Stuart v The Queen (1974) 134 CLR 426
In Stuart v The Queen,1 the High Court considered constructive murder (also known as felony murder), clarifying that conviction requires proof of an unlawful act endangering life, not intent to kill, leading to the refusal of Stuart’s application.
COURT: High Court of Australia (McTiernan ACJ, Menzies, Gibbs, Mason and Jacobs JJ).
PARTIES: Stuart (Applicant), The Queen (Respondent).
PROCEDURAL HISTORY: Appeal by special leave from the Court of Criminal Appeal Queensland. After a trial by jury in the Supreme Court of Queensland, Stuart and Finch were convicted of the murder of Jennifer Davie;2 and sentenced to life imprisonment (Lucas J). Stuart’s appeal to the Court of Criminal Appeal Queensland was dismissed.3
FACTS:
- Stuart and Finch sought to extort money from nightclub owners in Brisbane by what the evidence described as a “protection racket”.4
- Stuart spread the story that Sydney criminals had come to Brisbane to extort money from nightclubs, warning that they might blow up or burn one, potentially full of people, with the “Whisky Au Go Go” in Fortitude Valley as a target.5
- On 8 March 1973, Finch took two drums of petrol into the foyer of the Whiskey Au Go Go building, set a fire, killing fifteen nightclub patrons.6 Stuart was not present.7
ISSUES:
- Whether the trial judge misdirected the jury on the elements of felony murder and the Crown’s case of the unlawful purpose of extortion or arson?
- Whether the applicant could rely on the defence of accident under section 23 of the Criminal Code Act 1899 (Qld) (‘Criminal Code’)?
APPLICABLE LAW:
Criminal Code Act 1899 (QLD) — Murder
Constructive murder (also known as the felony murder) is criminalised in Queensland under s 302(1)(b) of the Criminal Code, which was s 302(2) in 1973. Subsection 302(1)(b) arises out of the unlawful purpose of extortion, and the act endangering life was arson.8
Criminal Code Act 1899 (Qld) — Common Purpose
Liability extended to Stuart pursuant to section 8 of the Criminal Code:
8 Offences committed in prosecution of common purpose
When 2 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
COURTS REASONING:
Offence of murder (felony murder):
Gibbs J (at 438–439) outlined the elements of s 302(1)(b) which was s 302(2) of the Criminal Code in 1973, and considered the principle exemplified in Hughes v The King (1951) 84 CLR 170, 174–175:
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. …
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.10
Gibbs J clarified (at 439–440) that while the case was left on the basis the act was done in the prosecution of the potential unlawful purpose of extortion, it could also have been left on the basis the act was done in the prosecution of the narrower potential unlawful purpose of arson.11 While there must be an unlawful purpose apart from or beyond the bare commission of the dangerous act, there may be some overlap between the two in that the commission of the act may constitute part of a broader purpose.12
Trial direction:
It was submitted by Stuart’s counsel, 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.13 Gibbs J stated (at 441 [9]):
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.14
Gibbs J affirmed that the probable consequence test in section 8(1) is objective, as opposed to the subjective tests in section 7.15 Gibbs J said (at 442 [11]):
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.
A probable consequence is ‘that which a person of average competence and might be expected to foresee as likely to follow upon the particular act’, following Brennan v The King.16 Gibbs J concluded (at 444 [13]) that the 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 section 8.17
Section 23(1):
Under s 291 of the Criminal Code, ‘[i]t is unlawful to kill any person unless such killing is authorised or justified or excused by law’.18 A defence under s 23(1) provides: ‘[s]ubject to the express provisions of this Code relating to negligent acts and omissions’, therefore, it absolves a person from criminal liability if:
23 Intention—motive
(1) …
(a) an act or omission that occurs independently of the exercise of the person’s will; or
(b) an event that—
(i) the person does not intend or foresee as a possible consequence; and
(ii) an ordinary person would not reasonably foresee as a possible consequence. …19
Gibbs J acknowledged (at [5]) that the apparent severity of s 302(1)(b)’s operation is mitigated by the potential application of the accident provision in s 23(1), relying on Kaporonovski v The Queen,20 at 231–232.21
DECISION:
The High Court unanimously refused the application for special leave: McTiernan ACJ, Menzies, Gibbs, Mason and Jacobs JJ. The Court determined the right course was taken by the trial judge in directing the jury. It is not required for the prosecution to prove the subjective fault element of “intention” or “recklessness to kill or to cause grievous bodily harm”.22 Rather it is the unlawful act where the victim has been killed during the course of a crime that endangers life.23
Gibbs J affirmed (at 438 [5]) that ‘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’.24
However, the High Court did acknowledge the severity of s 302(1)(b)’s provision is mitigated by the defence of ‘accident’ under s 23(1) of the Criminal Code, following Kaporonovski v The Queen.25
ORDER:
Application for special leave to appeal refused.26
LEGAL IMPACT:
In Stuart v The Queen (1974) 134 CLR 426, the High Court clarified the scope of constructive murder under s 302(1)(b) of the Criminal Code: the act causing death must be committed in the prosecution of an unlawful purpose and must be objectively likely to endanger human life. Proof of intention to kill or cause grievous bodily harm is not a required subjective fault element for conviction.27
AFTERWARDS:
Stuart and Finch were known as the “Whiskey Au Go Go Bombers” spending their sentence in Brisbane’s notorious Boggo Road Gaol.28 Stuart was found dead in his cell in 1979, having spent his final days writing incomprehensible messages and conversing with insects.29
Finch was released from Boggo Road Gaol in 1988 after serving 15 years in prison and was subsequently deported to his native England.30 Finch died in 2021, before a reopened coronial inquest into the Whiskey Au Go Go firebombing case was set to begin.31
FOOTNOTES:
- Stuart v The Queen (1974) 134 CLR 426 (‘Stuart‘). ↩︎
- Geoff Plunkett, The Whiskey Au Go Go Massacre: Murder, Arson and the Crime of the Century (Big Sky Publishing, 2018) 8. ↩︎
- Stuart (n 1) 432, 435. ↩︎
- Ibid 430 [3]. ↩︎
- Ibid 435 [2]. ↩︎
- Ibid. ↩︎
- Ibid. ↩︎
- Criminal Code Act 1899 (Qld) s 302(1)(b) (‘Criminal Code‘); Andrew Hemming, Criminal Law Guidebook: Queensland and Western Australia (Oxford University Press, 2021) 133. ↩︎
- Criminal Code (n 8) s 8. ↩︎
- Stuart (n 1) 438–439. ↩︎
- Ibid 440 [7]. ↩︎
- Ibid 448. ↩︎
- Ibid 440 [7]. ↩︎
- Ibid 441 [9]. ↩︎
- Ibid 442. ↩︎
- Brennan v The King (1936) 55 CLR 253, 260–261. ↩︎
- Stuart (n 1) 443 [13]. ↩︎
- Criminal Code (n 8) s 291. ↩︎
- Ibid s 23. ↩︎
- Kaporonovski v The Queen (1973) 133 CLR 209 (‘Kaporonovski‘). ↩︎
- See ibid 231-232; Stuart (n 1) 438 [5]. ↩︎
- Hemming (n 8). ↩︎
- Ibid. ↩︎
- Stuart (n 1) 438 [5]. ↩︎
- Ibid; See Kaporonovski (n 20). ↩︎
- Stuart (n 1) 456. ↩︎
- See Stuart (n 1). ↩︎
- Boggo Road Gaol, ’40th Anniversary of the Firebombing of the Whiskey Au Go Go’, Boggo Road Gaol (Web Page, 5 March 2025) <https://boggoroadgaol.com/40th-anniversary-of-the-firebombing-of-the-whiskey-au-go-go/>. ↩︎
- Plunkett (n 2) 304. ↩︎
- Ibid. ↩︎
- Talissa Siganto, ‘Convicted Whiskey Au Go Go firebomber James Finch dies ahead of inquest’, ABC News (Web Page, 25 February 2025) <https://www.abc.net.au/news/2021-04-29/qld-whisky-au-go-go-pre-inquest-firebomber-james-finch-dead/100104192>. ↩︎
