Darkan v The Queen [2006] HCA 34

Darkan v The Queen [2006] HCA 34

The trial judge erred in directing the jury that 'a probable consequence' included a real or substantial possibility or chance, rather than a consequence that could well happen; however, in the cases of all appellants, the evidence established their guilt of murder beyond reasonable doubt on bases unaffected by the misdirection. Therefore, applying s 668E(1A) of the Criminal Code (Q), the High Court concluded that no substantial miscarriage of justice actually occurred and dismissed the appeals.

Parties
Appellant: Howard Rodney Darkan; Appellant: Gwendoline Cecily Deemal-Hall; Appellant: Marlow Phillip Andrew McIvor; Respondent: The Queen
Jurisdiction
Australia
Judgment Date
22 June 2006
Procedural Posture
Criminal Appeal / High Court on Appeal From the Supreme Court of Queensland
Outcome
appeals dismissed (majority); dissent by Kirby J (appeals should be allowed; order new trials)
Legal Topics
Common Intention, Aiding and Counselling Offences, Jury Directions, Murder, Substantial Miscarriage of Justice, Appellate Review
Criminal Law Common Intention Aiding and Counselling Offences Jury Directions Murder Substantial Miscarriage of Justice Appellate Review

Case Brief

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Parties

Howard Rodney Darkan

Appellant

Gwendoline Cecily Deemal-Hall

Appellant

Marlow Phillip Andrew McIvor

Appellant

The Queen

Respondent

Procedural Posture

Criminal Appeal / High Court on Appeal From the Supreme Court of Queensland

Legal Issues

  1. 1 Whether the trial judge misdirected the jury on the meaning of 'a probable consequence' in ss 8 and 9 of the Criminal Code (Q)
  2. 2 Whether the misdirection amounted to a substantial miscarriage of justice warranting the allowance of the appeals under s 668E(1A) of the Criminal Code (Q)
  3. 3 Whether the High Court should apply the proviso and dismiss the appeals despite misdirection

Ratio Decidendi

The trial judge erred in directing the jury that 'a probable consequence' included a real or substantial possibility or chance, rather than a consequence that could well happen; however, in the cases of all appellants, the evidence established their guilt of murder beyond reasonable doubt on bases unaffected by the misdirection. Therefore, applying s 668E(1A) of the Criminal Code (Q), the High Court concluded that no substantial miscarriage of justice actually occurred and dismissed the appeals.

Court Disposition

appeals dismissed (majority); dissent by Kirby J (appeals should be allowed; order new trials)

Orders

  • In each matter, the appeal is dismissed.