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High Court of Australia |
STEVEN JOHN McGHEE v THE QUEEN
F.C. 95/026
Number of pages - 24
[1995] HCA 69; (1995) 130 ALR 142
(1995) 69 ALJR 650
(1995) 183 CLR 82
Criminal Law (Tas)
HIGH COURT OF AUSTRALIA
BRENNAN(1), DEANE(2), DAWSON(3), TOOHEY(4) AND GAUDRON(4) JJ
Criminal Law (Tas) - Attempted murder - Provocation - Criminal Code (Tas), ss 2(1),157(1),160(1).
ORDER
Appeal dismissed.DECISION
BRENNAN J The appellant and Ms de Vries lived together until 22 July 1992. Ms de Vries left their house and took up residence in a house where she shared a bedroom with a Mrs McDonald, with whom she had recently formed a lesbian relationship. The appellant was distressed by these events and, on 31 July, he sent Ms de Vries a message as a result of which they spoke on the telephone and an arrangement was made for her to call at the appellant's house at 6.00pm that evening. She did not keep that appointment and, at some time after 6.00pm, she telephoned him to tell him that she would not be meeting him as she had had too much to drink and was not able to drive. She suggested he come to her house and they talk in the car.
2. When the appellant arrived at the house he was admitted by one of the male
occupants. He said that he saw Ms de Vries and Mrs
McDonald sitting on the
lounge room floor kissing. Ms de Vries spoke to him. He went away, came back
and again spoke to Ms de Vries.
Then he left once more but returned at about
9.00pm, having picked up a rifle belonging to a friend in the meantime. Ms de
Vries
went outside to speak to him. She described him as being "pretty
stressed out". She touched him on the cheek. He bent down and
picked up the
rifle and at one stage the barrel was pointing towards her. She grabbed hold
of the barrel of the rifle and after
some wrestling she was able to make her
escape into the house. He went in pursuit of her, but Ms de Vries escaped
through a bedroom
window. He found Mrs McDonald in the bedroom. He fired the
gun and wounded Mrs McDonald.
3. The appellant was charged before the Supreme Court of Tasmania on two
counts: attempted murder of Ms de Vries and attempted
murder of Mrs McDonald.
He was convicted of the attempted murder of Ms de Vries and of unlawfully
wounding Mrs McDonald. His appeal
to the Court of Criminal Appeal against his
conviction for attempted murder was dismissed (Green CJ and Wright J; Zeeman J
dissenting).
He appeals to this Court against the dismissal of his appeal by
a grant of special leave which limits the grounds of appeal to what
is in
substance a single question, namely, whether a plea of provocation under s.160
of the Criminal Code (Tas.) can be raised to
defeat a charge of attempted
murder. For the purpose of answering that question, the parties accept that
the evidence was sufficient
to establish the crime of attempted murder and,
had Ms de Vries been shot and killed, would have been sufficient to raise the
issue
of provocation.
The nature of an attempt
4. Section 2(1) of the Criminal Code (Tas.) provides that:
" An attempt to commit a crime is an act or omission done or made with
intent to commit that crime, and forming part of a series
of events which if
it were not interrupted would constitute the actual commission of the crime."
This provision follows s.74 of the English Draft Criminal Code of 1879 which
in turn is based on the provisions of Art.29 of Sir
James Fitzjames Stephen's
A Digest of Criminal Law(1). The Royal
Commissioners who prepared the 1879
Draft included Sir James Fitzjames
Stephen. They did not believe their draft
s.74 "to do more than declare the existing law"(2).
5. Section 2(1) of the Code prescribes two elements, namely, an "intent to
commit that crime" and an act or omission done or made
"forming part of
a
series of events which if ... not interrupted would constitute the actual
commission of the crime". These are
respectively the
mental element (or mens
rea) and the physical element (or the actus reus) of the offences of attempt
created by
s.2(1). The act or omission must be part of a series of events
which is defined by reference to the intention possessed by the alleged
offender
at the time when the act was done or the omission was made. If that
intention had been fulfilled the series of events would
have
constituted "the
actual commission of the crime". The actual intent of an alleged offender
both constitutes the mental element
and
defines the series of which the
alleged offender's act or omission forms a part(3).
6. Sub-section (2) of s.2 provides:
" The offence of attempting to commit a crime may be committed, although
the offender voluntarily desists from the actual commission
of the crime
itself, and whether under the circumstances it was possible to commit such
crime or not."
Thus the offence of attempt is complete when an act is done or an omission is
made with the relevant intent, even if it be impossible
for the intended
series of events to culminate in the actual crime(4).
7. Section 2 creates - and the common law of attempts defines - crimes
different from the crime attempted. As Neasey J pointed
out in Reg. v.
Bell(5), the mental element has been regarded as the gravamen of an offence of
an attempt to commit crime. The intent
of the alleged
offender relates to the
physical events the occurrence of which would, if not interrupted, constitute
the crime attempted.
That
intent does not relate to any specific intent which
is an element in the crime attempted.
8. Nevertheless, the crime of attempted murder at common law has uniformly
been held to require an intent to kill(6). The same
view has been taken under
the Tasmanian Code(7). In principle, that must be so. Not because an intent
to kill is a mental element
in the crime of murder but because the causing of
death is a physical element in the crime of murder and an attempt to commit
that
crime must have, as its mental element, an intention that death be
caused. The crime of murder, defined by s.157 of the Code, has
a number of
alternative mental elements only one of which is an intention to cause
death(8). The specific intent
required in attempted
murder is not derived from
s.157(1)(a); it is derived from the requirement that the offender intends that
there should be a series
of events culminating in the death of
another person.
Of course, if the death of a person were to occur as intended by an offender,
the substantive offence would be murder
precisely because the intent required
for the attempt is the same as the intent prescribed
by s.157(1)(a).
9. It is immaterial that the crime of murder is itself defined to include
intents other than an intent to cause death. To establish
the crime of
attempted murder, it is not necessary to prove that the offender had one of
the specific intents prescribed by s.157(1)
superadded to the intent required
to constitute an attempt. The intent required to establish the crime of
attempted murder is not
an intent to form one of the intents prescribed by
s.157(1): it is merely an intent that the fatal result which would complete
the
events constituting culpable homicide should occur. As the
voluntary
commission of the offender's act or the voluntary making of
the offender's
omission, coupled with the intent (required
by s.2) that death be caused,
would constitute murder if the series of
events were not interrupted, "the
crime" intended is the crime of
murder. An attempt which encompasses the
culpable homicide of
another person is necessarily attempted murder.
Provocation: s.160
10. When an offender causes the death of another in circumstances and with an
intent that would make the offence one of murder but
for the provisions of
s.160 of the Code, that section may operate to reduce the offence to
manslaughter. Sub-sections (1) and (2)
of s.160 read as follows:
" (1) Culpable homicide, which would otherwise be murder, may be reduced to
manslaughter if the person who causes death does so
in the heat of passion
caused by sudden provocation.
(2) Any wrongful act or insult of such a nature as to be
which, in fact, deprives the offender of the power of self-control, is
provocation, if the offender acts upon it on the sudden, and
before there has
been time for his passion to cool."
Counsel for the appellant, whose argument was typically engaging, submits that
provocation as defined by s.160 operates as a defence
to a charge of attempted
murder. The submission focuses on the words "that crime" and "the crime" in
s.2(1). If the series of events
intended by the offender had occurred and, by
virtue of s.160, the culpable homicide had been reduced to manslaughter, "the
crime"
of murder would not have been committed. And, as there is no
crime of
attempted manslaughter, the provocation which would have reduced
the murder to
manslaughter if the intended series of acts
had not been interrupted provides
a complete defence to a charge of attempted
murder. This argument finds
support in a number of
decisions in jurisdictions other than Tasmania. In R.
v. Newman(9) and Reg.
v. Spartels(10), it was said that provocation would
negate an intent to murder in the statutory offence of wounding with intent to
commit murder. That view was followed by Blackburn
CJ in Helmhout(11) who
said that the phrase "intent to commit murder" could not
be given its literal
meaning as it can exist only
in the mind of a person with sufficient knowledge
of criminal law to know that
what he intends to do will be murder. Blackburn
CJ
said(12):
"Plainly, therefore, the phrase 'intent to commit murder' as used in the Act
(both the Victorian Act and the Crimes Act, 1900 of
NSW) is not used in the
literal sense; it is not to be construed as denoting an actual state of a
person's mind. It must, rather,
be a pregnant or elliptical phrase, meaning
'an intention to kill held in circumstances in which, if the killing takes
place as intended,
it will be murder'. If the death of the victim, as a result
of the carrying out of his intention by the accused, would not, for any
reason, have entailed a verdict of guilty of murder, then the intention held
by him, whatever it was, was held in circumstances other
than those which
satisfy the meaning of the phrase 'intent to commit murder'. Among these
possible circumstances are those giving
rise to the doctrine of provocation."
On the other hand provocation does not, in Blackburn C.J's opinion, have any
application to a charge of wounding with intent to commit
grievous bodily
harm(13). On appeal(14), the Full Court of the Federal Court agreed with
Blackburn CJ that provocation was not available
to defeat a charge of wounding
with intent to do grievous bodily harm, but cautioned against accepting the
reasoning found in Newman
and Spartels. It was unnecessary for the Full Court
finally to decide the question but it inclined to the view of Pape J in Reg.
v. Falla(15). In Falla Pape J, who declined to follow the previous
authorities, said(16):
"Wounding with intent to murder is a statutory crime and s.11(1) of the
Crimes Act does not say that it is a crime to wound a person
in such
circumstances that, had death ensued, the assailant would be guilty of
murder.
What it does say is that 'whosoever by any
means wounds with intent to commit
murder' shall be guilty of felony."
On Pape J's reasoning, once an intent to kill is established, the accused is
guilty of the offence of wounding with intent to commit
murder unless he had a
lawful justification for his actions. Provocation in his view(17):
"is not a lawful justification or excuse for a killing, and, in my view, it
should not be left to the jury, for once the necessary
intent is established
it is irrelevant that the law says that notwithstanding that intent the crime
may be reduced from murder to
manslaughter."
He based this view on Reg. v. Cunningham(18) where it was held that
provocation only arises in a case of murder to reduce murder
to manslaughter,
and therefore cannot be a defence to malicious wounding. In Reg. v. Farrar(19)
Hampel J, adopting the approach of
Pape J in Falla, said:
" Provocation is as a legal concept quite different from that of
self-defence. As the law now stands self-defence is open as a
complete defence
to all charges of intentional violence against a person, including murder.
Provocation, however, has always been
viewed as a peculiar doctrine founded
historically in the need to ameliorate what was the automatic and drastic
consequences of a
conviction for murder: see Reg. v. Voukelatos(20)."
11. However, in Duvivier(21), Mitchell J in the South Australian Court of
Criminal Appeal reviewed the authorities and said(22):
"To attempt to commit murder is to attempt to kill in circumstances which
will amount to murder. If a person attempts to kill
in circumstances in which
he is acting under provocation and does kill, his crime will not be murder but
manslaughter. I can see
no logical reason for conviction of an attempt to
commit murder in such circumstances. Furthermore, the fact that the maximum
penalty
for a conviction for attempted murder is the same as the mandatory
penalty for murder indicates the seriousness of the conviction
for attempted
murder. It is not, in my view, sufficient to say that provocation can be
taken into account in sentencing. In my
opinion therefore provocation is a
defence to attempted murder."
Her Honour found that a verdict of attempting to commit manslaughter was not
open to the jury(23). Therefore if the Crown has not
negatived provocation on
a charge of attempted murder the accused is not liable to be convicted of any
offence on that count, unless
alternative verdicts are open on the
information.
12. With respect, I am unable to agree with that view. Provocation does not
negative the existence of the specific intent or recklessness
that is
essential to establish the crime of murder but, "because that intent or
recklessness is a product of provocation, the crime,
the elements of which are
otherwise made out, should be reduced to manslaughter"(24). But that intent
or recklessness is not the
source of the intent essential to the crime of
attempted murder. As the mental element of a crime of attempt is not
necessarily
the state of mind prescribed as an element of the corresponding
completed crime, it does not follow that provocation affects the
mental
element in attempted murder.
13. The definition of attempt does not include the mental state of "sudden
passion" that is essential to provocation. The ingredients
of provocation,
other than the initiating wrongful act or insult, are states of mind. But the
states of mind that are imported into
the definition of an attempt, either at
common law or under s.2 of the Tasmanian Code, do not include the mental state
of being provoked.
Provocation can be distinguished from those "defences"
which bear upon the culpability of a homicide, even an intended homicide.
An
act done with intention to cause death in circumstances where the act is
excused as an act done in self-defence or where the
act is done with lawful
authority does not make the doer of the act guilty of attempted murder. But
provocation never excuses or
authorizes the doing of a fatal act. An offender
whose conduct and intent satisfy the elements of the crime of attempted murder
is not excused because, if death had ensued as intended, he would have been
guilty of manslaughter only, not of murder.
14. Sub-section (1) of s.160 is, by its terms, applicable only to "the person
who causes death", not to a person who, though intending
that death should be
caused, does not cause it(25). Sub-section (2) of s.160 applies only to the
person causing the death when he
"acts upon it" (the provocation) at the
relevant time, that is, at the time of the doing of the act which causes the
death. If s.160
were in some way to be incorporated into s.2, the element of
intent in s.2 would have to incorporate much more than the specific
intent to
cause the death of a person. It would have to include a state of mind
depriving the offender of the power of self-control
at the time of doing the
fatal act and a doing of that act "on the sudden, and before there has been
time for his passion to cool".
Incorporation of s.160 into s.2 is impossible.
A direction to a jury that s.160 is incorporated into s.2 would be confused
and confusing.
15. Moreover, where the facts of a case warrant consideration of s.160, the
Code, by its terms, allows the jury to evaluate the
conduct of an offender who
has committed culpable homicide with any of the states of mind prescribed by
s.157(1). That is manifest
from the provisions of s.160(3) which define as a
question of fact "whether the conditions required by subsection(2) were or
were
not present in the particular case". The purpose of s.160 is to provide,
as the common law provides, a reconciliation between respect
for the sanctity
of the human life that has been taken and the recognition of the effect of
provocation on human frailty(26). When
the punishment prescribed for murder
was mandatory, that reconciliation had to be left to the jury. It never had to
be left to the
jury when the accused was charged with attempted murder:
provocation could be evaluated by the judge in imposing sentence.
16. In my view the majority of the Court of Criminal Appeal was right to hold
that s.160 has no application to the crime of attempted
murder. The appeal
should be dismissed.
DEANE J This is an appeal from a decision of the Tasmanian Court of Criminal
Appeal (Green CJ and Wright J; Zeeman J dissenting)
affirming the appellant's
conviction of attempted murder. The central question which it involves is one
of statutory construction.
It is whether, under the provisions of the
Tasmanian Criminal Code ("the Code"), a person is guilty of attempted murder
if, being
provoked, he attempts to kill a person in circumstances where, if
he
had succeeded and the victim had died, he would not have been
guilty of murder
by reason of the provocation. If the relevant
provisions of the Code were
truly equivocal in relation to the answer
to that question, a well-settled
principle of statutory construction
would require that it be answered against
the Crown, that is
to say, to the effect that such a person is not guilty of
attempted
murder. As Brett J observed in Dickenson v. Fletcher(27):
"Those who contend that the penalty may be inflicted, must shew that the
words of the Act distinctly enact that it shall be incurred
under the present
circumstances. They must fail, if the words are merely equally capable of a
construction that would, and one that
would not, inflict the penalty."
2. Ultimately, however, I find it unnecessary to rely on that principle of
statutory construction. In my view, the effect of the
relevant provisions of
the Code is, as a matter of ordinary language, that a person who attempts to
kill another person is not guilty
of attempted murder if the circumstances of
the case are such that he would not be guilty of murder if the attempt to kill
had been
successful. Since that conclusion is a dissenting one, I shall
confine myself to a brief statement of my reasons for it. To a significant
extent, those reasons reflect the dissenting judgment of Zeeman J in the Court
of Criminal Appeal and the argument of the late Mr
H.J. Kable of Queen's
Counsel who appeared for the appellant on the appeal to this Court.
3. The provisions of the Code which are directly in point are ss.157(1)(a),
160, 299 and, most important, s.2(1). Section 157(1)(a)
reads:
"(1) Subject to the provisions of section 160, culpable homicide is murder
if it is committed --
(a) with an intention to cause the death of any person, whether of the
person killed or not".
4. Section 160(1) provides:
"(1) Culpable homicide, which would otherwise be murder, may be reduced to
manslaughter if the person who causes death does so
in the heat of passion
caused by sudden provocation."
It is to be noted that s.157(1)(a) is expressly made "subject to" s.160 and
that s.160 applies not to "murder" but to "culpable homicide,
which would
otherwise be murder" (emphasis added). That means that, whatever may
be the
position at common law, the crime of murder
is simply not committed under the
Code in a case which falls within s.160. The only crime committed under the
Code in such a case
is manslaughter.
5. It was not argued on behalf of the appellant that s.160 can be directly
applied to reduce what would otherwise be the crime of
attempted murder to the
crime of attempted manslaughter.
Clearly, it cannot. Section 160 applies
only to a case where there has
been an actual killing amounting to culpable
homicide. The appellant's argument is that provocation
is available as a
defence to
a charge of attempted murder not by reason of the direct operation
of s.160 but by reason of the indirect operation of that section
through the
provisions of the Code dealing with "attempting to commit" a
crime.
6. Section 299 of the Code provides:
"Any person who attempts to commit a crime is guilty of a crime.Section 2(1) defines an "attempt to commit a crime" as:
Charge: Attempting to commit (specify particular crime)."
7. The Code does not provide a definition of the phrase "series of events" as
used in s.2(1). That sub-section does, however, make
clear that the "series
of events" to which it refers in its second limb (or requirement) encompasses
more than the "act or omission"
and "intent" mentioned in the first limb. As
a matter of ordinary language, the phrase "series of events" is apposite, in
its context
in s.2(1), to refer to the actus reus and the surrounding
circumstances and to include any act, omission, mental state or other
circumstance
which is relevant to ascertaining whether the accused would, if
he had done what he intended to do, have actually committed the particular
crime. In my view, the phrase is used with that meaning in s.2(1).
8. It was argued on behalf of the Crown that s.2(1)'s requirement that the
series of events would, if not interrupted, constitute
the actual commission
of the crime of murder should be construed as referring only to the elements
of that crime and that provocation
was not such an element. The answer to
that submission is that it ignores the ordinary meaning of the language of the
requirement,
including the significance of the phrase "the actual commission".
The inclusion of that phrase underlines the fact that the requirement
is
directed not to the existence or non-existence of theoretical "elements" of
the particular crime but to the practical question
whether the particular
crime would have actually been committed if the series of events had not been
interrupted under the Code.
9. It follows that the relevant "series of events" is not confined to the
bare elements of the particular crime. It encompasses
any circumstances whose
existence would have precluded the actual commission of the crime if the
relevant series of events had not
been "interrupted". In a case such as the
present where the alleged attempted crime under the Code is murder, those
circumstances
include both circumstances of lawful justification(28), such as
reasonable self-defence(29) or (in earlier times) execution of sentence(30),
which would have precluded the commission of any crime at all, and
circumstances of mitigation, such as provocation(31) or post-natal
disturbance(32), which would have had the effect that the crime actually
committed was not murder. In other words, if circumstances
exist which would
have satisfied the requirements of s.160 if there had been a homicide,
s.2(1)'s requirement that the "series of
events" would, if uninterrupted,
"constitute the actual commission of the crime" of murder will not be
satisfied. That means that,
under the Code, provocation is, albeit
indirectly, available as a defence to a charge of attempted murder.
10. It was also argued on behalf of the Crown that the above construction of
s.2(1) would have the anomalous effect that a person
who attempted to kill
another in circumstances of provocation would be guilty of neither attempted
murder nor attempted manslaughter
notwithstanding the fact that, if the
attempt had been carried to completion, he would be guilty of manslaughter.
That submission
seems to me to lack real force. Indeed, it seems to me that
it would be more anomalous if a person were guilty of attempted murder
in
circumstances where he would be not guilty of murder if the attempt had
succeeded. In any event, I am not persuaded of the correctness
of the
assumption underlying the argument. That assumption is that a person who
attempts to kill another person in circumstances
of provocation cannot be
guilty of the crime of attempted manslaughter.
11. The basis of the proposition that, under the Code, a person cannot be
guilty of attempting to commit manslaughter would seem
to be a view that
s.2(1)'s "intent to commit" manslaughter could not be satisfied. A person
cannot, so it is said, intend to commit
a provoked killing of another person.
With due respect, that approach seems to me to fail to appreciate the true
import of s.2(1)'s
requirement of an "intent to commit that crime".
12. As Blackburn CJ pointed out in Reg. v. Helmhout(33), an intent to commit
a particular crime "can literally exist only in the
mind of a person who knows
enough criminal law to understand that what he intends to do will be" that
crime. In the context of s.2(1),
the phrase "intent to commit that crime"
plainly does not bear that literal meaning. The requisite intent will exist
if the particular
act or omission is done or made with whatever intent is
necessary for there to be a commission of the particular crime in the
circumstances
which exist. That being so, it is no more to the point that a
person will ordinarily not intend to commit the crime of manslaughter
in the
sense of intending to commit a provoked killing than it is to the point that a
person will not ordinarily intend to commit
the crime of murder in the sense
of intending to commit an unprovoked killing. The intent to commit the crime
of murder for the
purposes of s.2(1) is an intention to kill in circumstances,
including absence of provocation, where the killing would constitute
murder.
Correspondingly, an intent to kill in circumstances where the killing would
constitute manslaughter by reason of provocation,
for the purposes of s.2(1),
is an intent to commit manslaughter. The point was well made by Blackburn CJ
in Helmhout(34):
"Plainly, therefore, the phrase 'intent to commit murder' as used in the Act
(both the Victorian Act and the Crimes Act 1900 of
NSW) is not used in the
literal sense; it is not to be construed as denoting an actual state of a
person's mind. It must, rather,
be a pregnant or elliptical phrase, meaning
'an intention to kill held in circumstances in which, if the killing takes
place as intended,
it will be murder'. If the death of the victim, as a result
of the carrying out of his intention by the accused, would not, for any
reason, have entailed a verdict of guilty of murder, then the intention held
by him, whatever it was, was held in circumstances other
than those which
satisfy the meaning of the phrase 'intent to commit murder'. Among these
possible circumstances are those giving
rise to the doctrine of provocation."
(emphasis added)
13. It follows that, if the circumstances of a case are such that an actual
killing would not have been murder by reason of provocation,
the first
requirement of s.2(1) will be satisfied with respect to the crime of attempted
manslaughter but not with respect to the
crime of attempted murder. In such a
case, the second requirement of s.2(1) will, as has been seen, also be
satisfied as regards
attempted manslaughter but not as regards attempted
murder since the series of events would, if uninterrupted, have constituted
"the
actual commission of" manslaughter not murder.
14. It should be mentioned that the Court's attention was drawn to a large
number of cases dealing with or relevant to the question
of whether
provocation constitutes a defence to a charge of attempted murder(35). With
the exception of a one page unreported ruling
of Crawford J in the Tasmanian
case of Reg. v. Anderson(36), none of those authorities is directly in point
since none of them arose
under a Criminal Code containing a statutory
provision, such as the Code's express subjection of s.157 to s.160(37), which
makes
plain that the crime of murder is simply not committed if the killing
was relevantly provoked. Nor was any of those
cases concerned
with the effect
of a statutory provision, such as s.2(1) of the Code, containing an express
requirement that the relevant series
of events would, if not interrupted,
"constitute the actual
commission of the crime"(38) of murder. In Anderson,
Crawford J ruled
that the effect of that requirement was that provocation was
indirectly available as a defence to the crime of attempting to commit
murder.
His Honour explained:
"What is the crime which would have really been committed? The crime which
he would have committed if the woman had died would
have been murder if there
was no provocation, and it would have been manslaughter if there was
provocation. So the Jury may reach
the position of having to decide what crime
would actually have been committed if the accused's wife had died as the
result of the
alleged choking, and, if they decide that the crime would have
been manslaughter, there can be no conviction for attempting to murder."
I agree with those comments.
15. In the present case, the Crown alleged that the appellant had attempted
to shoot and kill Ms de Vries. It was common ground
in this Court that the
circumstances were such that, if the appellant had succeeded in killing her,
an issue of provocation would
have arisen. That being so, the effect of what
has been written above is that provocation should have been left to the jury
as a
possible defence. It was also common ground that, in the particular
circumstances of the present case where the appellant had already
served the
whole of his non-parole period at the time the appeal was heard, the only
order which should be made in the event that
provocation should have been left
as a defence is an order quashing the appellant's conviction of the attempted
murder of Ms de Vries.
In those circumstances, and in a context where this
judgment is a dissenting one, it is unnecessary that I consider whether it
would
have been otherwise appropriate to order a new trial or to have
substituted a conviction of attempted manslaughter and remitted the
matter to
the Court of Criminal Appeal for the imposition of the appropriate sentence
for that crime.
16. I would allow the appeal, set aside the order of the Court of Criminal
Appeal and, in lieu thereof, order that the appellant's
conviction of the
crime of attempting to commit murder be quashed.
DAWSON J I agree with Brennan J, Toohey and Gaudron JJ that s.160 of the Criminal Code (Tas.) ("the Code") does not, in providing that provocation may reduce culpable homicide to manslaughter, apply to attempted murder. The language of s.160 clearly confines its application to culpable homicide which, apart from the section, would amount to murder. Under s.299 of the Code an attempt to commit an offence is a crime which is separate and distinct from the completed offence so that attempted murder is a separate and distinct offence from murder. Section 160, being restricted to culpable homicide, does not, therefore, apply to attempted murder.
2. There is, however, s.2(1) of the Code which defines an attempt to commit a
crime as "an act or omission done or made with intent
to commit that crime,
and forming part of a series of events which if it were not interrupted would
constitute the actual commission
of the crime". The argument was put that if
an attempted murder were provoked, it could not form part of a series of
events which,
if not interrupted, would constitute murder, because the
provocation would reduce the murder to manslaughter. I am unable to accept
that argument.
3. Provocation is not a justification or excuse for homicide as is, for
example, self-defence. It is sometimes described as a partial
defence, but in
truth it is an anomaly which finds its explanation in history. Provocation
provided the means by which the law avoided
the imposition of a mandatory
death sentence for murder when, having regard to ordinary human weakness in
response to provocation,
that sentence would have been unacceptably harsh(39).
At common law, provocation is no defence, partial or otherwise, to offences
other than murder; it is something to be taken into account in sentencing(40).
However, notwithstanding the disappearance of mandatory
sentences for
murder(41), the law continues to provide that murder may be reduced to
manslaughter where the killing is provoked.
Before provocation can be invoked,
all the elements of murder must be present. That is to say, the accused must
have caused death
with the intention of killing or inflicting grievous bodily
harm (putting recklessness to one side). It is only then that provocation
may
operate to reduce the offence of murder to manslaughter whether at common law
or under the Code(42).
4. Section 2(1) of the Code requires an attempt to commit a crime to be made
with intent to commit "that crime". That cannot, however,
mean in the case of
attempted murder that the accused must intend to commit murder as such.
Murder is a legal concept, being the
legal consequence of a series of acts or
events. It cannot matter whether the accused is sufficiently acquainted with
the law to
intend that legal consequence so long as he or she intends to do
those things which, if done, would constitute the crime. In the
present case,
there can have been no attempted murder unless the accused intended to cause
death. An intention to cause bodily harm
which the accused knew was likely to
cause death(43) would not be sufficient because an attempt must be accompanied
by an intention
to commit the completed crime and the completed crime of
murder involves death(44).
5. Section 2(1) also requires the act or omission relied on as an attempt to
form "part of a series of events which if it were not
interrupted would
constitute the actual commission of the crime". The sub-section is there
speaking of both the events and the legal
consequence - the crime - which for
present purposes is murder. Before provocation can have any application the
events in question
must constitute the crime of murder, for provocation only
operates to reduce that legal consequence, murder, to a lesser one,
manslaughter.
If provocation has no application the legal consequence remains
that of murder. Having regard to the terms of s.160, provocation
has no
application to reduce an offence, other than culpable homicide amounting to
murder, to a lesser offence. It has, therefore,
no application in the case of
attempted murder. Section 2(1) requires consideration of events, including
hypothetical events, in
order to determine whether they would constitute the
actual commission of the crime of murder. There can be no further
consideration
whether that legal consequence, if present (and it must be
present before provocation can apply), should be reduced by reason of
provocation. Any other approach to the matter would be to reduce attempted
murder to a lesser offence or to no offence at all by
reason of provocation
and that is something not contemplated by s.160 of the Code. I agree that the
appeal should be dismissed.
TOOHEY AND GAUDRON JJ The grant of special leave to appeal in this matter
confined the appellant to the following grounds:
"1. The Court of Criminal Appeal erred in law in holding the provisions of
Section 160 of the Criminal Code Act Tas (provocation)
were irrelevant to the
crime of attempted murder.
2. The Court of Criminal Appeal erred in law in failing to hold that the
jury should have been directed that unless the Crown
proved beyond reasonable
doubt that the acts of the accused were not provoked within the meaning of
Section 160 of the Criminal Code
Act the accused could not be convicted of the
crime of attempted murder.
3. The Court of Criminal Appeal erred in law in failing to hold that the
learned Trial Judge erred in law in failing to direct
the jury that in the
event the Crown had not negatived provocation (within the meaning of Section
160 of the Criminal Code) beyond
reasonable doubt the accused was entitled to
be acquitted of the crime of attempted murder.
4. The Court of Criminal Appeal erred in law in failing to hold that the
learned Trial Judge erred in law in directing the jury
that in the
circumstances of the case any disturbed, emotional, stressed state of mind or
any other state of mind of the accused
which deprived the accused of the power
of self-control, or any state of mind which could properly be described as
having been provoked,
was relevant only to the question of whether the accused
at the material time had the intention to kill the complainant."
In the event the Court was not called upon to deal with the third and fourth
grounds. The appellant had already served the minimum
sentence imposed on him
and, as the respondent did not seek a retrial in the event that the appeal was
upheld, it became common ground
that if the appellant could make good either
of the first two grounds, his conviction should simply be quashed, otherwise
the appeal
should be dismissed.
2. The appellant was convicted of attempting to murder Yvonne Gaye de Vries,
contrary to ss.158 and 299 of the Code(45). Section
158 provides that a
person "who commits murder is guilty of a crime, and shall be sentenced to
imprisonment for the term of his natural
life". Section 299 provides that
"(a)ny person who attempts to commit a crime is guilty of a crime".
3. There are definition and substantive sections in the Code that are
relevant to the issue raised by this appeal. Before referring
to those
provisions it is necessary to set out briefly the facts giving rise to the
appellant's conviction.
The facts
4. The appellant and Ms de Vries had lived in a de facto relationship for
several years. That relationship came to an end when,
on 22 July 1992, Ms de
Vries moved out of the house in which both had been living and went to live
with Mrs Judith McDonald, a fellow
employee with whom she had formed a sexual
relationship.
5. There were telephone conversations between Ms de Vries and the appellant,
largely it seems at his instance. On 31 July Ms de
Vries agreed to meet the
appellant at his house. Some time after 6 p.m. on that day Ms de Vries
telephoned the appellant to say
that she could not meet him because she had
had too much to drink but that he might come to her house where they could
talk in the
car. The appellant arrived at the house to find Ms de Vries and
Mrs McDonald on the floor of the lounge room, apparently kissing.
After a
brief conversation with Ms de Vries the appellant left the house but returned
an hour or so later. There was another conversation
with Ms de Vries in the
lounge room and the appellant left again.
6. At about 9 p.m. the appellant returned to the house yet again. Ms de
Vries went out to speak to him. After some conversation
he bent down and
picked up a rifle. According to Ms de Vries' evidence, they "just wrestled
with the rifle". It seems that the rifle
was pointed at her "momentarily".
According to the appellant he put the rifle under his chin and pulled the
trigger but nothing happened.
Ms de Vries ran away. The appellant went
through the front door of the house, saw Mrs McDonald and shot her in the arm.
7. The appellant was charged, in relation to Ms de Vries, with attempted
murder and, in the alternative, with assault. He was convicted
of attempted
murder. He was charged, in relation to Mrs McDonald, with attempted murder
and, in the alternative, with wounding.
The jury found him not guilty of
attempted murder but guilty of wounding. The Court of Criminal Appeal
dismissed the appellant's
appeal against the conviction for the attempted
murder of Ms de Vries.
The Code provisions
8. Section 156 of the Code provides that homicide may be culpable or not
culpable(46). It then identifies the circumstances in
which homicide is
culpable(47). It is not necessary to set out the section. While s.158 makes
murder a crime, it is s.157(1) which
specifies the cases in which, subject to
the provisions of s.160, culpable homicide is murder. The appeal was argued
on the footing
that the only relevant paragraph of the sub-section is par.(a)
whereby culpable homicide is murder if committed:
"with an intention to cause the death of any person, whether of the person
killed or not".
By s.159 culpable homicide not amounting to murder is manslaughter.
9. Section 160(1) provides that, if certain conditions are met, "(c)ulpable
homicide, which would otherwise be murder, may be reduced
to manslaughter if
the person who causes death does so in the heat of passion caused by sudden
provocation". Section 160(2) offers
a definition of provocation. The term
"provocation" is not used in the Code outside s.160(48).
10. As mentioned earlier, s.299 makes an attempt to commit a crime itself a
crime. "Attempt" is defined in s.2 which, so far as
is relevant, reads:
"(1) An attempt to commit a crime is an act or omission done or made with
intent to commit that crime, and forming part of a series
of events which if
it were not interrupted would constitute the actual commission of the crime.
(2) The offence of attempting to commit a crime may be committed, although the
offender voluntarily desists from the actual commission
of the crime itself,
and whether under the circumstances it was possible to commit such crime or
not."
11. It should be noted as well that the Code is not exclusive of the common
law. Section 8 of the Act reads:
" All rules and principles of the common law which render any circumstances
a justification or excuse for any act or omission or
a defence to a charge
upon indictment, shall remain in force and apply to any defence to a charge
upon indictment, except in so far
as they are altered by, or are inconsistent
with, the Code."
12. In Stingel v. The Queen this Court said of provocation in the Code(49):
"One finds in the authorities, including some Tasmanian judgments, a
perception that, in this particular field of criminal law,
the common law, the
Codes and other statutory provisions, and judicial decisions about them, have
tended to interact and to reflect
a degree of unity of underlying notions."
Nevertheless, in the present case Green CJ commented:
"the law relating to provocation in Tasmania has always been regarded as
being derived solely from the Criminal Code".
While the doctrine of provocation has its origin in the common law, the issue
raised by this appeal is essentially one of the proper
construction of the
Code.
The issue
13. The principal issue posed by this appeal is whether s.160 of the Code can
operate so as to provide a defence to a charge of
attempted murder and, if so,
with what consequences.
The Court of Criminal Appeal
14. Green CJ and Wright J held that s.160 could not operate as a defence to a
charge of attempted murder.
15. Directing his attention to s.160, the Chief Justice said that the section
did not apply to any crime other than murder, that
attempted murder is not a
subsidiary
form of murder but a distinct crime and so there was no possible
room for the section to operate
so as to reduce what would otherwise
be
attempted murder to attempted manslaughter. The appellant's argument was that
in order to
be satisfied that he was guilty of attempted
murder the jury had
to be satisfied that his act of taking up the rifle and pointing
it or trying
to point it was part of a series
of events which, if not interrupted, would
have constituted the actual crime of murder.
Thus, according to the argument,
the jury
had to be satisfied that had the appellant actually killed Ms de
Vries in circumstances
which would otherwise have amounted to murder,
that
murder would not have been reduced to manslaughter by the operation of s.160.
To that argument the Chief Justice's answer was that since the jury must have
been satisfied that the appellant intended to kill
Ms de Vries and a person
cannot intend to commit a provoked killing, there could be no consideration of
whether the killing might
have been provoked. Put another way, to determine
whether killing Ms de Vries would have constituted the crime of murder the
jury
must have regard to the elements of that crime and the absence of
provocation was not an element of that crime. It followed that
there was no
occasion for the trial judge to direct the jury as to provocation.
16. Wright J conducted a close analysis of the Code and of the decided cases.
He concluded:
" The most persuasive basis for concluding that provocation does not operate
to provide a basis for acquittal in cases of attempted
murder, lies in the
recognition that in a conviction for manslaughter based on provocation, as
distinct from such a verdict arising
from the operations of the Code, ss.156
and 159, all the elements of murder are present ... Murder only becomes
manslaughter by
reason of the reduction achieved by law."
17. Zeeman J took a different view. His Honour accepted that s.160 has no
operative effect in the sense that it cannot reduce attempted
murder to
attempted manslaughter. But, he said, the onus was
on the Crown to disprove
provocation and, if it failed to do so, the
appellant could not be convicted
of attempted murder because,
if the attempt had been completed, the appellant
would have been convicted
of manslaughter rather than murder.
Section 160 of the Code
18. The argument of the appellant was that s.160 allows a defence of
provocation to a charge of attempted murder and that that is
also the position
at common law. The argument has
two prongs. The first, which is reflected in
ground 1 of the notice of appeal,
argues in effect that since provocation may
reduce
what would otherwise be murder to manslaughter, it may also operate to
reduce
attempted murder to attempted manslaughter. The second,
which is
reflected in ground 2 of the notice of appeal, argues that even
if s.160 may
not operate directly on a charge of attempted murder, it was necessary for the
Crown to establish that if the appellant
had murdered
Ms de Vries, that murder
would not have been reduced to manslaughter by reason of s.160.
19. Section 2(1) of the Code requires, for there to be an attempt to commit a
crime, that there be "an act or omission done or made
with intent to
commit
that crime". Thus, while culpable homicide may constitute murder under s.157
in some cases where there is
no intention to kill, there can be no attempted
murder without an intent to kill. At common law, attempted
murder requires an
intent
to kill, no lesser intent being sufficient(50). The same is true under
the Code(51).
20. The provision in s.160 of the Code that provocation may reduce what would
otherwise be murder to manslaughter is a reflection
of the common law. As to
other offences under the common law the position was expressed in these terms
in Holmes v. Director of
Public Prosecutions(52):
"In the case of lesser crimes, provocation does not alter the nature of the
offence at all: but it is allowed for in the sentence.
In the case of
felonious homicide, the law has to reconcile respect for the sanctity of human
life with recognition of the effect
of provocation on human frailty."
21. The language of s.160 is against the argument that provocation may
operate to reduce attempted murder to attempted manslaughter.
It is only
"(c)ulpable
homicide, which would otherwise be murder" to which the section
refers. And as Green CJ pointed out, attempted
murder is not a subsidiary
form of murder. A criminal attempt is itself an offence, "separate and
distinct from the crime alleged
to be attempted"(53). It
is a distinct crime
as is apparent from the Code and from the indictment which reads:
"STATEMENT OF CRIMEFirst Count
ATTEMPTED MURDER - Contrary to Sections 158 and 299 of the Criminal Code.PARTICULARS
22. The alternative argument focuses on what is involved in the crime of
murder, in particular whether a provoked killing that would
otherwise be
murder can be treated as murder if there is provocation within s.160. The
argument, in effect, is that a person cannot
be convicted of attempted murder
when, if the person had killed the other, that
killing could not be murder
because death was caused
"in the heat of passion caused by sudden
provocation". To put the matter that
way is to import into the crime of
murder non-provocation
as an element and in turn to import it into the crime
of attempted murder.
There is no warrant for either step.
23. Under s.2(1) of the Code, the definition of attempt has two limbs. The
first limb relevantly refers to an act done with intent
to commit the crime
of
murder and the second limb refers to such an act forming part of a series of
events which if it were not interrupted
would constitute
the actual commission
of the crime of murder. Murder is culpable homicide which answers one of the
descriptions
in s.157 of the Code. Provocation does not qualify the
circumstances in which culpable homicide constitutes murder. Rather, it
assumes that
there is a culpable homicide which constitutes murder in terms of
s.157 and operates so as to reduce that culpable homicide
to manslaughter.
Section 159, which provides that culpable homicide not amounting to murder is
manslaughter, is to be read with s.157
so that between them the two sections
deal with the consequences of culpable homicide. But s.159 has nothing to say
in the present
situation. Sections 157 and 160 mesh, not in the sense that
the latter says anything of the circumstances in which culpable homicide
constitutes murder, but in the
sense that what would be murder in terms of
s.157 may be reduced to manslaughter in the particular
circumstances referred
to in s.160.
24. It is true that there are decisions which seem to lend some support to
the appellant's argument but others tell against it.
In any event most are
from other jurisdictions, involving different language(54). Thus, to the
extent that the argument for the
appellant was based on ss.2(1) and 160 of the
Code, they are of little assistance. Particular reference should be made to
the judgment
of Crawford J in Reg. v. Anderson(55)
where his Honour said in a
passage which does not appear in the brief note of the case: "I
hold that, in
Tasmania, provocation is
applicable to the crime of attempting to murder."
His Honour drew particular support from
the concluding words of s.2(1),
saying:
"What is the crime which would have really been committed? The crime which
he would have committed if the woman had died would
have been murder if there
was no provocation, and it would have been manslaughter if there was
provocation. So the Jury may reach
the position of having to decide what crime
would actually have been committed if the accused's wife had died as the
result of the
alleged choking, and, if they decide that the crime would have
been manslaughter, there can be no conviction for attempting to murder."
25. The difficulties that result from this approach are apparent. The jury
are asked to consider a situation which is to a considerable
extent
hypothetical. It is true that the approach requires the existence of evidence
from which provocation might be inferred. But
it is still a hypothetical
situation in so far as the jury have to consider not only whether the series
of events, if not interrupted,
would constitute the actual commission of the
crime of murder, but also whether the actual commission (if that had taken
place) would
have been in the heat of passion.
26. There is also an anomaly in that if there can be no conviction for
attempting to murder in the circumstances, the accused must
be acquitted.
There are provisions in the Code which permit alternative verdicts(56) but
none is relevant to the present charge.
And s.332(1) reads:
" Except as provided in this chapter no person shall on an indictment for a
crime be convicted of any other crime."
27. It would follow, if the approach taken by Crawford J be accepted, that
although provocation may operate to reduce murder to
manslaughter, it may also
operate to preclude any conviction for the crime of attempted murder. And
this notwithstanding that there
must in any event be an act done with intent
to commit the crime of murder before there can be an attempt to commit that
crime. If
the language of the Code dictated that result, it would be a matter
for the legislature to consider whether this apparent hiatus
should be filled.
But in our view there is no such hiatus.
28. In Duvivier(57) two members of the Court of Criminal Appeal, South
Australia held that the doctrine of provocation applies to
charges where an
intention to kill is alleged so that it applies not only to a charge of murder
but also to a charge of attempted
murder. The statute with which their
Honours were concerned was the Criminal Law Consolidation Act 1935 (S.A.),
s.18 of which created
an offence of "attempts to commit murder". Mitchell J
said(58):
"To attempt to commit murder is to attempt to kill in circumstances which
will amount to murder. If a person attempts to kill
in circumstances in which
he is acting under provocation and does kill, his crime will not be murder but
manslaughter. I can see
no logical reason for conviction of an attempt to
commit murder in such circumstances."
Zelling J took much the same approach but concluded(59): "I think, however,
that attempted manslaughter is a misdemeanour at common
law."
29. It is apparent that the statutory regime in South Australia on which
Duvivier was decided is different from the Code. To the
extent that the
observations of Mitchell J and Zelling J do not depend upon the particular
language of the South Australian statute,
they are, with respect, subject to
the objections which we have mentioned in regard to Anderson(60). Moreover,
they overlook the
unique nature of provocation which merely reduces murder to
manslaughter in "allowance ... for human frailty" and in recognition
that a
provoked killing is "less heinous than an intentional killing by a person in
possession of his self-control"(61). Given the
unique nature of provocation,
there is no reason for symmetry between murder and attempted murder in this
area.
30. The "series of events" to which the second limb of s.2(1) of the Code
refers, as Neasey J noted in Haas v. The Queen(62), is
a "notional ... series
of events culminating in the actual crime, whereas necessarily in an attempt
no such completed series can
occur". It is that series of events which if it
were put into effect would constitute the actual commission of the crime, in
this
case the crime of murder. In Haas(63) Neasey J thought it impossible to
read sub-s.(1) literally and still give effect to sub-s.(2).
We respectfully
agree with Neasey J that sub-s.(1) must be read down so as to mean "a series
of events which would, if his purpose
were achieved, constitute the actual
commission of the crime"(64).
31. There is a difficulty with the words "with intent to commit that crime"
in the first limb of s.2(1). It is unreal to speak
of the accused's intent to
commit the crime of murder. As Blackburn CJ observed in Helmhout(65):
"An intent to commit murder can literally exist only in the mind of a person
who knows enough criminal law to understand that which
he intends to do will
be murder. Plainly, therefore, the phrase 'intent to commit murder' ... is
not used in the literal sense;
it is not to be construed as denoting an actual
state of a person's mind. It must, rather, be a pregnant or elliptical
phrase, meaning
'an intention to kill held in circumstances in which, if the
killing takes place as intended, it will be murder'."
At the same time, this observation must be taken in context. Blackburn CJ was
dealing with an offence of wounding with intent to
murder, an offence which
did not include any equivalent of the second limb of s.2(1) of the Code. The
observation does not therefore
support the view that, in terms of the Code,
attempted murder requires an intention to kill in circumstances which include
the absence
of provocation. It follows that, in order to convict the
appellant of attempted murder the jury had to be satisfied that the act
of
pointing the rifle at Ms de Vries was part of a series of acts which, if
uninterrupted, would have constituted the crime of murder
as defined in s.157,
read with s.156.
32. In the present case the first step taken by Zeeman J, namely that where a
person charged with murder sufficiently raises the
question of provocation the
Crown bears the onus of disproving it beyond reasonable doubt is
unexceptional. So too is the second
step that if the Crown fails to discharge
the onus the accused cannot be convicted of murder. But the next step, namely
that s.157(1)
of the Code does not operate to make murder culpable homicide
within any of the paragraphs in the sub-section if provocation is properly
raised but not disproved, does not take the argument anywhere. It fails to
have regard to what is involved in the definition of
attempt in s.2(1). It
takes the unwarranted step of applying the circumstances in which murder may
be reduced to manslaughter to
a different situation in which a person is
charged with attempted murder. In that situation s.160 has nothing to say.
The relevant
principles must be found in ss.2, 156 and 157.
33. Any argument resting upon an analogy with self-defence is not persuasive.
The reason why the analogy must be rejected is to
be found in the ruling of
Hampel J in Reg. v. Farrar(66).
"Self-defence, as it is now understood, is a complete defence because in
appropriate circumstances it justifies extreme violence
and even a killing
which would otherwise amount to murder. Provocation, on the other hand,
excuses a person from incurring the consequences
of a conviction for murder
but does not justify a killing which would otherwise amount to murder. It
reduces murder to manslaughter."
Conclusion
34. While reference has been made in these reasons to a number of
authorities, the answer to the question raised by this appeal
must be found in
the language of the Code. In particular it must be found in a Code where the
role of provocation is limited by
s.160 to reducing the crime of murder to
that of manslaughter. It has no other role to play.
35. The appeal should be dismissed.
Footnotes
1 9th ed (1950) at 24.
2 See the "Report of the Royal Commission appointed to consider the Law of
Indictable Offences", (1879) (C. 2345) at 19, printed
in British Parliamentary
Papers: Criminal Law, (1847-1879), vol.6 at 387.
3 Provided, however, that the act or omission is not "too remote to
constitute an attempt to commit a crime": see s.2(4). No question
of
remoteness arises in this case.
4 Alister v. The Queen [1984] HCA 85; (1984) 154 CLR 404 at 421-423; Knight v. The Queen
[1992] HCA 56; (1992) 175 CLR 495 at
501, 508; Whybrow (1951) 35 Cr App
R 141 at 147-148;
Grimwood (1962) 46 Cr App R 393; Reg. v. Spartels (1953)
VLR 194 at 195.
5 (1972) Tas SR 127 at 130-131. In Whybrow (1951) 35 Cr App R at 147,
Goddard LCJ spoke of intent as "the principal ingredient
of the crime" of
attempted murder.
6 Reg. v. Spartels (1953) VLR at 195; Whybrow (1951) 35 Cr App R at 147-148;
Grimwood (1962) 46 Cr App R 393; and see R. v. Hornbuckle
(1945) VLR 281.
7 Haas v. The Queen (1964) Tas SR 1 at 27-29.
8 Section 157:
" (1) Subject to the provisions of section 160, culpable homicide is murder if
it is committed -
(a) with an intention to cause the death of any person, whether of the
person killed or not;
(b) with an intention to cause to any person, whether the person killed or
not, bodily harm which the offender knew to be likely
to cause death in the
circumstances, although he had no wish to cause death;
(c) by means of any unlawful act or omission which the offender knew, or
ought to have known, to be likely to cause death in the
circumstances,
although he had no wish to cause death or bodily harm to any person;
(d) with an intention to inflict grievous bodily harm for the purpose of
facilitating the commission of any of the crimes hereinafter
mentioned or the
plight of the offender upon the commission, or attempted commission, thereof;
(e) by means of administering any stupefying thing for either of the
purposes mentioned in paragraph (d); or
(f) by wilfully stopping the breath of any person by any means for either of
such purposes as aforesaid,
although, in the cases mentioned in paragraphs (d), (e) and (f), the offender
did not intend to cause death, and did not know that
death was likely to
ensue.
(2) The following are the crimes referred to in paragraph (d) of subsection
(1): -
Piracy, and offences deemed to be piracy; murder; escape or rescue from prison
or lawful custody; resisting lawful apprehension;
rape; forcible abduction;
robbery with violence; robbery; burglary; arson."
Section 158 defines murder to be a crime.9 (1948) VLR 61.
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