and his last gesture as he left, in our respectful submission, there is evidence of the kind
of a plan which would support the probability of the consequential offence for which we contended. Those are our submissions, your Honour.

KIRBY J: Yes, thank you, Mr Solicitor.

MR SOFRONOFF: I am sorry, your Honours. My learned friend, Mr Martin, reminded me to give your Honours a reference to this case – Nguyen v The Queen [2001] WASCA 176, a decision in June 2001, which concerned section 8 and was a case where there was a fight, some people bringing chair legs and sticks and some people bringing knives and baseball bats. It raised the question whether those who brought chair legs and sticks, the lesser weapons, were going to be liable for the consequences of the actions of those who brought knives, and it would bear upon this case.

KIRBY J: Yes. Thank you all for your assistance to the Court. The Court will adjourn, reserving its decision in this matter. We adjourn until 10.15 tomorrow morning in Court No 1.

AT 4.20 PM THE MATTER WAS ADJOURNED