Within the Act? What else might you be charged with?

The upcoming trial of Phillip Abell, Benjamin Power and Donna McAvoy for the murder of Detective Senior Constable Damian Leeding at the Pacific Pine Tavern in May 2011 is a stark example of how a common criminal purpose may be relied upon by the prosecution notwithstanding that there may be unanticipated consequences. The trials of the three co-accuseds are expected to take some weeks in the Supreme Court in September – October later this year.

So just what are the circumstances where the prosecution may rely upon a common intention of a group of people to charge an individual with an act committed by someone else?

From the outset, it is important to appreciate that more than one person may commit an offence if there is a common intention between two or more persons to have an unlawful purpose. Once there is that common intention shared between two people each of them is deemed to have committed the offence. Any offence which then occurs in connection with that common intention, if it is a probable consequence of the unlawful purpose, each person will be guilty of that offence.

Accordingly, the first critical test is whether there was a common intention. An agreement to, for instance, execute a robbery, need not be in the form of an express agreement. Whether there is such an accord is dependent upon the circumstances, a course of conduct and is ultimately a question of common sense for the jury. It is a subjective test, that is, what did the parties themselves contemplate at the time the agreement was made is the question of fact to be determined: McAuliffe v R (1995) 183 CLR 108.

Secondly, if the prosecution is seeking to establish that other offences have been committed during the execution of a common unlawful purpose, it is a requirement that the offence which is said to have been committed was for the furtherance of that purpose. It is not sufficient for the prosecution to simply say that the offence was a probable consequence. That is, for example, it is probable consequence in the execution of a robbery that there will be a security guard at the premises and in order to complete the robbery it will be necessary to incapacitate that resistance. Again, to what limits will an act fall within the furtherance of a common purpose is question of fact for a jury: R v Phillips [1967] Qd R 237. Whilst it is a subjective test, such that it is the intentions of the parties themselves which is relevant rather than what an ordinary person may contemplate, often if the act is a probable consequence there may be sufficient evidence for a jury so conclude.

The final requirement for a prosecution to rely on common purpose to implicate multiple persons in the same act is that the act which did occur was a probable consequence of the nature of the common unlawful purpose. In R v Keenan (2009) 252 ALR 198, the DPP successfully appealed a decision of the Queensland Supreme Court to quash a conviction where Hayne J stated at [84]:

• The question is not whether the act of shooting that did occur was a probable consequence, it is whether the act of shooting was an offence of such a nature that its commission was a probable consequence. This latter question directs particular attention to what was the common intention. Was it, as the prosecution alleged, a common intention to inflict serious physical harm on the victim?

Kiefel J stated at [119]:

• It is not to be expected that every plan involving the infliction of physical harm will be detailed and include the means by which it is to be inflicted. However it may be possible to infer what level of harm is intended and from that point determine whether the actual offence committed was a probable consequence of a purpose so described.

Accordingly, there is a high standard that the prosecution must meet in order to rely on the provisions within our Criminal Code of common criminal purpose to allege acts committed by others in the furtherance of a common intention. However, it is not an impossible standard. A jury in any such trial would reasonably be directed to the exercise of common sense and their collective experience in assessing the subjective and objective requirements of the test. Ultimately it would seem that if there exists a common intention, a defendant ought to give consideration of probable consequences which reasonable members of the community may expect to occur.