Darkan v The Queen

Criminal Law – Common intention to prosecute unlawful purpose - Aiding the commission of an offence - Counselling the commission of an offence - Assault causing death - Appellants tried together and convicted of murder - Where Crown case relied on ss 7, 8 and 9 of the Criminal Code (Q) - Jury directed by trial judge that for the purpose of ss 8 and 9 of the Criminal Code (Q) "a probable consequence" was one which was "a real possibility or a substantial chance or a real chance" - Meaning of "a probable consequence" - Whether "probable" connotes something more than "possibility" or "real possibility" or "real chance" - Whether jury was misdirected.

Criminal Law – Application of the proviso under s 668E(1A) of the Criminal Code (Q) - Whether "substantial miscarriage of justice" has actually occurred - Whether trial fundamentally flawed - Relevance of unknown mode of jury reasoning - Relevance of the fact that the misdirection concerned the elements of the offences charged.

Appeal – Court of criminal appeal - Proviso not considered by court of criminal appeal - Whether High Court should consider proviso in the circumstances - Role of court of criminal appeal - Role of High Court - Limitations on High Court considering the proviso without scrutiny of the record of evidence by court of criminal appeal - Defects of a trial on the record.

Words and phrases – "a probable consequence", "substantial miscarriage of justice".

Criminal Code (Q) – ss 8, 9, 668E(1A).