HIGH COURT OF AUSTRALIA

McTiernan A.C.J., Menzies, Gibbs, Mason and Jacobs JJ.

 

 

 

STUART v. THE QUEEN

(1974) 134 CLR 426

29 November 1974

 

 

Criminal Law

Criminal Law—Murder—Manslaughter—Unlawful purpose—Prosecution of unlawful purpose—Probable consequences—Common intention of two persons—Counselling—Arson—Extortion—The Criminal Code (Q.), ss. 7(d), 8, 9, 23, 302*. * For ss. 7, 8, 9, 23, 302 of The Criminal Code (Q.), see 134CLR426 at pp. 428-430, 435-437.

Decisions


November 29.
The following written judgments were delivered:-
McTIERNAN A.C.J. This motion is an application for special leave to appeal from a decision of the Court of Criminal Appeal (Queensland). The application is made pursuant to s. 35(1) (b) of the Judiciary Act 1903-1969 (Cth). The applicant and another accused, Finch, were arraigned before Lucas J. on an indictment which was in the following terms: "That on 8th March 1973 at Brisbane in the State of Queensland you murdered one Jennifer Denise Davie." The charge against the accused Finch was based on s. 302 (2) of the Criminal Code (Q). Section 302 provides as follows:

"Except as hereinafter set forth, a person who unlawfully
kills another under any of the following circumstances,
that is to say, -
(1) 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;
(2) 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;
(3) If the offender intends to do grievous bodily harm to
some person for the purpose of facilitating the commission
of a crime which is such that the offender may
be arrested without warrant, or for the purpose of facilitating
the flight of an offender who has committed or
attempted to commit any such crime;
(4) If death is caused by administering any stupefying or
overpowering thing for either of the purposes last
aforesaid;
(5) If death is caused by wilfully stopping the breath of any
person for either of such purposes;
is guilty of murder.
In the first case it is immaterial that the offender did not
intend to hurt the particular person who is killed.
In the second case it is immaterial that the offender did not
intend to hurt any person.
In the three last cases it is immaterial that the offender
did not intend to cause death or did not know that death
was likely to result." (at p429)



2. The Crown called in aid of the prosecution of the applicant the following provisions of the Code, namely, ss. 7 (d), 8 and 9. Those sections are as follows:

"7. When an offence is committed, each of the following
persons is deemed to have taken part in committing the
offence and to be guilty of the offence, and may be charged
with actually committing it, that is to say -
...
(d) Any person who counsels or procures any other person
to commit the offence.

In the fourth case he may be charged either with himself
committing the offence or with counselling or procuring its
commission.

A conviction of counselling or procuring the commission
of an offence entails the same consequences in all respects
as a conviction of committing the offence.

Any person who procures another to do or omit to do any
act of such a nature that, if he had himself done the act or
made the omission, the act or omission would have constituted
an offence on his part, is guilty of an offence of the same
kind, and is liable to the same punishment, as if he had himself
done the act or made the omission; and he may be
charged with himself doing the act or making the omission.

8. When two or more persons form a common intention
to prosecute an unlawful purpose in conjunction with one
another, and in the prosecution of such purpose an offence
is committed of such a nature that its commission was a
probable consequence of the prosecution of such purpose,
each of them is deemed to have committed the offence.

9. When a person counsels another to commit an offence,
and an offence is actually committed after such counsel by
the person to whom it is given, it is immaterial whether the
offence actually committed is the same as that counselled or
a different one, or whether the offence is committed in the
way counselled, or in a different way, provided in either case
that the facts constituting the offence actually committed
are a probable consequence of carrying out the counsel.
In either case the person who gave the counsel is deemed
to have counselled the other person to commit the offence
actually committed by him." (at p430)



3. The two accused were tried together and each pleaded "not guilty". The circumstances of the case shortly stated are: Finch and the applicant planned to extort money from the owners of night clubs in Brisbane by means of what is described in the evidence as a "protection racket". The scheme required Finch to light a fire in the building in which one of the clubs called the "Whisky Au-Go-Go" Night Club carried on, at a time when its customers were enjoying its facilities. The object of lighting the fire was to convince proprietors of similar places of the necessity to hand over money to Finch and Stuart and their associates to get protection against such criminal interference. At 2.08 a.m. on 8th March 1973, Finch lit the fire which killed Miss Davie and others persons who, like her, were customers of the "Whisky Au-Go-Go" Night Club. It appeared from the evidence given at the trial that Stuart had arranged an alibi for use in the event of his being charged with an offence. (at p430)


4. The material part of the summing up by the learned trial judge is as follows:

"Turning from that to Stuart's case, and remember that
there are two possible approaches to Stuart's case-what
I have called the counselling approach, that is the proposition
that Stuart and Finch made a plan to light a fire, that
is to commit the offence of arson, that in pursuance of that
plan Finch lit the fire-that is, in law Stuart is held to have
procured the commission of that offence and is punishable
as a principal offender-and the further proposition that the
offence constituted by the causing of the death of Jennifer
Davie was a probable consequence of Finch carrying out the
plan to commit arson which they had evolved between them
-to put it technically, a probable consequence of carrying
out Stuart's counsel-these are the questions which arise,
and in considering them I must again warn you that you
may only consider evidence admissible in the case of Stuart.
The first four questions are the same as those in Finch's
case-
(1) Did Finch light the fire?
I put them in a different order -
(2) Did Stuart counsel Finch to light the fire, in the
sense which I have tried to explain it to you?
(3) Did the fire cause the death of Jennifer Davie?
(4) Did Finch light the fire in the prosecution of the unlawful
purpose of extortion carried on in conjunction with
Stuart?
(5) Was Finch's act in lighting the fire an act of such a
nature as to be likely to endanger human life?
(6) Was the offence constituted by the unlawful killing of
Jennifer Davie a probable consequence of carrying out
Stuart's counsel?

Those are the six questions, gentlemen, and if you answer all
six of them 'Yes', then it would be your duty to bring in a
verdict of guilty of murder against Stuart. If you answer all
questions 'Yes' except the question relating to Finch's lighting
of the fire in the prosecution of the unlawful purpose of
extortion, or the question as to the nature of Finch's act,
whether it was an act of such a nature as to be likely to
endanger human life, if you give a negative answer to one
of those questions, or both, but only one is necessary to reduce
it to manslaughter, and if you answer all the other
questions in the affirmative, then your verdict in Stuart's
case would be guilty of manslaughter. Any other combination
of answers would result in a verdict of not guilty in
Stuart's case.
The other possible way to look at Stuart's case is what
I have called the common intention approach, that the
offence constituted by the unlawful killing of Jennifer Davie
was committed in the course of the prosecution of an unlawful
purpose as to which Finch and Stuart had formed a common
intention to prosecute it in conjunction with one
another and was a probable consequence of the prosecution
of such purpose. Under this approach - and again you may
only look at evidence admissible against Stuart-there are
again six questions arising, including all the questions which
arise in the case of Finch and in the case of Stuart under
the other approach.

The first question, I suggest, is: did Stuart and Finch
form a common intention to prosecute the unlawful purpose
of extortion in conjunction with one another? That is the
first question. The second question is: did Finch light the
fire? The third question is: did the fire cause the death of
Jennifer Davie? The fourth question is: did Finch light the
fire in the prosecution of the unlawful purpose? The fifth
question is: was the offence constituted by the unlawful
killing of Jennifer Davie a probable consequence of the
prosecution of the unlawful purpose? The sixth question is:
was Finch's act in lighting the fire an act of such a nature
as to be likely to endanger human life? Gentlemen, if you
answer all six questions 'Yes', your verdict in Stuart's case
should be guilty of murder. If you answer them all 'Yes'
except the question of the nature of Finch's act in lighting
the fire-that is, whether it was an act which was likely to
endanger human life-if that is the only question which you
answer 'No', then your verdict should be guilty of manslaughter
in Stuart's case. Any other combination of
answers to the questions will result in a verdict of not guilty
in Stuart's case." (at p432)



5. The jury returned a verdict of guilty of murder in both cases. Each of the accused was sentenced to imprisonment with hard labour for life-the sentence provided in the Code. (at p432)


6. Both Finch and the applicant appealed to the Court of Criminal Appeal under s. 668D of the Code against their respective convictions on various grounds. The Court unanimously dismissed both appeals (1974) Qd R 297. (at p432)


7. The applicant has sought special leave to appeal to this Court on one ground only -

"That the said Court of Criminal Appeal erred in law in
holding that on the evidence a verdict of guilty of murder
pursuant to ss. 7 and/or 8 of the Queensland Criminal Code
was open, and that such issue was properly left to the jury
and that the said Court of Criminal Appeal ought to have
quashed the said conviction." (at p432)

There is no application before the Court on behalf of Finch. (at p432)


8. In my judgment, the directions to the jury contained in the passage of the summing up quoted above are entirely correct. It clearly appears from the summing up that the learned judge was under no misapprehension as to the facts of the case as they affected Stuart or Finch and that he correctly applied the criteria of liability in the sections of the Code hereinbefore referred to (at p432)


9. The result is that the application for special leave to appeal must be refused. (at p432)


MENZIES J. I have had the advantage of reading the judgment of Gibbs J. in this matter. I agree with his conclusions that the directions of the learned trial judge were soundly based upon the relevant provisions of the Criminal Code; and, that the evidence at the trial warranted the conviction of John Andrew Stuart for murder in accordance with those provisions. I also agree that Reg. v. Nichols, Johnson and Aitcheson (1958) QWN 29 was wrongly decided. I have nothing to add to his Honour's reasons. (at p433)


2. For myself I wish to do no more than say that in finally leaving the matter to the jury the learned trial judge adopted what I regard as a course which could not have been bettered to ensure that, after a difficult trial of two accused extending over thirty-two days during which evidence was given which occupies some 1700 pages of transcript, the jury in its difficult task of fact-finding, was not encumbered by any concern about the intricate legal problems which it fell to his Honour himself to decide in formulating his charge. As an instance, it is I think, worthwhile to record the course which his Honour followed in relation to the way in which the charge of murder was put against the accused Stuart based upon ss. 7(d) and 9 of the Code. He put six questions to the jury: "(1) Did Finch light the fire? (2) Did Stuart counsel Finch to light the fire, in the sense which I have tried to explain it to you? (3) Did the fire cause the death of Jennifer Davie? (4) Did Finch light the fire in the prosecution of the unlawful purpose of extortion carried on in conjunction with Stuart? (5) Was Finch's act in lighting the fire an act of such a nature as to be likely to endanger human life? (6) Was the offence constituted by the unlawful killing of Jennifer Davie a probable consequence of carrying out Stuart's counsel?" He then directed the jury,

"...if you answer all six of them 'Yes', then it would be
your duty to bring in a verdict of guilty of murder against
Stuart. If you answer all questions 'Yes' except the question
relating to Finch's lighting of the fire in the prosecution
of the unlawful purpose of extortion, or the question as to
the nature of Finch's act, whether it was an act of such a
nature as to be likely to endanger human life, if you give
a negative answer to one of those questions, or both, but
only one is necessary to reduce it to manslaughter, and if
you answer all the other questions in the affirmative, then
your verdict in Stuart' case would be guilty of manslaughter.
Any other combination of answers would result in a verdict
of not guilty in Stuart's case." (at p433)



3. I consider these questions and directions put the critical issues of facts squarely before the jury without any complication whatever arising from the construction of the sections upon which they were based. Moreover every word has significance. It was, I think, through a misreading of the words "the fire" in questions (1) and (2) as equivalent to "a fire" that lay at the root of much of the criticism that was levelled at the learned trial judge's construction of the statutory provisions. As Gibbs J. has demonstrated there was ample evidence to support an affirmative answer to the questions as framed in Stuart's prognostication of a fire at the night club causing deaths; in his provision in advance of evidence that he was elsewhere at the very time of the fire; and in his reproaching of Finch for not getting away after the holocaust and in disclosing that the match with which he lit the fire came from Stuart. (at p434)


4. I agree with Gibbs J. that the challenge made here to the decisions of law implicit in the foregoing questions and directions, and in other directions, were rightly rejected by the Court of Criminal Appeal and despite the criticisms of counsel there is no matter warranting intervention by this Court. (at p434)


5. I would, therefore, refuse special leave to appeal. (at p434)


GIBBS J. The applicant, John Andrew Stuart, and another man, James Richard Finch, were charged with the murder of one Jennifer Denise Davie on 8th March 1973 at Brisbane. After a trial before Lucas J. and a jury, both were convicted. Appeals brought by both men against their convictions were dismissed by the Court of Criminal Appeal. Stuart now seeks leave to appeal to this Court. (at p434)


2. The trial was a long and difficult one but the facts which the jury must be taken as having found so far as they are material to the questions raised on this application can be stated quite shortly. In the early hours of the morning of 8th March 1973 - at about 2.08 a.m. - a fire broke out in a night club, the "Whisky-Au-Go-Go", causing the deaths of fifteen people, including Miss Davie. She died from carbon monoxide poisoning caused by the fumes she inhaled. The fire was lit by Finch who took two drums of petrol into the foyer of the night club (which was at ground level, the club itself being upstairs) and applied a match to them. Stuart was not at the night club when the fire was started. In fact he was at another night club, the "Flamingo", and was careful to make his presence there remembered so that he might have an alibi. However, the fire was lit by Finch in the execution of a plan which Stuart had formed and to which Finch had become a party. The plan had as its object the extortion of protection money from the owners of night clubs in Brisbane. In the execution of the plan Stuart disseminated the story that criminals from Sydney had come to Brisbane for the purpose of extorting money from night clubs and said that as a warning that they meant business they were likely to blow up or burn a night club - if necessary, one full of people - and that in particular they intended to bomb the "Whisky-Au-Go-Go". Finch's part of the plan was to light a fire to give some verisimilitude to this story. Stuart had brought Finch from England for the purpose and he counselled Finch to light the fire. It was no part of the plan that murder should be committed. There was no evidence that either Finch or Stuart intended that anyone should be killed or injured in the fire and it is possible that the action of the air-conditioning plants in the building had some effect in hastening the spread of the blaze and increasing the concentration of vapour containing carbon monoxide, and thus in causing the fire to have more serious consequences than Finch and Stuart in fact foresaw. On the other hand, Finch must have known when he lit the fire that the club was not empty; a notice outside the building stated that the club was open until 3 a.m. and in fact there were about forty people in the club when the fire broke out. Moreover, upon the evidence to which I shall later briefly refer, the jury were entitled to conclude that Stuart knew that Finch would light the fire at the time when he did in fact light it and that the patrons of the club were likely to be using it at that time. (at p435)


3. In a summing up notable for its care and clarity the learned trial judge directed the jury that it was open to them to find Stuart guilty of murder by virtue of the operation of s. 302 (2) of the Criminal Code (Q.) in combination with either ss. 7 (d) and 9 or s. 8 of the Code. The submission made to this Court on behalf of the applicant was that such a verdict was not open, at least by virtue of s. 8, and that if, as was eventually conceded, the direction in relation to ss. 7 (d) and 9 was correct, the fact that the jury might have based their verdict on the direction given as to s. 8 rendered the conviction bad. (at p435)


4. The sections of the Code relevant to this matter provide as follows:

"7. Principal Offenders. - When an offence is committed,
each of the following persons is deemed to have taken part
in committing the offence and to be guilty of the offence,
and may be charged with actually committing it, that is
to say -
(a) Every person who actually does the act or makes the
omission which constitutes the offence;
(b) Every person who does or omits to do any act for the
purpose of enabling or aiding another person to commit
the offence;
(c) Every person who aids another person in committing
the offence;
(d) Any person who counsels or procures any other person
to commit the offence.
In the fourth case he may be charged either with himself
committing the offence or with counselling or procuring its
commission.
A conviction of counselling or procuring the commission of
an offence entails the same consequences in all respects as
a conviction of committing the offence.
Any person who procures another to do or omit to do any
act of such a nature that, if he had himself done the act or
made the omission, the act or omission would have constituted
an offence on his part, is guilty of an offence of the
same kind, and is liable to the same punishment, as if he had
himself done the act or made the omission; and he may be

8. Offences committed in prosecution of common purpose. -
When two or more persons form a common intention
to prosecute an unlawful purpose in conjunction with one
another, and in the prosecution of such purpose an offence
is committed of such a nature that its commission was a
probable consequence of the prosecution of such purpose,
each of them is deemed to have committed the offence.
9. Mode of execution immaterial. - When a person counsels
another to commit an offence, and an offence is actually
committed after such counsel by the person to whom it is
given, it is immaterial whether the offence actually committed
is the same as that counselled or a different one, or
whether the offence is committed in the way counselled, or
in a different way, provided in either case that the facts constituting
the offence actually committed are a probable consequence
of carrying out the counsel.
In either case the person who gave the counsel is deemed to
have counselled the other person to commit the offence
actually committed by him.
23. Intention: Motive. - Subject to the express provisions
of this Code relating to negligent acts and omissions, a person
is not criminally responsible for an act or omission which
occurs independently of the exercise of his will, or for an
event which occurs by accident.
Unless the intention to cause a particular result is expressly
declared to be an element of the offence constituted, in whole
or part, by an act or omission, the result intended to be
caused by an act or omission is immaterial.
...
302. Definition of murder. - Except as hereinafter set
forth, a person who unlawfully kills another under any of
the following circumstances, that is to say, -
(1) 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;
(2) 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.

In the first case it is immaterial that the offender did not
intend to hurt the particular person who is killed.
In the second case it is immaterial that the offender did
not intend to hurt any person.
..."

The questions that now fall for decision depend for their solution upon the proper construction of these sections. The correct approach to the interpretation of a section of the Code is that stated by Dixon and Evatt JJ. in Brennan v. The King (1936) 55 CLR 253, at p 263 , as follows:

"... it forms part of a code intended to replace the common law,
and its language should be construed according to
its natural meaning and without any presumption that it was
intended to do no more than restate the existing law. It is not
the proper course to begin by finding how the law stood
before the Code, and then to see if the Code will bear an
interpretation which will leave the law unaltered."

This passage does not mean that it is never necessary to resort to the common law for the purpose of aiding in the construction of the Code - it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground: see Robinson v. Canadian Pacific Railway Co. (1892) AC 481, at p 487 , cited in R. v. Scarth (1945) St R Qd 38, at p 44 . If the Code is to be thought of as "written on a palimpsest, with the old writing still discernible behind" (to use the expressive metaphor of Windeyer J. in Vallance v. The Queen (1961) 108 CLR 56, at p 76 ), it should be remembered that the first duty of the interpreter of its provisions is to look at the current text rather than at the old writing which has been erased; if the former is clear, the latter is of no relevance. (at p437)


5. The offence of murder which s. 302 (2) defines has three elements. First, the killing must have been unlawful. Secondly, the death must have been caused by an act of such a nature as to be likely to endanger human life. Thirdly, that act must have been done in the prosecution of an unlawful purpose. The first of these elements requires no discussion in the present case. To constitute the second element it is enough that the act which caused the death was in fact likely to endanger human life, whether or not the offender knew that it was dangerous. Section 302 (2) speaks of the nature of the act, not of the knowledge of the offender, and it was rightly said in Reg. v. Gould and Barnes (1960) Qd 283, at p 298 , that the test which it requires to be applied is "purely objective". Moreover, s. 302 (2) does not require the offender to have acted with any particular intention, and even without the concluding words, which expressly state that it is immaterial that the offender did not intend to hurt any person, the second paragraph of s. 23 would have the effect that the result which the offender intended to cause by his act is immaterial. However, the apparent severity of the operation of s. 302 (2) is mitigated by the provisions of the first paragraph of s. 23, since if the death is an event which occurs by accident - that is, if it was a consequence which was not in fact intended or foreseen by the accused and would not resonably have been foreseen by an ordinary person (Kaporonovski v. The Queen (1973) 133 CLR 209 at pp 231-232 , and cases there cited) - the accused will not be criminally responsible. (at p438)


6. The third element in s. 302 (2) has sometimes occasioned difficulty. It appears clearly from the words of the section, and it has been laid down by this Court, that the act of the accused which caused the death cannot at once constitute the dangerous act and the unlawful purpose: "The paragraph relates to an act of such a nature as to be likely to endanger human life when the act is done in the prosecution of a further purpose which is unlawful." (Hughes v. The King (1951) 84 CLR 170, at pp 174-175 ). The facts of Hughes v. The King clearly exemplify this principle; the dangerous act causing death was a violent assault but the accused had no purpose other than to assault the deceased. If s. 302 (2) had applied in that case it would, as Philp J. said in Reg. v. Gould and Barnes (1960) Qd R, at p 292 , "make a man guilty of murder if, without any intent to do grievous bodily harm, he killed by an unlawful act which, in fact, was likely to endanger human life". The principle recognized in Hughes v. The King was extended in Reg. v. Nichols, Johnson and Aitcheson (1958) QWN 29 , to a case in which the death was caused in a fire started by the accused with the intention of burning down a hotel. Sheehy J. held that a verdict of murder was not open to the jury. He said that "that act which caused death, that is the setting fire to the hotel, which itself was arson, was the unlawful purpose" and that "the unlawful or dangerous act relied upon, setting fire to the hotel, is alleged to be at once the unlawful purpose and the dangerous act, and s. 302 (2) does not apply". With respect, this was a misapprehension of the decision in Hughes v. The King (1951) 84 CLR 170 . In Reg. v. Nichols, Johnson and Aitcheson the dangerous act was the striking of a match and applying it to kerosene on the stairs of the hotel but the unlawful purpose was to commit arson by burning down the hotel; the dangerous act and the unlawful purpose were not the same. The decision in Reg. v. Nichols, Johnson and Aitcheson was not required by Hughes v. The King (1951) 84 CLR 170 and finds no support in other authorities on the Code. In Reg. v. Gould and Barnes (1960) Qd R 283 in which, following some earlier decisions, it was held that a verdict of murder was open when death was caused by a dangerous act done for the purpose of unlawfully aborting the deceased, no reference was made to Reg. v. Nichols, Johnson and Aitcheson (1958) QWN 29 , but the two decisions cannot stand together. In Downey v. The Queen (1971) NZLR 97, at pp 102-103 , the Court of Appeal of New Zealand cast doubt on the decision in Reg. v. Nichols, Johnson and Aitcheson but did not find it necessary to decide whether that case had proceeded on an unduly narrow view of the ratio in Hughes v. The King. In my opinion Reg. v. Nichols, Johnson and Aitcheson was wrongly decided and should now be overruled. (at p439)


7. To establish the case against Stuart it was first necessary for the Crown to satisfy the jury, by evidence admissible against Stuart, that Finch had committed the murder of Miss Davie. Upon the evidence it was open to the jury to find that the lighting of the fire, at a time when people were in the night club, was an act likely to endanger human life. The resulting death was foreseeable and was not an event which occurred by accident. The case presented by the Crown and put to the jury was that the act was done in prosecution of the unlawful purpose of extortion. The case was so presented because it was accepted that Reg. v. Nichols, Johnson and Aitcheson was rightly decided. It was quite correct to put the matter to the jury in this way, although it would have been equally correct to have left the case to them on the basis that the unlawful purpose in the prosecution of which the dangerous act was done was arson. In truth, the act was done in the prosecution of one unlawful purpose (arson) which itself formed part of a wider purpose (extortion). There was ample evidence on which the jury could find as against Stuart that Finch had committed the offence of murder under s. 302 (2). (at p440)


8. The next step in establishing that Stuart also was quilty of murder was to show that Stuart had counselled Finch to light the fire or that the fire was lit by Finch in the prosecution of the unlawful purpose formed by Stuart and Finch; in other words, the Crown relied on ss. 7 (b) and 9 of the Code, or alternatively on s. 8. If, as was submitted, s. 8 could not apply to the present case, it would follow that the learned trial judge misdirected the jury in telling them, in effect, that they might find Stuart guilty by virtue of that section. (at p440)


9. A number of submissions were advanced on behalf of the applicant in support of the contention that it was wrong to direct the jury that it was open to them to find Stuart guilty of murder by applying the provisions of s. 8 of the Code. It is convenient first to consider the submission that the word "offence", where it occurs in s. 8, takes its meaning from the so-called definition in s. 2 which provides as follows: "An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence." It was said that applying this definition the "offence" within the meaning of s. 8 in the present case was the lighting of the fire and that s. 8 has the effect that Stuart is deemed to have committed arson but not to have committed murder. In my judgment the effect of s. 8 is not so limited. It is clear from the words of s. 8 that when that section speaks of "an offence" it cannot mean simply an act or omission viewed in isolation. In most cases an act or omission alone does not render a person liable to punishment; whether it does so may depend on the quality of the act, the intention which accompanied it, its consequences or other circumstances. In the present case, for example, it was not the lighting of the fire alone that made Finch guilty of murder; he committed that offence because the death of Miss Davie was caused by his act of lighting the fire and because the act was in the circumstances of such a nature as to be likely to endanger human life and because it was done in the prosecution of an unlawful purpose. If the word "offence" in s. 8 is regarded as defined by s. 2 it means an act or omission done or made in such circumstances as to render the person doing it liable to punishment - a punishable act or omission. Reading s. 8 in this way, it deems Stuart to have committed the punishable act done by Finch, and since Finch's act is punishable as murder, Stuart is deemed to have committed murder. In truth, however, to attempt to expand the text of s. 8 by reading into it the description of "offence" contained in s. 2 tends to obscure rather than illuminate its meaning. The words of s. 8 are perfectly clear as they stand. They have the effect, in the present case, that if Finch and Stuart formed a common intention to prosecute an unlawful purpose in conjunction with one another, and if in the prosecution of that purpose Finch committed the offence of murder, and if that offence was of such a nature that its commission was a probable consequence of the prosecution of such purpose, Stuart is deemed to have committed murder. (at p441)


10. It was further submitted that it is not permissible in applying ss. 8 and 302 (2) in conjunction to use the one unlawful purpose twice over. To establish that Finch committed murder the Crown proceeded to prove that he caused the death of Miss Davie by a dangerous act done in the prosecution of the unlawful purpose of extortion. To deem Stuart guilty of murder the Crown sought to prove that Stuart and Finch formed a common intention to prosecute an unlawful purpose - extortion - in the prosecution of which murder was committed. It was submitted that this was impermissible. Although this appears to have been the argument on which counsel for the applicant placed his strongest reliance there is in my judgment no substance whatever in it. The argument derives no support from the words of the two sections which nowhere suggest that when s. 8 comes to be applied in a case in which the offence committed was murder as defined in s. 302 (2) it is necessary to seek for an unlawful purpose different from, or additional to, that in the prosecution of which the act was done that caused the death. Such a requirement would have no rational basis. The two sections are not in conflict and have the combined effect that when two persons form a common intention to prosecute an unlawful purpose, and in the prosecution of that purpose one does an act which is likely to endanger human life, and in fact causes death, and the nature of that crime was such that its commission was a probable consequence of the prosecution of the purpose, the other is deemed to have committed the offence of murder. (at p441)


11. Finally it was submitted that it was not open to the jury to find that the murder committed by Finch was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose of extortion. To consider this submission it is first necessary to decide whether, as was submitted on behalf of the applicant, "a probable consequence" within s. 8 is a consequence which the accused was aware was likely to follow from the prosecution of the purpose, i.e. whether the words of s. 8 referring to "a probable consequence" import a subjective test. Clearly, in my opinion, they do not. The question posed by the section is whether in fact the nature of the offence was such that its commission was a probable consequence of the prosecution of the common unlawful purpose and not whether the accused was aware that its commission was a probable consequence. This was recognized by all the members of this Court in Brennan v. The King (1936) 55 CLR 253 . Starke J. said (1936) 55 CLR, at pp 260-261 :

"A probable consequence is, I apprehend, that which a
person of average competence and knowledge might be
expected to foresee as likely to follow upon the particular
act; though it may be that the particular consequence is not
intended or foreseen by the actor."

Dixon and Evatt JJ. said (1936) 55 CLR, at pp 263-264 :

"The expression 'offence ... of such a nature that its commission
was a probable consequence of the prosecution
of such purpose' fixes on the purpose which there is a common
intention to prosecute. It then takes the nature of the
offence actually committed. It makes guilty complicity in
that offence depend upon the connection between the prosecution
of the purpose and the nature of the offence. The required
connection is that the nature of the offence must be
such that its commission is a probable consequence of the
prosecution of the purpose."

In Reg. v. Solomon (1959) Qd R 123 , Philp J. criticized some of the passages in Brennan v. The King (1936) 55 CLR 253 which dealt with the effect of s. 7 (a question to which I shall return) but did not extend that criticism to the Court's remarks as to s. 8. He said (1959) Qd R, at p 129 :

"This section" (s.8) "extends the criminal responsibility of
persons who have made a concert to commit an offence.
They are responsible not only for the concerted - the willed
- offence, but also for such offences - but only such offences - as
are objectively the probable consequence of the prosecution of the concert."

I agree that under s. 8 the test is an objective one. (at p442)


12. However, even on the view that the test under s. 8 is objective the submission was made that the murder was not a probable consequence of the unlawful purpose of extortion. The question is not one to be decided by reference to abstract concepts. It is not whether, viewed a priori, murder is a probable consequence of extortion. Under s. 8 it is necessary for the jury to consider fully and in detail what was the unlawful purpose and what its prosecution was intended to entail and what was the nature of the actual crime committed, and then to decide whether that crime was of such a nature that its commission was a probable consequence of the prosecution of that purpose. In the present case there was evidence on which the jury could have been satisfied that the murder committed was of such a nature that its commission was a probable consequence of the prosecution of the purpose which Finch and Stuart had in common; it was open to them to infer that Stuart and Finch formed a common intention that Finch should light the fire in the night club at the time when he did light it and when people were known to be in it. It is perhaps desirable to mention a few additional facts relevant to this question. In a number of conversations before 8th March, in which Stuart spoke of the activities of the alleged criminals from Sydney, he mentioned the possibility that a fire or an explosion might be caused in a night club when it was full of people. On the night of the fire Stuart set out in a car with Finch at about midnight and was together with Finch again soon after 7 o'clock on the following morning at the latest. In the meantime Stuart had taken pains to establish that he was at another night club at 2.16 a.m. In subsequent conversations he accused Finch of failing to keep quiet but never reproached him with having lit the fire while people were in the club. Once the jury concluded that the plan was to light the fire at about 2.08 a.m. when people were in the club it was a short step for them to be satisfied that the death of one of such persons was a probable result of the prosecution of the plan. It is not uncommon for deaths to occur when a fire breaks out in a building containing people. I have already mentioned that there was evidence that there were installed in the building air-conditioning plants which may to some extent have hastened the spread of the fire, and increased the concentration of carbon monoxide. This circumstance did not mean that the death was not a probable consequence of lighting the fire. Even had there been no air-conditioning plant, the death of one of the persons in the night club was a probable consequence of lighting the fire there. (at p443)


13. For these reasons the learned trial judge was right in leaving it to the jury to consider whether Stuart was to be deemed guilty of murder by the operation of s. 8 of the Criminal Code. (at p444)


14. The argument at one stage advanced, that it was wrong to direct the jury that it was open to them to find that Stuart had counselled Finch to light the fire and was therefore deemed to be guilty of murder if the facts constituting the offence of murder were a probable consequence of carrying out the counsel (ss. 7(d) and 9), was in the end not pressed, but it seems proper in the circumstances to dispose of it. Put shortly, the argument was that Stuart was not liable for murder under s. 7(d) unless he had counselled Finch to commit murder. This argument was based on dicta in Reg. V. Solomon (1959) Qd R, at pp 128-131 . That case arose under s. 7(c) and not under s. 7(d). However, in his judgment Philp J. (with whom Mansfield C.J. agreed) discussed generally the inter-action of ss. 7 and 23, and criticized Brennan v. The King (1936) 55 CLR 253 on the ground that no consideration was given in the judgments in that case to the operation of s. 23. In the course of his discussion he dealt with s. 7(d) as follows (1959) Qd R, at p 128 :

"Section 23 makes it plain that if B does an act which
is done independently of the will of A the latter cannot be
criminally responsible for that act. Similarly under s. 7(d) -
if A counsels or procures B to commit an offence A is liable
only for the actual offence he has consciously counselled or
procured."

This passage, if taken alone, completely ignores the effect of s. 9 of the Code. Later, Philp J. did mention that section in a passage contrasting the effect of ss. 8 and 9 with that of s. 7. He said (1959) Qd R, at p 129 :

"Section 9 similarly extends the criminal responsibility of
the counsellor or procurer to include responsibility for unwilled
offences which are objectively the probable consequence
of the counselling or procuring."

That is a correct statement, but Philp J. immediately followed it by saying (1959) Qd R, at p 130 : "In my view s. 7 is not intended to create responsibility for unwilled acts arising out of a plan or concert." Although in the present case it is not necessary to discuss ss. 7 and 23 generally, it seems right to say, with great respect to a judge very experienced in this branch of the law, that the views expressed by Philp J. as to the effect of those sections cannot all be supported. Where s. 7(c) is invoked the act of the accused which makes him criminally responsible is his act of aiding another to commit the offence; the first limb of the first paragraph of s. 23 does not have any exculpatory effect once it is established that the accused's act of aiding was not independent of the exercise of his will. Moreover, Philp J. seemed to have attributed to "act" in s. 23 the wider meaning which, although accepted by some members of this Court, cannot now be regarded as correct: see Kaporonovski V. The Queen (1973) 133 CLR, at pp 216,226-231,240 . The criticisms which in Murray V. The Queen (1962) Tas SR 170, at pp 184-185 Burbury C.J. made of the judgment of Philp J. in Reg. V. Solomon (1959) Qd R 123 were justified. However, the only part of s. 7 with which we are now directly concerned is par. (d). The question whether one confederate has counselled another to commit an offence requires a consideration of what the former urged or advised the latter to do. If the latter then does commit an offence which is different from that which he was counselled to commit, the former is made liable by the combined effect of ss. 7(d) and 9 provided that the facts constituting the offence are a probable consequence of carrying out the counsel. Stuart having counselled Finch to light the fire at the time and in the manner which he did was liable if the offence of murder actually committed by Finch was a probable consequence of carrying out that counsel. The learned trial judge was correct in directing the jury accordingly. (at p445)


15. In view of the gravity of the matter, I have considered at some length the questions raised in argument, but in truth this case is free from the difficulties that sometimes arise in the application of ss. 7 and 8. This is not one of those cases in which the principal offender went beyond the instigation of his confederate, or departed from a pre-arranged plan, and used more violence than had been agreed. In the present case it was open to the jury to conclude that Finch did exactly what Stuart had counselled him to do, or, if they regarded Stuart as playing a less dominant role, what the two had planned together. In the circumstances, it was right to allow them to consider ss. 7(d) and 9 and also s. 8 of the Code. (at p445)


16. Some additional criticisms were made of the summing up; these criticisms were shown during argument to be groundless and since they involve no question of principle need not be further mentioned. (at p445)


17. I would refuse special leave to appeal. (at p445)


MASON J. I would refuse special leave to appeal for the reasons given by Gibbs J. (at p445)


JACOBS J. At 2.08 a.m. on Thursday 8th March 1973 a fire was lit at or near the entrance to the building occupied and used as the "Whisky Au-Go-Go" night club in Brisbane. The fire rapidly spread through the building and fifteen persons were burned to death, including Jennifer Davie. Two persons were charged with, and convicted of, the murder of Jennifer Davie, namely, James Richard Finch and the present applicant for special leave to appeal, John Andrew Stuart. Appeals by the men to the Court of Criminal Appeal (Queensland) were dismissed. (at p446)


2. The case made by the Crown against Finch was not that he intentionally killed Jennifer Davie, but that he unlawfully killed her by causing her death by wilfully and unlawfully setting fire to the building in the prosecution of the unlawful purpose of extortion and that the setting fire to the building was an act of such a nature as to be likely to endanger human life: Criminal Code (Q.), s. 302(2). The jury by its verdict found that these allegations were made out. (at p446)


3. The Crown did not claim that the applicant personally set fire to the building or was present on the occasion of it being set on fire or that he intentionally murdered Jennifer Davie. It was alleged against him that he counselled Finch to set the fire to the building for the unlawful purpose of extortion, that Finch did so in prosecution of the unlawful purpose of extortion, that the death of Jennifer Davie was caused by the act of setting fire, that the act of setting fire was of such a nature as to endanger human life, and that these facts which constituted the offence of murder in the case of Finch pursuant to s. 302(2) were the probable consequence of Finch carrying out the counsel (ss. 7 and 9). It was further alleged that the applicant murdered Jennifer Davie in that he and Finch had formed a common intention to prosecute the unlawful purpose of extortion in conjunction with one another and that in the prosecution of that purpose Finch for that unlawful purpose of extortion wilfully and unlawfully set fire to the building, that the death of Jennifer Davie was caused by the setting fire, that the act of setting fire was of such a nature as to endanger human life and that the commission of the offence of murder which on these facts was committed by Finch was a probable consequence of the prosecution of the unlawful purpose of extortion in conjunction with one another (s. 8). (at p446)


4. Thus the Crown alleged that by virtue both of s. 7 and s. 8 of the Code the applicant was guilty of the murder (in terms of s. 302(2)) by Finch. Special leave to appeal is sought on the ground that, on any view of the facts, the applicant could not in law be guilty of the crime of murder by the application of s. 8. It is further submitted that in respect of the offences alleged under s. 7 and s. 8 the trial judge did not correctly leave to the jury the issue of "murder or manslaughter" in the case of the applicant because he did not direct them that it was open to them to find the applicant guilty of manslaughter even if on the evidence admissible against the applicant they found Finch had committed the offence of murder in terms of s. 302(2). (at p447)


5. It was the argument based on s. 8 of the Code on which the applicant mainly relied. It was put thus. The death of Jennifer Davie was caused by means of Finch's act in setting fire to the building in the prosecution of the unlawful purpose of extortion. This unlawful purpose had to be alleged by the Crown in order to meet the requirement stated in Hughes v. The King (1951) 84 CLR 170 , that the act referred to in s. 302(2) and the purpose there referred to must be distinct. Then, it is said, when it is sought to make the applicant responsible for the offence committed by Finch it is not possible to find Finch's unlawful purpose of extortion under s. 302(2) also to be the unlawful purpose prosecuted by the common intention of the applicant and Finch in terms of s. 8. It is submitted that once that purpose of extortion has been used as an essential ingredient for the creation of the offence of murder under s. 302(2) it cannot be, as it were, used again in order to say under s. 8 that that offence of murder was a probable consequence of the prosecution of such purpose. The reason submitted is that the offence of murder under s. 302(2) already contains its constituent of purpose. The arson for the purpose of extortion being likely to endanger human life constituted murder in the case of Finch. The applicant would conceivably be guilty under s. 8 of the offence of arson or possibly manslaughter but he could not be guilty of murder by the application of s. 8 to s. 302(2) because the murder was only the probable consequence of the purpose of extortion coupled with the arson and was not the probable consequence of the purpose of extortion simpliciter. (at p447)


6. It seems to me that there are a number of answers to this submission. The first and simplest is that when during the trial the purpose of extortion was spoken of, in relation both to the unlawful purpose under s. 302(2) and to that under s. 8, it was not extortion in the abstract but extortion planned to be effected in all the circumstances of the case, including the preliminary act of causing a fire in the building housing the night club. Counsel for the applicant submits that this is impermissible because of Hughes v. The King (1951) 84 CLR 170 in that it fails to keep separate the act of lighting the fire and the purpose of extortion, but, however broadly the reasoning in Hughes v. The King may be regarded, it does not appear to me that it justifies the proposition that the act and the purpose must in s. 302(2) be entirely disparate. Hughes v. The King does not support the wide proposition for which it has been claimed as authority. It was held in that case that when there is no purpose at all beyond the doing of the act which constitutes the offence, then there is no relevant "unlawful purpose" under the section. The facts of the case show how sensibly that principle applies. The act was an assault but, on a view of the facts which was open, there was no purpose beyond the making of the assault. This, it was held, was insufficient to make s. 302(2) applicable. However, many offences are and probably all can be of greater complexity in the purposes which may accompany them than an assault unaccompanied by any purpose other than the making of the assault. Arson may be taken as an example. If a man wilfully and unlawfully sets fire to a building he may have no purpose other than that of setting a fire. The motive may be a wish to see it burn, a mischievous glee or a dislike of the structure. Then the reasoning in Hughes v. The King is applicable. But more usually such an act is accompanied by a distinct purpose, such as, for instance, a purpose of causing some damage, not necessarily physical hurt, to the owner or occupier of the building. That purpose when it is prosecuted by burning of the building is unlawful. The purpose unrelated to the act of setting fire does not necessarily constitute a separate offence or attempted offence but there is nothing in Hughes v. The King which suggests that there must be a purpose of committing a distinct offence of which the act under s. 302(2) is not a constituent part. The unlawful purpose must in fact be prosecuted by the dangerous act but the unlawfulness of the purpose may appear from the act whereby that purpose is prosecuted. The dangerous act need not be itself an offence and the purpose unrelated to the dangerous act need not be an offence. It is when the combination of them results in an offence, but only when there is in fact a combination, that is to say, when a purpose can be discerned beyond the doing of the dangerous act itself that the requirements of s. 302(2) are satisfied. It is thus permissible to look at the act in the light of the purpose and likewise the purpose in the light of the act by which that purpose is prosecuted. I am of opinion that Reg. v. Nichols, Johnson and Aitcheson (1958) QWN 29 was only a correct application of the decision in Hughes v. The King (1951) 84 CLR 170 if in fact there was no purpose intended to be prosecuted by the act of setting fire to the hotel. We were informed during the hearing of this application that this was not so, but that on the facts there was a purpose of destroying the hotel so that its licence would be withdrawn. If this be correct then the decision of the trial judge was wrong when he held that a verdict of murder under under s. 302(2) was not open. (at p449)


7. Therefore in the present case it is quite permissible to regard the act of setting fire to the building in the light of the particular unlawful purpose of proposing to set fire to the building as a preliminary to the attempted plan of extortion. There is no need to attempt to confine the act of setting fire to the building in some category unrelated to the purpose which accompanied it and which itself could be regarded as giving that purpose its unlawful character. The ultimate purpose of extortion happened to bring an element of unlawfulness beyond the act whereby it was to be prosecuted but this was by the way. (at p449)


8. There is therefore no difficulty in incorporating into the unlawful purpose referred to in s. 8 the particular act by which the unlawful purpose was intended to be prosecuted. The applicant and Finch had much more than a common intention to prosecute a purpose of extortion; they had the intention to prosecute that purpose by frightening the owners of night clubs by setting fire to the building in which the night club "Whisky Au-Go-Go" was situated. All of those features form part of the unlawful common purpose and there are then the further questions whether on the death of a person caused by means of setting fire to the building in prosecution of that purpose that setting fire was an act of such a nature as to be likely to endanger human life so that the actor Finch was guilty of murder and whether that offence of murder was of such a nature that its commission was a probable consequence of the prosecution of the common purpose as I have described it above. (at p449)


9. The submission on behalf of the applicant depends, moreover, upon it being correct that in such a case as the present one the unlawful purpose referred to in s. 8 must be defined so as to be precisely the same as the unlawful purpose referred to in s. 302 (2) . There is no reason why this should be so. Even if, contrary to the view which I have expressed above, it were permissible to limit Finch's purpose under s. 302(2) to that of extortion unrelated to the act whereby it was to be prosecuted it does not follow that the common purpose of the applicant and Finch under s. 8 should be so limited. It would be strange if this were so. Under s. 302(2) it is only the purpose of Finch which falls to be considered. Under s. 8 it is the common purpose of both Finch and the applicant. The purpose under s. 8 must relate both to any ultimate purpose and to the proposed means of achieving that purpose. The probable consequence of the prosecution of the purpose requires a consideration not only of any ultimate objective but also of the proposed course whereby it is to be attained. Otherwise the offence the commission of which is the requirement for the operation of s. 8 could not be tested against the requirement that it be of such a nature that its commission was a probable consequence of the prosecution of the purpose. (at p450)


10. For all these reasons, therefore, I am of the opinion that there is no logical or practical difficulty or defect in the course which was taken by the trial judge when he directed the jury as follows:

"Do you as reasonable men think that murder probably
followed from the carrying out of the plan to commit extortion
in conjunction with one another? This is a question,
gentlemen, which you should not look at in isolation. You
look at the nature of the unlawful purpose - that is, the
setting-up of a protection racket in night clubs - and you look
at the way in which the unlawful purpose was carried on -
that is, if you are satisfied as to those matters - and that way
was the frightening of night-club owners by continually
warning them of impending disaster so that they would thereby
be rendered more receptive to the idea of demands made
upon them for the payment of money, and in particular the
way in which it was carried on was by lighting a fire in their
premises at a time at which the night club was open for
business.
Looking at the matter in that way and against that background,
the question you ask yourselves as reasonable men is
this: was it a probable consequence of the carrying on of this
unlawful purpose in that way that murder would be committed
in the way in which I have described? If the answer
to that question is 'Yes', then, as the section that I have
read to you says, Stuart is guilty of murder, because the
section says each of them is deemed to have committed the
offence." (at p450)



11. I turn now to the question whether there was any miscarriage of justice as a result of any error in the trial judge's direction upon the circumstances in which it was open to the jury to find the applicant guilty of manslaughter even if it found on the evidence admissible against the applicant that Finch was guilty of murder. This ground goes to the application in this context both of s. 8 of the Code and of s. 7 taken in conjunction with s.9. In effect what is submitted is that the jury ought more clearly to have been told that they might have found the applicant guilty of manslaughter only, and not murder, if they took the view that a prosecution of the unlawful purpose by the common intention under s. 8 had a probable consequence of the commission of the offence of manslaughter by Finch and not of murder and likewise if they took the view that when the applicant counselled an offence by Finch the facts constituting the offence actually committed by Finch were a probable consequence of carrying out the counsel only to the extent of an unlawful killing amounting to manslaughter, not murder. The point arises because of the particular relation between the offence of murder and that of manslaughter. Both are unlawful killings. The unlawful killing is murder if certain elements are present. If they are not, the offence is manslaughter. The learned trial judge directed the jury that even if on the evidence admissible in the applicant's case it should find that Finch was guilty of murder under s. 302(2) nevertheless it should find the applicant not guilty of either murder or manslaughter unless it should find the offence constituted by the unlawful killing of Jennifer Davie a probable consequence of either the applicant's counsel on the one hand or of the prosecution of the unlawful purpose on the other. The summation of the direction was as follows:

"...Stuart and Finch made a plan to light a fire, that is
to commit the offence of arson, that in pursuance of that
plan Finch lit the fire - that is, in law Stuart is held to have
procured the commission of that offence and is punishable
as a principal offender - and the further proposition that the
offence constituted by the causing of the death of Jennifer
Davie was a probable consequence of Finch carrying out the
plan to commit arson which they had evolved between
them - to put it technically, a probable consequence of
carrying out Stuart's counsel - these are the questions which
arise, and in considering them I must again warn you that
you may only consider evidence admissible in the case of
Stuart. The first four questions are the same as those in
Finch's case -
(1) Did Finch light the fire?
I put them in a different order -
(2) Did Stuart counsel Finch to light the fire, in the sense
which I have tried to explain it to you?
(3) Did the fire cause the death of Jennifer Davie?
(4) Did Finch light the fire in the prosecution of the
unlawful purpose of extortion carried on in conjunction
with Stuart?
(5) Was Finch's act in lighting the fire an act of such
a nature as to be likely to endanger human life?
(6) Was the offence constituted by the unlawful killing of
Jennifer Davie a probable consequence of carrying out
Stuart's counsel?
Those are the six questions, gentlemen, and if you answer
all six of them 'Yes', then it would be your duty to bring in
a verdict of guilty of murder against Stuart. If you answer
all questions 'Yes' except the question relating to Finch's
lighting of the fire in the prosecution of the unlawful purpose
of extortion, or the question as to the nature of Finch's
act, whether it was an act of such a nature as to be likely to
endanger human life, if you give a negative answer to one
of those questions, or both, but only one is necessary to
reduce it to manslaughter, and if you answer all the other
questions in the affirmative, then your verdict in Stuart's
case would be guilty of manslaughter. Any other combination
of answers would result in a verdict of not guilty in
Stuart's case.
The other possible way to look at Stuart's case is what I
have called the common intention approach, that the offence
constituted by the unlawful killing of Jennifer Davie was
committed in the course of the prosection of an unlawful
purpose as to which Finch and Stuart had formed a common
intention to prosecute it in conjunction with one another
and was a probable consequence of the prosecution of such
purpose. Under this approach - and again you may only look
at evidence admissible against Stuart - there are again six
questions arising, including all the questions which arise in
the case of Finch and in the case of Stuart under the other
approach.
The first question, I suggest, is: did Stuart and Finch form
a common intention to prosecute the unlawful purpose of
extortion in conjunction with one another? That is the first
question. The second question is: did Finch light the fire?
The third question is: did the fire cause the death of Jennifer
Davie? The fourth question is: did Finch light the fire in
the prosecution of the unlawful purpose? The fifth question
is: was the offence constituted by the unlawful killing of
Jennifer Davie a probable consequence of the prosecution of
the unlawful purpose? The sixth question is: was Finch's act
in lighting the fire an act of such a nature as to be likely
to endanger human life? Gentlemen, if you answer all six
questions 'Yes', your verdict in Stuart's case should be
guilty of murder. If you answer them all 'Yes' except the
question of the nature of Finch's act in lighting the fire -
that is, whether it was an act which was likely to endanger
human life - if that is the only question which you answer
'No', then your verdict should be guilty of manslaughter in
Stuart's case. Any other combination of answers to the
questions will result in a verdict of not guilty in Stuart's
case."

It appears to me that this was in one sense unduly favourable to the accused. Even if the probable consequence of the counsel or common purpose was not the offence of murder of which Finch was on the hypothesis guilty nevertheless the probable consequence of the counsel or common purpose might well be found to be the unlawful killing of Jennifer Davie in circumstances amounting to manslaughter. (at p453)


12. Whether or not the probable consequence of the counsel or common purpose was murder or manslaughter by the applicant could depend on the nature of the counsel or common purpose in the light of the facts known to the applicant, particularly the facts relating to the time at which the counsel or plan to set fire to the night club premises should be executed and relating to the times at which the night club was open. The probable consequence must be considered as at the time when the counsel is given or the common purpose formed. If at that time in the light of the facts known to the applicant the probable consequence of the setting fire to the premises which was counselled or planned was not a likely endangering of human life, nevertheless the counsel or common purpose may have had as its probable consequence the unlawful killing of some person. The apparent contradiction is not a real one when the distinction between murder under s. 302(2) and manslaughter is borne in mind. (at p453)


13. It appears to me that what I have said follows from the reasoning of Dixon and Evatt JJ. in Brennan v. The King (1936) 55 CLR 253, at pp 263-265 , though it does not follow from the decision itself. If, differently from the facts as found by the jury in that case, the actual assaulters of the night-watchman had used more force than was contemplated in the common purpose, if, let us say, the common purpose involved no more than simple assault, the fact that a probable consequence of prosecution of the common purpose was not the likely death of the night-watchman would not have the result that the lookout man was not at all guilty of the unlawful killing. He would in my opinion be guilty of the unlawful killing if the probable consequence of the common purpose was the possibility of death occurring as a result of simple assault. The probable consequence was this possibility but not the likelihood of endangering human life. He would be guilty of manslaughter even though not guilty of the murder of which his confederates might be found guilty. I agree with the analysis of Philp J. in Reg. v. Solomon, where he stated (1959) Qd R 123, at p 131 :

"His Honour first directed on s. 8 and told the jury in
effect that under that section Solomon could be found guilty
of murder only and then only if the murder - the act which
was likely to endanger human life - was a probable consequence
of the prosecution of the concerted unlawful purpose.
I think that a verdict of manslaughter was (and would
be on a new trial) open for consideration under s. 8. Murder
is an aggravated form of unlawful killing. The circumstances
of aggravation under s. 302(2) requires the lethal
act to be one likely to endanger human life. The jury may
have doubted whether such an act was a probable consequence
of the concert and yet held that some act which
might kill was a probable consequence." (at p454)



14. So in the present case, if the counsel or the common purpose did not have the probable consequence that by the arson the life of a person, in this case Jennifer Davie, was likely to be endangered, nevertheless if the common purpose had the probable consequence that by the arson the life of a person might be endangered and that thereby that person might be unlawfully killed, the applicant would be guilty of manslaughter. A great deal therefore depended on the precise nature of the counselling or common purpose in the light of the circumstances of the case, particularly the state of knowledge of the applicant respecting the premises and their time of use. The probable consequence is the consequence which would be apparent to an ordinary reasonable man in the position of the applicant, that is to say, in his state of knowledge. The test is thus an objective one in the sense that it is not a question whether the applicant recognized the probable consequence, but it is an objective test applied to the state of the applicant's knowledge of the facts. This follows in my opinion from the fact that it is the consequence of his counsel or purpose which is being considered and from the terms of s. 23 and s. 24 of the Code. It is the will of the applicant, as distinct from his intention, which is the necessary element and the exercise of his will must be considered in the light of the facts known to him. That this is so is in my opinion implicit in the words of Starke J. in Brennan v. The King (1936) 55 CLR, at pp 260-261 :

"A probable consequence is, I apprehend, that which a
person of average competence and knowledge might be
expected to foresee as likely to follow upon the particular
act; though it may be that the particular consequence is not
intended or foreseen by the actor. This is not a definition,
but 'only a guide to the exercise of common sense.' Now if
a person commits manslaughter who brings about the death
of another by some unlawful act, then it must be taken, I
think, that death is treated in law as a not improbable consequence
of such an act, either because of the definition of the
crime or because experience has established that such a
result ought to be foreseen and expected." (at p455)



15. Although on these aspects the summing up was on the face of it favourable rather than unfavourable to the applicant, nevertheless it must be considered whether because there was no direction to the jury that a verdict of manslaughter was open exactly in this way in respect of the applicant there was any miscarriage of justice. In my opinion, in the circumstances of this case, no miscarriage of justice is disclosed. The evidence against the applicant in relation both to the counselling and to the common purpose with Finch was such that if it was accepted by the jury and if all the other questions left to the jury in the careful direction of the trial judge were answered against the applicant it clearly appeared that the counselling or common purpose had a probable consequence that human life was not merely possibly endangered but was likely to be endangered. This is so because all the evidence if it was accepted showed a counsel or common purpose of setting fire to the night club at a time when it was open for business. There was the evidence that the applicant, in his forecast of events in which he falsely identified the originators of the plan of extortion as certain persons from New South Wales, clearly envisaged that a night club would be set afire when there were patrons attending it. There was the evidence that the night club was open for business until 3 a.m. and that it had a large notice outside to this effect. There was the evidence of the applicant's visits to the night club when he must have seen the notice. There was the evidence that the applicant and Finch were together until a late hour on the night in question and that then the applicant carefully established an alibi for himself at 2.16 a.m. by calling attention to his presence at another night club at that time. The fire, it will be recalled, was at 2.08 a.m. If none of these events were found to carry the implication against the accused which it was sought to establish there was no real evidence against him, but if they were accepted by the jury against him then the probable consequence of both the counselling and the common purpose was arson which was likely to endanger the life of persons in the night club. In the particular circumstances the failure to give the particular direction on manslaughter which was omitted resulted in no miscarriage of justice and no case is established for the granting of special leave to appeal. The application should be refused. (at p456)


Orders


Application for special leave to appeal refused.