Bowe v WA

[2017] WASCA 166

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Common intention
3. › Probable consequence test
4. › Whether direction required that test is objective
5. › Whether direction required as to application of objective test
6. › Whether specific harm or generic offence to be assessed
7. › Criminal Code (WA), s 8
1. Criminal Law
2. › Appeals against conviction
3. › Misdirection
4. › Directions on common intention under s 8 Criminal Code (WA)
5. › Whether conventional directions in terms of section adequate without express reference to objective nature of test
1. Criminal Law
2. › Appeals against conviction
3. › Re-examination
4. › Permissible ambit of re-examination
5. › Whether truncation of re-examination resulted in miscarriage of justice
1. Criminal Law
2. › Appeals against conviction
3. › Unreasonable verdict
4. › Sufficiency of evidence
5. › Whether evidence supported finding that common intention formed prior to commission of offence

Quick Take

Trial judges directing juries on s 8 of the Criminal Code (WA) are not required to expressly direct that the probable consequence test is objective; conventional directions in the terms of the section are adequate and an express direction risks unnecessary confusion. The common law parity principle applies to the decision whether to suspend a sentence under s 39 of the Sentencing Act 1995 (WA), notwithstanding that Division 1 of Part 2 does not expressly refer to parity. However, the parity principle does not operate to justify increasing a sentence beyond what is commensurate with the seriousness of the offence.