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High Court of Australia |
LA FONTAINE v. THE QUEEN [1976] HCA 52; (1976) 136 CLR 62
Criminal Law
High Court of Australia
Barwick C.J.(1), Gibbs(2), Stephen(3), Mason(4) and Jacobs(5) JJ.
CATCHWORDS
Criminal Law - Murder - Malice aforethought - Recklessness - Knowledge that death or grievous bodily harm will probably result from act - Direction as to murder by recklessness - Whether appropriate - Whether sufficient - Likelihood of death or grievous bodily harm ensuing - Probability - Possibility - Standard of proof - Guilt beyond reasonable doubt.
HEARING
Melbourne, 1976, May 21; October 8. 8:10:1976DECISION
October 8.
2. The circumstances of the case out of which the charge arose are both
simple and contained in a small compass. The applicant,
David, at twenty-four
years of age was the eldest of four brothers, the others being Kevin (the
deceased) twenty-one, Peter seventeen
and Adrian eleven at that time. They
were all in the loungeroom of their parents' home on the afternoon of Sunday,
14th September,
watching television, their parents having been absent during
that day. David went through the front door to the verandah of the house.
Words arose between him and the deceased relating to David's conduct on the
verandah. The deceased latched the flyscreen door, thus
excluding David from
entry through it to the loungeroom. David went to the rear of the house, went
to his bedroom, obtained and loaded
his .22 automatic rifle with a single
round; entered the loungeroom carrying the rifle pointed in the general
direction of the deceased,
then reclining on a couch or settee. As he entered,
David said to the deceased, "I am going to bloody put a hole in you". David
brushed
aside the effort of Adrian to dissuade him, and upon the deceased
rising and walking awkwardly, because of an ankle injury, towards
him, David
released the safety catch and discharged the rifle. The bullet passed near to
the deceased's heart. He died very shortly
thereafter. (at p66)
3. There is a full, accurate and clearly expressed statement of the facts
evidenced before the jury in the reasons for judgment
of Lush J. given in the
Court of Criminal Appeal. I include it here as being adequate for the purposes
of these reasons of mine:
"The evidence may be summarised as follows. The day of
the killing was a Sunday, and the accused, the deceased and
two other brothers, Peter and Adrian, were on that day living
at their father's house at Mount Beauty. During the morning
the applicant, the deceased and Adrian went shooting
together, after some bickering between the deceased and the
applicant over matters connected with the shooting
excursion. After shooting, they went to a gathering apparently
organised by or on behalf of the local football club, at which
there was a barrel of beer. At this gathering, the applicant
drank eight or nine glasses of beer. The deceased and Adrian
wanted to leave, and there was further bickering between
them as to whether the deceased could drive the car which
they were using. The reason for this was that on the previous
day the deceased had severely sprained an ankle. In the end,
the applicant drove the other two brothers home and they all
had some lunch at home. The applicant then returned to the
football club gathering and, arriving there at about one
o'clock, remained until the barrel was empty at about two
o'clock. The applicant was then involved in discussion with
friends about the possibility of obtaining further supplies of
beer, but eventually went home. After he had been to a
neighbouring house in a further attempt to assist a friend to
obtain some more beer, the applicant returned again to his
home and there was further bickering apparently initiated by
the deceased about the extent of the applicant's drinking. At
a time which appears to have been shortly after four o'clock,
all four brothers were in the livingroom of the house, where
the television set was operating. The applicant cooked some
steak, some of which he ate, and he possibly offered some to
the others. One of the applicant's friends then came and
reported that he had been unable to get the supplies of beer
which he had been hoping to get, and invited the applicant to
go into his house next door. The applicant said that he would
be there in a minute, and proceeded to urinate on to the lawn
or garden while standing on the verandah near the main or
front entrance to his own home. This apparently incensed the
deceased, and a further argument developed before or during
which the deceased fastened the wire screen door of the house
from the inside, the applicant being outside. After an
exchange of words, the applicant asked the deceased to give
him his cigarettes, and the deceased looked for them but
informed the applicant that they were not there. The
applicant then said that they must be on the kitchen table
and he proceeded to the rear of the house. He entered the
house by a different door from that which the deceased had
fastened, obtained a rifle and a round of ammunition,
inserted the round in the breach of the rifle and entered the
livingroom. The deceased was watching the television set,
lying on a couch at the opposite end of the room from the
door through which the applicant entered, the length of the
room being about eighteen feet. The applicant had the rifle at
his hip and pointing at the deceased, and he said, 'I am going
to bloody put a hole in you'. The youngest of the brothers,
Adrian, who was watching the television set from a chair
near the wall on the side of the room on the applicant's right
as he faced the deceased, attempted to grasp the rifle and
pushed it across to the applicant's left. The applicant pushed
him away and told him to sit down, which he did. The
deceased rose from the couch and moved one or two steps
towards the applicant, and the other brother, Peter, also got
to his feet and stood in a position beside the deceased. The
deceased advanced further, and the applicant, who had
brought the rifle down from the position into which it had
been pushed by Adrian, took a step backwards and the rifle
was then discharged. The deceased was at this time
apparently in the middle of the room, and the applicant near
the door through which he had entered. It is possible that his
backwards step had taken him slightly outside the door. The
bullet struck the deceased near the heart, and he died within
a very short space of time.
After the shooting, the applicant remained in the vicinity
of the house for some time. He was seen and spoken to there
by a number of people who gave evidence relating to his
condition. He was quiet and withdrawn, and a doctor who
was called to the scene described him as 'away in a black
world of his own'. In the presence of a neighbour, he looked at
the body of the deceased and said, 'I am sorry, Kevvy; you
had it coming to you.'
The applicant made a record of interview with the police
between ten p.m. and midnight on the day of the shooting. In
the course of this interview, the following questions and
answers were recorded:
'Q. When Adrian grabbed the rifle, what happened then?
A. I more or less pushed him away and I took it off safety
and shot from the hip.
Q. What was your intention when you shot at Kevin with
the rifle?
A. To shoot near him and to scare him.
Q. When you fired the rifle as you said from your hip,
where did you have the rifle pointed at this time?
A. To the right of the room.
Q. Kevin, where was he at this stage?
A. He had jumped off the couch and stumbled towards me.
Q. What do you mean by stumbled?
A. He had a sore leg and couldn't walk on it properly, and
as soon as I fired, he more or less stumbled into it.'
On the following day, the police filmed a re-enactment of
the shooting, in the course of which the applicant, speaking
of the deceased at a time immediately before the shot was
fired, said, 'He was hobbling towards me, to the left and
right.'
At the time of the shooting, the applicant was aged
twenty-four, the deceased twenty-one, their brother Peter
seventeen, and their brother Adrian eleven.
The learned judge left the case to the jury upon the basis
that it was open to them to convict of murder if they found
that the applicant had intended to kill the deceased, or if they
found that he had intended to inflict grievious bodily harm
upon him, or if they found that he had discharged the firearm
at the deceased knowing that the shot would probably or
more than likely cause his death or serious bodily injury, and
that at the time he was indifferent whether death or serious
bodily injury would be caused to the deceased and even if he
wished that it might not be caused. He also left to the jury
alternative verdicts of manslaughter on the basis of unlawful
and dangerous act and negligence in the handling of the
firearm." (at p68)
4. The principal ground of the application to the Court of Criminal Appeal
was that the trial judge had unnecessarily and inappropriately
left to the
jury the possibility of a verdict of murder by recklessness. The direction was
said to be unnecessary and potentially
confusing because as a practical matter
that basis of murder was not an issue in the case. The direction was said, in
any case, to
be inappropriate because of the drunken condition of the
applicant at the time of the occurrence. (at p68)
5. The trial judge phrased his direction in the sense that, to make out
reckless indifference, the applicant must be found to have
appreciated that
there was a probability that if he went ahead and fired the rifle, death or
serious bodily harm would result. He
did not limit the probability of harm to
a probability of harm to the deceased: on occasions he spoke of a realisation
on the part
of the applicant that, by firing the rifle in the circumstances,
the applicant was exposing the deceased to an appreciable danger
of some
really serious harm. (at p68)
6. In the particular circumstances of the case, the only likelihood of harm
of which the applicant could be found to be conscious
or aware was harm to the
deceased. His other brothers were beside him: no one else was in the room. But
in an appropriate case the
probability of harm need not be limited to harm to
the deceased. If in all the circumstances there is otherwise material on which
to base a verdict of murder by recklessness, a realisation of likely harm to
anyone is sufficient. Cf. Stephen's Digest of The Criminal
Law, 9th ed.
(1950), pp. 211-213, where harm to "some person" if spoken of. Some passages
in the summing up in Reg. v. Sergi (1974)
VR 1 would seem to limit the
relevant likelihood of injury to injury to the deceased. Some expressions in
the judgment of the Court
of Criminal Appeal seem to be to the like effect.
But these are explicable by reference to the facts of the case. If not so
intended,
they unduly narrow the scope of the relevant reckless indifference.
(at p69)
7. Having regard to the terms of the summing up, the present is not a case in
which to discuss whether it is sufficient if the accused
is found to have
appreciated a possibility as distinct from the probability of serious harm if
murder by reckless indifference is
to be made out. (at p69)
8. The majority of the Court of Appeal was of opinion that murder by
recklessness was not a practical issue in the case and that
the direction of
the trial judge in that respect was unnecessary. But the Court was unanimously
of the opinion that none the less
there was no miscarriage of justice; that
any jury properly instructed would almost certainly have returned a verdict of
murder.
(at p69)
9. The only defence which the applicant appears to have made on his trial was
that his only intent in discharging the rifle was
to frighten the deceased.
Some endeavour was made during the trial to explore the possibility that the
rifle had discharged without
pressure on the trigger: but, clearly, no such
case was available on the evidence. (at p69)
10. The applicant neither gave nor called any evidence. In addition to the
passages from his signed record of interview quoted in
Lush J.'s narrative,
the applicant there to the question, "What was your intention when you shot at
Kevin with the rifle?" answered
"To shoot near him and to scare him". (at
p69)
11. With due respect to those of a contrary view, a direction as to murder by
recklessness was both necessary and appropriate in
the circumstances of the
case. The risks of misunderstanding such a direction must be recognized and
the direction should not be
given where there is no material in the case to
warrant the giving of a verdict on the footing of it. I would refer, without
repeating
what I said, to Pemble v. The Queen (1971) 124 CLR 107, at pp
118-120 . I agree with what was said by the Victorian
Court of Criminal
Appeal
in Reg. v. Sergi (1974) VR, at pp 9-11 as to the necessity for the facts of
the case in a practical sense
to raise an issue
of murder by reckless
indifference before any appropriate direction is given. (at p69)
12. My reason for thinking the direction necessary in this case is that the
raising of the defence in the circumstances entitled
the Crown to such a
direction. The scene is aptly envisaged from Lush J.'s description of the
event. The four brothers were in close
proximity in a loungeroom of modest
proportion. The deceased was before him when the applicant fired the gun. It
must have been pointing
in the general direction of the deceased. The
applicant was experienced in the use of the rifle. He consciously released the
safety
catch before discharging the rifle. The deceased was moving towards him
at that time. (at p70)
13. A defence that the deliberate discharge of a firearm in those
circumstances, albeit not aimed at the deceased, was effected
only with the
intent to scare or frighten courts a direction as to reckless indifference to
the consequences of the maturity of a
risk of which at least the likelihood is
foreseen. In this case, in my opinion, if an evenhandedness as between the
Crown and the
accused were to be maintained in the summing up, a direction was
necessary as to the acceptance by the applicant of the appreciated
risk of
injury to the deceased so that the action of the applicant could be regarded
as having been taken with a reckless indifference
to the likelihood of injury
to the deceased. (at p70)
14. Having examined its terms, I am of opinion that the direction actually
given as to murder by recklessness was substantially
correct. I agree entirely
with the Court of Criminal Appeal and for the reasons there expressed that,
even if the direction were
considered unnecessary, it did not render the
summing up as a whole unacceptable, nor did its inclusion tend to confuse the
jury
in their consideration of the more direct issues in the case. I also
agree that no reasonable jury properly instructed could have
failed to reach a
verdict of murder upon all the material produced. Indeed, I ought to say that
the applicant had the benefit of
a summing up which did not disregard the
slightest opportunity to explore possible interpretations of the facts
favourably to the
accused, some of which might be thought by many to be more
than remote and to lack practical reality. (at p70)
15. However, after the application for special leave to appeal had been
lodged with this Court, the summing up appears to have been
subjected to
further and intense scrutiny. As a result, a further ground for seeking
special leave was notified, namely, that the
learned trial judge failed to
direct the jury or, alternatively, misdirected the jury as to the onus of
proof and, in particular,
as to the meaning of the words "reasonable doubt".
(at p70)
16. This ground refers to a portion of the summing up in the early days of
its lengthy and oft repetitive progress. It occupies
forty-five pages of
typescript, apart from eighteen further pages of discussion with counsel and
of answering questions of the jury.
(at p70)
17. The relevant passage of the summing up, actually recorded on the second
page of the typescript record, is as follows:
"The Crown, of course, has to establish its case beyondThroughout the remainder of his summing up, the trial judge from time to time reminded the jury that they had to be satisfied beyond reasonable doubt without any reference to or repetition of what appears in the passage reproduced above. (at p71)
reasonable doubt. As you were told by the prosecutor himself,
that does not mean beyond any doubt at all, but it must be
beyond reasonable doubt. The onus of proof is thus much
higher than the onus of proof in civil cases where, you may
know (if you do not it does not matter) that there proof is on
the balance of probability.
In a case like this, where the evidence is arranged as it is,
before you reach a view that something has been established
beyond reasonable doubt you also have to be satisfied that
there is no other rational conclusion which is consistent with
the innocence of the accused. If there is another rational
explanation it follows that there is a reasonable doubt. So if
you want to do it this way, as an approach, when considering
whether the case for the prosecution has, in any particular
respect, been established beyond reasonable doubt contrast
with that a design to find out the answer to that question,
whether there is an explanation which is reasonable and
rational which is consistent with the innocence of the
accused. If there is you need to think harder as to what you
should do. I say harder as to what you should do because
there is a spread of situations that have been placed before
you as to the circumstances in which the facts, as you find
them, may amount to murder or to manslaughter, and
eventually I will go through those."
18. This Court has clearly laid it down that it is both unnecessary and
unwise for a trial judge to attempt explanatory glosses
on the classical and,
as I think, popularly understood formula which expresses the extent of the
onus resting on the Crown in its
attempt to establish the commission of a
crime: see Green v. The Queen [1971] HCA 55; (1971) 126 CLR 28 . The Court has also indicated
the limited
occasions on which, in a case depending on circumstantial
evidence,
the extended formula proposed by Alderson B. in R.
v. Hodge (1838)
2
Lewin CC 227 (168 ER 1136) should be used: see Grant v. The
Queen (1975) 11
ALR 503 . (at p71)
19. In the present case, no question of circumstantial evidence arose. The
evidence of the discharge of the gun and the circumstances
in which it
occurred were the subject of direct eye witness evidence. Undoubtedly, the
case was not one in which to complicate the
summing up by resort to any
formula except the traditional reference to the absence of reasonable doubt.
(at p72)
20. The passage I have quoted was, in my opinion, erroneous. It seems to have
resulted from a confused co-mingling of the traditional
formula with the
formula at times appropriate to a case depending on circumstantial evidence.
That the direction ought not to have
been given in those terms needs no
elaborate exposition. A rational conclusion and a rational explanation cannot
be equated in the
administration of the criminal law with a reasonable
conclusion and a reasonable explanation. The jury set for themselves the
perimeters
of what is, in these contexts, reasonable. (at p72)
21. The objection to the summing up does not end there. It was erroneous -
and indeed confusing - to tell the jury that finding
a reasonable and rational
explanation of the facts consistent with the innocence of the accused merely
imposed a more difficult task
upon them, because of a choice of verdicts which
remained to them. If they found such an explanation, the accused was entitled
to
an acquittal. The jury in that case could not have been satisfied beyond
reasonable doubt. (at p72)
22. But the real difficulty I have had in this case is not to discover the
errors in the passage quoted from the summing up. The
difficult question is to
decide whether the summing up as a whole none the less was adequate. Did its
terms, in the effect they may
have had upon the jury, deny the accused a fair
trial, the case against and for him being fairly placed before the jury with
adequate
assistance by the trial judge? (at p72)
23. The first question, I think, is to determine whether words spoken in
terms of the record of the summing up would be so appreciated
by the jury as
to provide them with a false basis for deciding whether the Crown had proved
its case. A cogent consideration to my
mind in this connexion is the reaction
of counsel for the defence to the hearing of that portion of the summing up.
In a break in
the summing up, his Honour, in discussion with counsel as to
possible exceptions to the summing up, said: "... that the onus is not
only on
the Crown to prove this beyond reasonable doubt, but this onus does involve
excluding the rational possibility that is consistent
with the innocence of
the accused ...", to which counsel responded: "... Your Honour did earlier use
the formula that is commonly
attached to the circumstantial type of situation
and I do not complain about that. Your Honour did not put it in the general
term."
His Honour's response was: "Well I did not put it any further with a
case like this because the jury would get into an artificial
area if you
instructed them on the theory of the differential inference." Counsel replied:
"But when you come to this situation,
your Honour, my main concern only was
that because your Honour was rolling it up in this way that it was there very
appropriate to
have added that aspect of it." (at p73)
24. His Honour on the final remaining day of hearing on his charge to the
jury gave them a reprise of what he had already told them
and used the
expression: "... has it been established beyond reasonable doubt that he was
guilty of murder? If not, has it been established
beyond reasonable doubt that
he was guilty of manslaughter? If not, the verdict is not guilty." (at p73)
25. Now, whilst in the calm and inquisitive atmosphere of a court of appeal
it may be said that there was present, by inference,
every time a reference
was made to reasonable doubt, the meaning which was given to the expression at
the second page of the typescript
record of the summing up, the trial judge
did not at any stage so qualify his references to the onus of proof: nor did
he at any
stage remind the jury of his early, and, by the time he used the
expressions I have quoted from the typescript record on the final
day of the
hearing, remote, exposition of a possible approach to their task of seeking
satisfaction beyond reasonable doubt. I might
add that I doubt that the jury,
listening to the summing up, would appreciate the distinction between rational
and reasonable in
the confused context of the passage I have quoted from the
summing up. Further, counsel was content with the summing up, seemingly
relating the material on the second page as at least primarily referable to
any merely circumstantial elements in the evidence. (at
p73)
26. For these reasons, I do not think that the jury were likely to be
diverted from the constant application of the onus of proof
expressed in
traditional terms to the evidence before them. (at p73)
27. However, I should add two things. First, that a time-honoured view is
that the adequacy of a summing up ought not to be judged
upon a subtle
examination of its transcript record or by undue prominence being given to any
of its parts. It should be taken as
a whole and as a jury listening to it
might understand it. The second is that, whilst in a case where a summing up
is radically in
error, the failure of counsel to object to it in terms
calculated to afford the trial judge an opportunity to amend it in a relevant
respect will not necessarily defeat an application for special leave,
generally, such a failure on the part of counsel will be a
considerable
impediment to the grant of such leave. Here the ground now sought to be taken
was not taken before the Court of Appeal.
This Court should give no
encouragement to the addition of such further grounds, unless the interests of
justice undoubtedly demand
their admission. They do not in this case. (at
p74)
28. In my opinion, special leave to appeal should be refused. (at p74)
GIBBS J. David Francis La Fontaine was tried in the Supreme Court of
Victoria on a charge of having murdered his brother Kevin.
He was convicted
and his application for leave to appeal was refused by the Court of Criminal
Appeal. He now applies to this Court
for special leave to appeal. (at p74)
2. Kevin La Fontaine was killed when he was struck near the heart by a bullet
fired from a .22 rifle held by the applicant. At the
time, Kevin and two other
brothers were together in a small room and the applicant was near the door of
the room or possibly just
outside it. There was evidence on which the jury
could have found that the applicant had put a bullet in the rifle, had
released
the safety catch and had pulled the trigger while holding the rifle
at his hip. Kevin was then moving towards the applicant and was
shot at close
range. Before the rifle was discharged the applicant had said to Kevin, "I am
going to bloody put a hole in you". However,
in a statement to the police the
applicant said that when he shot at Kevin his intent was to shoot near him and
to scare him, and
that he had pointed the rifle to the right-hand side of the
room - presumably away from Kevin - and that Kevin more or less stumbled
into
the shot. The applicant had drunk a great deal during the day on which the
shooting occurred. (at p74)
3. The learned trial judge directed the jury that the applicant would be
guilty of murder if he had fired the rifle either with
intent to kill Kevin,
or with intent to do him serious bodily injury. He then told them that there
was a third class of case in which
the applicant might be found guilty of
murder. He described this third class in the following words: "If he
discharges a firearm
at another person, knowing that the shot will probably or
more than likely cause the death of or serious bodily injury to that other,
and that at the time he was indifferent whether death or serious bodily injury
would be caused to the other or even if he wished
that it might not be
caused." He also left it to the jury to consider a verdict of manslaughter.
Since the jury found the applicant
guilty of murder they must have considered
that the rifle was discharged deliberately and not by accident. It was not
disputed that
it would have been open to them to find that the applicant fired
with intent to kill his brother or do him grievous bodily harm.
However,
before the Court of Criminal Appeal, and again before us, it was submitted
that it was wrong to direct the jury that they
might bring in a verdict of
murder on the basis of what was described in argument as "a reckless intent"
and alternatively that the
summing up on this point was inadequate. (at p75)
4. In Victoria the state of mind necessary to constitute the crime of murder
is not defined by statute. The rules which the learned
trial judge was
required to apply were those of the common law. The law on this matter, so far
as it is relevant, was stated in Stephen's
Digest of the Criminal Law in the
following passage which is set out in the judgment of Lord Cross in Reg. v.
Hyam [1974] UKHL 2;
(1975) AC 55,
at p 95 :
"... Murder is unlawful homicide with maliceAt the time when Sir James Stephen wrote, in 1877, there was little authority to support his statement that knowledge that the act which in fact causes death will probably cause death or grievous bodily harm will provide the mental element that constitutes an unlawful homicide murder rather than manslaughter. However, it has since been accepted in the Supreme Courts of Victoria (Reg. v. Jakac (1961) VR 367 and Reg. v. Sergi (1974) VR 1 and South Australia (Reg. v. Hallett (1969) SASR 141, at pp 153-154 that the passage cited from Stephen's Digest of the Criminal Law correctly expresses the law, and that view is confirmed by the decisions of this Court in Pemble v. The Queen (1971) 124 CLR 107 and of the House of Lords in Reg. v. Hyam [1974] UKHL 2; [1974] UKHL 2; (1975) AC 55 . It must now be taken to be the law that a person who does an act knowing that it is probable that death or grievous bodily harm will result is guilty of murder if death does in fact result, even though he had no intention to cause death or grievous bodily harm. In Pemble v. The Queen (1971) 124 CLR, at p 121 Barwick C.J. went further, and said that it is "sufficient that the death or grievous bodily injury of the person towards or in connexion with whom the accused contemplated an act or omission should be foreseen by him as possible", and the question whether the foresight required to make the homicide murder should be a foresight of the probability, and not merely of the possibility, of death or grievous bodily harm has given rise to some discussion: see Glanville Williams, Criminal Law - The General Part, 2nd ed. (1961), p. 59 et seq.; Howard, Australian Criminal Law, 2nd ed. (1970), p. 57 et seq. and Reg. v. Hallett (1969) SASR, at p 153 . Although it is unnecessary to decide this question in the present case, I am, with all respect, unable to accept that the foresight of a mere possibility of death or grievous bodily harm would be enough. There is a great difference between the state of mind of an accused who is prepared to risk the consequences of death or grievous bodily harm that he foresees as probable and that of an accused who does no more than take the chance that death or serious injury may ensue although it seems an unlikely consequence. The act of the former is much more worthy of blame than that of the latter. To treat knowledge of a possibility as having the same consequences as knowledge of a probability would be to adopt a stringent test which would seem to obliterate almost totally the distinction between murder and manslaughter. I therefore respectfully agree with the views expressed by McTiernan and Menzies JJ. in Pemble v. The Queen (1971) 124 CLR, at pp 127, 135 , that in cases of this kind an accused will not be guilty of murder unless he foresaw that death or grievous bodily harm was a probable consequence of his behaviour. (at p76)
aforethought. Malice aforethought means ... (a) An intention
to cause the death of, or grievous bodily harm, to, any person,
whether such person is the person actually killed or not;
(b) Knowledge that the act which causes death will
probably cause the death of, or grievous bodily harm to, some
person, whether such person is the person actually killed or
not, although such knowledge is accompanied by indifference
whether death or grievous bodily harm is caused or not, or by
a wish that it may not be caused; ... "
5. It has become common to describe the mental state of an accused person who
acts knowing that his act will probably cause death
or bodily injury as one of
recklessness or reckless indifference. Judges and textwriters alike have used
those expressions: see Pemble
v. The Queen (1971) 124 CLR, at pp 118, 127, 135
; Howard, op. cit., p. 55 et seq.; Glanville Williams, op. cit., p. 60 et
seq.;
Russell on Crime, 12th ed. (1964), p. 41 et seq. Indeed the legislature
itself has in some places adopted them. However useful those
words may be as a
compendious description of this mental state, they should not in my opinion be
used by a judge when summing up
to a jury in States where the legislation does
not require it. To tell a jury that they may convict of murder when they are
satisfied
that the accused acted with recklessness or reckless indifference is
to invite confusion between murder and manslaughter resulting
from criminal
negligence. In many, if not most, cases where the Crown alleges that the
accused acted knowing that his act would probably
cause death or grievous
bodily har, it will also be alleged by the Crown, in the alternative, that the
accused was guilty of criminal
negligence. The expression "reckless" is also
used to describe that very high degree of negligence which, if it causes
death, amounts
to manslaughter: see Andrews v. Director of Public Prosecutions [1937] UKHL 1;
(1937) AC 576, at p 583 ; Eugeniou v. The Queen (1964)
37 ALJR 508,
at p 509 .
It is not easy to explain to a jury the difference
between the reckless
indifference which, if it exists,
may justify
a conviction of murder and that
recklessness which would warrant
a conviction for manslaughter. The purpose of
a summing
up is not
to endeavour to apprise the jury of fine legal
distinctions but
to explain to them as simply as possible so much of the
law
as they
need to know in order to decide the case before them. The mental
element necessary to justify a conviction for murder
in circumstances
such as
the present is sufficiently stated in the words of
Sir James Stephen. It
cannot assist, and may confuse,
the jury to add
to those words the gloss that
the state of mind thereby described
is one of recklessness or reckless
indifference.
It is enough to
tell them that it is only if the accused
actually knows that his
act will probably cause death or grievous bodily
harm
that he can
be convicted of murder. The extreme gravity of his offence lies
in
the fact that he fully realized the probable
consequences of his
act and was
prepared to take the chance that they would ensue.
If he did not in fact
foresee that death or grievous
bodily harm would
probably be caused by his
act, he would not be guilty of murder
even though a reasonable man would have
foreseen
that such a result
was probable; in those circumstances he might
however be guilty
of manslaughter. (at p77)
6. It follows from what I have said as to the duty of a judge when summing up
to a jury that I am in complete agreement with the
views expressed in Pemble
v. The Queen (1971) 124 CLR, at p 118 , and Reg. v. Sergi (1974) VR, at pp
9-10 , that a direction as to
this sort of murder should only be given where
the facts of the case make it a practical issue. In the present case, however,
it
was right to give a direction of this kind to the jury. Although, as I have
already said, it was open to the jury to find that the
applicant had fired the
rifle with the intention of killing Kevin or doing him grievous bodily harm,
it was also open to them to
find that he had fired without such intention but
knowing that his act would probably cause the death of, or grievous bodily
harm
to, his brother. If the jury acted upon the applicant's statement that he
intended to shoot near Kevin and to scare him it would
have been reasonable
for them in all the circumstances of the case to draw the further conclusion
that the applicant knew that it
was probable that the bullet would strike
Kevin and cause death or grievous bodily harm. The fact that the applicant had
consumed
a great deal of drink was relevant, and indeed important, in
considering whether he in fact foresaw the probable consequences of
his act,
but there was evidence which justified the jury in concluding that he was
aware of the probable consequences of firing a
shot near Kevin. (at p78)
7. I have given careful consideration to the charge which the learned trial
judge gave to the jury on this question and have reached
the conclusion that,
taken as a whole (as it must be), it was correct and sufficient. No useful
purpose would be served by discussing
the charge in full detail but some
passages in it are open to criticism and it is necessary to refer to them. At
one stage the learned
trial judge referred to counsel's submissions in
relation to what he called "this third class of malice" and said:
"He pointed out to you also that it required a definite andTaken alone, this was a misdirection for, as I have said, the jury were entitled to convict of murder only if satisfied that the applicant had acted with foresight that death or grievous bodily harm was a probable consequence of his action; foresight that death or grievous bodily harm was a possible consequence was not enough. At another point the learned trial judge said this to the jury:
distinct intention; it involved recognizing the probability of
injury; it involved a conscious reference to that possibility of
injury and it involved a decision to carry on, regardless of the
risk of injury."
"Of course the prosecutor says that if you reach the viewThat also was in itself a misdirection, and quite a serious one, for it is knowledge of the probability of the consequences, not their probability alone, that is essential to ground a conviction for murder. However, in the course of his charge the learned trial judge correctly instructed the jury again and again that a conviction of murder on this basis required proof that the accused had fired the shot knowing that it was probable that it would cause death or serious bodily injury. There are at least five passages in the course of the charge in which this direction was repeated. After the jury had retired and had deliberated for a time they returned seeking further instruction which the learned trial judge gave them. He then said:
that the intention of the accused was to frighten and not to
kill but it nevertheless involved firing a weapon at close
quarters, in the living room of the house with other people
including the deceased there, that there was a probability or
likelihood that if the bullet hit one of the people in the room,
it could either kill them or cause serious bodily injury. That
would justify your making use of the third kind of intent."
"The third one (classification of intent) is that heThis direction clearly brought out to the jury that it was the knowledge or appreciation of the probability of death or bodily injury that had to be proved. Perhaps the words "better than balanced" were not well chosen but in my opinion the charge, taken as a whole, left the jury in no doubt that it was necessary to be proved that the applicant had foreseen the probability of death or grievous bodily harm. (at p79)
discharged the rifle at the deceased knowing that the shot
would more probably than not, or more likely than not, cause
the death of or serious bodily injury to the deceased and that
at the time that he did this he was indifferent as to whether
death or serious bodily injury would be caused to the other.
He even may have had an intention that it might not be
caused. But if he knew, if you are satisfied beyond reasonable
doubt that he knew that as a matter of probability, on a
better than balanced basis, such serious injury would be
caused, then that can justify your bringing in a verdict of
murder if you are satisfied that he was capable of forming the
intention or appreciation that he was indifferent as to
whether the discharging of the firearm ultimately had that
effect or not. That is consistent with his not wanting to kill
the deceased but discharging the firearm at him knowing
that there was a better than balanced risk that he could be
seriously injured or killed."
8. It was suggested that if the applicant had intended to shoot near to his
brother so as to frighten him it could not be said that
he had acted with
reckless indifference and therefore could not be held to be guilty of murder
and that it was a misdirection to
say to the jury "He even may have had an
intention that it might not be caused"; that direction, it was said, would
only be correct
if "wish" or "desire" were substituted for "intention". With
all respect, I cannot agree with this suggestion. The fact that the
applicant
intended that the bullet should miss Kevin would not be inconsistent with a
conviction for murder. If the intention to
fire the shot was accompanied by
knowledge that by firing the shot he would probably cause the death of, or
grievous bodily harm
to, his brother, that would be enough. The fact that he
intended to fire in such a way that the bullet would not hit his brother
would
not mean that he lacked the mental state necessary to ground a conviction for
murder; that would exist if he acted as he did
with full knowledge that death
or grievous bodily harm was a probable consequence. (at p79)
9. On behalf of the applicant there has been raised a further objection to
the charge which was not taken at the trial, before the
Court of Criminal
Appeal or even in the notice of motion to this Court. This was that an
inadequate or misleading direction was given
on the subject of reasonable
doubt. In the course of his charge the learned trial judge told the jury that
the Crown had to establish
its case beyond reasonable doubt. He repeated this
statement on a number of occasions. However, early in his charge, after
telling
them that the Crown had to establish its case beyond reasonable doubt
and that the onus of proof was thus much higher than the onus
of proof in
civil cases, he went on to say:
"In a case like this, where the evidence is arranged as it is,The argument advanced before us on behalf of the applicant was that in this passage the judge in effect told the jury that they would have a reasonable doubt only if they found that there was a rational explanation of the evidence consistent with innocence, and that the jury might have understood the words "reasonable doubt" in this sense whenever they were used in the course of the charge. (at p80)
before you reach a view that something has been established
beyond reasonable doubt you also have to be satisfied that
there is no other rational conclusion which is consistent with
the innocence of the accused. If there is another rational
explanation it follows that there is a reasonable doubt. So if
you want to do it this way, as an approach, when considering
whether the case for the Prosecution has, in any particular
respect, been established beyond reasonable doubt contrast
with that a design to find out the answer to that question,
whether there is an explanation which is reasonable and
rational which is consistent with the innocence of the
accused. If there is you need to think harder as to what you
should do. I say harder as to what you should do because
there is a spread of situations that have been placed before
you as to the circumstances in which the facts, as you find
them, may amount to murder or to manslaughter, and
eventually I will go through those."
10. This Court has not infrequently warned trial judges of the dangers of
endeavouring to explain the traditional expression "beyond
reasonable doubt",
which, speaking generally, is well understood and needs no explanation. Where
the case depends upon circumstantial
evidence it is usual to direct the jury
that they cannot convict unless they are satisfied that the circumstances are
such as to
be inconsistent with any reasonable hypothesis (or rational
conclusion) other than the guilt of the accused (see Peacock v. The King
[1911] HCA 66; (1911) 13 CLR 619, at p 634 ) but in other cases attempts to define
"reasonable doubt" may obscure or distort the
meaning of that
phrase and lead
to a misdirection, as in Green v. The Queen [1971] HCA 55; (1971) 126 CLR 28 . It is in all
cases
the duty of the trial judge to
make the jury understand that a criminal
charge has to be
established by the prosecution beyond reasonable
doubt, but
as Windeyer
J. said in Thomas v. The Queen [1960] HCA 2; (1960) 102 CLR 584, at p 605 "the
best and plainest way" to
give such a direction is to tell them
that they must
be satisfied beyond
all reasonable doubt. (at p81)
11. The present case was not one of circumstantial evidence. There was no
need to adapt the formula used in such cases and of course
still less to
invert it so as possibly to suggest that it is only if the jury find that
there is a rational explanation consistent
with innocence that there can be a
reasonable doubt. However, having considered the charge as a whole I have
reached the conclusion
that although this particular passage is in itself open
to objection, the jury would not have been misled by it, having regard to
the
other and proper directions which they received. They were repeatedly told
that they had to be satisfied beyond reasonable doubt
and when the learned
judge gave them the further direction to which I have already referred he
again directed them to that effect.
In my opinion when the jury retired they
could have been under no misapprehension as to their duty. It is not without
significance
that at the trial counsel for the applicant expressly stated that
he made no complaint about his Honour's "use of the formula that
is commonly
attached to the circumstantial type of situation" and that it was only after
the notice of appeal had been lodged with
this Court that it occurred to
counsel that the summing up was defective in this respect. (at p81)
12. Of course the statement that if the jury thought that there was a doubt
they would need to think harder was incorrect. However,
there can be no doubt
that the charge as a whole made it perfectly clear to the jury that what the
judge meant was that if they were
left in doubt as to whether the applicant
had an intention to kill or inflict grievous bodily harm it would be necessary
for them
to consider whether he had fired the shot knowing that it would
probably cause death or grievous bodily harm, and that if they were
in doubt
about that they would still have to consider the question of manslaughter. (at
p81)
13. Many charges when subjected to close scrutiny will be found to contain
misstatements which are corrected elsewhere in the charge.
Notwithstanding the
criticisms levelled at the charge in the present case I am satisfied that,
taken as a whole, it was fair and
sufficient. I would refuse special leave to
appeal. (at p81)
STEPHEN J. The applicant La Fontaine, having fatally shot his younger
brother, was found guilty of murder in a trial in the Supreme
Court of
Victoria before Griffith J. and a jury of twelve. His application to the Court
of Criminal Appeal for leave to appeal failed.
He now applies to this Court
for special leave to appeal. (at p81)
2. The application before the Court of Criminal Appeal was concerned
principally with the learned trial judge's charge to the jury
in so far as it
included a direction that the applicant might be found guilty of murder not
only if he had intended to kill or to
inflict grievous bodily harm but also in
circumstances involving recklessness on his part. If he had fired at his
brother knowing
that to do so would probably, or more than likely, cause his
death or serious bodily injury then, whether he was indifferent to those
consequences or even if he wished that they might not ensue, that too would be
murder. (at p82)
3. A majority of the Court of Criminal Appeal concluded that the nature of
the evidence before the jury made it inappropriate to
have included this
direction in the charge to the jury but that its inclusion did not involve any
miscarriage of justice. Had the
jury been properly instructed the same verdict
would almost certainly have resulted and there had been no risk of confusion
between
the ingredients of murder and those of the alternative verdict of
manslaughter. The application for leave to appeal was accordingly
refused.
Anderson J., the third member of the Court of Criminal Appeal, agreed in the
result but for quite different reasons since
he considered that there had been
no misdirection, the learned trial judge's direction being appropriate to the
facts of the case.
(at p82)
4. Before this Court the same aspect of the charge was again relied upon but
to it was added a new objection to the charge not previously
argued and which
had not been the subject of any objection at the trial. It relates to the
learned trial judge's direction concerning
the necessary standard of proof of
guilt required before the applicant may be convicted. (at p82)
5. The learned trial judge had, at an early stage in his charge to the jury,
explained for the first and only time what was the
particular meaning which
the jury were to assign to the expression "beyond reasonable doubt" which he
thereafter frequently employed
in his charge. He stated in quite
unobjectionable terms the ingredients involved in the possession of a
reasonable doubt. He then
went on to suggest to the jury that they might
satisfy themselves whether or not there existed such a doubt as to guilt by
asking
themselves whether there existed any explanation consistent with
innocence which was both reasonable and rational. (at p83)
6. This suggestion followed the elaboration by his Honour of his earlier
observation that, before concluding that guilt had been
established beyond
reasonable doubt, the jury should be satisfied that there was no other
rational conclusion consistent with innocence.
His Honour continued:
"If there is another rational explanation it follows thatDespite some garbling that appears to have occurred in transcription, the substance of what his Honour said is clear. It was, I think, such as might mislead the jury and might do so in a manner seriously prejudicial to the accused. It might suggest to them that it was for the accused to satisfy the jury of the existence of a reasonable and rational explanation consistent with innocence, failing which the jury could conclude that no reasonable doubt as to guilt existed. The jury were, I think, likely to have understood that they might ask themselves the question "Is there any explanation consistent with innocence which is both reasonable and rational?" and, if able to give a negative answer to that question, might then regard themselves as being satisfied beyond reasonable doubt. (at p83)
there is reasonable doubt. So if you want to do it this way, as
an approach, when considering whether the case for the
Prosecution has, in any particular respect, been established
beyond reasonable doubt contrast with that a design to find
out the answer to that question, whether there is an
explanation which is reasonable and rational and which is
consistent with the innocence of the accused."
7. Later in the same passage the learned trial judge went on to say that if
an affirmative answer was given to the question which
he suggested the jury
should ask themselves they would then "need to think harder as to what you
should do". As subsequently appeared,
his Honour had in mind that in such a
case the jury would have to choose between murder and manslaughter and that
their task would
be the more difficult because it would involve the making of
that choice. In fact an affirmative answer to the question suggested
by the
learned trial judge, whether there was an explanation consistent with
innocence which was reasonable and rational, would not
have made the jury's
task "harder"; all they needed then to do would be to acquit the accused.
However this particular error, textually
associated with and perhaps induced
by what preceded it, would not, I think, on its own have been capable of
causing any miscarriage
of justice; on a number of subsequent occasions the
learned trial judge was at pains to make it perfectly clear that the
possession
of reasonable doubt in the minds of the jury must lead to an
acquittal. Any confusion which it may have caused in the minds of the
jury
would, I think, have been wholly removed by what was subsequently said. (at
p84)
8. This is not so in the case of the first error, that involved in the
suggested method of testing the existence of satisfaction
beyond reasonable
doubt. Having once supplied an authoritative test of that state of mind and
having left that test in the minds
of the jury, to be applied by them to those
matters upon which they had to pass, matters which his Honour went on to
describe as
depending upon satisfaction beyond reasonable doubt, there arises
in my view a clear possibility that the trial may thereby have
miscarried.
What was said by this Court in Green v. The Queen [1971] HCA 55; (1971) 126 CLR 28, at p 31
is apt. There, as here,
the learned trial
judge had "made reference elsewhere
in his summing up to the
need to be satisfied beyond reasonable doubt but
these
references were,
in our opinion, controlled by the definition of that
expression
which his Honour gave in the passage we have quoted".
Here it was
no precise definition that controlled the subsequent references
to reasonable
doubt but instead a suggested means whereby
the jury
might test the existence
of such a doubt. (at p84)
9. This Court has on a number of occasions, many of which are reviewed in
Green v. The Queen [1971] HCA 55; (1971) 126 CLR 28,
at p 31 referred
to the danger of
attempting to explain or elaborate upon the content of the time-honoured
formula
of "a reasonable
doubt". As Sir
Owen Dixon said in Dawson v. The Queen
[1961] HCA 74; (1961) 106 CLR 1, at p 18 , the attempts to substitute other
expressions have
never prospered.
In Thomas v. The Queen [1960] HCA 2; (1960) 102 CLR 584, at p 595 Kitto J.
said:
"Whether a doubt is reasonable is for the jury to say; andIn the present instance the vital point has been obscured. Perhaps the proper direction to be given cannot more succinctly be expressed than in the words of Windeyer J. when he said (1960) 102 CLR, at p 605 :
the danger that invests an attempt to explain what
'reasonable' means is that the attempt not only may prove
unhelpful but may obscure the vital point that the accused
must be given the benefit of any doubt which the jury
considers reasonable."
"The House of Lords said in Mancini v. Director of Public
Prosecutions (1942) AC 1, at p 13
that a direction 'as to reasonable doubt'
must be 'plainly given'. The best and plainest way to give it
is, I venture to think, to tell the jury that they must be
satisfied beyond all reasonable doubt." (at p85)
10. This was not a case of circumstantial evidence and nothing that I have
said is intended to cast doubt upon the desirability,
in most cases involving
circumstantial evidence, of the jury being directed that the circumstantial
evidence must be not merely consistent
with the accused's guilt but
inconsistent with his innocence. I mention this only because of the similarity
between what was here
said to the jury and what is customarily regarded as
appropriate where circumstantial evidence is in question. (at p85)
11. That at the trial no objection was taken to this aspect of the charge, at
a time when it could have been, and no doubt would
have been, corrected, is
unfortunate. In undertaking the exacting task of directing a jury in cases in
which the issues are complex
a judge is entitled to the anxious assistance of
counsel. Moreover the very fact that no objection is taken at the time will in
some
cases of itself suggest that, however a particular portion of the charge
may read in print, it was not, in the context and circumstance
of its
delivery, such as to mislead those who heard it. I am, however, unable to
conclude that this was such a case and that the
failure to take objection at
the appropriate time should deprive this present objection of its force. That
this ground was relied
upon for the first time before this Court has also been
productive of unfortunate consequences and would, in appropriate
circumstances,
provide a reason for not now permitting it to be availed of.
The particular nature of the error of law upon which this ground is
founded
is, however, in my view such as to preclude the taking of this course. I have
concluded, although with reluctance, that there
should be a new trial. (at
p85)
12. In these circumstances it is proper that I should express my views upon
the other objection taken on behalf of the applicant,
that upon which the
Court of Criminal Appeal was divided; that is, whether on the facts of this
case it was appropriate to give any
direction as to the third circumstance in
which a verdict of guilty of murder may be found and, if it was inappropriate,
whether
there was nevertheless no miscarriage of justice. (at p85)
13. As to the latter aspect, were it necessary for me to decide the matter on
this ground, I would be content to adopt all that
was said by Lush J. in the
course of his judgment in the Court of Criminal Appeal; I have no doubt but
that in the circumstances
to which his Honour refers there was no miscarriage
of justice which could have resulted from the giving of the challenged
direction
to the jury. However I have in fact concluded that this was a case
appropriate for the giving of the direction in question. In arriving
at this
view I have been guided by the observations of the Chief Justice in Pemble v.
The Queen (1971) 124 CLR 107,
at pp 118-119
. The present case is, in my view,
such a one as his Honour referred to when he said of Pemble's trial that the
jury,
if unwilling
to infer an intent to kill or to do grievous bodily harm,
were entitled to accept the view that Pemble foresaw the possible
consequences
of the discharge of the rifle and, in acting as he did, displayed reckless
indifference to human life. (at p86)
14. In the present case Anderson J., in the course of his judgment in the
Court of Criminal Appeal, concluded that if the jury were
not satisfied that
the applicant intended to hit the deceased it was nevertheless open to them to
find that he must have adverted
to the likely consequences of firing as he did
and was indifferent to those consequences. The applicant deliberately fired
from a
doorway into a room in which were the deceased and his two other
brothers; of these three persons two of them were upright near the
middle of
the room, facing the applicant and quite close to him; the jury may have found
that one of these two, the deceased, was
moving towards the applicant swaying
from side to side as he approached. If the jury accepted as true the
applicant's subsequent
statement that he intended only to frighten the
deceased they could in the circumstances conclude that he nevertheless
possessed
the necessary malice, consisting of advertence to what might prove
to be the fatal consequence of firing the gun coupled with an
indifference to
the occurrence of that consequence. The ingredients necessary to constitute
murder would then be present, notwithstanding
the absence of a positive intent
to hit the deceased. In these circumstances it was proper to give the
challenged direction, great
care being taken, as it in fact was, to ensure
that the distinction between murder and manslaughter was brought home to the
jury.
(at p86)
15. I would, for the reasons stated in the earlier portion of this judgment,
allow this appeal and order a new trial. (at p86)
MASON J. In my view this application for special leave to appeal should be
refused. With one exception the grounds on which the
application was based do
not require lengthy consideration, the facts of the case having been
comprehensively stated by other members
of the Court. (at p86)
2. The first ground taken is that the learned judge, in informing the jury
that they should be satisfied of the reasonable doubt
of the accused's guilt,
erroneously directed the jury that they should not convict if there was a
rational explanation consistent
with the accused's innocence, thereby equating
a "reasonable doubt" with a "rational doubt". As to this, I agree with the
Chief Justice
in thinking that in the circumstances of this case this ground
provides no basis for special leave. There is no occasion for me to
add to
what his Honour has written on this aspect of the case, except to say that the
trial judge in directing the jury on the facts
stated:"...you should satisfy
yourselves that the rifle was aimed and that it was fired by pressing the
trigger, after releasing
the safety catch, before you would classify this as
murder in the sense that you were satisfied beyond reasonable doubt." This
direction
- and there were other illustrations of a similar kind - made it
clear to the jury that the judge was using the expression "reasonable
doubt"
in its usual sense. The particular situation under consideration did not
predicate the existence of a rational explanation
consistent with innocence;
it illustrated, by reference to a view which the jury might take of the
evidence, a failure by the Crown
to establish with sufficient cogency an
essential ingredient in this aspect of the Crown case. The direction plainly
indicated what
is meant by the expression "reasonable doubt" and that its
meaning was not confined to the artificial and restricted sense in which,
according to the applicant, it was used in the passage on which the applicant
strongly relied. (at p87)
3. Green v. The Queen [1971] HCA 55; (1971) 126 CLR 28 turned on the view which the Court
took of the entire summing up. It concluded
that the
jury would take from
the
judge's remarks an incorrect impression of what is meant by the expression
"reasonable doubt".
Here the
jury would have gained
a correct understanding
from the charge viewed in its entirety. (at p87)
4. Likewise, without questioning the view that a direction as to the reckless
element in murder should not be given unless it is
a practical issue on the
evidence, I agree that this was a case in which it was appropriate for the
trial judge to give such a direction.
The case for the applicant was that he
shot, not at the deceased, but near him, so as to frighten him and not to
wound him. Nothing
in Pemble v. The Queen (1971) 124 CLR 107 requires us to
take the view that a direction on the topic in question
was inappropriate
in
this case or that the giving of such a direction rendered the charge to the
jury defective. (at p87)
5. As an alternative to this ground of attack the applicant submitted that
the direction was defective in that it failed to focus
attention on the
defence claim that the accused shot not at, but near, the deceased so as to
frighten him. Expressed in these terms
the point falls short of supplying a
ground for granting special leave because it raises no matter of general
importance or general
principle. Unless it appears that there was a failure to
draw attention to some aspect of the defence case and that this failure
was
associated with a defect in the general directions by his Honour as to murder
based on a finding that the accused was recklessly
indifferent to the
consequences of his act, no case for special leave is made out. (at p88)
6. It is convenient to consider first the suggestion that the applicant's
case on this issue was not adequately put to the jury.
In my opinion the
submission is without foundation. The trial judge was at pains to review the
evidence relating to, and the circumstances
in which, the rifle was fired.
Before doing so his Honour suggested to the jury that they should not convict
the applicant of murder
on the footing now under consideration unless they
satisfied themselves "that the rifle was aimed and that it was fired by
pressing
the trigger, after releasing the safety catch". His Honour went on to
point out that there was no admission by the applicant that
he aimed the rifle
at the deceased, but that there was some material in his record of interview,
as indeed there was, from which
the jury might infer that the applicant "shot
from the hip at the deceased". On the other hand, his Honour drew attention to
an answer
in the record of interview which, as he put it, "tends to disavow
aiming the firearm". The relevant question and answer were:
"Q. What was your intention when you shot at Kevin withThere followed a reference to succeeding questions and answers in the record of interview after which his Honour made the comment:
the rifle?
A. To shoot near him and to scare him."
"That tends to give the statement the colour that it was not
deliberately aimed at Kevin but was pointed at or in the
region of the room where Kevin was at very close quarters. I
will mention this later in connection with manslaughter. But
you see it is quite a decision that you need to go through, to
conclude that the rifle was being aimed at the trunk of Kevin.
The accused is saying he was going to fire close to him." (at p88)
7. In the light of this account of what his Honour had to say on this issue,
it is quite wrong to say that the trial judge failed
to put the applicant's
defence to the jury. Indeed, the defence was put in some detail and the
applicant had the benefit of the trial
judge's advice to the jury that it
would be unwise to convict unless they were satisfied, amongst other things,
that the rifle was
aimed at the deceased. (at p88)
8. It is no easy matter to survey the trial judge's direction on the law as
it relates to the reckless indifference aspect of murder.
It is a subject to
which his Honour referred on no less than four occasions in his charge to the
jury and to which he returned later
after the jury had retired and when they
sought assistance on the law as to murder and manslaughter. There was some
degree of variation
in what his Honour had to say on these occasions. However,
subject to certain qualifications to which I shall shortly refer, the
directions given to the jury correctly reflected the law on the point and
conformed to the decision of the House of Lords in Reg.
v. Hyam [1974] UKHL 2; (1975) AC 55 .
The jury were told that even if the applicant did not shoot with intent to
kill or to cause
grievous bodily
harm
he might properly be found guilty of
murder if, knowing that there was a probability or likelihood that the
firing
of the gun
would
cause death or serious bodily injury to the deceased, he
fired the gun being indifferent whether death or
serious bodily injury
was
caused, and, as the judge added on two occasions, "even if he wished that it
might not be caused". (at
p89)
9. Had the judge not departed from this formula there could be no room for
argument. However, there were some departures and it
is necessary to look at
them. In response to the jury's request for assistance on the law of murder
and manslaughter, after they
had retired, the judge, in speaking of the
circumstances in which the jury could find the applicant guilty of murder,
then said:
"He even may have had the intention that it" (referring to death or
serious bodily injury) "might not be caused". No doubt his Honour
had
intended, in accordance with his earlier instruction, to use the word "wish"
or "desire" for "intention", but inadvertently adopted
the latter expression.
Nevertheless, I cannot think that this distracted the jury from a correct
approach to their task because the
jury would have understood the comment in
the light of the earlier observation, "even if he wished that it might not be
caused",
and because the comment was immediately followed by an observation
that made it apparent that a verdict of guilty could not be justified
unless
the jury were satisfied that the applicant was "indifferent" as to the
consequences, this being consistent with "his not wanting
to kill the
deceased". (at p88)
10. In the passage in question his Honour observed:
"But if he knew, if you are satisfied beyond reasonableAn intention not to cause death or serious bodily injury could only co-exist with an attitude of indifference as to the occurrence of that result if "intention" is understood in the sense of "wish" or "desire". (at p90)
doubt that he knew that as a matter of probability, on a
better than balanced basis, such serious injury would be
caused, then that can justify your bringing in a verdict of
murder if you are satisfied that he was capable of forming the
intention or appreciation that he was indifferent as to
whether the discharging of the firearm ultimately had that
effect or not. That is consistent with his not wanting to kill
the deceased but discharging the firearm at him knowing
that there was a better than balanced risk that he could be
seriously injured or killed."
11. Moreover, the advice that the jury should not convict the applicant of
murder unless they were satisfied that the rifle was
aimed at the deceased,
advice which the learned judge repeated, was calculated to secure an acquittal
on the charge of murder in
the event that the jury found that the applicant
intended not to harm the deceased and, in conformity with this intention, shot
near,
but not at, the deceased. When all these considerations are taken into
account I cannot see that what his Honour said resulted in
a misdirection to
the jury. (at p90)
12. Another criticism which might be made of the directions given is that the
trial judge spoke of the necessity for knowledge on
the part of the applicant
that there was a probability that "if the bullet hit one of the people in the
room it could either kill
them or cause serious bodily injury". It was, of
course, correct to say that foresight of probable serious bodily injury to a
person
other than the deceased would ground a conviction for murder. Later,
his Honour specifically related the required foresight to the
probability of
serious bodily injury to the deceased and his Honour was prudent so to do
because on the facts the probability of
serious bodily harm to anyone other
than the deceased was remote. (at p90)
13. But his Honour should not have restricted the foresight of the
probability of serious bodily injury to that which might result
if a bullet
struck the deceased, or for that matter another person in the room, for it is
knowledge of the probability of death or
serious bodily injury resulting from
the applicant's firing the gun that is all-important. His Honour's statement
literally overlooks
an intervening step in the chain of events, the
probability of the bullet hitting a person, more particularly the deceased.
However,
in the context of a discussion of reckless indifference as to the
consequences of one's acts and the requirement that there should
be knowledge
of a probability of death or serious bodily injury resulting from that act it
can hardly be supposed that the jury would
have failed to relate the direction
to the prospect of the bullet striking the deceased or to have failed to take
this into account
in deciding whether the applicant knew that his act would
probably cause death or serious bodily injury. In this connexion it is
of some
significance that on the first two occasions when his Honour discussed the
matter of the applicant's knowledge or foresight
with the jury he did not
limit it to the consequences which might flow from a bullet hitting the
deceased or another person. He then
correctly expressed it in terms of
knowledge of the consequences of firing the shot. (at p91)
14. For these reasons I conclude that although there are some passages in the
charge to the jury which are susceptible to criticism
the charge viewed as a
whole, as it should be, correctly and fairly put the issue to the jury.
Indeed, the criticisms are in one
sense almost academic because, as I have
said, the judge discouraged the jury from convicting the applicant of murder
unless they
were satisfied that the rifle was aimed at the deceased. I
entirely agree with Lush J. in the Supreme Court when he said:
"In my opinion it is, having regard to the terms of the.'"
charge, unlikely that the jury's verdict was based on murder
by recklessness, but if it was it must have been upon a
finding that the rifle was deliberately aimed and fired at the
deceased at a range of a few feet, the applicant's intention
being to frighten ... See also Reg. v. Ryan & Walker
(1966) VR 553, at p 565 where the Court said:
'In any event, on the evidence and having regard to the
closeness of the range at which Ryan fired the shot, we are of
opinion that a jury properly directed could not reasonably
have failed to draw the inference that Ryan did in fact
contemplate that death or at least grievous bodily harm was
likely to result to Hodson; see Smyth v. The Queen [1957] HCA 24; (1957) 98 CLR 163 and
Parker v. The Queen, per Windeyer J. [1963] HCA 14; (1963) 111 CLR 610, at pp 648-649
(at p91)
15. I need hardly say that having regard to the terms of the charge I find it
quite unnecessary to explore the suggestion made by
the Chief Justice in
Pemble v. The Queen (1971) 124 CLR, at p 121 that it is knowledge of a
possibility, rather than of a probability,
of the act causing death or serious
bodily injury that is the relevant element in the case of murder involving
reckless indifference.
At this stage it is sufficient to note that it was not
a view shared by McTiernan J. (1971) 124 CLR, at p 127 and Menzies J. (1971)
124 CLR, at p 135 and that it is at odds with the speeches of their Lordships
in Reg. v. Hyam [1974] UKHL 2; (1975) AC 55 according
to which it
is knowledge of the
probable consequences that is the requisite element. (at p91)
16. In the result I would refuse the application for special leave. (at p91)
JACOBS J. Although the applicant was of cause entitled to the benefit of any
defence which was open upon the evidence and was entitled
accordingly to the
benefit of any manner in which the Crown might not satisfy the jury beyond
reasonable doubt, probably the first
issue which the jury had to determine in
a practical sense was whether the applicant took off the safety catch of the
rifle and intentionally
pressed the trigger. If he did not, he was not guilty
of murder even if he knew that the trigger was very light and whatever
possible
consequence of killing or seriously injuring any one of those present
in the room he may have foreseen. I shall return to this question
later when I
have referred to certain passages in the charge to the jury. (at p92)
2. If the jury concluded that the applicant intentionally pressed the
trigger, the next question was whether the applicant intended
to fire in the
direction of the deceased. It does not appear that there was a separate issue
on this question. Once the jury concluded
that the applicant intended to press
the trigger and fire the rifle there can hardly be any doubt that the jury
would find that the
applicant intended to fire in the direction of the
deceased. No question now arises separately upon this issue. (at p92)
3. Then the question for the jury was whether the applicant fired in the
direction of the deceased intending that the bullet would
hit him. If they
found that intent and an intent to shoot the deceased in the part of the body
where the bullet lodged they could
find an intent to kill. They could infer
that the applicant knew that a bullet in the heart was certain to kill. The
doing of an
act with knowledge of a certain consequence is not required to be
distinguished from intent to bring about that consequence. (at
p92)
4. If the jury found that the applicant intended that the bullet would lodge
in any part of the deceased's body and thereby cause
him serious bodily injury
they could find malice; but on this predicated intent the question what
exactly is serious bodily injury,
that is to say, whether the serious bodily
injury must be such as is likely to endanger life (see the differences of
opinion in Hyam
v. Director of Public Prosecution [1974] UKHL 2; (1975) AC 55 ) does not
require definitive attention if regard is had to the principle
of constructive
malice. It arose for determination
in Hyam v. Director of Public Prosecutions
because the doctrine of constructive
malice was abolished
in the United
Kingdom in 1957
(Homicide Act, 1957 (U.K.)). In the present case the trial
judge charged the jury
in terms of intent
to do serious bodily injury.
He did
not explain constructive malice in so many words but his charge was sufficient
to place the issue
of fact before them even
though he did not tell them the
legal basis of constructive malice. The Crimes Act 1958 (Vict.) s. 17 makes
shooting with intent to do grievous bodily harm a felony. Intent to do serious
bodily injury is certainly no less than intent
to do grievous bodily harm. No
objection is taken to the charge in this respect. (at p93)
5. There was, however, one matter which particularly required consideration
by the jury and attention by the presiding judge. The
applicant did not give
evidence or make a statement from the dock but in his statement to police
officers on the night of the shooting,
when asked what was his intention when
he shot at the deceased with the rifle, said "To shoot near him and to scare
him". (at p93)
6. Except for this particular matter raised in the applicant's statement to
the police officers there could be no argument but that
all that would have
been required by way of direction on the element of malice aforethought,
assuming the jury concluded that the
applicant intended to fire the rifle in
the direction of the deceased, would have been a direction to the jury that
they must be
satisfied of intent to kill or to inflict serious bodily injury
on the deceased. However, the applicant's statement led the trial
judge to
give the further direction to the jury on malice beyond the direction that it
meant intent to kill or cause serious bodily
injury. (at p93)
7. It requires particular note that the applicant's statement was not merely
that he intended to frighten the deceased, an intent
consistent at least with
a concurrent intent to cause serious bodily injury to the deceased. If the
jury "accepted" the applicant's
statement - I express it in this way for
convenience of writing but of course I mean if the jury is not satisfied
beyond reasonable
doubt that this version is incorrect - the jury could find
that the applicant intended that the bullet would not hit the deceased
at all.
(at p93)
8. The question which arises and will require consideration is whether, if
the jury "accepted" the statement of the applicant that
his actual intent was
to shoot near the deceased, understanding those words to mean that the
applicant intended the bullet should
not hit the body of the deceased, and to
scare him they could nevertheless find him guilty of murder. (at p93)
9. The ascertainment of intent thus required a choice between alternatives
which included shooting intending to hit the deceased
and shooting intending
not to hit, that is to say, intending that the bullet should pass near his
body but not into his body. These
alternatives did not particularly require
attention to a possible view of the facts, that the applicant fired at the
deceased knowing
that the bullet would probably hit the deceased but
recklessly indifferent whether the deceased was killed or seriously injured.
On the other hand, if there could be murder where the applicant knew that it
was possible that the bullet might hit the deceased
and kill or seriously
injure the deceased, and where the applicant knowing that possibility was
recklessly indifferent whether or
not the bullet did hit the deceased, then a
direction on reckless indifference would not appear to be inappropriate. (at
p94)
10. Recklessness in relation to malice aforethought is used as a compendious
word to describe actual knowledge of the consequence
of an act - I do not at
this stage say whether the consequence must be probable or whether it is
sufficient that it is possible -
and positive indifference whether that
consequence follows or not. Such a state of mind may amount to malice
aforethought but recklessness
in this sense is not failure to take care, even
a failure to take care where at the time of his act the actor adverts to the
possible
consequences of his act. In other words, it is not a quality of the
conduct. The recklessness is the necessary quality of the indifference
to the
consequences of the intended act - a positive indifference reckless of known
consequences. It is a state of mind which rarely
needs to be considered on a
charge of murder. There is little on reckless indifference in its relation to
murder in English legal
decisions but the relationship was recognized in Hyam
v. Director of Public Prosecutions [1974] UKHL 2; (1975) AC 55 and was possibly
applied by
Stephen J. in his charge to the jury in Reg. v. Serne (1887) 16 Cox CC 311 .
An aspect
was stated in his Digest of the
Criminal Law
by Stephen whose
enunciation has been repeated in Archbold's Criminal Pleading Evidence
and
Practice. See now 38th ed.
(1973), par.
2485.
"Express malice. Express malice has been defined byI shall refer presently to the cases decided in those places in Australia where the law of murder is still the common law. (at p95)
Stephen in his Digest of Criminal Law, 9th ed., pp. 211-213,
as including either of the following states of mind preceding
or co-existing with the act or omission by which death is
caused and it may exist where that act is unpremeditated: -
(a) An intention to cause the death of, or grievous bodily
harm to, any person, whether such person is the person
actually killed or not;
(b) Knowledge that the act which causes death will
probably cause the death of, or grievous bodily harm to,
some person, whether such person is the person actually
killed or not, although such knowledge is accompanied by
indifference whether death or grievous bodily harm is
caused or not, or by a wish that it may not be caused."
11. It is to be observed that Stephen expressed the principle to include
knowledge that the act which causes death will probably
cause the death of, or
grievous bodily harm to, some person. In my opinion this expression of the
principle is correct. The need
for a direction on this form of malice would
arise for example in cases where the accused said or suggested that though it
be found
that he knew that his act of shooting at the victim would probably
kill or seriously injure the victim his only actual intent was
to get away or
to prove to himself that he was brave enough in his own mind to do the act,
or, it must be added, to frighten the
victim, and that, that being the only
intent actually in his mind, there was not an intent to kill or seriously
injure. The law then
says that there may nevertheless be malice in the absence
of the actual intent to kill or seriously injure in such circumstances
if
there was a reckless indifference to what he knew to be the probable
consequences of his act. Intent to kill or seriously injure,
although it may
be inferred as a fact from the doing of an act with knowledge of its probable
consequence of death or serious bodily
injury to the victim, is not the same
as knowledge of the consequences of the doing of such an act. On the one hand
intent may exist
even though the knowledge of the actor is that the death of
the victim is improbable. If a man were to fire a pistol into a dark
place
intending to kill another he would be guilty of murder even though he believed
that the odds were greatly against him killing
that other. It is the actual
present intent which is sufficient. The actual present intent need not be the
only intent. If in the
examples which I have given in the earlier part of this
paragraph there was, in addition to the intent to get away or to prove
himself,
an actual present intent to kill or seriously injure then the act is
murder. On the other hand if the intent is not actually present,
there is no
intent in law. To say that there is in law an intent in such circumstances is
to apply a legal presumption that a man
intends those consequences which he
knows to be probable but there is no such presumption. The question is one of
fact. However,
there may still be malice in the special circumstances of
knowledge of probable consequence and reckless indifference to that
consequence.
(at p95)
12. I recognize that an alternative classification is to make no distinction
between doing an act intending that a consequence will
follow and doing an act
expecting, but not certain, that a consequence will probably follow. See, for
instance, the classification
by Mr. T. W. Smith as law Reform Commissioner in
Victoria in his Report on the Law of Murder, p. 3. So long as the expectation
is
of the probable consequence, the difference in classification does not
appear to me to matter. However, if the relevant expectation
was of a merely
possible consequence, the word "intend" would be inappropriate. No man can be
described as intending what he does
not expect to happen unless he actually
intends it to happen. (at p96)
13. I come now to the position if the jury "accepted" the fact that the
applicant fired in the direction of the deceased intending
that the bullet
would not hit him. Could they find him guilty of murder? It appears to me that
they could only do so on a basis that
it was sufficient in law that the
applicant foresaw that the possible as distinct from probable consequence of
the act was that the
bullet would hit the deceased and was recklessly
indifferent whether or not it thus caused his death or serious bodily injury.
That,
however, is not in my opinion sufficient to constitute murder. It could
be said that he was reckless in the sense that appreciating
the risk he
decided to take that risk. But it is not murder to do an act which is risky to
the life of another simply because the
risk, the possibility of causing death
or serious bodily injury of the other, is known to be probable. There must be
indifference
to known probable, not merely possible, consequences, and that
indifference must be reckless. It is not appropriate to introduce
into this
use of the words "possibility" and "probability" connotations appropriate to
the determination of questions in other fields
of law such as satisfaction of
a burden of proof or of adducing evidence. In the present context we are
dealing with the state of
a man's mind, with that state of mind which the word
"malice" connotes. To say that a man knows in his mind that a consequence of
his act is probable is to say that he believes that the consequence will
happen or that he expects that it will happen even though
he would be prepared
to concede that it is not certain that it will happen. To say that a man knows
in his mind that a consequence
of his act is possible though not probable is
to say that he believes that the consequence will not happen or that he
expects that
it will not happen even though he would be prepared to concede
that it may happen. There is a great difference in moral and social
content
between the first state of mind and the second just as there is between the
first state of mind and that of a man who knows
that a consequence is possible
but who has formed no opinion at all as to the degree of possibility. The
difference between the first
state of mind and the other two states of mind
should be preserved in the law of murder. The words "malice aforethough" can
be misunderstood
if each of them is given a meaning different from the meaning
which they bear in the law of murder. "Malice", it is well accepted,
does not
refer to the emotive state of the actor and "aforethought" does not mean
"existing at a distinctly prior time". Nevertheless,
a dislike of the possible
confusion that the words may cause must not be allowed to obscure the fact
that for a crime to be murder
there must be a particular state of mind more
wicked than an intention to take a risk with an appreciation that the risk is
of death
or serious bodily injury to another, an intention which may or may
not be able to be described in pejorative terms depending upon
the social
usefulness of the intended action. (at p97)
14. Now that the death penalty has been abolished, or virtually abolished,
there is not the same importance in physical consequence
in distinguishing
between murder and the more serious kinds of manslaughter. In the same way it
could be said that there is no longer
an importance in distinguishing the case
of reckless indifference with knowledge of the probable consequence from the
intentional
taking of a risk or indifference to the risk when the actor
positively adverts to the possible consequences in death or serious bodily
injury to another of his taking that risk. This kind of consideration has led
some to the view that all unlawful killings should
be one offence with the
variations of circumstances being reflected in sentence: (e.g. Lord Kilbrandon
in Hyam v. Director of Public
Prosecutions (1975) AC, at p 98 ). Though both
murder and manslaughter can be very serious crimes I believe that society
still places
on the word "murder" a connotation of dreadfulness which is an
important social sanction and that the sanction is watered down if
anything
(apart from the instances of constructive malice and certain Code provisions
which have other social purposes) is added
to the category of murder which
does not involve an intent to kill or do serious bodily injury or what is
practically the equivalent
therof. (at p97)
15. I have attempted to avoid any use of the words "desire", "purpose",
"motive", "wish" or "object". Once any word other than "intent"
is used I
believe that further precise definition is required in order to distinguish
the exact sense in which the word is being
used. If the use is synonymous with
intent, there is no need to use it. If it is different then it introduces a
concept different
from intent and therefore not relevant as an ingredient of
the kind of malice which involves actual intent. (at p97)
16. The mental element in the crime of murder is not a simple matter at all.
It has been the subject of much writing over the last
150 years, ever since
the utilitarianism of the Benthamist school and the legal positivism of that
time sought an expression of the
law in terms free from moralistic concept.
Since Director of Public Prosecutions v. Smith (1961) AC 290 and now since
Hyam v. Director
of Public Prosecutions [1974] UKHL 2; (1975) AC 55 there has been a fresh
surge of writing. (See e.g. Glanville Williams, The Mental
Element in
Crime;
R. Cross, "The
Mental Element in Crime", Law Quarterly Review, vol. 83 (1967),
p. 215; J. C. Smith, "Intention
in Criminal
Law", Current Legal Problems,
vol.
27 (1974), p. 93; R. Buxton, "Malice Aforethought", Modern Law Review, vol. 37
(1974),
p. 676;
and M. Sornarajah, "Reckless
Murder in Commonwealth Law",
International and Comparative Law Quarterly, vol. 24 (1975), p.
846.) (at
p98)
17. The difficulty in holding that anything less than an intent to kill may
constitute the mental element for murder, an intent
which can be condemned in
absolute terms, is that then it is difficult, if not impossible, to leave out
of account the baseness or
goodness in moral or social terms of any aim,
purpose of motive which accompanies the actual intent. The objection which can
be made
to the introduction of notions of moral turpitude through examination
of aim, purpose and motive is that it may largely reintroduce
into the legal
concept of malice popular indeterminate connotations of that word. One way in
which the objection has been met is
by regarding reckless indifference to
known consequences as a wanton lack of any morally or socially acceptable aim,
purpose or motive.
I find this acceptable in relation to murder only if the
reckless indifference is to a consequence which is known to be probable,
which
is expected to occur. Reckless indifference to a consequence of death or
serious bodily injury which is not expected to occur,
but which it is
appreciated may possibly occur, is in my opinion properly treated as
manslaughter. If ultimate analysis should eventually
make it necessary to
recognize through examination of aim, purpose and motive the element of moral
culpability (the "aim" explored
by Lord Hailsham in Hyam v. Director of Public
Prosecutions [1974] UKHL 2; (1975) AC 55 ) or the "wicked, depraved, and malignant
heart" of
Blackstone's
Commentaries 15th ed. (1809), vol. 4, p. 198, then
I have found
no better expression of the elements than
that by Traynor J. in People
v.
Thomas (1953) 261 P. 2d 1, at p 7 who referred
to "a base, anti-social motive
... with wanton disregard
for human life". (at
p98)
18. I find nothing in Reg. v. Jakac (1961) VR 367 or in Reg. v. Sergi (1974)
VR 1 to the contrary of the principles which I have
expressed above. Indeed
in the latter case the trial judge charged the jury as follows (1974) VR, at p
7 :
"If you find that Sergi intended to miss Condo and merelyThis was in my opinion a perfectly correct direction. I would refer also to the passage in the judgment of the Court of Criminal Appeal (1974) VR, at p 10 :
to frighten him, again you ask yourselves, 'Are we satisfied
that was not done in self-defence?' If you are not satisfied
that it was not self-defence, the verdict is not guilty of murder
and of manslaughter. If you are satisfied that it was not
self-defence, the verdict will be not guilty of murder, but you will
have to consider whether you will find Sergi guilty of
manslaughter ..."
"It is necessary to guard against the danger that the jury,In substance I agree with what is there said but I would avoid the test of "more likely than not" or "odds against". What needs to be made clear in any exceptional case where the direction is needed is that the accused must have in his mind, must expect, that the victim will suffer death or serious bodily injury even though his mind is less than certain that this will be so. I think that this is conveyed by a direction that the accused knew that his act would probably cause death or serious bodily injury. (at p99)
because words such as 'likely' and 'probable' are used loosely
in common speech, may understand a charge which uses
those words as meaning that malice aforethought is
established if the accused realized or believed no more than
that he was creating a substantial risk of death or grievous
bodily harm. This misunderstanding may also arise from
references to 'recklessness' if it is not made clear to the jury
what is the particular kind of recklessness that is requisite. It
needs to be made quite plain to the jury that in order to bring
the case within the principle, the Crown has to establish that
when the accused did the act which caused the death he
realized or believed that it was more likely than not that
death or grievous bodily harm would be the result, or, in other
words, that he realized or believed that the odds were against
the deceased escaping without at least suffering grievous
bodily harm."
19. In Reg. v. Hallett (1969) SASR 141 the South Australian Supreme Court
considered whether the test was "probable" or "possible"
consequence and
concluded that the former was the correct test. There are passages in the
reasons of Barwick C.J. in Pemble v. The
Queen (1971) 124 CLR 107 which would
support the view that foresight of possible consequences coupled with
indifference
to such
possible consequences is sufficient to support a verdict
of murder (1971) 124 CLR, at pp 118-119, 121 . McTiernan J. and
Menzies
J.
took the view that knowledge of the probable consequence was necessary.
Windeyer J. and Owen J. did not express an opinion
on
this question. I do not
think that the decision in Pemble v. The Queen (1971) 124 CLR 107 indicates a
conclusion
on the question
presently being considered. (at p100)
20. In Kenny's Outlines of Criminal Law, 19th ed. (1966) the editor at par.
116a, pp. 164 et seq. refers on a number of occasions
to foresight in an
accused of the possibility or risk of death but it is important to note that
those references occur in a paragraph
dealing with the nature of the bodily
harm which is the necessary ingredient in this kind of malice aforethought.
(at p100)
21. Two further points require notice before I turn to the trial judge's
charge. First, the presence in the room of the other two
brothers though
important in the factual situation was not significant on the question whether
the acts and state of mind of the
accused could in law consititue murder. This
was not a case where the jury could find an intent to kill or seriously injure
or, to
use an abbreviated reference, a reckless indifference in respect of, a
number of persons or any one of a number of persons without
particular regard
to the identity of any of them. In other words it was not a case of general or
universal malice. Nor was it a case
where the jury could find an intent to
kill or seriously injure or, to use an abbreviated reference, a reckless
indifference in respect
of, a particular person other than the deceased. In
other words it was not a case of transferred malice. Secondly, it was not
suggested
that shooting near the deceased with an intent to scare him was a
felony so the possibility of constructive malice on the applicant's
own
version of the facts was not canvassed. (at p100)
22. The first direction in the charge on malice was as follows:
"We reach, then, the question of what is murder. Murder isThis direction is both precise and correct. The trial judge proceeded, however, as follows:
committed when a person does a voluntary act which causes
the death of another. At the time he does that act he may
either intend to kill the other, (the deceased) or to intend to do
serious bodily injury to the other (the deceased) or in this
third class, which I shall relate to an event which included a
rifle being discharged. If he discharges a firearm at another
person knowing that the shot will probably or more than
likely cause the death of or a serious bodily injury to that
other, and that at the time he was indifferent whether death
or serious bodily injury would be caused to the other or even
if he wished that it might not be caused."
"Mr. Hampel pointed out, in his address to you, that thisThe trial judge followed this with a warning to be very careful before concluding that the case came within what he described as the third class or third category of murder. This does not affect the directions of law and there is no need for me to set out the passage. (at p101)
third class of malice is a complex and difficult thing. He
pointed out to you also that it required a definite and distinct
intention; it involved recognizing the probability of injury; it
involved a conscious reference to that possibility of injury
and it involved a decision to carry on, regardless of the risk
of injury."
23. A little later the learned judge directed the jury as follows:
"There is then this troublesome third class of intention, theLater again his Honour said:
discharge of a firearm (and I will fill in now the names of the
actors) by the accused at or near the deceased knowing that
the shot will probably or more than likely cause the death of
or serious bodily injury to the other and that at the time the
accused was indifferent whether death or serious bodily
injury would be caused to the other or even if he wished that
it might not be caused."
"Of course the prosecutor says that if you reach the viewThis direction is partly on the law but mostly it is a view on the facts which the trial judge was entitled to express but which he made clear did not bind the jury. The direction of law is mainly in the first two sentences. It is a direction that the jury could find what he called the third kind of intent from the circumstances set out in the first sentence. Whether or not the statement "if the bullet hit one of the people in the room, it could either kill them or cause serious bodily injury" is the statement of a matter relevant to reckless indifference, the statement generally is seriously defective because it does not refer to the state of mind of the accused when it lists the circumstances and refers to the probability or likelihood that if the bullet hit one of the people in the room it could either kill them or cause serious bodily injury. The immediately succeeding passage suggests by implication that even if the rifle was not aimed and was not fired by pressing the trigger after releasing the safety catch, nevertheless the jury could find murder; for the learned trial judge specifically states that he gives no legal direction that the jury must be satisfied of the aiming and firing by pressing the trigger before they could find murder. For reasons which I have already expressed I regard this as erroneous in law, and when it is coupled with the immediately preceding reference to probability or likelihood, unrelated to the state of mind of the accused, it could all be taken to mean that the gross carelessness of the acts done in the circumstances referred to could establish murder. There is no need to state that since this could be taken to be the meaning of his Honour's words, the direction was seriously wrong. (at p102)
that the intention of the accused was to frighten and not to
kill but it nevertheless involved firing a weapon at close
quarters, in the living room of the house with other people
including the deceased there, that there was a probability or
likelihood that if the bullet hit one of the people in the room,
it could either kill them or cause serious bodily injury. That
would justify your making use of the third kind of intent. But
at all events, my suggestion to you is that you should satisfy
yourselves that the rifle was aimed and that it was fired by
pressing the trigger, after releasing the safety catch, before
you would classify this as murder in the sense that you were
satisfied beyond reasonable doubt. I have not given you a
direction in law which involves your doing that; I have
referred to these different classes of intent, but I want you to
understand that that is a comment on the facts from my point
of view. I have had to put it in a legalistic framework, but it is
a matter for you as to whether or not you need to have evidence
that the trigger was pulled, that the safety catch was off, and
that that rifle was aimed before you can be confident of a
verdict of murder. It might be said for the Crown, if the
prosecutor had the opportunity to stand up in the middle of my
charge, that the third category of intent does not involve the
actual aiming or directing of the weapon at the victim. There
are all kinds of situations which might involve debate about
that, but I should be constrained as a matter of caution when
applying such a complicated examination of intention as I
regard the third class of intention, reckless indifference, I
would be inclined to adopt the view, in this case, that unless
you are satisfied that the rifle was aimed, that the trigger was
pulled and that the safety catch had been put off by the
accused then you should not, unless you are convinced by
other facts, that you should not consider bringing in a verdict
of murder in this case."
24. This may have been corrected a little later when his Honour said:
"So it would seem that the evidence given about droppingHow much of these directions related to murder and how much to manslaughter is not clear to me and with respect I do not think that it would have been clear to the jury. (at p103)
the rifle or about knocking the rifle does not bear very
strongly on the matters with which you are concerned. The
lightness of the trigger, of course, bears on it, to this degree, if
for no other, that if anyone is to handle a loaded firearm at
close quarters which, from experience, he knows to have a
lightness on the trigger, then of course the more conscious he
is of the danger of doing so the more careless or reckless is
his act in running that risk. It is open to you to infer I
suppose that the accused here had had that rifle long enough
to know its characteristics. If that be so, you have to
understand what kind of risk was being run in his going into
a room with three other people there with a loaded firearm, a
rifle with the armoury characteristics of this one. You will
have seen that I have now started to trail off from the
charges of murder and to enter the area of manslaughter. I
hope that you will not think this is on the edge of deception,
but it was done consciously so that you appreciate that the
dividing line between murder and manslaughter is the stage
at which you cannot assign to the actions of the accused
when handling and firing the rifle: the possession by him of a
specific intent to kill or to grievously wound or to recklessly
and indifferently accept the risk of what involves probable
injury of a serious kind or the causing of death to the
accused."
25. The following day his Honour resumed his charge. After hearing
submissions of counsel, he recapitulated or restated the law
and in the course
of so doing said:
"I told you also that in my view at any rate, to find theI interpose to say that this repeats the implication that the jury could find the applicant guilty of murder even if they were not satisfied that the applicant pulled the trigger. The words used can only be read as a comment on the way he, the trial judge, would view the facts. The learned judge proceeded:
accused guilty of murder it would also be necessary for you to
feel satisfied beyond reasonable doubt that the accused pulled
the trigger of the rifle and that the safety catch was off. Any
idea that the weapon was discharged otherwise than by
pulling the trigger would seem to me not to fit in with the
pattern of murder.
On the other hand, in relation to manslaughter it would
seem to me that if you were satisfied beyond reasonable doubt
of the guilt of the accused, of manslaughter, then it would not
matter how the firearm was actually discharged. I do not
mean that you need not consider how it was discharged; I
mean it does not seem to me - and this is only a comment - as
to whether it was a result of some pressure applied to the
trigger or some other way."
"Now, if I may, I will go through the points of law that IThis direction is correct as was the first direction but it is not consistent with what had meanwhile been said and there is no specific correction of what had meanwhile been said. Nevertheless, if the situation rested there, it would be open to question whether this Court should intervene. But the situation did not rest there. (at p104)
mentioned yesterday so that they come freshly to your minds
as you re-enter the arena today. I am sorry if these sets of
words are now becoming to sound over familiar.
Cutting away the dead wood that need not be considered
here, that is the fact of death and things like that, the kind of
intent that a person needs to have to be found guilty of the
crime of murder, and this intent must be proved beyond
reasonable doubt, is either (a) the intention to have killed the
deceased or (b) the intention to do serious bodily injury to the
deceased. Or, (c) that he, the accused, discharged the firearm
at the deceased knowing that the shot will probably or more
likely than not cause the death of or the serious bodily injury
to the deceased, and that at the time he was indifferent as to
whether death or serious bodily injury would be caused to the
deceased, even if he wished that it might not be caused to the
deceased. Then you have the next area, which is
manslaughter, and I will deal with that in a moment."
26. The jury retired and returned four hours later, the foreman saying "We
would like the law read again on the charges of murder
and charges of
manslaughter". The trial judge gave the following directions:
"Murder is committed where a person does a voluntary act
which causes the death of another - you might say that a
voluntary act of firing a firearm, a decision which he makes
freely, in a voluntary sense - and then you have to find in
addition that there was a specific intention, one kind of
intention which will result in a verdict of murder is that he
intended to kill the deceased. Intend to kill, when you are
talking about the use of firearms, means shot to kill. That is
shot to kill in the sense of mortally wound the deceased.
The second classification of intent is that he shot with the
intention to do serious bodily injury to the deceased. The
third one is that he discharged the rifle at the deceased
knowing that the shot would more probably than not, or
more likely than not, cause the death of or serious bodily
injury to the deceased and that at the time that he did this he
was indifferent as to whether death or serious bodily injury
would be caused to the other. He even may have had an
intention that it might not be caused. But if he knew, if you
are satisfied beyond reasonable doubt that he knew that as
a matter of probability, on a better than balanced basis, such
serious injury would be caused, then that can justify your
bringing in a verdict of murder if you are satisfied that he
was capable of forming the intention or appreciation that he
was indifferent as to whether the discharging of the firearm
ultimately had that effect or not. That is consistent with his
not wanting to kill the deceased but discharging the firearm
at him knowing that there was a better than balanced risk
that he could be seriously injured or killed." (at p104)
27. Except for the sentence in italics and the word "could" in the last
sentence the direction is correct although, as I have previously
said, I do
not think that a reference to "better than balanced basis" is desirable.
However, the sentence in italics when regard
is had to the earlier passages in
the charge is open to grave objection. It may have been a slip of the tongue.
His Honour may have
meant "wish" and thereby have intended to reproduce the
statement from Archbold and Stephen which I have earlier set out. However,
in
view of the earlier passages in the summing up, I am not sure whether it was a
slip and I cannot be sure that the jury would regard
it as a slip. I agree
with the majority in the Court of Criminal Appeal that this was not a case
where it was necessary to direct
the jury on malice of this kind, and I would
also agree that the charge is not necessarily defective because such a
direction was
given, or at least that the giving of the direction on this kind
of malice was not a miscarriage of justice. However, the form of
the direction
was erroneous in law in the ways to which I have referred and, this being so,
there can be no question of applying
the proviso. Such errors in a case of
this kind must be regarded as a substantial miscarriage of justice. (at p105)
28. For these reasons I would grant special leave to appeal, allow the
appeal, set aside the conviction and order a new trial. (at
p105)
ORDER
Special leave to appeal refused.
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