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IN THE COURT OF APPEAL [1996] QCA 183 SUPREME COURT OF QUEENSLAND Brisbane Before Macrossan CJ

Fitzgerald P Pincus JA

[R. v. Wood, Paterson, Brien, Peterson] C.A. No. 168 of 1995 T H E Q U E E N v. WILLIAM JAMES WOOD Appellant C.A. No. 171 of 1995 T H E Q U E E N v. KERRY WARREN PATERSON Appellant C.A. No. 206 of 1995 T H E Q U E E N v. GEOFFREY STANLEY BRIEN Appellant C.A. No. 210 of 1995 C.A. No. 227 of 1995 T H E Q U E E N v. BARRY ERIC PETERSEN Appellant Macrossan CJ Fitzgerald P Pincus JA Judgment delivered : 11/06/1996 Separate reasons for judgment of each member of the court, the orders as represented by the majority views outlined hereafter.

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Wood Appeal allowed (with each member of the Court concurring). Conviction of manslaughter set aside and a verdict of acquittal entered (Macrossan CJ and Pincus JA, Fitzgerald P dissenting). Paterson Appeal allowed, conviction for murder set aside with an order for retrial for murder (Fitzgerald P and Pincus JA, Macrossan CJ dissenting). Petersen Appeal allowed, conviction for manslaughter set aside and an order made for retrial for manslaughter (Macrossan CJ and Fitzgerald P, Pincus JA dissenting). Brien Appeal allowed, conviction for murder set aside and an order made for retrial for murder (Macrossan CJ and Fitzgerald P, Pincus JA dissenting). CATCHWORDS: Murder/manslaughter - conviction - four co-accused - two

separate trials, each of two co-accused - intent- unlawful purpose - probable consequence - inconsistencies in verdicts - inconsistent conduct of the prosecutions - misdirections to jury - failure to discharge jury when appropriate - substantial miscarriage of 39 justice - conviction unsafe and unsatisfactory - whether a Weissensteiner direction appropriate - circumstantial evidence - self-defence - ss. 7 and 8 of the Criminal Code.

R. v. Jervis [1993] 1 Qd. R. 643 R. v. Hind and Harwood (1995) 80 A. Crim. R. 105 Hughes v. R. (1951) 84 C.L.R. 170 Brennan v. R. (1936) 55 C.L.R. 253 Stuart v. R. (1974) 134 C.L.R. 246 R. v. Tomkins (1985) 2 N.Z.L.R. 253 Mason v. R. (CCA 9 of 1995, unreported, 31 August 1995) Markby v. R. (1978) 140 C.L.R. 108 R. v. Reid (1975) 62 Cr. App. R. 109 R. v. Armstrong (1989) 53 S.A.S.R. 25 R. v. Alexanderson & Ors. (CA No. 369 of 1994, CA No. 367 of 1994, CA No. 370 of 1994, CA No. 356 of 1994) delivered on 8 March 1996 Weissensteiner (1993) 178 C.L.R. 217

ss. 2, 3(2), 7, 8, 24, 31, 89, 272, 291, 293, 300, 302(1)(a), 302(1)(b), 302(3), 303, 576 of the Criminal Code

s. 66(2) of the Crimes Act 1961 (N.Z.)

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Counsel: J. Jerrard QC for the appellants Paterson, Wood and Brien A. Rafter for the appellant Petersen D. Bullock for the Crown

Solicitors: Legal Aid Office for the appellants Paterson, Wood and Petersen Reidy & Tonkin for the appellant Brien Director of Public Prosecutions for the Crown

Hearing date: 24 July 1995 REASONS FOR JUDGMENT - THE CHIEF JUSTICE

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Judgment delivered 11/06/1996

The facts and issues involved in these appeals appear in the reasons of the President and

Pincus J.A. which I have had the advantage of reading. I shall make further references to facts and

issues only to the extent necessary to explain the basis of my own conclusions.

On the Crown cases below, Wood and Paterson were involved with two other persons, Brien

and Petersen, in the killing of Kummer. All four were originally charged together but for reasons of

its own the Crown chose to split the trials proceeding first against Wood and Paterson. It did this

although its allegation was that the two most fully involved in the killing were Brien and Petersen.

At times it will be convenient in what follows to call those two persons the principal offenders, and

refer to Wood and Paterson as the accessories (in usage adopted in other jurisdictions, Wood and

Paterson might have been referred to as principals in the second degree. See Smith and Hogan

Criminal Law {7th ed., 1992} at p.123). All appeals were argued together. The cases of the

appellants from the earlier trial will be dealt with first.

WOOD AND PATERSON

Neither Wood nor Paterson gave evidence but the fact that they each made statements to

police which went into evidence meant that the body of evidence admissible against each of them

varied. In general terms and with appropriate emphasis the trial judge made it sufficiently clear to

the jury that the case against each of the two appellants had to be determined only on evidence

admissible against each.

Kummer had been killed by the use of firearms - his death resulted from wounds caused by

use of a shotgun. More than one discharge of the shotgun caused the wounding. Relying on

elements sufficiently common to the separate statements of Wood and Paterson, the Crown, while

not alleging that either of them had fired the shotgun, was able to suggest that at different times in

the relevant episode, both Brien and Petersen had done so. Also on the case that emerged in this

fashion, Brien and Petersen were alleged to be acting in very close conjunction in the first part of the

attack on Kummer so that if the jury were persuaded that the wounds which caused death were

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inflicted then, there would be a lesser relevance in the fact that the evidence also suggested that later

shots to "finish off" Kummer were fired by Brien alone.

From the point of view of this Court in reviewing the evidence, there is no need to insist on

any close distinction between the parts played by Brien and Petersen, the principal offenders, during

the first part of the episode. If the jury were persuaded, as they would have been entitled to be on the

evidence, that death was caused by the actions taken at this time, then what emerged was a clear case

that both of the principal offenders, acting together, caused the death. In these circumstances, the

doctrines discussed in R v. Wyles ex parte Attorney-General [1977] Qd.R. 169 have a relevant

application. It should be added that on the expert evidence and taking into account the separate

admissions of the two appellants there does not appear to be any reasonable basis on which it could

be concluded that the death of Kummer was caused not by the first actions occurring on the night,

but by Brien's later more independent actions just before the group finally left the scene of the

killing.

The directions given by the judge in the trial were long and complex and the jury may at

times have found their task, as it was presented to them, a difficult one. But, apart from the matters

which should now receive special attention, the general nature of the path which the Crown invited

the jury to take in reaching their conclusions was sufficiently outlined by the trial judge in his

summing up. In considering whether the summing up contained errors or misdirections, it should be

judged as a whole. The question whether there has been a mistrial or whether some miscarriage of

justice has occurred will often require taking an overview.

At the trial of the two appellants, Wood and Paterson, the Crown case was that the principal

offenders, Brien and Petersen, murdered, by acts which fell within the scope of the code definition in

section 302(1)(a) or else by their causing death in circumstances which fell within section 302(1)(b).

That is, the Crown allegation was that the principal offenders caused death with the relevant

intention of killing or causing grievous bodily harm or they caused death by an act done in the

prosecution of an unlawful purpose, the act being likely to endanger life. The case against the two

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accessories, the appellants, was wholly based on the operation of s.8 of the Code and not at all on

s.7.

Under section 8 it was necessary for the Crown to show that two or more persons formed a

common intention to prosecute an unlawful purpose in conjunction (the "common intention") and

that in the prosecution of that purpose (the action taken under the plan) the offence alleged was

committed, it being a probable consequence of the action taken (the "probable consequence"

criterion).

The common intention alleged by the Crown was to assault Kummer by threats involving the

display or presentation of loaded arms. The Crown said that the two appellants together and as

individuals formed a plan with both of the principal offenders, Brien and Petersen. This allegation

is supported by the evidence separately admissible against the two appellants including their

individual statements to the police. The Crown case was that in the conduct then pursued by the

four co-offenders, an offence was committed, which was the murder of Kummer, if his death was

caused with the relevant intent (s.302)(1)(a)) or if it was caused by an act done in the prosecution of

the unlawful purpose of assaulting Kummer using loaded firearms, the act being the discharge of one

of those weapons, the shotgun, in circumstances likely to endanger Kummer's life (the s.302(1)(b)

alternative). If the conclusion were not to be reached that one or other of those subparagraphs

applied, then the Crown contention was that the two principal offenders caused Kummer's death in

circumstances constituting manslaughter.

In the present case there was ample evidence of murder and the jury must have found that

one or more of the principal offenders did in fact murder because only on that basis could they have

arrived at the verdict of murder against the accessory Paterson. In fact, from the trial judge's report

we are aware that the jury found Paterson guilty of murder on the basis that the principal offenders

were guilty of murder on the application of the s.302(1)(b) alternative. So far as appears, the Crown

put no case at the trial of the two appellants that one only of the principal offenders murdered, i.e. by

killing with the relevant intent, while the other principal offender merely caused death without that

intent but in circumstances which otherwise constituted murder. On the available evidence pointing

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to close collaborative action taken by the two principal offenders at the scene, there was no

reasonable basis for making any such distinction between them. Further, the fact that, as we now

know, the jury relied on subsection (1)(b) as their route to convict Paterson of murder with the

implication that they used that subsection to conclude that the principals were guilty of murder rather

than because of the existence of any subjective intent, makes for even less ground for distinguishing

between the offences committed by the two principals.

The consequence is that in considering the case against Wood on the evidence admissible

against him, the jury, having found the principals guilty of murder but the accessory Wood not guilty

of that offence, must have gone on to apply the principles of R. v. Jervis [1993] 1 Qd.R. 643 or R. v.

Reid (1975) 62 Cr. App.R. 109. The former case should not now be regarded as authority because it

allowed manslaughter as a possible verdict against a s.8 accessory when the principal was guilty of

murder. The latter case of Reid, a decision given in a common law jurisdiction, permitted the

accessory's mental attitude or degree of participation to justify a lesser verdict against the accessory

than a murder verdict found against the principal and thus also represents an approach which is not

open under s.8 of the Code. Under that section there is a different approach to guilt requiring it to be

determined by a consideration of objectively probable consequences of action that has been taken

and there is as well the necessity for any guilty verdict against the accessory to correspond with that

found against the principal. The jury must have followed the approach permitted by an application

of the two cases mentioned because the summing up extended an invitation to them to consider it.

However, it was an approach which has now been declared to be erroneous. Consistency in the

application of the decisions of this Court means that the Jervis doctrine should no longer be regarded

as good law in this State, however geared to general notions of justice and however conformable

with the reasoning of certain common law decisions it might be thought to be. For myself, I do not

find it necessary to repeat the reasons which I stated in R v. Alexanderson (CA 369/94, 8 March

1996, unreported) for accepting the majority conclusions in R v. Hind & Harwood (1995) 80 A.

Crim. R. 105. I adhere to the views I expressed in R. v. Alexanderson. The verdicts available

against the alleged accessory under s. 8 must depend upon a probability objectively determined and

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must either be the same as that found against the principal (or notionally found if the two are not

tried together) or else must be not guilty.

The result in the present case so far as Wood is concerned, is that a verdict of not guilty of

murder has been found and he cannot be retried on that charge for his part in the episode which

resulted in the death of Kummer. The verdict of guilty of manslaughter found against Wood was not

available in his trial. That manslaughter verdict should be set aside and a verdict of acquittal entered

against him. I do not consider that there should be any order for a retrial in his case. He has been

acquitted of murder and the Crown, having contended for and obtained from the jury a verdict in the

first joint trial on the basis that the principals were guilty of murder, should not now be permitted to

cause Wood to be tried again on the basis that the two principals were guilty only of manslaughter to

make theoretically open the possibility of a fresh manslaughter conviction against Wood

conformably with the structure of s.8.

On the basis of the matters so far discussed, the verdict of guilty of murder against Paterson

should stand. There was ample evidence for the jury to conclude that the principal offenders were

guilty of murder on the application of subsection (1)(b).

On the evidence admissible against Paterson with its indication of the existence of a common

intention shared by Paterson with at least Brien and Petersen, it was open to the jury to find that the

killing of Kummer was a probable consequence of the implementation of their plan. It may be that

as the execution of an original purpose of assaulting Kummer by the presentation of loaded arms was

carried forward, there was an escalation in the level of violence that had been anticipated and this

affected the actions and responses of Brien, Paterson and Petersen. However, it was open to the

jury to conclude that none of those three disassociated himself from what was unfolding at the

changing scene in the immediate surroundings of the shed. Alternatively, taking a broader view, the

jury may have simply concluded that the content of the plan of action represented by the purpose

common to Paterson and the two principal offenders was illuminated by the evidence of what

transpired when that plan was implemented.

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A different conclusion was available to the jury concerning the purpose common to Wood

and the two principal offenders, or indeed to Wood, the two principal offenders and Paterson.

Having in mind what Wood claimed was his appreciation of the limited purpose of the expedition,

his lack of possession of any firearm and his absence from the immediate surroundings of Kummer's

shed as the level of violence intensified, the jury could quite justifiably have concluded that the

killing of Kummer was not shown to be a probable consequence of the common intention to the

extent that Wood shared it. There is no necessary conflict between the verdicts returned in the cases

of Wood and Paterson. The jury, acting reasonably, were entitled to make a valid distinction

between the factors operating in the two separate cases against Wood and Paterson although they

must be taken to have responded to the trial judge's incorrect invitation by bringing in a verdict

against Wood that was not open.

Some additional more particular observations should be made in the case of Paterson where

my conclusion is that the verdict should stand.

The judge, in speaking of the s.8 component, "the probable consequence", said that the

phrase meant more probable than not. If this states the test too highly against the Crown and there is

reason to think that it does (cf. the discussion in The Queen v. Crabbe (1985) 156 C.L.R. 464 at 469

a common law case; Boughey v. The Queen (1986) 161 C.L.R. 10 at 14, 21 and 42 concerned with

the Tasmanian Criminal Code and R v. Hind and Harwood (supra)) it was an error favourable to the

accused and cannot now be made the source of complaint upon which the appellant, Paterson, can

rely. No objection was taken to it below.

On a number of occasions in the summing up the judge said clearly enough that what was a

probable consequence when s.8 came to be applied was to be judged by the jury objectively; at other

times he appeared in that same context to turn the jury's consideration to whether Paterson (i.e. that

accused subjectively) contemplated that the loaded shotgun would be used to cause Kummer's death.

However, this part of the summing up, if the jury then understood the judge to be inviting them to

adopt a subjective approach, occurred where he discussed the test of "probable consequence" and

introduced an approach that was unduly favourable to the accused, narrowing the scope of what was

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probable. In encouraging the introduction of an additional unduly favourable ingredient (a

subjective element) into the process of concluding positively on the issue of "probable

consequence", there could only have resulted an error of which Paterson is not now entitled to

complain.

In the course of instructing the jury on the applications of subs. (1)(b) of s.302, the judge said

that the unlawful purpose had to be different from a purpose of shooting Kummer, a view which

strictly speaking was correct enough, (see Stuart v. The Queen (1974) 134 C.L.R. 438 and ff.).

However, there is reason to think that in the present context it was an unhelpful distinction and

would have burdened the jury with an unnecessary academic consideration. In the course of

endeavouring to draw the distinction to the attention of the jury, the judge went so far as to say that

the Crown had to exclude beyond reasonable doubt the existence of an unlawful purpose entertained

by the co-offenders of shooting Kummer. This, of course, was quite contrary to what the Crown

was attempting to establish against the principal offenders on the first alternative advanced under

subs. (1)(a). Once again, the effect of this direction would have been to introduce a consideration

into the jury's thinking which had a tendency to favour and not disadvantage the accused, Paterson.

Further, no objection was made to it below.

It would have to be expected that in the course of what was obviously a difficult and

complex summing up, some lack of clarity might intrude, but as a matter of assessment overall, it

should not be concluded that this caused any injustice or disadvantage to the two accused in the first

trial and should not now be acted on as a feature impugning the verdict against Paterson.

An observation should be added concerning the terms of the quotation from R v. Reid which

the trial judge gave to the jury on two occasions. On both occasions in speaking of what might

happen when an armed group attend upon someone intending to use their weapons to cause fear, he

said: "There is always a likelihood that in the excitement and tensions of the occasion one of them

will use his weapon in some way which will cause death or serious injury". On the second

occasion before reading the passage from Reid the judge said: "I will remind you of a passage that I

read yesterday, a principle which you may find helpful." I do not consider that the reference in

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context to "principle" would have troubled the jury or induced them to think that the judge was at

that point giving them a direction of law or withdrawing any factual matter from their consideration.

He sufficiently emphasised on a number of occasions that all factual matters were for them. When

he went on to read to the jury that part of his quotation from Reid which is just referred to above, I

consider that he was offering for their acceptance or otherwise a proposition which might be thought

to carry some commonsense persuasion. The reference to "likelihood" sufficiently left for the jury's

consideration what they might perceive to be a substantial risk of the happening of an event of the

kind referred to. None of this, in my view, would have caused any dislocation to the jury's proper

and free consideration of factual matters. However, the remainder of the quotation from Reid went

on to state a proposition which, because it was contrary to the effect of s.8, should not have been

given.

I turn now to the appeals on behalf of Brien and Petersen resulting from the second trial

arising out of Kummer's death.

BRIEN AND PETERSEN

In the joint trial of these two accused each had been charged with murder. The jury found

Brien guilty of murder and, according to the transcript, Petersen "guilty of manslaughter". In the

case of Petersen, the jury are shown as having found in this fashion notwithstanding the trial judge's

earlier intimation to them that they would be asked to bring in a specific verdict on the murder count

before being asked for any verdict on the alternative available charge of manslaughter. In the

circumstances the jury's verdict in the case of Petersen should be taken to be a verdict of not guilty of

murder but guilty of manslaughter.

In the trial of these two accused, the Crown relied upon s.302(1)(a) of the definition of

murder but not upon subs. (1)(b). It relied also upon s.7 as well as s.8. The Crown's reliance, clearly

enough, is reflected in the overall plan which the judge followed in his summing up. That summing

up was lengthy and not devoid of complications.

Petersen had made a statement to the police which, although it was open to be viewed as

designed to minimise the extent of his participation in the episode, nevertheless contained significant

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admissions. Brien, on the other hand, denied all involvement although it is the case that in the

course of doing so he made statements which, on other evidence, were false, such as that he did not

know Kummer.

While neither Brien nor Petersen gave evidence, there remained a body of circumstantial

evidence against Brien as well as a larger body of evidence available against Petersen.

Had the circumstances of the case been different and had Brien been the only suspect and

given no evidence, yet made a false denial, circumstantial evidence of the kind available against him

here would, on the Crown case, have had significant weight. But this was not the case and the

Crown allegation was one of active involvement by both Brien and Petersen with recourse had to

s.7 and s.8.

The verdict of the jury shows that as against Petersen they were prepared to conclude that he

was there at the scene but not that he fired the shot or shots which killed Kummer. This must be so

because they have found that someone else, namely Brien, murdered Kummer. In undertaking a

review of the verdicts it should be assumed until demonstrated otherwise that the jury followed the

directions that the trial judge gave them. On the basis of the verdicts, the jury must have concluded

that someone else present, not Petersen, fired the shot or shots and killed Kummer with intent that

was relevant under s.302(1)(a). That is, on the directions they were given, they must have found

intent in the case of the person or persons who caused Kummer's death. They did not find a s.7 case

proved against Petersen, that is with his aiding or assisting the murderer or murderers since that

would have involved a murder verdict against Petersen also. The fact that they found only a

manslaughter verdict against Petersen means that they followed what can, for present purposes, be

identified as a s.8 avenue which the trial judge indicated was available for their consideration.

However, for the reasons given above this must be regarded as an erroneous direction insofar as it

suggested the possibility of finding against an accessory a verdict of guilty of a different offence

from that found against the principal. The consequence is that the verdict found against Petersen

cannot stand.

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There was no evidence in the case presented against Brien tending to show that someone

other than Brien was involved in the killing apart from some slender circumstantial evidence

pointing to Petersen. There was some evidence of association between Petersen and Brien and some

reason shown on Petersen's part to resent Kummer and there was Petersen's presence with Brien

when the weapon and ammunition which could be regarded as involved in the killing were borrowed

from Dawson.

However, the jury must, by their verdict against Petersen, be taken to have found that he was

present at the killing as the Crown had invited them to conclude. Consideration of the case against

Brien can only proceed, or safely proceed, on the basis that the jury accepted that there was another

human agency apart from Brien at the scene on the night of Kummer's death. The result then is that

the circumstantial evidence available against Brien, which is outlined below, is no longer sufficient

in my view to sustain a conclusion that he fired the shot or shots causing death. Putting it more

strictly, the evidence admissible against Brien is incapable of sustaining a conclusion reached by a

reasonable jury beyond reasonable doubt that Brien either fired the lethal shot or shots or else aided

or assisted someone other than Petersen who did so.

In the end the conclusion is inescapable that the jury failed to follow the judge's directions

and in determining Brien's role they must have either acted on the evidence of Petersen's statement

which was inadmissible against Brien, or upon the opening by the Crown prosecutor of the evidence

proposed to be led from Paterson but not actually forthcoming in the trial, or as a further possibility,

followed some unacceptable course about which there can be no more than speculation. The verdict

against Brien cannot be permitted to stand.

There is, however, a substantial body of evidence available against both Brien and Petersen.

In respect of Brien there is evidence of a circumstantial kind including threats uttered and animosity

exhibited, the borrowing of a shotgun and cartridges of a kind consistent with what was used at the

scene, statements of intention to pay a visit on Kummer, complaints about money owed, the

admission next day of having fired the shotgun, the possession of a .22 rifle and an association with

Petersen. In the case of Petersen, there is not only circumstantial evidence but also his statements to

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police officers of matters serving to implicate him. There should be a new trial ordered in both cases.

WOOD, PATERSON, BRIEN AND PETERSEN

In the case of Brien it can be expected that the charge in the retrial will be one of murder but

Petersen has the benefit of what must be accepted as a not guilty verdict on a murder count and of

that he cannot properly be deprived. There is no obstacle in the way of Petersen being charged with

manslaughter.

On any retrial of Petersen, if the Crown contentions remain as they have been and the

evidence remains substantially as before, then the trial judge would be obliged to inform the jury that

if they are persuaded that Brien is guilty of murder, they are not asked to deliberate further in respect

of Petersen, but should find him not guilty. This is because the central allegation in the Crown case

has been that there were two and only two principal offenders, Brien and Petersen, acting together in

a way which caused the death. If the jury were persuaded that Brien was guilty of manslaughter or

they were not persuaded he was guilty of any offence, they would have to decide whether to find

Petersen guilty or not guilty of manslaughter. He could be guilty either because of his own direct

action or as a result of his involvement with Brien in some action carried out by him.

Once again on the basis of what has been the Crown case so far, Paterson, who was not

alleged to have been a principal offender, could be guilty of murder only if murder were found to

have been committed by Brien (it is not open in the case of Petersen) and the jury were satisfied of

the necessary level of involvement of Paterson in that offence. Paterson could be found guilty of

manslaughter resulting from a level of involvement found to have existed with Brien or Petersen in

an offence of manslaughter committed by one or both of them.

Further consideration of available verdicts in the cases of Brien, Petersen and Paterson

should be left for the retrials when attention will be directed to the state of the evidence then

presented.

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Some of the restrictions which will affect the further course of these trials result in part from

the approach deliberately adopted by the Crown to date but they result also from the fundamental

importance of the rules governing proof of guilt and onus of proof and the freedom under the law of

accused persons not to incriminate themselves but to leave to the Crown the proof of its own case.

These further important considerations have made a contribution to the results so far arrived at in

these trials and no legitimate complaint can be made about them.

It should be added that, although the matter cannot at this point be precisely judged, in any

retrial of Brien it may be inappropriate to give a Weissensteiner direction. The state of the parties on

that trial and the evidence that will be led cannot be completely predicted. To mention only one

possibility, it should not be assumed that Paterson, if called, will again refuse to give evidence.

However, if the evidence led against Brien at the retrial is insufficient to lead to an inference that he

was present at the scene to the exclusion of other inferences open, his silence could not fill in a gap

of that kind in the prosecution case: cf. Weissensteiner v. The Queen (1993) 178 C.L.R. 217 at 228-

229. In making an order allowing these appeals, it is undesirable to add more than has already been

said.

Different views have been arrived at by the members of the Court on the separate appeals.

The orders which should be made will reflect what is the majority view in the case of each appellant.

It should be ordered in the case of Wood, appeal allowed (all agreed), conviction of

manslaughter set aside and a verdict of acquittal entered (Macrossan CJ and Pincus JA, Fitzgerald P

dissenting); in the case of Paterson, appeal allowed, conviction for murder set aside with an order for

retrial for murder (Fitzgerald P and Pincus JA, Macrossan CJ dissenting); in the case of Petersen,

appeal allowed, conviction for manslaughter set aside and an order made for retrial for manslaughter

(Macrossan CJ and Fitzgerald P, Pincus JA dissenting); and in the case of Brien, appeal allowed,

conviction for murder set aside and an order made for retrial for murder (Macrossan CJ and

Fitzgerald P, Pincus JA dissenting). REASONS FOR JUDGMENT - FITZGERALD P.

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Judgment delivered 11/06/1996

These four appeals, which were heard together, arise out of trials at which the four

appellants were charged with the murder of Nicholas Michael Paul Kummer. The prosecution

deliberately split the trials for tactical advantage. It proceeded first against Paterson and Wood,

to enable it to call Paterson, and perhaps Wood, when Brien and Petersen were later tried. At the

earlier trial, Paterson was convicted of murder and Wood was convicted of manslaughter. At the

later trial before a different judge and jury, Brien was convicted of murder and Petersen was

convicted of manslaughter.

The evidence at the earlier trial: Paterson and Wood

All four offenders travelled together, in a motor vehicle driven by Wood, to Kummer’s

residence (a large shed on a farming property) at Lower Wonga, near Gympie, on the night of 17

December 1993. Kummer and Petersen had rented the property from the owner some time in

1992. Each of Brien, Petersen and Paterson had a loaded weapon, in Brien’s case a pump-action

shotgun, while Petersen and Paterson had .22 rifles, one of which was sawn off. Brien had

borrowed the shotgun and four or five cartridges that night, and when it was returned to the

owner the following morning it had been fired. One of the cartridges provided to Brien had

contained large pellets, while the others contained small pellets. The owner of the property on

which Kummer resided found his body on the floor inside the shed against a wall on the morning

after Brien had borrowed the shotgun. A loaded shotgun exhibiting small pellet damage which

had not been fired recently was found near Kummer’s body, and might have been held by him

when he was shot. There were also undischarged shotgun shells under the bed, on the couch and

in drawers in the kitchen in the shed.

A forensic pathologist who examined Kummer’s body gave evidence that he had been

killed by gunshot wounds which had caused bleeding into internal tissue. There had been two or

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more shotgun blasts of small pellets and one blast of large pellets. At least one of the blasts of

small pellets had come from the front and another had come from the right. The entry wounds of

the large pellets ran from right to left. While injuries caused by small pellets were severe, there

were no major internal injuries and little or no bleeding associated with the large pellet wounds.

Evidence was given by police officers of separate interviews with Paterson and Wood.

Paterson said that Petersen was upset with Kummer because he was having a sexual

relationship with a former girlfriend of Petersen by whom he had fathered a child. On the night

of the murder, Brien and Petersen woke Paterson and said “Come on - we’re going to go round

and fix him.” When they arrived at the property, lights went on in the shed where Kummer lived

and a door opened. Brien, Petersen and Paterson all alighted from the car. Shots were fired,

including two shots which Paterson fired into the window of the shed. There was a commotion,

and he heard someone shout that Kummer was getting a gun. He saw Petersen shoot Kummer,

and Petersen and Brien run into the shed firing shots. Later, Brien went back into the shed and

fired more shots.

Wood said that the appellants went to Kummer’s residence, with guns, to collect

approximately $170 which Brien claimed Kummer owed him. He said that, while travelling to

the shed where Kummer lived, Brien said that he would shoot Kummer if he did not have the

money and Petersen said “I probably will too.” They made plans on the way to the shed

concerning who would do what; for example, who would go to the rear of the shed. Petersen

told the others that Kummer had guns and warned them to be careful. When they got to the shed,

the other three got out of the car and, when Kummer opened the door, Brien asked him for

money. Petersen said “He’s going for a gun”, a shot was fired, and Kummer fell to the floor. He

heard more shots before the others ran back to the car: three shotgun blasts and a number of shots

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from one or more .22 rifles. After he backed the vehicle and commenced to turn around, the

others again alighted from the vehicle and Brien said that he was “going to finish the bastard off”

and went back into the shed. Wood then heard two more shotgun blasts.

The evidence at the later trial: Brien and Petersen

Similar evidence was given of the finding of Kummer’s body, what was observed at the

scene, and by the forensic pathologist. Evidence was also given that Brien, in company with

Petersen, borrowed a shotgun on the night of 17 December 1993, ostensibly to shoot pigs or

other vermin. Brien told the person from whom he borrowed the shotgun that he proposed to use

it himself. Petersen was present when the shotgun was handed to Brien together with one

cartridge containing large pellets and three cartridges containing small pellets. The shotgun had

been fired when it was returned the next day.

Brien made no incriminating admissions to police. The remaining evidence against him

may be briefly summarised.

About two weeks before Kummer’s death, a witness overheard Brien say that Kummer

owed him money and that he wanted it. A week or more later, she again overheard Brien, who

was with Petersen and two men whom she did not know, say: “These are my two friends from

Melbourne. They have come up to get Nick. He’s fucked this time.”

Another witness heard Brien say to two unidentified men, neither of whom was Wood,

that “they were going to teach Nick a lesson”.

Kummer’s girlfriend, who had previously been Petersen’s girlfriend, gave evidence of

encountering Brien and Wood in a store on the afternoon of 16 December 1993. Brien, in

Wood’s presence, said to Kummer’s girlfriend that Petersen was upset with Kummer. He also

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told her that Kummer owed him money, and that “he was going to do a run in on him and that he

was going to get the last laugh”.

Another witness saw Brien and Paterson together between 8.30 p.m. and 9.00 p.m. on 17

December 1993.

Petersen was located by police at Brien’s residence on the night of 20 December 1993.

When Brien was spoken to by police, he denied knowing Kummer and said that he had no

knowledge of his murder.

Police located a .22 rifle at Brien’s residence under some logs on 21 December 1993.

Further, on 8 February 1994, police found a sawn-off .22 rifle which Brien was known to have

possessed some two to three months before Kummer’s death; the rifle was found in a waterhole

near Maleny. Neither was shown to have been used on the occasion when Kummer was killed.

Petersen was interviewed by police. He admitted that he was present and fired shots from

a .22 rifle “... in the air after a shot came out of the shed ...”. According to Petersen’s recorded

statements - which were not admissible against Brien - it was Brien who had the shotgun, and,

after Brien went into the shed, Petersen “... heard a few more shots and then we left”. It is

unnecessary to refer further to the evidence against Petersen, since his grounds of appeal do not

dispute that the evidence against him was sufficient to support his conviction for manslaughter,

but raise other matters.

The general statutory context

By s. 293 of the Criminal Code, any person who causes the death of another person

directly or indirectly, by any means whatever, is deemed to have killed that person, and, by s.

291, killing is unlawful unless authorised or justified or excused by law.1 Section 300 of the

1 Reference will later be made to self-defence (s. 272 of the Code) in relation to the appeals by

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Code provides that any person who unlawfully kills another is guilty of a “crime”, i.e., a criminal

offence (sub-s. 3(2)). By s. 2, an offence is an “act or omission which renders the person doing

the act or making the omission liable to punishment”. Section 300 further states that the crime

committed when one person unlawfully kills another “is called murder, or manslaughter,

according to the circumstances of the case”.

By s. 303, any unlawful killing under such circumstances as not to constitute murder is

manslaughter. What constitutes murder is defined by s. 302. It is common ground that the

presently material parts of s. 302 are sub-ss. (1)(a) and (b) and (3)2 which provide:

302. Definition of murder. (1) Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say, - (a) If the offender intends to cause the death of the person killed or that of

some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm;

(b) If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;

... is guilty of murder. ... (3) Under subsection (1)(b) it is immaterial that the offender did not intend to hurt any person. ...”

Finally, s. 8 provides:

“8. Offences committed in prosecution of common purposes. 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

Paterson and Wood. There was no other basis on which any appellant contended that the killing of Kummer was authorised or justified or excused by law.

2 These provisions have been renumbered. Sub-section 302(1)(a) was previously sub-s. 302(1), and sub-s. 302(1)(b) was previously sub-s. 302(2).

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is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

The prosecution cases

Before proceeding further, it is desirable to attempt to summarise the bases upon which

the prosecution initially placed its cases and now seeks to uphold the convictions. In Marshall

(C.A. No. 125 of 1995, unreported, 21 November 1995), I pointed out the risk inherent in cases

in which the prosecution seeks conviction on a number of different bases, and the need in such

cases to identify the findings which are necessary to convict on each separate basis advanced.

The present situation is obviously more complex because of the course adopted by the

prosecution; different cases, involving a number of different bases for conviction, were presented

against four individuals allegedly involved in a single murder, before two different juries at

separate “joint” trials of, in each instance, two of the alleged offenders.

Paterson and Wood

There was no admissible evidence against either Paterson or Wood that he fired any shot

or shots which might have killed Kummer; the basis of the prosecution case against each was

that he was criminally responsible by the operation of s. 8 of the Code for a murder committed

by Brien and/or Petersen.3 At trial, the prosecutor relied on both sub-ss. 302(1)(a) and 302(1)(b)

alleging that the person who unlawfully killed Kummer (by shooting him) - either Brien or

Petersen - either (i) intended to kill him or cause him grievous bodily harm (sub-s. 302(1)(a)),

or (ii) caused his death by means of an act4 done in the prosecution of an unlawful purpose,5

3 It is unnecessary in this case to consider convictions against Paterson or Wood based on his

criminal responsibility under s. 8 of the Code for a possible manslaughter of Kummer by Brien and/or Petersen; e.g., on the footing of criminal negligence in the handling or use of a loaded firearm.

4 discharging a firearm

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which act was of such a nature as to be likely to endanger human life (sub-s. 302(1)(b)). In this

Court, all parties accepted that, as a report from the trial judge indicates, the jury convicted on

the basis of s. 8 and sub-s. 302(1)(b), not s. 302(1)(a), of the Code.6 However, it remains

necessary to record how the trial judge presented the prosecution’s various cases to the jury. His

Honour dealt first with the case against Paterson, and then directed the jury with respect to the

case against Wood in the same terms except insofar as he included references to different

evidence. It is necessary to quote only from the summing-up with respect to Paterson, and then

to notice material redirections which were given.

In summing-up, his Honour said:

“Each of these two accused men is charged with murder. It is important and essential that you consider separately each case against each accused and the evidence in relation to that case. In the case against each accused the Crown relies on two different definitions of murder found in the Criminal Code. Thus in the case against each accused there are two bases on which the Crown says you will find each accused guilty of murder. The second basis is an alternative to the first, and as I proceed I shall explain each basis to you.

I shall deal first with the case against ... Paterson. The first basis relies on the following definition of murder in the Criminal Code: ‘A person who unlawfully kills another in circumstances where the offender intends to cause the death of the person killed or to do to the person killed some grievous bodily harm is guilty of murder.’ ...

... ‘Any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person’. ... it is unlawful to kill any person unless such killing is authorised, justified or excused by law. ...

Unlawful killing is also called manslaughter. The Criminal Code also provides that any person who unlawfully kills another is guilty of a crime which is called murder or manslaughter, according to the circumstances of the case. ... To determine whether it is murder, that is murder on the first basis on which the Crown relies in its case against Paterson, we go to the definition of murder ... the distinction between murder and manslaughter on this first basis ...is ... the

5 assault by pointing loaded firearms

6 All parties accepted that the Court should act on the jury’s statement of the basis on which it convicted.

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intention to cause the death or the intention to do grievous bodily harm must be present at the time of the killing.

...

In order for you to convict Paterson of murder on this first basis you have, as a preliminary step, first to be satisfied beyond reasonable doubt that Brien or Petersen murdered Kummer. This requires the Crown to satisfy you beyond reasonable doubt of each of the following matters ...

The first matter is that on or about 17 December 1993 Kummer was killed at Lower Wonga. The second, that that killing was not authorised, justified or excused by law. The third matter, that at the time of the killing the killer had at least one of the necessary intents; that is, the intent to cause the death of Kummer or the intent to do him some grievous bodily harm. The fourth matter is that either Brien or Petersen was the killer.

...

If, at the conclusion of your consideration of the evidence against Paterson, the Crown has satisfied you beyond reasonable doubt of every one of those elements, then you have found that Brien or Petersen murdered Kummer. You may indeed have found that each of them murdered Kummer. If, however, you are satisfied beyond reasonable doubt that the Crown has proved elements one, two and four in the list I read out but are not satisfied beyond reasonable doubt that whichever of Brien and Petersen you find killed Kummer had at least one of the necessary intents in element number three, then you will have found that Petersen and Brien or Brien, I should say, have unlawfully killed Kummer. That is, one or perhaps both of them have committed the offence of manslaughter. Further, if, after you have considered all the evidence in the case against Paterson, the Crown has failed to satisfy you that either Petersen or Brien killed Kummer then that will be the end of the matter and you will find Paterson not guilty of the charge of murder and you need not go on to consider the second basis to which I shall later come.

...

Assuming that you find that either Brien or Petersen murdered Kummer or you find that either Brien or Petersen unlawfully killed Kummer, then you go on to consider the next section of the Criminal Code on which the Crown relies to prove its case on the first basis against Paterson. That section is section 8. ... in the present case against Paterson the Crown says, first, that Paterson, Brien, Petersen and Wood formed a common intention to prosecute an unlawful purpose in conjunction with one another and that that unlawful purpose was an unlawful assault of Kummer; secondly, that in the prosecution of that purpose the offence of murder was committed; thirdly, that that offence was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose which was unlawful assault.

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...

... an assault is unlawful and constitutes an offence unless it is authorised, justified or excused by law. ... an assault is committed if a person presents a loaded firearm at another person or presents a loaded firearm at another where the person presenting the firearm pretends that it is loaded and does that without the consent of the person to whom he presents the firearm. ... if you are satisfied beyond reasonable doubt the accused man Paterson and at least Brien and Petersen had formed a criminal common intention to prosecute an assault of Kummer in conjunction with one another by presenting a firearm or firearms at Kummer ... such an assault was unlawful in that it was not authorised, justified or excused by law.

... it is not essential for the Crown to prove that all four of these men had formed the criminal common intention to prosecute the unlawful assault of Kummer in conjunction with one another but it must prove that this accused Paterson and at least Brien and Petersen had formed such an intention.

...

... if you are left in any doubt as to whether or not the Crown has proved a common intention by Paterson with at least Brien and Petersen to prosecute an unlawful purpose in conjunction with one another - that is, the unlawful assault upon Kummer - you will find the accused man Paterson not guilty of murder and not guilty of manslaughter.

If the Crown has proved beyond reasonable doubt that there was a common intention by Paterson with at least Brien and Petersen to prosecute an unlawful purpose in conjunction with one another, that unlawful purpose being the unlawful assault upon Kummer, then you will consider the second matter in section 8 and that is proof by the Crown that in the prosecution of this common unlawful purpose the offence of murder was committed.

...

... you of course use your common sense and if you decided that neither Brien nor Petersen had murdered Kummer, but had decided that one or other of them had unlawfully killed Kummer, thereby committing the crime of manslaughter, then you have another task, and that is you must decide whether or not the Crown has proved beyond reasonable doubt that the offence of manslaughter was committed in the prosecution of the common unlawful purpose of unlawfully assaulting Kummer.

I come then to the third matter under section 8 which has to be proved, and that is this: that that offence, that is be it murder or manslaughter, was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose, namely the unlawful assault of Kummer. Assuming that you

25

have concluded that the Crown has proved beyond reasonable doubt that murder or manslaughter of Kummer, as the case may be, was committed in the prosecution of the unlawful purpose, namely the unlawful assault of Kummer, this third matter is concerned with whether the murder or manslaughter is the probable consequence of the prosecution of the unlawful assault on Kummer.

... did Paterson contemplate7 that in carrying out the common unlawful purpose of unlawfully assaulting Kummer, that Brien or Petersen or one of them would probably use a loaded shotgun with the intention of causing really serious bodily harm?

7 The test of “probable consequence” is objective, not subjective, and is related to the particular

unlawful purpose intended, not such an offence in the abstract: Brennan v. R. (1936) 55 C.L.R. 253, 260-261, 264-265; Stuart v. R. (1974) 134 C.L.R. 426, 438, 442-443. This will again be referred to later.

If you have already decided that neither Brien nor Petersen murdered Kummer, but have decided that one of Brien or Petersen unlawfully killed Kummer and did so in the prosecution of the common unlawful purpose, you then ask yourselves this question, and it is like the first one but I will read it out so you will see the difference: did Paterson contemplate that in carrying out the common unlawful purpose of unlawfully assaulting Kummer that Brien or Petersen or one of them would probably use a loaded shotgun and thereby cause Kummer’s death? You have to decide whichever of these questions you have to consider. When you do that you will consider fully and in detail the following matters. First of all you look at what was the unlawful purpose, as I said, and that is the unlawful assault of Kummer. Next, you will consider what was the nature of the actual crime you have found to be committed, namely murder or manslaughter, as the case may be. You then decide whether that crime was of such a nature that its commission was a probable consequence of the prosecution of the unlawful assault of Kummer.

...

26

... I will read out to you a principle8 that you may find is of assistance and it is this: when two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is always a likelihood that in the excitement and tensions of the occasion one of them will use his weapon in some way which will cause death or serious injury. If such injury was not intended by the others they must be acquitted of murder but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter.

You may think, and it is a matter entirely for you, that in this case against Paterson on this first basis the prosecution of the common purpose of unlawfully assaulting Kummer envisaged some degree of violence such as to cause fear to or scare Kummer and I say that in the light of the evidence as to the taking of the firearms including the shotgun ...

8 Complaint was made of this direction by Wood, as is later discussed.

... when two of more persons embark on a common unlawful design liability of one for acts done by the others or liabilities of some for acts done by one of the others depends on whether what was done was within the scope of the common design. Thus, if two men go out to rob another with the common design of using whatever force is necessary to achieve their object, even if that involves the killing of or the infliction of a grievous bodily harm on the victim, both will be guilty of murder if the victim is killed. If, however, two men attack another without any intention to cause death or grievous bodily harm and during the course of the attack one man forms an intention to kill the victim and strikes the fatal blow with that intention, he may be convicted of murder while the other participant in the plan may be convicted of manslaughter.

The reason why the principal assailant is guilty of murder and the other participant only of manslaughter in such a case is that the former had an actual intention to kill, whereas the latter never intended the death or grievous bodily harm be caused to the victim and if there had not been a departure from the common purpose the death of the victim would have rendered the two participants guilty of manslaughter. Only in some cases, ... the inactive participant in the common design may escape liability either for murder of manslaughter. If the principal assailant has gone completely beyond the scope of the common design and, for example, used a weapon and acted in a way which

27

no party to the common design could suspect, the inactive participant is not guilty of either murder of manslaughter.

...

... when you have considered the evidence and if you concluded that on the first basis on which the Crown relies in this charge against Paterson the Crown has satisfied you beyond reasonable doubt that Brien or Petersen had murdered Kummer and if you concluded that, objectively viewed, the evidence against Paterson satisfied you beyond reasonable doubt that the murder of Kummer was a probable consequence of the prosecution of the criminal common purpose of unlawfully assaulting Kummer, you would find the accused Paterson guilty of murder.

However, if, after objectively viewing the evidence, you concluded the Crown had not satisfied you beyond reasonable doubt that the murder of Kummer was a probable consequence of the prosecution of the common purpose of unlawfully assaulting Kummer, you would find the accused not guilty of murder.

If you reach that conclusion you then ask yourselves, ‘Viewed objectively, has the Crown satisfied us beyond reasonable doubt that manslaughter of Kummer - that is, unlawful killing of Kummer - was a probable consequence of the prosecution of that common plan to unlawfully assault Kummer?’ ... you will reach this same question if, when you are dealing with the preliminary matter, you decided that neither Brien nor Petersen had murdered Kummer but decided that Brien or Petersen had unlawfully killed Kummer and you will then ask yourselves, ‘Well, viewed objectively, has the Crown satisfied us beyond reasonable doubt that manslaughter of Kummer - that is, his unlawful killing - was a probable consequence of the prosecution of the common plan to unlawfully assault Kummer?’ If you are satisfied beyond reasonable doubt the answer to this question is yes then you can find the accused Paterson not guilty of murder but guilty of manslaughter. If you are not so satisfied you will find the accused Paterson not guilty of murder and not guilty of manslaughter.

... I have now come to the second basis on which the Crown says Paterson is guilty of the murder of Kummer. This basis involves a combination of another definition of murder and section 8 of the Criminal Code. However, before I go further I must say that if you have found Paterson guilty of murder on the first basis you will not need to consider the second basis. If you found Paterson not guilty of murder on the first basis but guilty of manslaughter on the second basis you will need to consider the second basis ...

... The definition of murder relied on in this second basis is as follows, and you may wish to write it down because it is different from the other one: ‘A person who unlawfully kills another in the following circumstance is guilty of murder - if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life’. ...

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On this second basis you begin with an unlawful killing. The Crown case against Paterson is that either Brien or Petersen murdered Kummer and in doing so met all the requirements of the above definition. On this second basis the Crown must first satisfy you beyond reasonable doubt that Brien or Petersen did murder Kummer. In deciding whether the Crown has proved that you ignore the definition of murder relied on in the first basis. As I said, in the definition relied on in this second basis you begin with an unlawful killing of Kummer. I have already explained that unlawful killing means and I tell you now that if the Crown has failed to satisfy you from the evidence in the case against Paterson that Brien or Petersen unlawfully killed Kummer, then you will find the accused Paterson not guilty of murder and not guilty of manslaughter on this second basis.

Assuming that you are satisfied beyond reasonable doubt that Brien or Petersen did unlawfully kill Kummer, then for the Crown to satisfy you beyond reasonable doubt that Brien or Petersen did murder Kummer in accordance with the definition of murder in the second basis, the Crown has to prove each of the following further elements - ... first, that the act which caused Kummer’s death was of such a nature as to be likely to endanger human life. ... The second element is that Kummer’s death was caused by means of an act done in the prosecution of an unlawful purpose. ... Each of these two elements is to be proved beyond reasonable doubt before you can find that Brien or Petersen did murder Kummer according to this second definition of murder.

... in murder, that is the definition of murder on this second basis, there is no requirement to prove either an intent to cause death or an intent to do grievous bodily harm. Indeed, there is no requirement ... that the offender act with any particular intention. ...

...

... The Crown says the unlawful purpose in the second element was the unlawful assault of Brien and/or Petersen on Kummer and that the discharges of the shotgun which caused that death were done in the prosecution of the unlawful assault.

...

If you are satisfied beyond reasonable doubt that that purpose was unlawfully to assault Kummer by presenting firearms at him then you have an unlawful purpose independent of the discharge of the shotgun. ... However, if after you have considered all the evidence against Paterson, you are not satisfied beyond reasonable doubt that the purpose being prosecuted that night was an unlawful assault of Kummer then you would find that this element has not been proved and you would find that neither Brien nor Petersen murdered Kummer in accordance with the definition of murder relied on in the second basis.

...

29

... you may well decide ... that there were two unlawful purposes being prosecuted that night. One was the unlawful assault of Kummer by presenting firearms at him simply to scare him. The second was an unlawful purpose being prosecuted by Brien and Petersen only and that was actually to shoot Kummer and do him serious bodily harm. It seems to me that there is a third interpretation open on the evidence but that is a matter for you. It seems to be this: that the unlawful purpose being prosecuted was that of unlawful assault by presenting firearms at Kummer simply to scare him and that the first discharges of the shotgun occurred in the heat or excitement of the moment and not in the prosecution of an unlawful purpose of actually shooting Kummer. The second discharges of the shotgun - that is, the two discharges by Brien - were, on Paterson’s evidence, deliberate and you may think followed a little while after the first discharge because Brien thought, in effect, that Kummer should be put out of his misery.

... the Crown must exclude beyond reasonable doubt the unlawful purpose of shooting Kummer as the purpose being prosecuted when Kummer was struck by the discharges of the shotgun. I should correct that - by any of the discharges of the shotgun. If the Crown cannot do this you will find that this element is not proven and that neither Brien nor Petersen have murdered Kummer within this second definition of murder. If you are satisfied beyond reasonable doubt that Brien or Petersen did unlawfully kill Kummer, and are satisfied beyond reasonable doubt that the two elements of murder on the second basis are proven, then you will conclude that Brien or Petersen did murder Kummer.

However, if you concluded the Crown have satisfied you only that Brien and Petersen did unlawfully kill Kummer and had failed to satisfy you of either of the elements on the second basis of murder you will conclude that Brien or Petersen did unlawfully kill Kummer; that is, they committed the crime of manslaughter. The unlawful purpose mentioned in the second definition of murder does not necessarily have to be the same as the unlawful purpose mentioned in section 8.

...

..., whatever your conclusion in respect of this second definition of murder be it murder or manslaughter committed by Brien or Petersen you then go on to consider section 8 in relation to this second definition of murder.

...

... I will remind you of what the components and requirements of ... section [8] were, and this applies to the second definition of murder as well. First, there has to be a common intention by Paterson with Brien, Petersen and Wood to prosecute an unlawful purpose in conjunction with one another, that unlawful purpose being an unlawful assault upon Kummer. The second ingredient was that in the prosecution of the common unlawful purpose, namely the unlawful assault upon Kummer, the offence of murder was committed. The third was that

30

the offence committed was a probable consequence of the prosecution of the common unlawful purpose, namely the unlawful assault upon Kummer.

... If the Crown has proved beyond reasonable doubt that Paterson with at least Brien and Petersen had a common intention to prosecute this unlawful purpose in conjunction with one another, namely the unlawful assault upon Kummer, you then go on to consider the second element, which is that in the prosecution of the common unlawful purpose, that is the unlawful assault upon Kummer, the offence of murder was committed.

I reminded you that in considering this second matter you take account of what you found on the preliminary matter concerning proof that Brien or Petersen had murdered Kummer, and this applies to the second basis on which the Crown says the murder occurred. If you have decided that one or other of Brien or Petersen murdered Kummer, you must then decide whether or not the Crown has proved beyond reasonable doubt that that offence of murder was committed in the prosecution of the common unlawful purpose, namely the unlawful assault on Kummer. If you decide that neither Brien nor Petersen murdered Kummer but have decided that one or other of them unlawfully killed Kummer and thereby committed the offence of manslaughter, then you have to decide whether or not the Crown has proved beyond reasonable doubt that that offence of manslaughter was committed in the prosecution of the common unlawful purpose of unlawfully assaulting Kummer.

... the third matter which had to be proved ... was that the offence committed was a probable consequence of the prosecution of the common unlawful purpose, namely the unlawful assault on Kummer. ...

... if you have already decided that one of Brien or Petersen murdered Kummer and did so in the prosecution of the common unlawful purpose of unlawfully assaulting Kummer, you ask yourselves the question: did Paterson contemplate in carrying out the unlawful common purpose of unlawfully assaulting Kummer that Brien or Petersen or one of them would probably use a loaded shotgun with the intention of causing really serious bodily harm?

I went on to say that if you had already decided that Brien or Petersen had unlawfully killed Kummer and done so in the prosecution of the common unlawful plan to unlawfully assault Kummer, then you ask yourselves a slightly different question; namely, did Paterson contemplate that in carrying out the common unlawful purpose of unlawfully assaulting Kummer that Brien, Petersen or one of them would probably use a loaded shotgun and thereby cause Kummer’s death. I told you the matters you had to consider when you decide which of these two questions you have to answer.rem

...

What I will say is this: that if you concluded that on this second basis the Crown satisfied you beyond reasonable doubt that Brien or Petersen had murdered

31

Kummer and if you concluded that, objectively viewed, the evidence against Paterson satisfied you beyond reasonable doubt that the murder of Kummer was a probable consequence of the prosecution of the criminal common purpose - that is, the unlawful assault of Kummer - you will find Paterson guilty of murder, but if, after objectively viewing the evidence, you concluded the Crown had not satisfied you beyond reasonable doubt that the murder of Kummer was a probable consequence of the prosecution of the common purpose of unlawfully assaulting Kummer you would find the accused not guilty of murder and if you reached that result you then ask yourselves, ‘Viewed objectively, has the Crown satisfied us beyond reasonable doubt that the manslaughter of Kummer - that is, the unlawful killing of Kummer - was a probable consequence of the prosecution of that common plan to unlawfully assault Kummer?’

I remind you that you would reach the same question if, when dealing with the preliminary matters, you decided that neither Brien nor Petersen had murdered Kummer but had decided that Brien or Petersen had unlawfully killed Kummer. I said then and I say again that you then ask yourselves this question: ‘Viewed objectively, has the Crown satisfied us beyond reasonable doubt that the manslaughter of Kummer - that is, the unlawful killing of Kummer - was a probable consequence of the prosecution of the common plan to unlawfully assault Kummer?’ If you are satisfied beyond reasonable doubt the answer to this question is yes you will find the accused Paterson not guilty of murder but guilty of manslaughter. If you are not so satisfied, you will find the accused Paterson not guilty of murder and not guilty of manslaughter.

...”

Redirections, so far as presently material, were in the following terms:

“The next matter - and this relates to Paterson’s case - when I addressed you about the first of the matters in section 8; namely, that there was a common intention to prosecute an unlawful purpose in conjunction with one another. ...

... when you are considering this first element - and I am only speaking about the first element - you look subjectively at the evidence relied on by the Crown in the case against Paterson as constituting the common intention unlawfully to assault Kummer. By ‘subjectively’ I mean you look at it through the eyes of Paterson and decide whether or not the Crown has proved beyond reasonable doubt that Paterson and at least Brien and Petersen did form a common intention to prosecute in conjunction with one another an unlawful purpose; namely, an unlawful assault on Kummer.

... The next matter - and this relates to the case against each of Paterson and Wood based on the second definition of murder.

You will recall I told you that the second element was that Kummer’s death was caused by means of an act done in the prosecution of an unlawful purpose. The

32

unlawful purpose there referred to was, the Crown says, the unlawful assault of Kummer by presenting firearms at him.

The final matter relates to the case against Wood and again I am discussing this second element in this case based on the second definition of murder; that being proof that Kummer’s death was caused by means of an act done in the prosecution of an unlawful purpose.

... The Crown says that the unlawful purpose in the second element - and this is the case against Wood - was the unlawful assault by Brien and/or Petersen on Kummer and that the discharges of the shotgun which caused Kummer’s death were done in the prosecution of the unlawful assault.

The Crown in its case against Wood is limited to the evidence in the case against Wood and in that case you have got statements made by Wood to the police in Exhibit 29. In those statements you will read that Wood believed was the purpose being prosecuted on that night.

If you are satisfied beyond reasonable doubt that that purpose was unlawfully to assault Kummer by presenting firearms at him, then you have an unlawful purpose independent of the discharge of the shotgun. However, if, after you have considered all the evidence against Wood, you are not satisfied beyond reasonable doubt that the purpose being prosecuted that night was an unlawful assault of Kummer, then you would find that element had not been proved and you would find that neither Brien nor Petersen murdered Kummer; that is, murdered Kummer in accordance with the definition of murder on the second basis, and the reasons why I say that are these: the discharges of the shotgun which the Crown say are the acts of such a nature as to be likely to endanger human life may have been done in the prosecution of the unlawful purpose of shooting Kummer intending to do him some serious bodily harm. If they were, the unlawful purpose was not independent of the discharge of the shotgun.

That was actually to shoot Kummer and do him serious bodily harm. It seems to me that in Wood’s case if the third interpretation open on the evidence - and that seemed to me to be this, that the unlawful purpose being prosecuted was that of unlawful assault by presenting firearms at Kummer simply to frighten him and that the discharges or the first discharge of the shotgun occurred in the heat of the moment and not in the prosecution of the unlawful purpose of actually shooting Kummer. The second discharges of the shotgun, that is in the case against Wood, appear to have been made by Brien and on the evidence of Wood you may think were deliberate and followed on from the first discharge some time later. It is a matter for you, but you may think that Brien thought in effect that Kummer should be put out of his misery.

... I stress when you are considering this second element the Crown must exclude beyond reasonable doubt the unlawful purpose of shooting Kummer; that is, the unlawful purpose prosecuted by Brien and Petersen of shooting Kummer as the purpose being prosecuted when Kummer was struck by the first of the discharges

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of the shotgun and, indeed, by the second discharges of the shotgun. If the Crown cannot do this you will find that this element has not been proved and that neither Brien nor Petersen murdered Kummer within the second definition of murder. I went on to say that if you are satisfied beyond reasonable doubt that Brien or Petersen did unlawfully kill Kummer and are satisfied beyond reasonable doubt that the two elements of murder on this second basis are proven, then you will conclude that Brien or Petersen did murder Kummer and that if you concluded that the Crown had satisfied you only that Brien or Petersen did unlawfully kill Kummer and have failed to satisfy you of either of the elements on the second basis you will conclude that Brien or Petersen did unlawfully kill Kummer; that is, they committed the crime of manslaughter. ...”

During the course of their deliberations, the jury sent a note to the trial judge asking him

to “Explain and re-state the law/definition of assault, manslaughter basis one and manslaughter

basis two”. After explaining the legal concepts of assault and manslaughter, his Honour said:

“In your note you have said about manslaughter basis one and manslaughter basis two. I assume by basis one you are referring to the first definition of murder; is that so? Who’s the foreman?

FOREMAN: I am, Your Honour.

HIS HONOUR: Is that so?

FOREMAN: Yes, Your Honour. HIS HONOUR: And basis two you are referring to the second definition of murder?

FOREMAN: That’s right, Your Honour.”

On analysis of those passages, his Honour first discussed s. 8 in combination only with sub-s.

302(1)(a) - disregarding sub-s. 302(1)(b) - and initially identified only two possible bases for

Paterson’s conviction. Necessary to both bases were conclusions that:

(i) Paterson and Brien (or possibly Petersen, depending on who fired the shot or shots which

killed Kummer) both intended to assault Kummer, in conjunction with one another, by

presenting loaded firearms at him; and

(ii) Kummer was fatally shot by Brien (or Petersen) in the prosecution of that unlawful

purpose.

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If those requirements were satisfied, Paterson was:

(a) guilty of murder if Brien (or Petersen) murdered Kummer by shooting him intending to

cause his death or grievous bodily harm and Paterson contemplated that an intentional

killing was the probable consequence of the prosecution of the unlawful purpose of

assaulting him; or

(b) guilty of manslaughter if Brien (or Petersen) unlawfully killed him by unintentionally

shooting him and Paterson contemplated that an unintentional killing was the probable

consequence of the prosecution of the unlawful purpose of assaulting him.

It is obvious that the two alternatives thus far referred to, with their conjunctive

requirements, were not exhaustive, and his Honour then moved on to a third possibility arising

from the combination of s. 8 and sub-s. 302(1)(a), again disregarding sub-s. 302(1)(b). The jury

was told that if Brien (or Petersen) was guilty of murder under sub-s. 302(1)(a), but Paterson

contemplated that unintentional unlawful killing, not the intentional unlawful killing which

occurred, was a probable consequence of the prosecution of the unlawful purpose of assaulting

Kummer, Paterson was guilty of manslaughter, not murder.

The effect of what had been stated was then repeated in summary form. If other

requirements were satisfied, Paterson was guilty of murder if Kummer was murdered by Brien

(or Petersen) shooting him with an intention to cause death or grievous bodily harm and Paterson

contemplated that murder was a probable consequence of the prosecution of the unlawful

purpose of assault on Kummer; however, if other requirements were satisfied, Paterson was

guilty only of manslaughter, not murder, if he contemplated that unintentional unlawful killing

was a probable consequence of the prosecution of that unlawful purpose irrespective of whether

Brien (or Petersen) unlawfully killed Kummer intentionally or unintentionally.

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The trial judge then proceeded to discuss the “second basis” relied on by the prosecution,

i.e., the combination of s. 8 and sub-s. 302(1)(b), and said: “... if you have found Paterson guilty

of murder on the first basis you will not need to consider the second basis. If you found Paterson

not guilty of murder on the first basis but guilty of manslaughter on the first basis you will need

to consider the second basis”.

After identifying the elements of sub-s. 302(1)(b), and pointing out that there was no

requirement of an intent to cause death or grievous bodily harm, his Honour turned to the

“unlawful purpose” spoken of in sub-s. 302(1)(b). Although I have not fully recorded the

passages in the summing-up in which the matter was dealt with, his Honour gave the jury

directions that, to prove Brien (or Petersen) murdered Kummer under sub-s. 302(1)(b), “the

Crown must exclude beyond reasonable doubt the unlawful purpose of shooting Kummer as the

purpose being prosecuted when Kummer was struck by ... any of the discharges of the shotgun.

If the Crown cannot prove this you will find that this element is not proven and that neither Brien

nor Petersen have murdered Kummer within this second definition of murder.”9

Although I have found some difficulty in the immediately following discussion, it must, I

think, be taken to relate to a situation in which the prosecution:

(a) proved that Brien (or Petersen) unlawfully killed Kummer by shooting him - an “act ... of

such a nature as to be likely to endanger human life” in the “prosecution of an unlawful

purpose”; and

(b) failed to prove beyond reasonable doubt that the unlawful purpose:

(i) was not shooting Kummer;9 or

9 This appears to be based on Hughes v. R. (1951) 84 C.L.R. 170, and Stuart at pp. 438-439. The

point is again referred to later.

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(ii) was shooting Kummer.10

In those circumstances, the jury was told Brien (or Petersen) was guilty of manslaughter.11 On

the other hand, if, as the prosecution alleged, the unlawful purpose which Brien (or Petersen) was

prosecuting when he killed Kummer by shooting him,12 an “act ... of such a nature as to be likely

to endanger life”, was an unlawful assault on Kummer by presenting loaded firearms at him,

Brien (or Petersen) was guilty of murder under sub-s. 302(1)(b).

10 Brien (or Petersen) would have been guilty of murder under sub-s. 302(1)(a) if he had intended to

kill or cause bodily harm.

11 Code, s. 303

12 For this purpose, it was immaterial whether the shooting was intentional or unintentional.

These alternatives with respect to Brien’s (or Petersen’s) guilt under sub-s. 302(1)(b),

manslaughter or murder, were then related to Paterson’s criminal responsibility under s. 8. The

jury was directed that the unlawful purposes under sub-s. 302(1)(b) and s. 8 did not “necessarily

have to be the same ...”, and the unlawful purpose to be considered in relation to s. 8 was that

asserted by the prosecution - unlawful assault of Kummer by presenting loaded firearms at him.

Whether the unlawful purpose of Brien (or Petersen) when Kummer was killed was to shoot him

or to assault him by presenting loaded firearms at him, the prosecution case was that the common

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intention of Paterson and Brien (or Petersen) was to prosecute the unlawful purpose of assault,

and it was by reference to the unlawful purpose of assault that “probable consequence” fell to be

considered.

The subsequent directions given to the jury in relation to the “second basis”, founded on

s. 8 and sub-s. 302(1)(b), substantially set out to “remind [the jury] of what the components and

requirements of ... section [8] were”, by reminding them of what had been said concerning s. 8

when discussing the first basis, grounded on s. 8 and sub-s. 302(1)(a). For example, his Honour

told the jury “... ask yourself the question: did Paterson contemplate13 in carrying out the

unlawful common purpose of unlawfully assaulting Kummer that Brien or Petersen or some of

them would probably use a loaded shotgun with the intention of causing really serious bodily

harm?”14

For the most part, however, the remainder of the “second basis” discussion referred to

“murder”, “manslaughter” and “unlawful killing”, without further elucidation of the

distinguishing factors which were material in that context. If other requirements were satisfied,

Paterson was guilty of murder if Brien (or Petersen) murdered Kummer and murder was a

probable consequence of the prosecution of an unlawful purpose of assault on Kummer, but

guilty only of manslaughter if Brien (or Petersen) either murdered or otherwise unlawfully killed

13 This again erroneously introduces a subjective consideration into “probable consequence”.

14 This question also involves a return to an issue which had been raised in relation to the “first basis”, based on s. 8 and sub-s. 302(1)(a), namely, whether unintentional or intentional unlawful killing was a “probable consequence” of the prosecution of the unlawful purpose.

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Kummer and only unlawful killing, not murder, was a probable consequence of the prosecution

of unlawful assault on Kummer.

It was implicit in those directions that, at least in the present circumstances, the offences

of murder and manslaughter were of the same “nature” for the purpose of s. 8, and, indeed, the

same “offence” within the meaning of that word where last used in that section.15

The directions given by the trial judge with respect to Wood were indistinguishable from

those given in respect of Paterson, except for references to different evidence; Wood drove the

vehicle and did not have a gun, while Paterson had a gun and fired it, although there was no

suggestion that he fired it at Kummer or that Kummer was struck by a projectile from Paterson’s

gun. The different evidence cannot explain the different verdicts which the jury returned against

Paterson and Wood.

Nor can those different verdicts against Paterson and Wood be reconciled on the basis

that Paterson and Brien (or Petersen) intended to prosecute a different unlawful purpose in

conjunction - intentional killing - from the unlawful purpose intended by Wood and Brien (or

Petersen) - unlawful assault. It is true that the trial judge told the jury that, in order to ascertain

“the common intention” of Paterson and Brien (or Petersen), it was necessary to ascertain

Paterson’s state of mind, and similarly in the case of Wood it was necessary to decide “what

Wood believed was the purpose being prosecuted on that night”. Perhaps in an appropriate case,

directions based on s. 24 of the Code might be called for, despite the reference to “common

intention” in s. 8; for example, if persons intending to kill misled an accomplice into believing

that only an assault was intended. However, it is unnecessary to consider that question in this

15 This is discussed in detail later.

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case. The sole unlawful purpose asserted by the prosecution against each of Paterson and Wood

as commonly intended by each of them and Brien (or Petersen) was an assault on Kummer.

So far as I can discern, the only possible explanation for the different verdicts against

Paterson and Wood lies in the erroneous directions given to the jury to ascertain the “probable

consequence” of the prosecution of the unlawful purpose of the assault on Kummer subjectively;

the jury must have concluded that Paterson “contemplated” that Kummer would probably be

intentionally killed while Wood “contemplated” that he would probably be unintentionally

killed.

Brien and Petersen

A different approach was adopted by the prosecution at the later trial. The prosecution

did not rely on sub-s. 302(1)(b), but only on sub-s. 302(1)(a).16 On the other hand, it relied on s.

7, as well as s. 8, to make whichever of Petersen or Brien did not fire the fatal shot or shots

which killed Kummer criminally responsible for his murder. In summary, the prosecution

alleged at trial against each of Petersen and Brien that either (i) he fired the fatal shot or shots

intending to kill or cause grievous bodily harm to Kummer, or (ii) his co-accused fired the fatal

shot or shots with that intent and the two:

(a) acted in concert (s. 7); or

16 The prosecution did not present an alternative case based on the premise that the person who fired

the fatal shot might have been guilty of manslaughter; e.g., on the footing of criminal negligence.

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(b) had a common intention to prosecute an unlawful purpose17 in conjunction with one

another, and, in the prosecution of such purpose, the person who fired the shot or shots

which killed Kummer committed an offence of such a nature that its commission was a

probable consequence of the prosecution of such purpose (s. 8).

17 The unlawful purpose alleged by the prosecution in relation to Brien and Petersen is referred to

below.

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The different verdicts against Brien and Petersen indicate that the jury concluded that

Brien fired the fatal shot or shots intending to kill Kummer or cause him grievous bodily

harm; Brien could not have been convicted of murder under either s. 7 or s. 818 of the

Code (in conjunction with sub-s. 302(1)(a)) since the only other person who might have

fired the fatal shot or shots, Petersen, was not guilty of murder. Petersen’s conviction for

manslaughter in turn depended on Brien’s conviction of murder under sub-s. 302(1)(a) of

the Code, with Petersen’s criminal responsibility dependent on s. 8. The prosecution did

not seek to rely on s. 7 against Petersen in this Court, implicitly accepting that s. 719

would have required Petersen to be convicted of the same offence as Brien, i.e., murder.

On appeal, the foundation of the prosecution argument in support of Petersen’s

conviction was a submission, based on its view of s. 8, that the trial judge correctly “...

directed the jury that, if they thought that an unlawful killing without intent was a likely

consequence then the verdict was manslaughter”. In explaining the prosecution case

based on s. 8 and sub-s. 302(1) (a) to the jury, the trial judge stated that it was alleged

that Petersen and Brien “... put their heads together and decided that they would go out

and put the wind up the deceased ... frighten him and maybe shoot off some of the guns”.

The question which his Honour posed for the jury in this context was “... in the

18 No party sought to argue that s. 8 could produce that consequence, at least in the circumstances of

this case.

19 In another context, to which reference is later made, the prosecution impliedly suggested that this might be an open question.

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prosecution of that purpose was the offence of intentional killing of such a nature that its

commission was a probable consequence?” By way of elaboration, his Honour said:

“... let us assume that at the end of the day you are persuaded on the evidence which is available to you - and I will take you to it - let us assume that you are persuaded that they both decided probably at some stage the night before or after the shotgun and shells were obtained from Mr Dawson, that they would go out and frighten Kummer, well then, the next part of the rule comes in. The prosecution of the unlawful purpose that they had agreed to was together to go out with the other two and put the wind up Mr Kummer with all this weaponry and so on. Then you have got to ask ... in the prosecution of that purpose was the offence of intentional killing of such a nature that its commission was a probable consequence? Let us assume that the plan was that they would go out and one of them would take this shotgun in and start shooting away and then they got there, for one reason or another, and the gun started to be discharged inside or outside or around about, shotguns and .22 rifles and so on, you would ask yourselves, well, was it a probable consequence, was it a likely consequence that somebody doing that would so lose control of himself, particularly the one with the shotgun, that he would point it at the man’s chest and pull the trigger? Is it a probable consequence? Was it a likely consequence?

First of all when you are applying this rule, you would have to have a common intention between the two of them to go out and put fear into this man for section 8 to apply. ... if there is no intention to actually kill, but there is an intention to do things with the shotgun and the rifles and so on or there is an understanding, there is intention to cause fear or terror by discharging these things, then you have got to say, well, was it a probable consequence that one of them, the man with the shotgun, would decide to kill in the heat of the moment and so on? ... As it has been said, in this particular case did the accused, whichever of them this might apply to, did the accused contemplate that in carrying out this unlawful purpose of causing fear with the shotgun, that the person with the shotgun might indeed use it intending to cause serious harm? If it was a likelihood that that would happen in this plan to cause terror or fear, well, if it was a probable consequence, then he must be treated as having agreed tacitly that that was all right. He was quite happy to assist or to be a party to that plan, that common intention.

... You have to start off with the two of them for this to apply, the two of them to commonly intend to go out with the guns and discharge them if necessary in or near the deceased to cause him fear. In the course of that causing fear was an offence committed? That is, was the offence of murder committed? That is the person trying to cause fear, did he become so carried away, instead of just missing the deceased, he intentionally hit him and killed him? Was the whole event in which the killing occurred, the prosecution of a common purpose? That is the intention to kill or to do serious injury. Did that develop in the course of causing fear? That is the question in this case. It must be a probable consequence or a likely consequence. It must have been likely, objectively. You

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must say, well, it would be a likely thing if somebody was to go in there at that hour of the night and start discharging shotguns in such a way as to put fear into this man, that he might be motivated to try and hit him, to try and do him injury or to try and kill him. You just look at all the facts that have been proved ... and you decide yourselves if it is necessary, whether in the circumstances you can deduce that there was a common - at least a common intention that somebody would go and shoot off their shotgun near the deceased to frighten him and that it was likely that if he did that anything could happen, that he might kill him. ... [if] there was a common purpose, well then, if one of them - and you are not sure which one of them got carried away a bit - instead of just discharging a firearm near this person, he was motivated to shoot him, for whatever reason, then if you are satisfied that that was a likely consequence of implementing this plan, well then, each of them would be guilty of the offence of murder.

... If the plan was that there would only be a discharge and you are not satisfied that it was a likely consequence of the prosecution of this purpose of the implementation of the plan, the likely consequence, that there would be an intentional killing or an infliction of a wound with intent to do grievous bodily harm, but as the fight developed really somebody, one of them, whoever had the shotgun in his hand, the loaded shotgun, one of them decided to pull the trigger, if you are not satisfied that it was a likely consequence, not something that you would say, Well, it is likely that that might happen, then the person would not be guilty of murder. The person who did not pull the trigger would be guilty only of manslaughter. He would only be guilty of murder if that killing was a probable consequence. If the intentional killing was not a probable consequence then you would bring in a verdict in this case of manslaughter only.

One of the problems on the facts of this case is that you would not be sure or you might not be sure of which of them pulled the trigger.

... if you are not sure which of them actually did the shooting and you are not satisfied that they went there intending to kill him, between the two of them, of the section 8 situation - when I say section 8, it is a case where the Crown has to show that there was an agreement.

The Crown have to establish that there was an agreement to cause terror by shooting off the gun. If the Crown cannot prove who shot the gun off, then it does not help you very much to say whether it was a probable consequence or it was not a probable consequence, because the probable consequence argument - if the probable consequence was not an intentional killing or an intent to do grievous bodily harm, you are in a problem area and it seems to me that it will really be unnecessarily complicated for me at this stage to go further into that aspect, because it would be better for me to wait, I think, until I have actually taken you to the circumstantial evidence that the Crown relies upon.

There are not that many circumstances, members of the jury, and counsel for Mr Brien has said, ‘Well, there are hardly any circumstances at all, certainly not enough to warrant a conviction.’ Well, there are some circumstances and I will

44

tell you, as a matter of law, it is open to you to be satisfied on those circumstances that each of the accused men is guilty of murder. It is open to you on the circumstances, depending on what your findings of fact are, to find that neither of them was guilty of murder. it is open to you to find on the circumstances that one is guilty of murder and the other is not guilty of murder. It is open to you in the circumstances to find that none is guilty of manslaughter.”

In the course of passages omitted from the statements quoted, the trial judge referred to the

primary prosecution case, which depended on s. 7, not s. 8, of the Code, that Petersen and Brien

“acted in concert” to kill Kummer intentionally. After the passages quoted, his Honour went on

to consider the possibility that there was a common intention to use whatever degree of violence

was necessary. Later still, he said:

“Firstly, if a person shot dead the deceased intending to kill him or intending to do grievous bodily harm to him that person is guilty of murder. Secondly, if a person was acting in concert with another and encouraging him or standing by him and standing with him and encouraging him, intentionally encouraging him, to shoot or to shoot the deceased intending to kill him or do him GBH, that person is guilty of murder. Even if he did not do the shooting himself if he was just standing there assisting or encouraging, identifying himself with the other man and the execution of his purpose, the two of them are there together and one pulls the trigger, they are both guilty of murder if they are acting in concert and there is an encouragement or an assistance, along the lines of the directions I gave you yesterday.

If the two of them are acting in concert with the intent to kill or do GBH, if both of them are there and one of them has got the shotgun in his hand and you are not sure which of them on the evidence, not sure which of them actually pulled the trigger, and this seems to be the case in this case because there is no direct evidence, no evidence as to who pulled the trigger that caused the shotgun cartridges to discharge into the body of the deceased, the two of them were acting in concert with intent to do injury or to kill, then each would be guilty of murder, even if it does not appear which of them actually pointed the gun at the deceased and pulled the trigger and inflicted the wounds that killed him.

... It is not particularly difficult this next matter. ... where you have got a common intention to do something, in this case, for example, to terrorise or to frighten, to use a shotgun in a terrifying manner. That is the common intention, that is the plan, that is what each of the accused, in this case the Crown says - well, each of the accused, this applies to him. He was part of that concert, he was part of that plan to terrorise.

It is a matter for your to determine the facts. If you came to the conclusion that an accused, this goes to each of them, had a common intention with another or

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others, with one other anyway, to use this gun in a terrifying or threatening manner, to go out and just miss him or to brandish it and to just generally terrify him, and you keep in mind that before the gun was discharged it must have been loaded so it was not any intent to terrify, involving waving around an unloaded shotgun, and you come to the conclusion that it was in the course of this endeavour, this attempt to threaten or to terrify or frighten, that he was shot, but that he was shot intentionally, that is the common plan going to go in and terrifying him by using this shotgun in the excitement of the enterprise, the man with the gun shot him intentionally, well, the one who, of course, did the intentional shooting is guilty of murder if you are satisfied that he intended to kill him or do him harm.

The other, however, would be only guilty of murder if you came to the conclusion looking at it objectively, looking at it from a distance, if you came to the conclusion that the intentional shooting by the one with the gun was a likely consequence of the implementation of this plan to terrify and so on, that is that you are looking at this plan as objective people and you understand what the plan was, would you say, well, if somebody goes in there with a shotgun, even if he does not at the time the plan was made or the common intention is formed, even at that time there was no common intent to kill but there was a common intent to terrify with the use of a loaded shotgun, and you would say, ‘Well, would it be a likely consequence that the person with the shotgun might intentionally kill in some circumstances?’

... You might think, ‘Well, anybody that knew much about him and his lifestyle might have anticipated that he would do something to try and defend himself.’ If he did something to try and defend himself, well, you have to ask yourself, looking at the matter objectively from a distance, ‘Was it a likely consequence that there would be an intentional shooting at him to kill him or disable him seriously if somebody went in there with a loaded shotgun with a view to terrify him?’

So, that is another matter. That is the question of the likely consequence, whether it would be likely that there would be an intentional shooting, if something went wrong in the course of simply using the gun for the purpose of frightening him.

Now, again, in this case, if on the evidence one or other of the accused or the accused and anybody else that was there, this is in respect of each of them, if the accused had this common intention to go and shoot and to go and frighten or terrify or discharge a shotgun somewhere near him necessarily to terrify him, if it was a likely consequence of that that in the events that transpired in the course of this action the person with a gun would shoot at the deceased intentionally trying to kill him or disable him and you are not able to say just who it was, the people that had this intent, although you are satisfied that the accused was one of them, then the accused with that common intent is guilty of murder, if it is likely that there would be an intentional killing, even though you are not sure that it was actually the accused whose case you are considering, that he pulled the trigger.

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The Crown does not have to prove who pulled the trigger. In other words, if there are a number of people there with the common intent and the accused whose case you are considering is one of a group acting in concert and another of that group of people was the one who actually pointed the gun and pulled the trigger.

Now, there is a rule, as I explained to you yesterday, and I will simply repeat it just so you can keep it in mind, and I might tell you later again if necessary. This is a case where the accused was one of a group. When I say ‘the accused’ I am talking about each accused individually, not the two of them, although it would apply to them. It may apply to two of them. It applies to each of them. Just speaking in general terms, if, say, an accused, rather than the accused, if an accused was one of a group acting in concert to frighten or terrorise the deceased and in the course of doing that one other member of the group other than the accused had this shotgun in his hand and formed the intent then to kill or to do GBH, but you are not satisfied that an intentional killing was a likely consequence of the plan to terrorise but an intentional (sic) killing was likely, well, then, in that case that particular accused would be guilty of manslaughter only.

Of course, if that accused had the intent to kill, whether he pull the trigger of not, he is guilty of murder, but if you are satisfied that one of the group with this intent to frighten or terrorise formed an intent to kill but it was not a likely consequence, in other words, looking at the whole plan before anybody went out there to the shed, looking at the plan that they had or before they went into this shed or whoever whatever went into the shed, you come to the conclusion that that was the common intent, but it was not a likely consequence, you do not think it was a likely consequence that the man who had the shotgun would intentionally kill, well, in that case the other people who were party to the group acting in concert would be guilty of manslaughter only.

So, if an intentional killing was a likely consequence, looking at this common purpose rule, if an intentional killing was likely, even if there was no actual intent at the time the plan was made, nevertheless you say, ‘Well, look, in the working out of that plan, an intentional killing with the likely consequence, then it is murder, by the people who are in that group.’ If the intentional killing was not a likely consequence but the killing nevertheless results from the prosecution of the plan then it is manslaughter only. ...”

Towards the conclusion of his summing-up, his Honour said:

“The essence of a murder charge is intentional killing, an unlawful killing with the intent to kill or the intent to cause grievous bodily harm. If two people act in concert, each intending that the person should be killed but only one of them pulls the trigger, they are both guilty of murder. If there was a common intention on the part of both of them to frighten or terrorise the deceased and one of them shot the deceased in the course of terrorising or frightening him intentionally,

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then the one who shot him intentionally is guilty of murder and the other one is also guilty of murder. If an intentional shooting was a likely consequence of the whole planned event, the whole scheme, the whole purpose, whether it is a likely consequence of not, you take into account the knowledge that each of them had about the possibility of violence and Petersen says in his record of interview, as I have mentioned, as I pointed out to you, that he thought they were going out there and he thought the weapons were there to scare this person. He thought that they would be used at least to scare the deceased or somebody else. And that was the reason the loaded weapons were taken out there in the car with the four of them. If you come to the conclusion that the unlawful killing of the deceased was - at least the unlawful killing of the deceased was a likely consequence of putting this plan to terrify him, if there was a plan to terrify him rather than to kill, if you think that unlawful killing was a likely consequence without intent involved, it is a manslaughter at least. If you think an unlikely killing - sorry, if you think an intentional killing was a likely consequence then it is murder. If it is only an unlawful killing a likely consequence or a probable consequence that you say looking at the whole thing - it is only an unlawful killing - then it is manslaughter. If, however, it was a likely consequence that there would be an intentional killing, a discharge of the rifle intending to kill, then you can return a verdict of murder and you do not have to worry which of the accused men pulled the trigger.”

The jury was presented with two alternatives based on s. 8 against whoever did not fire

the shots which killed Kummer - according to the jury, Petersen. Common to both alternatives

were premises that Kummer was killed by a person who shot him - according to the jury, Brien -

intending to kill him or cause him grievous bodily harm, that Petersen and Brien had formed a

common intention to prosecute an unlawful purpose, namely, “frighten [Kummer] and maybe

shoot off some ... guns”, presumably, as in the earlier case against Paterson and Wood, at least an

allegation of the unlawful purpose of assault,20 and that the offence committed by Brien was

committed in the prosecution of such purpose. Both alternatives also required that the offence

committed by Brien was of such a nature that its commission was a probable consequence of the

prosecution of such purpose. The jury was told that if an intentional killing by Brien was a

probable consequence of the prosecution of the unlawful purpose, Petersen was guilty of murder;

20 The hypothesis that the commonly intended unlawful purpose might have been to kill Kummer or

cause him grievous bodily harm was principally, if not solely, related to s. 7 of the Code, not s. 8.

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if the offence which was a probable consequence of the prosecution of the unlawful purpose was

unintentional, not intentional unlawful killing, Petersen was guilty of manslaughter.

It was again implicit in those alternatives that, at least in the present circumstances,

Brien’s offence, unlawful killing with intent to cause death or grievous bodily harm, and an

offence of unlawful killing without intent to kill or cause grievous bodily harm were of the same

“nature”. The hypothesis on which Petersen was convicted of manslaughter was that Brien

intentionally killed Kummer but Petersen contemplated that only an unintentional unlawful

killing was a probable consequence of the prosecution of the unlawful purpose of assaulting

Kummer; unless the “nature” of the offences of intentional unlawful killing and unintentional

unlawful killing were the same, one of the elements of s. 8 was not satisfied and Petersen could

not have been properly convicted of either murder or manslaughter. Indeed, it was implicit in the

summing-up (and the verdicts) that murder and manslaughter were not only offences of the same

“nature” but the same “offence”; s. 8 deemed Petersen to have committed the offence committed

by Brien.21

Grounds of Appeal

Some of the grounds stated in the notices of appeal were abandoned and others were

added. In summary, the grounds which were argued are as follows:

Paterson (Murder)

1. Self-defence was raised on the evidence and should have been left to the jury.

2. Misdirections with respect to ss. 8 and 302 of the Code.

3. Inconsistency between the verdict against Paterson and the other verdicts (or some of

them), related to the inconsistent conduct of the prosecution.

Wood (Manslaughter)

21 This is discussed below.

49

4. Self-defence was raised on the evidence in Paterson’s trial22 and should have been left to

the jury.

5. Misdirections with respect to ss. 8 and 302 of the Code.

Petersen (Manslaughter)

22 It was not explained how Wood could benefit from evidence which did not form part of the

evidence in his trial.

6. Failure to discharge the jury after the prosecution opened evidence (by Paterson) which

he did not give.

7. Misdirections with respect to ss. 8 and 302 of the Code.

Brien (Murder)

8. Failure to discharge the jury after Paterson’s evidence was opened.

9. Misdirection with respect to Brien’s failure to give evidence.

10. Verdict unsafe and unsatisfactory.

Section 8 of the Code

Before considering those specific grounds of appeal, it is desirable to consider the

operation of s. 8 of the Code, which was essential to the conviction of all appellants except

Brien, and its interaction with s. 302. Brien was convicted of murder under sub-s. 302(1)(a).

Paterson was convicted of murder under s. 8 and sub-s. 302(1)(b). Wood was convicted of

manslaughter under the same provisions. Petersen was convicted of manslaughter under s. 8 and

sub-s. 302(1)(a).

50

The interaction of s. 8 and sub-ss. 302(1)(a) and (b) when an unlawful23 killing for which

it is sought to impose criminal responsibility under s. 8 might have been intentional has

occasioned difficulty in the past: see R. v. Jervis [1993] 1 Qd.R. 643 and R. v. Hind and

Harwood (1995) 80 A. Crim. R. 105. The summing-up in the present matters proceeded

generally in accordance with the views of the majority of the Court of Criminal Appeal in Jervis,

which was not followed by two members of this Court in Hind and Harwood. The prosecution

has requested the Court to reconsider those decisions in this matter, and to follow Jervis.

23 It is convenient to omit reference to Paterson and Wood’s contention of self-defence for the

moment.

Provided that certain requirements are satisfied, s. 8 deems one person, the “co-offender”,

to have committed an offence committed by another person, the “principal offender”. Those

requirements are:

(i) the offence was committed by the principal offender in the prosecution of “an unlawful

purpose”;

(ii) the principal offender and the co-offender had formed “a common intention to prosecute

[that] unlawful purpose in conjunction with one another”; and

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(iii) the offence committed by the principal offender was “of such a nature that its commission

was a probable consequence24 of the prosecution “of that unlawful purpose”. Section 8 therefore

requires the identification of the commonly intended “unlawful purpose” and the “offence ...

committed” by the principal offender in the prosecution of that purpose.

24 That is, a real or substantial possibility: Brennan v. R. (1936) 55 C.L.R. 253; Hind and Harwood.

52

In the present circumstances, the principal offender’s offence was an unlawful killing,

and hence manslaughter unless murder under sub-ss. 302(1)(a) or (1)(b).25 For sub-s. 302(1)(a)

to apply, the principal offender must have intended to cause death or grievous bodily harm; for

sub-s. 302(1)(b) to apply, the principal offender must have caused death by an “act ... of such a

nature as to be likely to endanger human life”,26 which was “done in the prosecution of an

unlawful purpose”. Further, for sub-s. 302(1)(b) to apply, there must have been an unlawful

purpose other than the dangerous act which caused death: Hughes v. R. (1951) 84 C.L.R. 170;

Stuart at pp. 438-439. Sub-section 302(1)(b) has no application if the principal offender had no

purpose other than the dangerous act which caused death.27 On the other hand, sub-s. 302(1)(b)

applies and the principal offender is guilty of murder without any intent to kill or cause grievous

bodily harm if the dangerous act which caused death was done in the prosecution of some other

unlawful purpose such as arson (Stuart), wounding (Jervis), armed robbery (Hind and Harwood)

or assault (the present case). Except, perhaps, in unusual circumstances, if s. 8 is to apply the

“unlawful purpose” which the principal offender is prosecuting when he does the dangerous act

which causes death will be the “unlawful purpose” which the principal offender and co-offender

commonly intended.

As the summing-up in the trials of Paterson and Wood illustrate, confusion is likely if s. 8

is applied separately to the alternatives that the principal offender was guilty of murder under

sub-s. 302(1)(a) or manslaughter, or murder under sub-s. 302(1)(b) or manslaughter. Other

25 No other part of s. 302 was relied on by the prosecution.

26 The test is objective, with the “apparent severity” of sub-s. 302(1)(b) “mitigated” by sub-s. 23(1): Stuart at p. 438, Hind and Harwood. If death would not reasonably have been foreseen by an ordinary person as a consequence of an accused’s act, he or she will be exonerated from criminal responsibility for murder by s. 23: see also R. v. Van Den Bemd (1994) 179 CLR 137; 68 ALJR 199; 70 A. Crim. R. 494.

27 In which case, in circumstances like the present, sub-s. 302(1)(a) would ordinarily apply.

53

considerations aside, a principal offender who unlawfully kills is guilty of manslaughter only if

he is not guilty of murder under either sub-ss. 302(1)(a) or (b).28

In circumstances such as the present, in which the act which caused death - shooting -

was plainly “of such a nature as to be likely endanger human life”, the principal offender,

Brien,29 was guilty of murder if he fired the gun:

(i) intending to cause death or grievous bodily harm (sub-s. 302(1)(a)); or

(ii) in the prosecution of an unlawful purpose different from the shooting - according to the

prosecution case, assault by pointing loaded firearms (sub-s. 302(1)(b)).

A fortiori, the principal offender was guilty of murder if he fired the gun in the prosecution of the

purpose of assault, and intended to cause death or grievous bodily harm.

28 0r any other sub-section in s. 302.

29 Or, at the time of trial, possibly Petersen.

Conversely, the principal offender was guilty only of manslaughter if he unlawfully killed

by firing the gun and he:

(i) did not do so in the prosecution of the unlawful purpose of assault; or

(ii) did not intend to cause death or grievous bodily harm.

Whether or not the theoretical possibility exists that a co-offender might be guilty of

murder under s. 8 although the principal offender is guilty only of manslaughter, that was not

suggested by any party as a possible outcome in the present case. It was not disputed that, in the

54

present circumstances, a co-offender would be guilty of manslaughter under s. 8 if its other

requirements were satisfied and the principal offender was guilty only of manslaughter.

However, it is obvious that neither jury, one of which convicted Paterson of murder and the other

of which convicted Brien of murder, concluded that the principal offender (Brien, according to

the jury which convicted him and Petersen) was guilty only of manslaughter.

It was also not disputed that, if the commonly intended “unlawful purpose” was to kill or

cause grievous bodily harm and the primary offender was guilty of murder because in carrying

out that unlawful purpose he intended to cause death or grievous bodily harm, a co-offender

would also be guilty of murder.30 However, neither jury’s verdicts were based on a commonly

intended unlawful purpose of killing or causing grievous bodily harm.

30 At the trial of Brien and Petersen, the prosecution case on this basis was principally, if not solely,

based on s. 7 of the Code, not s. 8, in combination with sub-s. 302(1)(a).

55

At this point, it is desirable to refer more precisely to the specific circumstances of the

present matter. On the prosecution case, the commonly intended unlawful purpose was to assault

Kummer by pointing loaded weapons at him. The act of such a nature as to be likely to endanger

life - done in the prosecution of that purpose - was the firing of one such weapon by Brien as the

principal offender.31 Brien’s dangerous act in firing the weapon caused the death of Kummer

and (leaving aside Paterson and Wood’s contention of self-defence and in the absence of any

suggestion that that act was unwilled or that its consequence, Kummer’s death was accidental32)

was an unlawful killing33 and an offence.34 Because the act of shooting occurred in the

prosecution of the unlawful purpose of assaulting Kummer by pointing loaded firearms at him,

31 At the trials, the alternative was left open that the principal offender might have been Petersen, but

that is of no present significance.

32 Code, s. 23.

33 Code, ss. 291 and 293.

34 Code, s. 2.

56

Brien’s offence was murder whether or not he intended Kummer’s death (or grievous bodily

harm).

The only remaining requirement for the application of s. 8 was that the offence Brien

committed was “of such a nature that its commission was a probable consequence of the

prosecution of [the] purpose” of unlawful assault by pointing loaded firearms at Kummer. The

prosecution submitted that the final requirement of s. 8 was satisfied if an unlawful killing by a

shot fired from one of the loaded firearms was a “probable consequence”. The appellants did not

dispute the generality of that proposition,35 which I accept as correct. However, the

prosecution’s next submission, on the basis of Jervis, was that, when the principal offender is

guilty of murder, whether under sub-s. 302(1)(a) or sub-s. 302(1)(b), a co-offender is guilty of

murder only if an intentional unlawful killing was a “probable consequence” of the prosecution

of the unlawful purpose, and guilty only of manslaughter if an unintentional unlawful killing, not

an intentional unlawful killing, was a “probable consequence” of the prosecution of that unlawful

purpose.36

I will come, in due course, to the arguments which the prosecution advanced in support of

its submission based on Jervis, but propose first to make three points. Firstly, the prosecution

will often present its case in a matter like this on a number of bases, one or more involving an

intentional unlawful killing by the principal offender and/or an unlawful purpose of intentional

killing; other considerations aside, such an approach by the prosecution is made prudent by the

operation given to sub-s. 302(1)(b) by cases such as Hughes and Stuart. However, when the

35 It was not submitted by either the prosecution or the appellants that such an unintentional

unlawful killing was not an offence of the same “nature” as an otherwise identical intentional unlawful killing. Both summings-up proceeded on that footing, which was not challenged in this Court.

36 Again, both summings-up proceeded on that footing.

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prosecution case is that death was caused by an act of such a nature as to be likely to endanger

human life done in the prosecution of an unlawful purpose additional to the act, neither sub-s.

302(1)(b) nor s. 8 contains any indication that it is material whether or not the offender who

killed had an intention to cause death or grievous bodily harm or whether an intentional killing

was a probable consequence of the prosecution of the unlawful purpose. Secondly, at least in a

case like the present, the basis upon which a jury might conclude that an intentional, rather than

an unintentional, unlawful killing was a “probable consequence” of the prosecution of the

unlawful purpose of assault is not apparent.37 Thirdly, as was pointed out in Hind and Harwood,

where it applies s. 8 deems the co-offender, as well as the principal offender, to have committed

the principal offender’s “offence”.

It is convenient at this point to consider the prosecution arguments concerning why this

Court should decline to follow Hind and Harwood and revert to Jervis.

37 It will be necessary to come back to this when considering the different verdicts of the juries.

58

As was noticed in Hind and Harwood, the High Court of Australia refused special leave

to appeal in Jervis,38 and it was submitted by the prosecution that the High Court’s decision,

especially since accompanied by the observation that the actual decision in Jervis was not

attended with sufficient doubt to justify the granting of special leave, approved the construction

of s. 8 adopted in Jervis. However, that is not the orthodox view of the usual effect of a refusal

of special leave by the High Court,39 although there might be exceptions.40 What was said by the

High Court in refusing special leave in Jervis does not convey a considered conclusion that she

could not, or should not, have been convicted of the more serious offence, murder. While dicta

of the High Court must always be accorded the respect to which they are entitled, statements

made in refusing special leave cannot ordinarily be translated into binding authority.41 Further,

as Hind and Harwood demonstrates, there were significant differences in the separate judgments

38 On 23 June 1992.

39 See Attorney-General (Cth) v. Finch (No. 2) (1984) 155 C.L.R. 107, 115.

40 See Attorney-General (N.S.W.) v. Findlay (1976) 50 A.L.J.R. 637; R. v. Kingston [1986] 2 Qd.R. 114, 119-120; Stafford v. R. (1993) 67 A.L.J.R. 510; R. v. Brown [1995] 3 Qd. R. 287, 290.

41 cp. Ex parte Zietsch; re Craig (1944) 44 S.R.(N.S.W.) 360, 368; Walton v. Gardiner (1993) 177 C.L.R. 378, 417 per Toohey J.:Nosic v. Zurich Australian Life Insurance Ltd (Appeal No. 266 of 1994, unreported, 24 November 1995, per McPherson J.A., with whom Pincus J.A. agreed); X. v. D.P.P. (Vic.C.A. 5178 of 1994, 8 September 1995 per Callaway J.A.); cf. R. v. Small (1994) 33 N.S.W.L.R. 575, 601.

59

of the majority in Jervis. Although there was also a dissenting judgment in Hind and Harwood, it

is a recent, fully considered, decision of this Court, which should be followed unless it is shown

to be incorrect.

The prosecution further submitted that Jervis accords with the common law and decisions

on statutory provisions similar to s. 8 in other jurisdictions.

Even if the assertion with respect to the common law position is correct, it provides little

insight into the operation of the Code, and I do not propose to discuss the common law cases

concerning offences committed by co-offenders in the prosecution of a common unlawful

purpose, a number of which were referred to in Hind and Harwood in various contexts.42 To

make good its argument based on the operation given to other statutory provisions similar to s. 8

in other jurisdictions, the prosecution drew attention to the New Zealand case of R. v. Tomkins43

(1985) 2 N.Z.L.R. 253 and the Canadian case of R. v. Davy (1993) 86 C.C.C. (3d) 385; 109

D.L.R. (4d) 318.

Although sub-s. 66(2) of the Crimes Act 1961 (New Zealand) appears to have the same

general object as s. 8 of the Code, the language is different and falls for consideration in a quite

different statutory context in which, as appears from Tomkins itself, common law principles,

including the concept of mens rea, remain applicable. The statutory context in Queensland is so

different, with the material provisions contained in a Code which includes s. 23, that comparison

is likely to be very difficult and unhelpful. In particular, I do not consider that the discussion in

Tomkins at p. 255 from lines 7 to 42 is of significant assistance for present purposes.

42 However, it is important to note that, at common law, if an unintentional unlawful killing was a

possible outcome of the prosecution of an unlawful purpose and a killing was unintentional, even the principal offender would be guilty only of manslaughter: see, for example, Markby v. R. (1978) 140 C.L.R. 108,112 (corrigenda p. X) - 113.

43 Tomkins was followed on another point, on which it is consistent with Hind and Harwood, in R. v. Piri (1987) 1 N.Z.L.R. 66 at p. 78 (see also p. 84), and was distinguished in R. v. Beazley (1987) 2 N.Z.L.R. 760.

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Much the same might be said of the Canadian Supreme Court decision in Davy. Apart

from the differences in the directly material statutory provisions, the overall statutory context is

patently different; note, for example, the references to the need for mens rea in relation to both

murder and manslaughter.

Since judgment was reserved in these appeals, the Western Australian Court of Criminal

Appeal has delivered judgment in Mason v. R. (C.C.A. 9 of 1995, unreported, 31 August 1995).

In that case, a conviction of murder was quashed and a verdict of manslaughter substituted in

circumstances in which the prosecution relied on s. 8 (and s. 7) of the Criminal Code of that State

against both accused, neither of whom could be identified as the principal offender, and Mason’s

co-accused, Robinson, was convicted only of manslaughter. While it is correct that Walsh J.,

with whom Kennedy J. agreed, considered that Markby “authoritatively established ... that

different verdicts could be given under s. 8", his Honour also said that “... under that section

there is no need to prove the intention of an aider, the test being an objective one as to what was

a probable consequence of the joint venture”. That aside, Mason proceeded on the basis of a

common acceptance by the prosecution and appellant that, apparently because “it was impossible

to ascertain who was the principal and who was the aider”, “the least culpable intention of the

two accused is the intention on which both parties would have to be convicted. If the aider’s

intention was less culpable than the principal, then both the principal and the aider must be dealt

with according to the aider’s intention or lack of it as the case may be”. Further, “[t]he judge

determined ..., after discussing the matter with counsel, that there was no evidence on which an

intention, other than an intention to assist merely in the assault, could be inferred on the aider”.

While I am unsure whether I fully understand the reasoning, which is perhaps related in part to

the substantive offences of wilful murder, murder and manslaughter under the Western

61

Australian Criminal Code, the matters referred to in the passages quoted were plainly of vital

importance. The judgment on this part of the case concluded:

“... there was no evidence from which to infer an intent, other than to assault the deceased, on the person who did not stab the deceased. Therefore in this case, as it is impossible to ascertain which of the parties committed the principal act, any verdict returned under s 8 which differentiated between the two co-accused is not able to stand. It is for these reasons that I am of the opinion that the concession by the Crown was rightly made and that this ground has been made out.”

The third judge, Murray J., said:

“As to ground 2 I agree that it is appropriate in this case to accept the concession by the Crown on the argument of the appeal that the appeal should succeed on this ground. That concession was properly made in my respectful opinion because of the way in which both the Crown and the defence presented their cases at trial. Both parties proceeded upon the basis that, because the evidence would not sustain the conclusion beyond a reasonable doubt that one or other of the accused persons was the principal offender who actually killed Clark, the jury could not by reference to either s7 or s8 of the Code properly return different verdicts against each of the two accused persons. As we have seen the applicant was convicted of murder and Robinson was convicted of manslaughter upon the indictment alleging that the two men wilfully murdered Clark.

However, although I take that view that does not mean that the verdicts returned by the jury could not have been a possible result in a case such as this, depending upon the facts found by the jury, and appropriate directions being given to them. As I take the view that the concession mentioned was rightly made in the circumstances of this case and because the matter was not fully argued before us, it is inappropriate that I should express any concluded view. ...”

I do not think that Mason is of present assistance.

The prosecution’s reliance on the New Zealand and Canadian decisions was consistent

with its basic premise that justice requires that account be taken of the different “states of mind”

which might be present in co-offenders when s. 8 is applied. This led to the submission that the

word “offence” in s. 8, especially perhaps where it appears at the end of s. 8, should be given a

meaning which “encompasses included offences” and includes “committed offences with

circumstances of aggravation”. As I understand the submission, “included offences” mean

offences, other than the offence charged, of which a person may be convicted upon an

62

indictment; for example, on an indictment for murder, a conviction of manslaughter is

permissible under s. 576 of the Code if manslaughter is established by the evidence, although, if

murder is established, the jury has a duty to return a verdict of murder: R. v. Russel [1973] Qd.R.

295.

While an offence, an “included offence” and the offence with circumstances of

aggravation will often, perhaps generally, be of the same “nature”, and even the same “offence”

in some circumstances or for some purposes, the prosecution argument that “offence” in s. 8

should be so construed is a necessary corollary to, and dependent on, its basic proposition that

justice requires that a person who joins another in the prosecution of a common unlawful purpose

of which an unlawful killing is a probable consequence should be convicted only of

manslaughter, not murder, unless the prosecution can prove that an intentional unlawful killing,

not merely an unintentional unlawful killing, was a probable consequence of the prosecution of

the common unlawful purpose. That basic proposition seems to me incorrect. Sub-section

302(1)(b) evinces a clear legislative intent that an unlawful killing in the prosecution of an

unlawful purpose is murder, even if the killing was unintentional. Further, s. 8 introduces no

mental element other than a common intention to prosecute an unlawful purpose in conjunction;

its plain object is to attribute criminal responsibility to each co-offender for another’s offence in

the prosecution of a common unlawful purpose, provided that an offence of the nature of the

offence committed by the other or others, in the present context unlawful killing by firing a

loaded gun, was a probable consequence of the prosecution of that unlawful purpose, assault by

pointing loaded guns. The result for which s. 8 provides when its requirements are satisfied is

quite specific; the offender made criminally responsible by s. 8 is “deemed to have committed

the offence” committed by the principal offender, not an included offence, or that offence with or

63

without circumstances of aggravation or an offence of the same “nature” as that committed by

the principal offender, with the details of the offence for which the co-offender is made

criminally responsible by s. 8 dependent on the degree of his or her personal culpability, or

“mens rea”. In my opinion, the prosecution’s basic proposition is not only unnecessary but

involves a departure from the manifest legislative intent that those who participate in an unlawful

purpose in which there is a real or substantial possibility that a person will be unlawfully killed

are guilty of murder if death does result. I can discern nothing unjust in such an outcome. I am

unable to comprehend why persons who embark on an unlawful common purpose of which an

unlawful killing is a probable consequence should not be convicted of murder if a person is

unlawfully killed in the prosecution of that purpose. The notion that it is “unjust” to convict a

person of murder in such circumstances because it was probable that the victim would be

unintentionally killed, not intentionally killed, seems to me illogical; a death has been caused by

the prosecution of an unlawful purpose as was probable: cf. sub-s. 302(1)(b).

The critical requirement in s. 8 for present purposes is that the offence committed by the

principal offender and for which the co-offender is made criminally responsible must be of the

same “nature” as an offence which was a “probable consequence” of the prosecution of an

unlawful purpose which the two offenders intended to pursue conjointly. Once that is

demonstrated, both are guilty of the same offence, that committed by the principal offender.

Section 8 prescribes no criteria for differentiating between them. If, contrary to my opinion, it is

thought that this operation of s. 8 is too harsh, and that there should be some more precise

analysis of the degree of the co-offender’s culpability, depending on his or her intention in

addition to the intention to prosecute the unlawful purpose in conjunction with the principal

offender, it is open to the legislature to say so. However, the Criminal Code 1995 does not

64

appear to intend to alter the law on this point: on the contrary, s. 31 of the 1995 Code is a re-

statement of s. 8 of the 1899 Code.

Another argument put forward by the prosecution was that s. 8 does not, like s. 9, refer to

the offence “actually committed”. However, the most cursory perusal of the purpose and context

of s. 9 reveals why that language was necessary there. Section 8 uses its own, quite precise

language to express the concept with which it is concerned, namely, widening the range of those

who are criminally responsible for an offence committed in the prosecution of an unlawful

purpose to those who intended that the unlawful purpose be prosecuted, provided that an offence

of the “nature” of the offence committed was a “probable consequence” of the prosecution of

that unlawful purpose. In its intended operation, although based on different requirements, s. 8 is

similar to s. 7, which also extends the range of those criminally responsible for a principal

offender’s offence. The prosecution submission that “it is not necessary to determine the

meaning of the word ‘offence’ in s. 7" is disingenuous. It is clear from both the language of s. 7

and authority that criminal responsibility is imposed by s. 7 for the offence committed, not an

“included offence”, the offence committed without circumstances of aggravation or an offence of

the same “nature”.

It was also submitted that the prosecution approach to s. 8 in the present cases,

considered to be based on Jervis, “reflects long standing practice in this state”. The complex

directions given to the juries in this matter and the various verdicts which resulted cause me to

hope that that is not so, although it is plain that the prosecution should adopt a consistent

approach to such a fundamental provision as s. 8 of the Code in the prosecution of murder

charges when more than one person is accused. The prosecution position at trial in Hind and

Harwood was inconsistent with Jervis, and in the present matter the prosecution deliberately

adopted different positions at different trials. On this point it remains only to add that it is

65

desirable that prosecution practice correctly reflect the law, rather than perpetuate error if its

current practice is mistaken.

In summary, my reconsideration of Hind and Harwood at the prosecution’s request has

not persuaded me that it was erroneous; on the contrary, it has convinced me that in the essential

points which it decided, including the dismissal of the appeals by Hind and Harwood, it was

correct. It ought not, however, be considered as a total, unqualified endorsement of the manner

in which the prosecution case was presented, and the summing-up proceeded, in that case.

It remains to consider the various verdicts against the present appellants.

The second jury convicted Brien under sub-s. 302(1)(a), and his conviction is unaffected

by any misdirections concerning s. 8.

Both juries must have concluded that the common intention of the appellants was to

prosecute the unlawful purpose of assaulting Kummer by presenting loaded firearms at him in

conjunction.

The first jury was not satisfied that Brien (or Petersen) intended to cause death or

grievous bodily harm when he fired the shot or shots which killed Kummer, while the second

jury must have concluded that Brien did have that intention.

The first jury must have concluded that the act of Brien (or Petersen) in firing the shot or

shots which killed Kummer was of such a nature as to be likely to endanger human life, while the

second jury did not have to reach a conclusion on that issue (but could not rationally have

concluded otherwise).

Both juries must have concluded that the shot or shots which killed Kummer were fired in

the prosecution of the unlawful purpose of assaulting him by presenting loaded firearms at him.

The first jury must have concluded that Paterson contemplated an intentional unlawful

killing as a real or substantial possibility of the prosecution of the unlawful purpose of assault

66

and that Wood contemplated an unintentional unlawful killing as a real or substantial possibility

of the prosecution of that purpose. The second jury must have concluded that Petersen

contemplated that an unintentional unlawful killing was a real or substantial possibility of the

prosecution of that purpose.

It follows from what has been said with respect to s. 8 that, in my opinion, Wood and

Petersen could each have been found guilty of murder by the combination of s. 8 and either sub-

s. 302(1)(a) or sub-s. 302(1)(b) of the Code, subject of course to their various grounds of appeal

which have not yet been considered.44 Wood and Petersen were, instead, convicted of

manslaughter because their juries were misdirected, more favourably to them than was called for.

However, the respective juries must have been satisfied of matters which, if they had been

properly directed, would have resulted in verdicts of murder. 45 In the circumstances, the jury

verdicts must be accepted: Russell, following Gammage v. R. (1969) 122 C.L.R. 444.46 The

dissenting judgment of de Jersey J. in Jervis indicated that his Honour would have allowed her

appeal, but his Honour’s position cannot be separated from the attitude adopted in that case by

the prosecution: see the foot of p. 674. On this occasion, the arguments on behalf of Wood and

Petersen did not identify any reason why their convictions for manslaughter should be quashed

because Jervis is incorrect, and I have not been able to identify any sufficient reason for doing

so. In my opinion, they are in the same position as a person against whom a jury has returned a

“merciful” verdict of manslaughter when murder was the proper verdict, only in their cases they

44 (a) I will refer below to the erroneous use, by both trial judges, of a subjective test of

“probable consequence”. (b) Consideration of Petersen’s conviction might be affected by a decision that Brien was wrongly convicted of murder under sub-s. 302(1)(a) of the Code; one of Brien’s submissions in this Court is that his conviction for murder was unsafe and unsatisfactory because the evidence against him was deficient.

45 Subject again to the grounds of appeal which remain to be considered.

46 See also Hind and Harwood.

67

were not convicted of the lesser offence not because the juries disregarded their duty but because

they were misdirected that the findings which they must have made would support only the lesser

offence, manslaughter, not the more serious offence, murder.

Paterson

What has been said to this point does not fully dispose of the grounds of appeal asserting

misdirections with respect to ss. 8 and/or 302 of the Code.

Paterson complained of the inconsistency in the manner in which the prosecutions were

conducted and in the verdicts which followed, which he submitted resulted in “fundamental and

unacceptable” differences in the conclusions of the two juries, and hence a miscarriage of justice.

In substantial part, his argument sought to take advantage of, and was dependent on,

misdirections given by the judge at the first trial which were favourable to him (and Wood); for

example, directions indicating that manslaughter was the appropriate verdict in circumstances in

which, in my opinion, the correct verdict was murder. In effect, it was submitted that, had the

first trial, like the second trial, been confined to sub-s. 302(1)(a) - and s. 8 - the jury would, on

the directions they were given, have convicted Paterson only of manslaughter, not murder.

Further, it was submitted that, had Paterson been tried with Brien and Petersen, the second jury

would have convicted him, like Petersen, only of manslaughter.

However, it was acknowledged for Paterson that there were material differences in the

evidence against him and the evidence at the second trial and, as has been noticed, a number of

misdirections favoured the appellants. The fact that they produced an advantage for Wood (and,

in the second trial, Petersen) that they did not produce for Paterson does not necessarily mean

that there has been a miscarriage of justice, and the verdicts are not inconsistent in the sense in

which that description is used as a basis for quashing a conviction which cannot rationally stand

with another verdict: see, for example, King v. R. (1986) 161 C.L.R. 423.

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Conversely, it does not necessarily follow from the conclusion that the verdicts are not

technically inconsistent that there has not been a substantial miscarriage of justice, with

differences in the verdicts quite possibly related to the prosecutor’s “tactical” decision that there

should be “separate”, “joint” trials, each of two accused, each conducted on a different basis

although there is no suggestion that all of the evidence was not available at all material times.

Wood and Petersen were sentenced to imprisonment for 12 years, which is of course much less

than the mandatory sentences of life imprisonment for murder for Paterson and Brien. The

practical effect of the course which has been followed is substantial, and it might perhaps give

rise to an appearance that justice has not been done and a legitimate sense of grievance in

Paterson. Although a trial judge has a wide discretion and an appeal court is always reluctant to

interfere (R. v. Crawford [1989] 2 Qd.R. 443, 455), when a number of accused are charged with

committing an offence together, prima facie they should be tried at the same time, and an

erroneous decision to proceed with either a joint trial or separate trials can result in a miscarriage

of justice: Webb v. R.; Hay v. R. (1994) 68 A.L.J.R. 582; 122 A.L.R. 41.47

Paterson also complained that the judge’s directions in the first trial with respect to s. 8

and sub-s. 302(1)(b) were confusing, particularly on the subject of the unlawful purpose which it

was necessary for the prosecution to prove was being prosecuted when Kummer was killed, i.e.,

unlawful assault. It is convenient to quote again the passage objected to, viz:

“... you may well decide ... that there were two unlawful purposes being prosecuted that night. One was the unlawful assault of Kummer by presenting firearms at him simply to scare him. The second was an unlawful purpose being prosecuted by Brien and Petersen only and that was actually to shoot Kummer

47 See also R. v. Grondkowski and Malinowski [1946] 1 K.B. 369; R. v. Hall [1952] 1 K.B. 302; R.

v. Beavan (1952) 69 W.N.(N.S.W.) 140; R. v. Kerekes (1952) 88 C.L.R. 657 (note); L.R. from (1951) 70 W.N. (NSW) 102; R. v. Gillies and Jorgensen (1964) N.Z.L.R. 709; R. v. Callaghan and Thomas [1966] V.R. 17; R. v. Kray [1970] 1 Q.B. 125; R. v. Harbach (1973) 6 S.A.S.R. 427; R. v. Stuart and Finch [1974] Qd.R. 297; R. v. Lake (1976) 64 Cr.App.R. 172; R. v. Demirok [1976] V.R. 244; R.v. Moghal (1977) 56 Cr.App.R. 56; R. v. Lawrence (1980) 1 N.S.W.L.R. 122; R. v. Knijff [1982] Qd.R. 429; R. v. Rintel (1985) 17 A.Crim.R. 308.

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and do him serious bodily harm. It seems to me that there is a third interpretation open on the evidence but that is a matter for you. It seems to be this: that the unlawful purpose being prosecuted was that of unlawful assault by presenting firearms at Kummer simply to scare him and that the first discharges of the shotgun occurred in the heat or excitement of the moment and not in the prosecution of an unlawful purpose of actually shooting Kummer. The second discharges of the shotgun - that is, the two discharges by Brien - were, on Paterson’s evidence, deliberate and you may think followed a little while after the first discharge because Brien thought, in effect, that Kummer should be put out of his misery.

... the Crown must exclude beyond reasonable doubt the unlawful purpose of shooting Kummer as the purpose being prosecuted when Kummer was struck by the discharges of the shotgun. I should correct that - by any of the discharges of the shotgun. If the Crown cannot do this you will find that this element is not proven and that neither Brien nor Petersen have murdered Kummer within this second definition of murder. ...”

It was submitted that the trial judge failed to direct the jury of the consequences of the

second and third possibilities to which he adverted in that passage, and that he should have

clearly told the jury that Patersen (and Wood) were entitled to be acquitted in those

circumstances because s. 8 could not apply (by reference to either sub-ss. 302(1)(a) or (b)) if he

and Brien (or Petersen)) did not have a common intention to pursue the same unlawful purpose

in conjunction, i.e., a purpose of unlawful assault; it was asserted that, although that was how his

directions seem to have been understood by defence counsel, the jury might have considered that

the requirement for convictions could be satisfied although different purposes were intended to

be prosecuted provided that both purposes were unlawful.

Paterson further submitted that the confusion to which he referred was unnecessarily

caused by the prosecution’s introduction of sub-s. 302(1)(b) when its case at all times was that

Kummer was intentionally killed by Brien (or Petersen).

While what I have already said indicates that I do not agree with the latter submission,

my earlier comments in relation to the summing-up to the juries also expose my opinion that the

directions were flawed, unnecessarily complex and much less clear than was desirable. In large

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measure, those deficiencies were the direct product of the approach, or rather approaches,

adopted by the prosecution. Nonetheless, I consider that the passages selected by Paterson as

confusing are not, in themselves, such as to call his conviction into question. The requirement

that the prosecution establish beyond reasonable doubt that there was a common intention to

prosecute an unlawful assault on Kummer by pointing loaded firearms at him emerged with

sufficient clarity from the overall summing-up in the first trial, as seems to have been accepted

by defence counsel who were present and heard what was said.

Finally, so far as Paterson’s appeal is concerned with s. 8 and sub-s. 302 of the Code,

there the misdirection related to the test of “probable consequence”. The different verdicts

against Paterson and Wood can only be explained on the basis that they had different subjective

expectations concerning the “probable consequence” of the prosecution of the unlawful purpose

of assaulting Kummer by pointing loaded firearms at him. Whereas Wood “contemplated” an

unintentional unlawful killing, the jury must have concluded that Paterson “contemplated” an

intentional unlawful killing. However, the real issue was whether any unlawful killing was,

objectively, a “probable consequence”, or real possibility. That question could be answered in

the negative although Paterson “contemplated” an intentional unlawful killing.

Wood raised a further complaint in relation to the directions of the judge at the first trial,

which it is convenient to consider at this point. When dealing with the prosecution case based on

sub-s. 302(1)(a), his Honour said:

“... I will read out to you a principle that you may find is of assistance and it is this: when two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is always a likelihood that in the excitement and tensions of the occasion one of them will use his weapon in some way which will cause death or serious injury. If such injury was not intended by the others they must be acquitted of murder but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter.

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You may think, and it is a matter entirely for you, that in this case against Paterson on this first basis the prosecution of the common purpose of unlawfully assaulting Kummer envisaged some degree of violence such as to cause fear to or scare Kummer and I say that in the light of the evidence as to the taking of the firearms including the shotgun ...”

The “principle” to which his Honour referred is a passage taken from the decision of the English

Court of Appeal in R. v. Reid (1975) 62 Cr.App.R. 109 at p. 112. Lawton J., who delivered the

judgment of the Court, made the statements in question in support of factual inferences which

were necessary to support Reid’s conviction for manslaughter (at common law). Reid and two

others (members of a terrorist organisation) had gone to an army officer’s home in the early

hours of the morning and, after one of them rang the bell and the army officer opened the door,

one of the others shot him dead. The three men left the scene together. It was submitted for

Reid that the jury’s conclusion “that he was in joint possession with the other two of the weapons

... was not enough to support a verdict of manslaughter unless there was either a common design

to use them in some way which was reasonably likely to cause some harm, short of serious

injury, to Colonel Stevenson and did cause his death or the appellant personally had an intention

to use them in some way reasonably likely to cause such harm with the same result. ...”.

After accepting that that was so, the Court continued:

“The intent with which the appellant was in joint possession of the weapons with the others has to be inferred from the circumstances. He did not share the murderous intent and according to his own evidence he had no intent to do harm. The first problem for us is whether this Court would be entitled to infer from the fact of joint possession an intent to do some harm to Colonel Stevenson. These weapons were offensive ones. If men carrying offensive - indeed deadly - weapons go to a man’s house in the early hours of the morning for no discernible lawful purpose, they must, in our judgment, intend to do him harm of some kind, and the very least kind of harm is causing fright by threats to use them. The second problem is whether, on the evidence in this case, Colonel Stevenson’s death resulted from the unlawful and dangerous act of being in joint possession of offensive weapons. The appellant did not intend either death or serious injury. On the jury’s findings O’Conaill must have gone beyond anything he may have intended.

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In ANDERSON AND MORRIS (1965) 50 Cr.App.R. 216; [1966] 2 Q.B. 110, a distinction was drawn between a mere unforeseen consequence of an unlawful act and ‘an overwhelmingly supervening event which is of such a character that it will relegate into history matters which would otherwise be looked upon as causative factors’; see the judgment of Lord Parker C.J. at pp. 223 and 120. Was O’Conaill’s deliberate firing of the revolver ‘a mere unforeseen consequence’ of the unlawful possession of offensive weapons? We adjudge it was. When two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use his weapon in some way which will cause death or serious injury. If such injury was not intended by the others, they must be acquitted of murder; but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter. See LARKIN (1943) 29 Cr.App.R. 18; [1943] K.B. 174. It follows that the verdict of manslaughter could properly have resulted from the application by the jury of the general directions given by the judge.”

In Markby v. R. (1978) 140 C.L.R. 108 at p. 113, Gibbs A.C.J., with whom Stephen,

Jacobs and Aickin JJ. agreed, said that the passage from Reid quoted by the judge at the trial of

Paterson and Wood, which has been italicised above, contained the “relevant principle”. His

Honour was discussing the “principle”, according to the common law, for determining whether a

co-offender who participates in the prosecution of a “common unlawful design” in which an

innocent person is killed is guilty of either murder or manslaughter and, if so, which. The

material statement of “principle” in the passage quoted from Reid is in the last sentence. The

earlier part of the passage from Reid is concerned only with a factual inference, which a jury

may, but not must, draw, although the court in Reid obviously considered it an inference

ordinarily warranted. However, such an issue cannot legitimately be taken from a jury which

must decide, in accordance with s. 8, whether an offence of the “nature” of an offence committed

by a principal offender was a “probable consequence” of the prosecution of an unlawful purpose

which the principal offender and a co-offender whose criminal responsibility depends on s. 8

commonly intended to prosecute in conjunction.

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It follows that, in my opinion, the direction complained of by Wood should not have been

given.

The further point then arises whether the erroneous reference by the trial judge to the

“principle” apparently based on Reid adversely affected Paterson as well as Wood. The

relationship between the error and the prosecution case against Wood is clear and direct; in

effect, the jury was instructed that, as a matter of principle, there was a “likelihood” that a

weapon would be “used in some way which will cause death or serious injury”. That was a

direction that it was a principle that, objectively, “death or serious injury” was a “probable

consequence”, which was a critical jury issue. In Reid, the discussion was related to the common

law’s concern with subjective intentions or expectations, which are not material here. In the

present case, the jury’s verdict of manslaughter against Wood was based, as earlier noted, on

what must have been a conclusion that Wood contemplated only an “unintentional” unlawful

killing. Conversely, as already noted, the murder verdict against Paterson can only be explained

on the basis that he contemplated an intentional unlawful killing. However, both conclusions

must be viewed against the misdirection that, in principle, death or serious injury was “always a

likelihood”. Further, as stated earlier, that erroneous direction not only established an incorrect

factual foundation for any consideration of Wood’s and Paterson’s subjective intentions - itself a

wrong test - but it took from the jury, adversely to both Wood and Paterson, the objective test of

probability upon which they were entitled to have the jury’s verdict.

In the circumstances, it seems to me impossible to conclude that there has not been a

substantial miscarriage of justice, and I would allow the appeals by Paterson and Wood and

quash their convictions. Since Paterson, at least, obviously should be retried, or if their

convictions are quashed for the reasons so far given, I will comment very briefly on their

remaining ground of appeal. It is convenient to postpone the question whether Wood should be

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retried until it is decided what should be done in relation to Peterson and, especially, Brien. If

Brien’s conviction for murder stands, Wood cannot now be convicted of manslaughter according

to my view of s. 8. However, if Brien, like Paterson, is retried for murder but neither is

convicted of murder and either or both are convicted only of manslaughter, Wood could also be

convicted of that offence. It should in those circumstances be left to the Director of Prosecutions

to determine what charges should be pursued conformably with this Court’s judgment.

Self-defence

It was submitted that the jury should have been directed that, in determining whether

Kummer’s killing was unlawful, it was necessary for it to consider whether the shooting of

Kummer by Brien (or Petersen) was “authorised or justified or excused” (s. 291) by s. 272 of the

Code, which is as follows:

“(1) When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe, on reasonable grounds, that it is necessary for the person’s preservation from death or grievous bodily harm to use force in self-defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.

(2) This protection does not extend to a case in which the person using force which causes death or grievous bodily harm first begun the assault with intent to kill or to do grievous bodily harm to some person; nor to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself or herself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.”

The foundation for this argument was a proposition that there was evidence in Paterson’s trial

which was capable of establishing that, after shots had been fired by some of the appellants,

Kummer obtained a shotgun (which was subsequently discovered to have a live round in it,

together with a cobweb and straw in the barrel), and that his action was observed by one of the

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appellants, who shouted a warning to the others. However, it was not explained how those

circumstances could have brought s. 272 into operation or raised a doubt concerning whether

Kummer’s killing was unlawful. I propose to say no more than that point seems to me devoid of

merit. I am confident that s. 272 of the Code does not permit armed intruders to shoot and kill a

householder merely because he or she obtains a weapon with which to defend himself or herself.

The second trial gave rise to further grounds of appeal by Brien and Petersen.

Conviction unsafe and unsatisfactory (Brien)

Brien’s contention that his verdict was unsafe and unsatisfactory was used as the basis for

a series of mostly unrelated complaints, many of which were not the subject of an application for

redirections or of any significance, either alone or in combination with others. For example, a

single sentence in a lengthy summing-up was described as “inflammatory”, and it was asserted

that the trial judge’s example of a financial benefit which a person might gain from the death of

another as a motive which might be material in a prosecution for murder based on circumstantial

evidence resulted in a misdirection and/or was unfair. Both criticisms lacked substance.

It was also contended that, in summarising the prosecution case against Brien, the trial

judge “overstated” the lies which Brien had told to police (according to their evidence), although

his Honour’s directions with respect to the jury’s use of Brien’s lies were not otherwise

criticised. Little elaboration of this complaint was provided, and I am satisfied what was said on

the topic did not impermissibly exaggerate the strength of the prosecution case, which lay in

Brien’s denial of any connection with Kummer.

It was also pointed out by Brien that the summing-up did not make entirely clear that it

had not been established by evidence that the shotgun used when Kummer was killed was that

which Brien had borrowed from Dawson. It was further submitted that the evidence connecting

Brien to two .22 rifles at other times - which, likewise, were not proved to have been used in the

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assault on Kummer - was inadmissible, or that, at the least, the prejudicial effect of such

evidence was disproportionate to its probative value. However, an objection made to that

evidence at trial was not pressed, and, while it would have been preferable for the trial judge to

have emphasised to the jury that the weapons used against Kummer were not identified, direct

identification was not essential to the prosecution case. Overall, I am not satisfied that there was

any significant error in this aspect of the summing-up.

The principal argument in support of the submission that Brien’s conviction was unsafe

and unsatisfactory was that the evidence against him could not sustain the prosecution case,

referred to at a number of points in the trial judge’s summing-up, of a joint plan between him and

Petersen which they prosecuted in conjunction. Reference was also made to evidence adduced

against Petersen, which was inadmissible against, but prejudicial to, Brien, especially the

statements which it was said he made to the police when interviewed. Such a situation is

common when two or more persons are charged in the same indictment and their trials are held

together, and is routinely dealt with by appropriate directions. Although it was not contended

that the directions to the jury did not correctly limit the evidence which could be used against

Brien, the submission was made that this was insufficient in the circumstances of this case,

because of the limited evidence admissible against Brien. The point would have considerable

force if the jury had convicted Petersen as the principal offender and based its verdict against

Brien on ss. 7 or 8 of the Code, but it is plain from its verdicts that it did not do so. Brien was

convicted as the principal offender on the basis of sub-s. 302(1)(a), which did not involve any

finding of joint enterprise with Petersen, or necessitate any use, against Brien, of evidence

admissible only against Petersen.

However, some of Brien’s points in relation to his submission that his conviction was

unsafe and unsatisfactory, including that lastmentioned, continue to be material in relation to his

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other two grounds; viz., that (i) the trial judge misdirected the jury concerning the use which

could be made of Brien’s omission to give evidence and (ii) his Honour erred in refusing to

discharge the jury when Paterson refused to give evidence after what the prosecution asserted

that he would say had been opened to the jury. Petersen also relied on the latter point.

Opening Paterson’s evidence, which was not called

The prosecution obviously regarded Paterson’s evidence as of major importance in its

case against Brien. It had no other evidence, admissible against him, placing him at the property

where Kummer was killed. The “tactical” decision to try Paterson and Wood before Brien and

Petersen was dictated by the intention to call Paterson (and possibly Wood) at the later trial. So

far as I can ascertain, the prosecutor had no knowledge whether Paterson would give evidence in

accordance with his statements in his police interview. In the circumstances, I consider it

surprising that he should have informed the jury that Paterson would give that evidence, and I do

not accept that it was satisfactory for such evidence to be opened on the assumption that the trial

judge could put the matter right by appropriate directions in the summing-up if the evidence did

not eventuate. The width of a prosecutor’s discretion in the conduct of a prosecution has been

noticed on a number of occasions, but it does not include a right to be unfair: see Richardson v.

R. (1974) 131 C.L.R. 116, 119; Whitehorn v. R. (1983) 152 C.L.R. 657, 674; R. v. Apostilides

(1984) 154 C.L.R. 563, 575-578; Saffron v. R. (1988) 17 N.S.W.L.R. 395, 457; R. v. Russell-

Jones [1995] 3 All E.R. 239. According to the prosecution, no harm was done in the present

matter because the jury would have seen from Paterson’s behaviour at the trial of Brien and

Petersen that he was just an “irresponsible lout” whose evidence would have been “quite

worthless”, as the trial judge told the jury. In this Court, the prosecution asserted that the jury’s

acceptance of that view was confirmed by its conviction of Petersen only of manslaughter, not

murder, whereas, according to Paterson’s interview, Petersen fired the first shot which struck

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Kummer. However, it is, of course, impossible to logically arrive at the conclusion that

Paterson’s statements, according to the prosecution opening, did not influence the jury adversely

to Brien and Petersen from its verdict convicting Petersen of manslaughter rather than murder.

In R. v. Armstrong (1989) 53 S.A.S.R. 25, the case for the prosecution depended upon

linking property observed in the appellant’s vehicle on the night of a theft with similar property

subsequently found by the side of the highway. One of the persons in the appellant’s car was

wearing a light-coloured jacket, and a light-coloured jacket was found with other property near

the highway. According to the prosecution’s opening to the jury, a student concession card

bearing the name of one of the appellant’s passengers was found in the jacket by the side of the

highway, but that fact was not proved. The trial judge strongly directed the jury to ignore

unproved assertions made in the opening. Nonetheless, the South Australian Court of Criminal

Appeal quashed the conviction as unsafe and unsatisfactory. King C.J., with whom Cox J.

agreed, said at p. 26:

“... Many, perhaps most, cases in which a supposed fact opened by the prosecution is not proved by evidence, can be dealt with adequately by a direction of that kind. I cannot feel confident in the present case, however, that the jury was not influenced by the unproved assertion in the opening. ...”

Bollen J. said at p. 38:

“I do not think the direction about the card, strong as it was, saves the day for the Crown. The card should not have been mentioned at all because it could not be produced. Perhaps mere mention of the card without any reference to Wilson would not have mattered. But the jury was clearly wondering, at least, about ‘the jacket contents and the reference to Wayne Wilson’. I do not think that any direction could confidently be said to have driven out any suspicion in the minds of jurors that Wilson may have been a companion in crime with the appellant and hidden his jacket because the police had seen him. ...”

See also R.v. Creau (1861) 8 Cox CC 509.

As was earlier pointed out, when a number of accused are charged with committing an

offence together, prima facie they should be tried at the same time. Had that occurred in this

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matter, the jury which tried Brien and Petersen would have had Paterson’s statements to the

police before it, but only as evidence against Paterson. While that position would have borne

some similarity to the situation which followed the opening of Paterson’s evidence to the jury

which tried Brien and Petersen, there are differences; one potentially important difference is that,

in the course which was followed, Paterson was implicitly presented to the jury as a co-offender

who had material evidence implicating Brien and Petersen; his characterisation as an

“irresponsible lout” might have tended to enhance, rather than diminish, the likelihood that his

statements to the police were correct. I have reluctantly concluded that, in such circumstances,

admonition to the jury to ignore Paterson’s evidence could not dispel the prejudice which the

prosecutor had created when he opened it to the jury.

Failure to give evidence (Brien)

Brien’s remaining point was that the trial judge erred in his directions to the jury

concerning Brien’s failure to give evidence. The subject was dealt with in the summing-up in the

following terms:

“... Neither of these men has given evidence. There was no onus on either to give evidence. You may not infer from the fact that they exercised their right - you heard me tell them their rights - to give evidence or to call other people to give evidence. They weren’t obliged to. You heard me tell them that they didn’t have to prove their innocence, the Crown has to prove their guilt.

There is only one consequence - and I will take you to it in a little more detail later after I have considered the evidence with you. There is only one consequence that can sometimes flow from a person, an accused person not giving evidence and, that is, where there is a circumstantial case and the inference that the Crown seeks you to draw on the circumstances, the conclusion that it tries to persuade you to draw adverse to an accused person concerns a matter which is peculiarly within the knowledge of that person. If he knows - he should know - the fact that the Crown says this is the best evidence we can get. It’s enough evidence to permit you to infer the guilt of an accused person but, really, it’s the accused that would be able to explain away these circumstances. Well then, you can look at the fact that an accused person has not given evidence simply to make you more happy perhaps, more content, to draw an inference from the evidence of guilt, to draw an inference of guilt which the evidence permits. The Crown cannot pull itself by its boot straps. The Crown cannot say,

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‘Well, if the accused person was innocent, he would have got in the box and said so.’ That’s not the rule of law and I make it quite clear to you, and the Crown Prosecutor has not suggested it is. An accused person cannot have an inference drawn against him because he elects not to give evidence. That is the rule. He did not have to give evidence. You heard me tell each of them that they do not have to. If there is something peculiarly within his knowledge that could explain away the circumstances which you think indicate pretty clearly that he is guilty and you are satisfied would support an inference of guilt and he does not take the opportunity of telling you what is within his knowledge, peculiarly within his knowledge, well, in that case you can feel more comfortable in drawing the inference that you think is available on the evidence anyway. That is the effect of it all. You certainly cannot assume that either of the accused men are guilty just because they exercised their right, which I told them about, not to give evidence.

...

... there is no obligation on any accused person to make any statement when questioned by policemen either before or after any arrest that might be effected. It is a basic principle of our criminal law that a man is not required to incriminate himself. In certain circumstances, as I mentioned to you yesterday, where something is peculiarly within the knowledge of an accused person and he elects to exercise his perfect right not to give an explanation, then you are deprived of any explanation from him which you might consider when you are determining whether you will draw the inferences from circumstances that the Crown relies upon to prove his guilt. That is the limit of it. The Crown cannot pull itself up, as it has been said, by its own boot straps. The Crown cannot say, well, even though the case is a bit light, even though there is no - not quite enough evidence that would satisfy you that - or that is capable of satisfying you that he is guilty, you can take into account the fact that he did not offer any explanation. There has got to be enough evidence for you to infer from the circumstances that he is guilty but in determining whether you are prepared to draw that inference, as I say, you are entitled to take into account that he did not avail himself of any opportunity to give any other explanation and so, you can be more - you can be perhaps more confident or more willing to draw the inference against him than you might otherwise be.”

As a result of a request from Petersen’s trial counsel, his Honour redirected as follows:

“... I gave you a direction at the outset relating to the effect that you might give to no evidence being given on a matter in a circumstantial case where the matter might be within the knowledge of the accused person and not readily available to the Crown. I should, I think, deal again with the rule and make it quite clear that in this case again you have two trials being heard together. There was an explanation given by the man Petersen in that long record of interview. He has given an explanation to the police. It is there and it is before you. The rule that I gave you about being more ready to draw adverse inferences does not apply in his case but it does apply in the case of Mr Brien and rather than just assert that, I

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think I will just tell you what the rule is again so that you will be under no doubt as to what it is.

It has been said in this way that when somebody - an accused person fails to accept an opportunity to place before the Court evidence of facts which are within his knowledge, which if they existed, would explain or contradict other circumstantial evidence, the Court may more readily accept that other circumstantial evidence. It may more readily accept it. It is not going to accept it to start with. It is not going to more ready to accept it just because somebody does not give evidence. You must remember that an accused person - neither Mr Brien nor Mr Petersen are under any obligation whatever to give evidence and you cannot infer from that fact that they have exercised the right, which I told them they had - you cannot infer from that that they are guilty or more likely than not guilty. You cannot do that. That is a right that we all have, every one of us if we found ourselves in that dock, unfortunately. We would have the right to say, ‘You prove it. I’m not going to say anything.’ It would have to be proved without any regard at all being paid to the fact that the opportunity to give evidence had not been taken. But again, in this sort of case which is a circumstantial case, that general rule is subject to this - not such a qualification - it applies in this way, that if the truth of an event is not easily ascertainable, but it is probably well known to an accused person, then the fact that that accused person offers no explanation whatever which might explain, if the truth of the explanation would be consistent with innocence, is a matter which you the jury may consider when you are determining just what inferences you should draw.

It has been said that it is legitimate to have regard to the fact that an accused person has given no evidence or explanation or satisfactory explanation of the Crown case as a consideration making the inference of guilt from the evidence for the prosecution less unsafe than it might otherwise appear.

Obviously, as I keep saying, there are two trials here. In the trial of Brien he has not given evidence and he has not offered any statement to the police at all. There is no explanation coming from him either out of Court or in Court. In the case of Mr Petersen, there is a long explanation offered out of Court and it is before you in his case. The rule that I have just given you does not apply. You must look carefully at the whole of the evidence and - at the whole of the evidence including his explanation. You have got to determine whether you are satisfied beyond reasonable doubt of his guilt. ...”

I find what was said in those passages confusing, and likely to have conveyed to the jury

that it could rely on Brien’s silence as indicative of his guilt. In my opinion, there was nothing in

the circumstances of the case against Brien which justified use of his silence to found or support

an adverse inference, and the directions were impermissible, according to the decisions of this

Court which have discussed Weissensteiner v. R. (1993) 178 C.L.R. 217, which the High Court

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itself considered in G. v. H. (1994) 181 C.L.R. 387. See R. v. Demeter (C.A. 254 of 1994,

unreported, 9 February 1995) and Powell v. Smith and Blacker (C.A. 251 and 264 of 1995,

unreported, 14 November 1995), and the other cases there referred to in which Weissensteiner

has been discussed.

Having regard to the limited nature of the prosecution case against Brien, it is impossible

to be satisfied that there has been no substantial miscarriage of justice, and his appeal must be

allowed, his conviction quashed and a new trial ordered.

That conclusion necessarily leads to the same outcome for Petersen, since the jury which

convicted him under s. 8 of the Code plainly did on the basis of its conclusion - which it is now

held must be quashed - that Brien murdered Kummer contrary to sub-s. 302(1)(a).

As Peterson has been acquitted of murder, he cannot be tried again in respect of the

murder charge. However, Peterson could be convicted of manslaughter under certain

circumstances; i.e., be convicted of manslaughter if Brien and/or Paterson and/or Wood were

convicted of manslaughter and neither Brien nor Paterson was convicted of murder. If either

Brien and/or Paterson was convicted of murder, then Peterson should be acquitted in accordance

with the provisions of s. 8 of the Code.

Conclusion

Even if there is little reason to doubt the appellants’ guilt, the prosecutor’s “tactical”

decision to pursue separate “joint” trials and present different cases at each, combined with

reliance on Jervis and, it must be said, other errors in the directions given the juries, have

resulted in verdicts which cannot be accepted as safe in the administration of justice. All four

appeals should be allowed, the convictions quashed and new trials ordered. Obviously, Wood

and Petersen can now only be charged with manslaughter, not murder, and can only be convicted

of manslaughter in the circumstances earlier described.

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ADDENDUM:

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This judgment was prepared in draft prior to the decision of this Court in R. v. Alexanderson & Ors. (C.A. No. 369 of 1994, C.A. No. 367 of 1994, C.A. No. 370 of 1994 and C.A. No. 356 of 1994), which was delivered on 8 March 1996. The principles expounded in Alexanderson in relation to s. 8 of the Code accord with the decision of this Court in Hind & Harwood and accords with the approach I have taken in the present matter.

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REASONS FOR JUDGMENT - PINCUS J.A. Judgment delivered 11/06/1996

The issues which arise in these appeals are explained at length by the President whose

reasons, as well as those of the Chief Justice, I have had the advantage of reading.

The trial of Paterson and Wood took place in March 1995 and that of Brien and Petersen

concluded on 17 May 1995. Each of the trials came to an end before judgment was given in

Hind and Harwood (1995) A.Crim.R. 105, on 30 May 1995. There this Court, not following

Jervis (1993) 1 Qd.R. 643, held that in a homicide case in which the Crown relies on s. 8 of the

Code to deem a person charged to have committed an offence, the offence which is deemed to

have been committed, by force of the section, is either murder or manslaughter, not unlawful

killing. The result is that if A and B participate in criminal activity together, in the course of

which B kills someone, then the only possible operation of s. 8 on A is to make him guilty of

murder if B is guilty of murder, and guilty of manslaughter if B is guilty of manslaughter. Under

Jervis it was possible to invite a jury to use a process of reasoning, which I confess to difficulty

in following, to make A guilty of manslaughter only, under s. 8, even if B committed murder.

The law as laid down in Hind and Harwood has been reaffirmed in Alexanderson et al (C.A. No.

369 of 1994, 8 March 1996).

As has been pointed out in the President’s reasons, there were two trials each of which

resulted in one conviction for murder and one of manslaughter. In each trial the Crown relied

upon s. 8 of the Code under which, in accordance with Hind and Harwood and also

Alexanderson et al (above) the jury should have been told that the law is as set out above. In the

second trial, that of Brien and Petersen, the Crown relied on s. 7 as well as s. 8, but on appeal

sought to uphold the verdict of manslaughter against Petersen under s. 8 only. However, it was

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argued on behalf of the Crown before us that we should abandon the interpretation of s. 8

adopted in Hind and Harwood and revert to that set out in Jervis. I do not accept that contention,

but find it necessary to discuss the doctrines underlining these authorities to some extent, for the

purpose of determining whether any of the appellants has lost a chance either of acquittal or of

conviction of a lesser offence by reason of the trial judge having followed Jervis.

It is necessary to consider each trial separately.

Wood and Paterson

There is a report from the trial judge to the effect that the jury found Paterson "guilty on

the second basis"; references to transcript were supplied from which it is clear that the jury must

have meant that Paterson was convicted by use of s. 302(1)(b) of the Criminal Code, not (a). The

report about Wood does not make any similar suggestion, but in his remarks on sentence the

judge helpfully explained that he interpreted the verdict as an application of a principle adopted

by the High Court in Markby (1978) 140 C.L.R. 108 at 113. This additional information about

the bases of the verdicts narrows to some extent the issues requiring examination. As to

Paterson, the question is whether he was properly and fairly convicted of murder on the basis of

s. 302(1)(b). As to Wood, the basis of the verdict is unknown, but we should proceed, I think, on

the assumption (so far as it is favourable to Wood) that he may well have been convicted by use

of the principle the primary judge mentioned - that adopted in Markby.

It is convenient to begin with Paterson. On a number of occasions the judge gave the jury

instructions about s. 8 which are quite consistent with Hind and Harwood; for example, at pp.

243, 244, 258, 259, 263, 275 and 276. It is enough to set out one of the passages, in part:

". . . if you concluded that on the first basis on which the Crown relies in this

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charge against Paterson the Crown has satisfied you beyond reasonable doubt that Brien or Petersen had murdered Kummer and if you concluded that, objectively viewed, the evidence against Paterson satisfied you beyond reasonable doubt that the murder of Kummer was a probable consequence of the prosecution of the criminal common purpose of unlawfully assaulting Kummer, you would find the accused Paterson guilty of murder."

The reference to the "first basis" was to s. 302(1)(a) of the Code. It will be noted that in

this passage the judge accepts that if the principal offender was guilty of murder and that was a

probable consequence of the prosecution of the common purpose, then Paterson is guilty of

murder; that direction accords with Hind and Harwood, but not with Jervis. There, McPherson

A.C.J., as his Honour then was, decided the case on the basis that the offence which was a

probable consequence of the common intention was unlawful killing: see especially the

discussion from 653 l. 35, leading to the conclusion at p. 656 l. 12. Shepherdson J, citing the

optimistic remark of Gibbs J. about s. 8, that its words are "perfectly clear as they stand" also

accepted that s. 8 could make an accomplice guilty of manslaughter, although the principal

offender was guilty of murder. In the passage I have quoted from the directions in the present

case (given by Shepherdson J.) the matter is placed before the jury on the basis that if the

principal offender is guilty of murder and murder was a probable consequence of the prosecution

of the common purpose then Paterson is guilty of murder; that is, as I have said, the doctrine of

Hind and Harwood.

But the learned primary judge did not leave the matter there. In relation to each of

Paterson and Wood his Honour gave the jury an additional test, which most clearly appears at pp.

259 and 312. I quote the former only:

"If you have already decided that one of Brien or Petersen murdered Kummer and did so in the prosecution of the common unlawful plan to unlawfully assault Kummer, this is the question you ask yourselves: did Paterson contemplate that in carrying out the common unlawful purpose of unlawfully assaulting Kummer, that Brien or Petersen or one of them would probably use a loaded shotgun with the intention of causing really serious bodily harm?"

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A similar direction (which I shall call "the contemplation direction") was given with respect to

Wood, it being I think implicit in the direction that if the jury answered the question "No", then

they could not convict Paterson of murder. That is, the judge has in general directed in

accordance with Hind and Harwood, on the foundation that the offence first mentioned in s. 8, in

a homicide case, is either murder or manslaughter (not unlawful killing), and further that where

the section applies to an accused it makes him guilty of that very offence - i.e. of the offence first

mentioned. But the judge has, at least implicitly, invited the jury to apply a qualification, so that

s. 8 catches Paterson only if he contemplated that in carrying out the common purpose a loaded

shotgun would be used "with the intention of causing really serious bodily harm". I think this is

equivalent to a direction that the person sought to be made guilty under s. 8 must, in addition to

fulfilling the precise requirements of the section, be proved to have contemplated that there

would probably be a murder. But I am not quite sure whether this interpretation of the

qualification I have mentioned is correct, or not.

In addition to the directions just discussed, the primary judge gave what it is convenient

to call the Markby direction, mentioned above. It is convenient to defer further discussion of this

topic.

As has been explained, the verdict of murder against Paterson has been entered on the

basis that the victim Kummer was killed by means of an act done in the prosecution of an

unlawful purpose, which act was of such a nature as to be likely to endanger human life. There

was no evidence that Paterson himself shot Kummer, but evidence was admitted against him that

Petersen did so and there was also evidence, admissible against Paterson, from which the jury

might have inferred that Brien shot Kummer; the details are explained in the reasons of the

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President. The jury could have been satisfied on the evidence that either or both of Petersen or

Brien murdered Kummer. It is puzzling that, in accepting that Kummer was murdered, the jury

acted under s. 302(1)(b), rejecting the proposition that there was a murder under s. 302(1)(a).

Our attention was directed to the fact that the judge told the jury in effect that they could not find

there was a murder under (b) unless they were satisfied that there was no murder under (a). It

was suggested during the course of argument that perhaps his Honour gave this direction because

he wished to emphasise that for the purposes of (b) the act mentioned must be something distinct

from the unlawful purpose in the prosecution of which it is done. But that is by no means the

same as saying that para. (a) of s. 302(1) must be negatived; the jury might properly be uncertain

whether the intention mentioned in (a) existed, but satisfied of (b). However, although of

opinion that the learned primary judge misdirected the jury on this point, I think the error could

not have disadvantaged Paterson.

Then it was submitted that the verdicts against Paterson and against Wood are

inconsistent, but in my opinion this is not so. The evidence admissible against Paterson tied him

closely to whatever mischief Brien and Petersen had in mind. Further, Paterson went to

Kummer’s house carrying a .22 rifle; Wood had no weapon. Paterson fired his weapon at the

scene of the killing, although there was no evidence that he shot Kummer. The case is not one in

which the circumstances relating to each accused were so similar as to require that the verdicts

be the same; if there was such a requirement, it stemmed from s. 8 and more particularly from

the directions which the judge gave, referred to above, on the basis that if the first offence

mentioned in that section is murder, then the second there mentioned must be murder also.

To return now to the problem of the Markby direction, which was given in relation to

each of Paterson and Wood, separately. What the judge said has to be set out in full:

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"Ladies and gentlemen, I will read out to you a principle that you may find is of assistance and it is this: when two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is always a likelihood that in the excitement and tensions of the occasion one of them will use his weapon in some way which will cause death or serious injury. If such injury was not intended by the others they must be acquitted of murder but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter." (emphasis added)

The Crown submitted here that this was merely guidance on the facts, not a direction as

to law. But what was stated was described as a "principle"; the members of the jury were

entitled to think it accorded with the law; it does not. There is nothing in the Code which could

justify what the jury were told as applying under the law of Queensland; apart from any other

difficulty, there is entirely absent from the statement of principle the requirement that the

outcome - death or serious injury - was a probable consequence of the carrying out of the

common intention. What the supposed principle does is to assert that in certain stipulated

circumstances there is "always a likelihood" that one of the two men postulated will cause death

or serious injury. It is, with respect, even rather surprising that this is said to represent the

general law; the word "always" is the main, but not the only, problem. It is not hard to conceive

of practical circumstances in which people, one or more of whom has an offensive weapon, go to

frighten another, but the circumstances are such that it is quite unlikely that death or serious

injury will be the outcome; as the President says, under s. 8 the jury must decide whether the

relevant offence was a probable consequence of the prosecution of the unlawful purpose.

Further, it may be unsafe to assume that this principle, which the jury were given twice, was

devoid of influence on their thinking, and equally unsafe to assume that the jury took "always" to

mean "sometimes".

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I have reached the conclusion that neither the verdict of murder against Paterson, nor that

of manslaughter against Wood can stand. The erroneous direction taken from Markby seems to

me to vitiate Wood’s trial, or at least to render the verdict dubious; there is an evident risk that

the jury might have applied the Markby "principle", erroneously, against Wood, convicting him

of manslaughter on the basis of his "having started out on an enterprise which involved some

degree of violence, albeit nothing more than causing fright". In concluding that the Markby

direction may well have influenced the verdict against Wood, I am fortified by the opinion

expressed by the primary judge in sentencing Wood. The impact of the Markby direction on

Paterson’s case is less clear; the "principle" implies, but does not state, that persons other than

the principal offenders will be guilty of murder if, but only if, they intended death or serious

injury, and that taken in isolation is favourable to Paterson. For a conviction of murder under s.

8 it is unnecessary that the accused have any such intention; that is so because s. 8 does not

require for its operation that each person convicted under it have either the intention to cause

death or the intention to cause serious injury. But the earlier part of the principle, setting out

circumstances in which it will "always" be likely that death or serious injury will occur, could

have had an impact upon the jury’s verdict against Paterson.

More generally, it is my respectful opinion that the jury may have given its verdicts

without having derived from the directions any sound and consistent notion of what was required

for a conviction under s. 8. They were, as I have pointed out, directed on a number of occasions

in accordance with the law as laid down in Hind and Harwood; they were given the

"contemplation" direction discussed above, and also the Markby direction, none of these three

being consistent with any other.

There were other issues raised which I do not propose to discuss, the chief of them being

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the submission that the judge’s discussions of what the four men had in mind at various times in

relation to Kummer did not sufficiently emphasise that it was necessary, to support a conviction

of an accused under s. 8, that a single common intention be identified to prosecute an identified

purpose. I have not found it necessary to reach a conclusion on that aspect.

I agree with the President, although not for the same reasons as his Honour gives, that the

appeals by Paterson and Wood must be allowed and the verdicts entered against them set aside.

Brien and Petersen

As the President has pointed out in his reasons, Petersen’s conviction of manslaughter

can be upheld only if the conviction of murder entered against Brien stands, so that one must

start by considering the murder conviction.

There was a strong circumstantial case against Brien. The evidence was that he told one

Mim, about two weeks before the killing of Kummer, that Kummer owed him money; Mim’s

response was to offer to pay half of the debt, but Brien refused that offer saying he wanted the

money from Kummer. Somewhat later, Brien told one Daltrey, speaking of two other

(unidentified) men, "These are my two friends from Melbourne. They have come up to get Nick.

He’s fucked this time.". Kummer’s first name was Nicholas. There was evidence that on the

day before Kummer was killed, Brien told one Martin that Nick owed him some money and said

to tell Nick he was going to do a run-in on him and he was going to get the last laugh. About

9.30 pm on the night Kummer was killed Brien, Brien’s wife and Petersen were at the home of

one Dawson at Gympie; Kummer lived not far away. Brien asked to borrow a shotgun to kill

some pigs or vermin and Dawson supplied a shotgun together with shotgun pellets in two sizes.

Shotgun blasts from pellets of those two sizes caused the death of Kummer. On the following

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morning the gun was returned to Dawson by Brien and Dawson noticed that it had been fired;

Dawson was not given any shells back. When interviewed two days after Kummer’s death by

the police, Brien denied knowing Kummer.

This evidence, which was uncontradicted, would certainly lead a jury towards the

inference that Brien killed Kummer or at least took part in the killing. Brien gave no explanation

of these circumstances and it would have been surprising if the jury had not thought his failure to

do so went strongly against him.

The principal argument advanced on behalf of Brien was that the Crown opened as

relevant to the case against him a statement said to have been given to the police by Paterson,

one of the two appellants dealt with above. The record does not contain an account of what the

Prosecutor said, but no doubt it accorded with Paterson’s statement to the police; that statement

included that on the night of Kummer’s death, Paterson had been woken by Brien and Petersen

who invited him to come with them and said they were "going around to fix him". The party

then went, so Paterson said to the police, to Kummer’s shed. All three got out and shots were

fired by Paterson, by Petersen and by Brien. Paterson told the police that he saw Petersen shoot

Kummer. When called, Paterson said nothing of consequence and the argument was, in effect,

that this necessarily vitiated the verdict; of course, the judge told the jury not to use the

statement attributed to Paterson which was opened.

When considering this ground it is, I think, desirable to keep in mind that the jury had

before them also a version given by Petersen to the police. Petersen told the police in effect that

Kummer was shot on a Friday night (that was correct) and that Brien and himself, as well as two

people whose names he gave as "Bill" and "Paddo" - presumably Wood and Paterson - were

present. Petersen said that he fired a couple of shots in the air after a shot came out of the shed.

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When asked what led up to the four people "being out there", Petersen explained that Brien "said

he had to go up there and see him about something". He gave a further description of shots being

fired and discussed the weapons which three of the group - all except "Bill" - had. He also said

that Brien walked inside, apparently meaning walked inside Kummer’s shed, and that he,

Petersen, "heard a few more shots and then we left".

Petersen’s account had Brien firing the last shots and doing so in Kummer’s shed. In this

respect, Paterson’s account coincided with Petersen’s, but an important difference between the

two is that Paterson said he saw Petersen fire a shot which he believed hit Kummer in the

stomach; he made no claim to that effect about Brien. In that sense, Paterson’s account might

have assisted Brien, if any member of the jury was (contrary to the judge’s direction) inclined to

consider Paterson’s and Petersen’s accounts in relation to the guilt of Brien.

Counsel for the respondent argued before us that Paterson’s statement to the police was

inconsistent with the physical evidence and that is to some extent correct. But it is argued that,

nevertheless, Paterson’s statement was important because it was the only material before the jury

which put Brien at the scene. That is not so; Petersen’s statement to the police did so, as well.

A weakness, as it seems to me, of the appellants’ contention that the opening of Paterson’s

statement to the police might have had some significant effect on the jury’s thinking about Brien

is that it could only have done so if the jury were prepared to ignore the judge’s firm direction

not to consider it; the risk of the jury doing so would have been no more and no less than the

risk of their ignoring his Honour’s direction not to use the statement of Petersen to the police

against Brien.

We were referred to the South Australian decision in Armstrong (1989) 53 S.A.S.R. 25.

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The result of that case depends on its own facts; it is my opinion, however, that the opened but

not proved fact in that case was of more importance to the prosecution than the corresponding

material here. What the Chief Justice described as "an important aid" in making a necessary link

in the Crown case was the discovery, with certain stolen property, of a jacket resembling one

worn by an occupant of the appellant’s car on the night of a theft which was in question. It

appears that the only significant thing about the jacket was that in it was contained a card in the

name of Wayne T Wilson, which was admitted to be the name of one of the occupants of the

appellant’s car. Further, the jury asked for the opening on the point to be read back to them,

reinforcing its importance. I do not find the case of any particular assistance, therefore, in

determining how weighty an opened but unproved assertion must be to vitiate the verdict. The

Chief Justice remarked that:

"Many, perhaps most, cases in which a supposed fact opened by the prosecution is not proved by evidence, can be dealt with adequately by a direction [such as was given in that case]."

Here, no complaint could rationally be made about the strength of the direction the judge

gave and I have come to the conclusion that the opening of Paterson’s evidence did not vitiate

Brien’s trial.

It is necessary to add, however, that the course taken, of opening Paterson’s evidence

appears to have been taken without due consideration; it was not suggested to us that the Crown

had any reason to be confident that Paterson was prepared to give evidence along the lines of the

statement he had made to the police. The Crown might have taken comfort from the fact that the

statement was electronically recorded and its content was not challenged at Paterson’s trial; but

the risk that Paterson would decline to say anything useful about the matter was or should have

been obvious.

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It does not appear to me, however, that Brien’s conviction should be set aside as a means

of punishing the Crown for what I regard as at least an unwise decision, to open Paterson’s

evidence. I am therefore in respectful disagreement with the President’s conclusion on this

aspect of the case.

It is necessary to deal, in addition to the point just discussed, with a complaint of

misdirection; it is said that the judge directed the jury to attach an improper significance to

Brien’s silence, faced with the incriminating evidence I have mentioned.

"It is one thing to say that there is a right of silence and another to say that its exercise

shall never be permitted to disadvantage those who exercise it.", (Weissensteiner, (C.A. No. 264

of 1991, 22 June 1992). In the passage in which this remark is to be found, I discuss the

practicability of adoption as a rule of the statement in the second part of the remark. I there

suggest that such adoption is "impossible, in a practical sense".

One illustration may suffice. If the jury were to ask whether Brien not having given any

explanation of the incriminating circumstances weakened his position or strengthened that of the

Crown, what could a judge sensibly reply? Surely not that this made no difference and left Brien

in no worse position than if he had given the jury an innocent and plausible explanation to

consider. A jury would think such an answer to be fatuous. An answer more likely to appeal to

a jury’s commonsense is to be found in Petty:

"As a matter of ordinary experience, the failure to advance an innocent explanation when an opportunity arises may . . . support an inference that no such explanation is available.": Petty (1991) 173 C.L.R. 95 at 125.

Or that adopted by O’Connor J. in Peacock (1911) 13 C.L.R. 619 at 670, of which I quote part

only:

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" . . . when . . . the nature of the case is such as to admit of explanation as contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends?"

The principle of Weissensteiner (1993) 178 C.L.R. 217 is of particular importance in

dealing with a case of this sort, where there appears to be no-one available to explain the

circumstances of a death other than the killer and his associates. Any intelligent jury, left to

themselves, would treat Brien’s failure to advance any evidence contradicting that which I have

set out, or to give in evidence any explanation of the use to which he put the shotgun and

ammunition he got from Dawson, as highly suspicious and as making the inference that he killed

Kummer using the shotgun and the ammunition Dawson supplied a safer one.

Kummer being unavailable to give evidence, the only persons likely to be able to explain

directly how he died were the persons (or person) who killed him and, presumably, their or his

companions. Brien and Petersen gave no evidence; Paterson was called, but would not say

anything of consequence. To encourage the jury to take the irrational view that Brien’s not

having given any explanation of the incriminating circumstances proved against him, either to

the police or in Court, should have no effect upon his chances of acquittal would seem to be an

odd course, not calculated to advance the interests of the proper administration of criminal

justice; it could properly be described as "an artificial restraint on the jury’s employment of their

common sense", to adopt an expression used in a different context by Brennan C.J. (Bulejcik,

High Court, 17 April 1996). The learned trial judge told the jury, in effect, in passages set out at

length in the President’s reasons, that although there was no obligation on Brien to incriminate

himself, his failure to give evidence explaining away circumstances peculiarly within his

knowledge indicating guilt might make them feel more comfortable in inferring guilt; in my

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view that was a proper and a just direction to give. Weissensteiner has now been dealt with in a

number of Queensland cases which are discussed in the reasons of Mackenzie J. and my own

reasons, upholding a Weissensteiner direction, in Demeter (C.A. No. 254 of 1994, 9 February

1995); some subsequent decisions are dealt with in my judgment in Powell v. Smith and Blacker

(C.A. No. 251 of 1995, 14 November 1995). The trend of authority in this State is such as to

give support to the course the trial judge took in the present case, of pointing out to the jury in

temperate terms the consequence which commonsense would attach to Brien’s silence. For these

reasons I do not accept the appellant’s criticism of the primary judge having given the jury a

direction, in relation to Brien, of the Weissensteiner type.

It does not appear to me that it is necessary to discuss any other point with respect to

Brien. Self-defence was mentioned in counsel’s address in this Court, but not pressed, and there

is nothing in that.

I would dismiss Brien’s appeal.

The appeal by Petersen must however be allowed. As has been explained above, it was

sought to uphold his conviction only under s. 8, under which he must have been convicted of the

same offence as Brien - murder - or acquitted.

New Trials

It follows that in my view the appeals of Paterson, Wood and Petersen must be allowed

and their convictions set aside, and the appeal of Brien dismissed.

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The question is whether any of them should have a new trial; it is necessary of course to apply s. 17 of the Code, discussed in Ward (C.A. No. 311 of 1995, 5 December 1995). In this Court the Crown relied only on s. 8 against all the accused, other than Brien. Since each of Wood and Petersen has been acquitted of murder, there can be no new trial on that charge, which is the only charge which can reasonably be brought if Brien remains convicted of murder, as in accordance with my conclusion he should. It follows that on my view there can be a new trial only in respect of Paterson, for murder; verdicts of acquittal should be entered in respect of Wood and Petersen.