Boughey v R [1985] TASSC 5

1 This is an appeal against the appellant's conviction for murder.

2 The appellant was a medical practitioner. In statements he made to the police and in evidence which he gave at the trial he said that for most of his adult life he had gained sexual stimulation from masochistic practices but that he was not a sadist. One practice in which he engaged was to press the carotid arteries on both sides of his partner's neck and to submit to the same technique himself. He said that it caused light headedness and increased sexual excitement.

3 The deceased was a Fijian woman. The appellant corresponded with her and brought her to Hobart where they commenced living together. At first their sexual relations followed a conventional form, but then according to the appellant he introduced her to his masochistic practices, including the carotid artery technique which they practised on each other. He said that he never applied it to the deceased without her consent.

4 Dr Cummings, who is the Director of Forensic Pathology at the Royal Hobart Hospital, conducted a post mortem examination of the deceased. He expressed the opinion that death could have been caused by occlusion of the airway, compression of the artery thus preventing the passage of blood to the brain, or because of pressure on a nerve complex called the carotid sinus which is situated at the point in the neck where the carotid artery branches. In the latter event death would have followed quickly as the result of a reflex cessation of the heart beat. For reasons which he developed Dr Cummings thought it probable that death was caused both because of occlusion of the airway and pressure on the artery and possibly also because of pressure on the carotid sinus, causing the heart to stop at some stage after the other two factors had been operative for some time.

5 During the course of his evidence the appellant said that he understood that if the carotid arteries were shut off for a period of three or four minutes cerebral anoxia and death could result, but that in engaging in this practice he had never shut off the artery for anything like that period of time. He also said that he did not know that pressure on the carotid sinus could cause cardiac arrest, although he knew that a sudden sharp blow could do so.

6 The appellant at first told the police that on the night of her death the deceased went to bed early whilst he went to sleep in the lounge room. He said that he woke up, went into the bedroom and discovered that the deceased was not breathing and she did not respond to his attempts to revive her. Eventually he made a statement to the police in the following terms:-

"Sergeant ESTCOURT said, 'To get this perfectly clear, is it correct that you went into the bedroom with Begum after dinner and stayed there in fact until Miriam arrived?'

Dr BOUGHEY said, 'Yes, that is right.'

I said, 'As I have already said, Begum died as a result of manual strangulation, is there anything you wish to say about this now?'

Dr BOUGHEY said, 'What happened was I fell asleep with Begum, when I woke up I wanted Begum to become responsive, I put each of my thumbs to her carotid arteries and pressed, there was no immediate reaction, so I pressed harder.'

I said, 'How long were you pressing her carotid arteries with your thumbs?'

Dr BOUGHEY said, 'Quite some time.'

I said, 'Was she breathing before you started pressing?'

Dr BOUGHEY said, 'Yes, she was.'

I said, 'Did you realise the implications as to what you were doing?'

Dr BOUGHEY said, 'I just wanted her to become more assertive.'

I said, 'Did you intend to kill her?'

Dr BOUGHEY said, "I don't really know, I remember thinking of Miriam and that's about all.'

I said, 'Being a medical practitioner didn't you realise how dangerous this action was?'

Dr BOUGHEY said, 'Not at the time but I do now.'"

7 In his evidence at the trial the appellant said that this statement to the police was untrue and that whilst he and the deceased, who was fully conscious, were engaging in sexual activity and the appellant was applying the carotid artery technique, the deceased suddenly vomited and went limp. He was not certain but thought there was no pulse. He attempted to revive her but she did not respond.

8 In the course of his summing-up to the jury the judge gave the jury a written memorandum in the following terms:-

"THE QUEEN v BOUGHEY

MEMORANDUM TO THE JURY

1 'Killing' is causing the death of a person by an act or omission but for which he would not have died when he did, and which is directly and immediately connected with his death.

2 The question whether an act is directly and immediately connected with a person's death is a question of fact depending upon the circumstances of each particular case.

3 Murder

If the accused killed the deceased by applying manual pressure to her neck or in the region of her neck in the manner and with the force and for the length of time that he did -

A It would be murder if:-

(2) he intended thereby to cause the deceased bodily harm which he knew to be likely to cause her death in the circumstances, although he had no wish to cause her death;

(3) such application of pressure by the accused was an unlawful act which the accused knew, or ought to have known, was likely to cause her death in the circumstances, although he had no wish to cause her death.

B If it was not murder, it would be manslaughter if:-

(a) the accused's act was intended to cause bodily harm only to the deceased; and was an act not justified under any provision of the Criminal Code;

(b) the accused's act was one which is commonly known to be likely to cause bodily harm, and which was not justified under any provision of the Criminal Code;

(c) the accused's act was unlawful, and was inherently dangerous, in the sense that a reasonable man in the accused's situation would have realised that he was exposing her to an appreciable danger of really serious injury.

4 The accused's act (namely, application of manual pressure by the accused to the neck or in the region of the neck of the deceased, in such manner and with such force and for the length of time that he did), would be unlawful, and would not be justified under any provision of the Criminal Code, unless the deceased consented to such act.

5 'Consent' means a consent freely given by a rational and sober person so situated as to be able to form a rational opinion upon the matter to which he or she consents. A consent is said to be freely given when it is not procured by force, fraud or threats of whatever nature.

6 'Bodily harm' includes any hurt or injury calculated to interfere with health or comfort. It need not be permanent but must be more than transient or trifling.

7 In order to convict the accused of murder or manslaughter, the jury must in either case be satisfied of his guilt beyond reasonable doubt.

8 On a charge of murder, if the jury is not satisfied beyond reasonable doubt that the accused committed murder, it may convict the accused of manslaughter if it is satisfied beyond reasonable doubt that the accused committed manslaughter.

9 Intoxication or the effect of a drug or both could only provide the basis of a defence for the accused if it reached such a stage (either alone or in combination with other factors) as to render the accused incapable of forming any state of mind essential to the commission of murder or manslaughter. The prosecution must prove beyond reasonable doubt the existence of any such essential state of mind.

10 If the elements of murder or manslaughter are established as set out above, the contribution to her death of any unusual or unexpected aspect of the physiology of the deceased (if there was any) would not provide a defence of accidental killing."

9 I deal with the grounds of appeal in the order in which they were argued. Ground 5 was abandoned.

"That the learned trial Judge erred in law and in fact in directing the jury that in a consideration of what the Appellant ought to have known for the purposes of Section 157(1)(c) of the Criminal Code it was proper to take into account the extent to which his experience should have alerted the Appellant to the desirability of studying medical literature in order to acquaint himself with the dangers of applying pressure to the carotid arteries."

10 In his summing-up, whilst referring to para3A(3) of the memorandum, the learned trial judge said:-

"The phrase to which I would like to direct your attention mainly here is 'ought to have known'. Here you consider what in your view the accused ought to have known in all his then relevant circumstances. All his then relevant circumstances would include many factors; would include, for example, the fact that he is a medical practitioner, the nature of his medical practice over the years, his training, his sexual experiences, the extent to which, if any, his medical training and experience should have alerted him to the dangers of applying carotid artery pressure assuming you accept the medical evidence or the extent to which, if any, that experience, his experience, should have alerted him to the desirability of studying medical literature in order to acquaint himself with the dangers, if any, of such a practice and the physiological reactions involved and the like.

All of those would seem to be relevant factors to the question of what he ought to have known about whether the act - applying the sort of pressure he applied - was likely to cause death in the circumstances. If it was, again an issue for you to decide. I have named only some of the relevant circumstances and it will be for you to consider all the circumstances which you consider relevant in order to decide what he ought to have known."

11 In The Queen v Phillips (1971) 45 ALJR 467 Windeyer J, referring to s157(1)(c) of the Criminal Code said at p480:-

"It is at once apparent from that, contrasted with s156(2), that the test of whether or not a culpable homicide amounts to murder is a subjective one. It depends upon what the offender himself actually intended, knew or ought to have known, not on what would be commonly known.

......................

I think that a jury would be justified in finding that the accused knew, or ought if he had thought to have known, that it"

(ie the appellant's act of placing an unconscious girl in or just out of the water on a beach)

"was likely to cause death. On the other hand, if it were not positively established that he knew that the waters were tidal and that the tide might rise and water block the mouth and nose of the recumbent girl, the jury could not, I think, be satisfied that he knew or ought to have known when he did it that his deed was likely to cause death in the circumstances. It would not be enough to convict him of murder that this would be commonly known and his deed tortious because not the conduct of a reasonable man."

12 His Honour's statement that the test imported by s157(1)(c) is subjective cannot be read literally. It is a contradiction in terms to postulate a purely subjective test which contains the word "ought": whether or not a person has a particular state of mind is a pure question of fact in the determination of which it is irrelevant to consider what "ought" to have been that person's state of mind. But I think it is clear that Windeyer J did not mean that passage to be read in isolation. His reference to the subjective nature of the test under s157(1)(c) was made in order to emphasise the difference between that provision and s156(2), and the way in which he applied s157(1)(c) to the actual facts of that case shows that he was accepting that provided that it is proved that an accused person knows of the facts which give rise to the danger, he might be convicted of murder notwithstanding that it had not been proved that he had actually addressed his mind to that danger.

13 There exists a natural reluctance to countenance the possibility of a person being convicted of murder by committing an act which a jury judges he ought to have known was likely to cause death notwithstanding that it has not been shown that the accused actually addressed his mind to the dangerous quality of his act, but there is no escaping the fact that the words "ought to have known" postulate a distinct ingredient of the crime, which is an alternative to actual knowledge. However, as Windeyer J pointed out in Phillips' case, that does not mean that that ingredient is made out upon proof of mere negligence.

14 In my view, in order to show that an accused person "ought to have known" that his act was likely to cause death in the circumstances the jury must be satisfied beyond reasonable doubt that the accused knew of the facts which made it likely that his act would cause death and that taking into account the knowledge, expertise and understanding actually possessed by the accused, he ought, had he addressed his mind to the matter, to have known that his act was likely to cause death in the circumstances.

15 In my view, there was no error in that part of the learned trial judge's summing-up which is the subject of this ground of appeal. His Honour made it clear that the jury had to consider what the accused himself, as opposed to a reasonable man, ought to have known in the circumstances in which the accused actually found himself. The factors which he mentioned were by way of example only and were not exhaustive. His Honour's reference to the desirability of studying medical literature must not be considered in isolation. In making that comment he would have been understood as saying no more than that in considering whether they were satisfied that the accused ought to have known that his act was likely to cause death, one of the circumstances which the jury might take into account was the extent to which the accused appreciated in a general way the danger of applying pressure to the carotid artery and the extent to which he ought to have been aware of the danger of doing so blindly without ensuring that he knew what particular kind of application was lethal and what was not. His Honour did not suggest that that consideration was determinative of the issue - it was merely one of a number of factors which he suggested were examples of the kind of matters which the jury might take into account.

"That the learned trial Judge erred in law in that, in directing the members of the jury on the meaning of 'unlawful act' for the purposes of Section 157(1)(c) of the Criminal Code, he failed to inform them that, before they could find that the Appellant's act of applying force to the neck of the deceased was unlawful, they must find that that act was done with hostility by the Appellant towards the deceased."

16 It is accepted that no such direction was given.

17 Section 182 of the Criminal Code which defines assault, contains no suggestion that hostility on the part of the accused is an ingredient of the crime. However, an assault only becomes a crime if it is done unlawfully. An assault is unlawful unless it is justified by law. Section 8 of the Criminal Code Act 1924 provides that:-

"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."

It was established by Phillips' case (supra) that under the Criminal Code, an act which constitutes an assault will not be unlawful if it is done for the purpose of assisting or saving the victim from harm. The issue raised by this ground is whether the presence of hostility is a necessary ingredient of the crime of assault under the Criminal Code. The resolution of the issue could in some circumstances be critical because there could be assaults in which the actor was indifferent about the victim - ie his motive or attitude towards the victim could not be characterised as either malign or benign. In such a case if the presence of hostility in the actor were an essential ingredient of the crime he would be acquitted, whereas if it was only necessary to show an absence of an intention to help or ameliorate the condition of the victim, he would be convicted. In Phillips' case (supra) Barwick CJ said at p472:-

"Physical contact with a person may be a battery at common law. But it is not necessarily or universally so even if the contact is an intentional act and could be described as the application of force. Such contact is not a battery at common law, in my opinion, unless it is made in 'an angry, revengeful, rude, insolent or hostile manner', a description taken from Hawkin's Pleas of the Crown. Nor is it in my opinion necessarily a battery at common law to make contact with another for some purpose of the person making the contact in which the person touched or handled has, or could have an interest or benefit of his or her own, none of the other features of a battery being present."

18 In my view, his Honour's use of the word "unless" in that passage does lend support to the appellant's contention. However, with respect, I do not think that it is a view which was shared by the other members of the Court. McTiernan J adopted the judgment of Burbury CJ who was a member of the Court of Criminal Appeal which made the orders appealed from. Burbury CJ, in expressing his agreement with the reasons for judgment of Crawford J and Neasey J, said:-

"I agree that in this context 'unlawful' means not justified or excused by law, and that by virtue of s8 of the Criminal Code Act 1924 justification or excuse for an assault is not confined to matters enumerated in the Code, but extends to all matters of justification or excuse which may be found in the principles of the common law. I also agree that the jury should have been directed that if they thought that the accused's act in dragging the girl along the beach may have been done for the purpose of assisting her without any intent to expose her to danger, they could not find it to be an unlawful act within the meaning of either s156(2)(c) or s157(1)(c)."

Apart from observing at p475 that assault as defined by the Code is different from assault as defined by the common law, Menzies J did not discuss the question. At p479 Windeyer J said.:-

"Section 182 defines an assault comprehensively in terms which include a battery as understood at common law. I agree that the act of dragging the girl from where she first fell could be an unlawful assault. Whether it was so or not would, in my view, depend on whether when doing it the accused was actuated by animosity or by solicitude."

Owen J expressed agreement with the conclusion that the order made by the Court of Criminal Appeal was rightly made, but made no reference to this question.

19 I hold that under the Criminal Code in order to prove that an assault was unlawful it is not necessary to prove that it was accompanied by hostility. Whether a direction that the jury have to be satisfied that an accused person was not actuated by an intention to assist the victim is required will depend upon the circumstances of each case. Although, as with other "defences" such as self defence, the Crown carries the burden of negativing the existence of such an intention, a direction is only required when there exists some evidentiary foundation for doing so. In this case the appellant's desire to give sexual gratification to the deceased could not by itself (ie apart from the issue of consent about which directions were given and which the jury by their verdict must have determined against the appellant) have provided a justification at common law for what would otherwise have been an unlawful assault and no direction was called for.

"That the learned trial Judge erred in law in that, when directing the jury as to the meaning of 'unlawful act' for the purposes of Section 157(1)(c) of the Criminal Code, he failed to point out that, in order to be unlawful, the act must be one which is inherently dangerous."

20 If the jury were considering whether or not the appellant was guilty of manslaughter under s156(2)(c) of the Code then a direction in these terms would be called for and such a direction was given in this case - see para3B(c) of the trial judge's memorandum. However, in the circumstances of this case such a direction was unnecessary when the jury were considering whether the appellant was guilty of murder because the trial judge properly directed the jury in accordance with s157(1)(c) that in order to convict the appellant of murder they would have to be satisfied that he killed the deceased by an unlawful act which he knew, or ought to have known, was likely to cause her death in the circumstances. A direction that, in addition, the jury would have to consider whether a reasonable man in the appellant's situation would have realised that he was exposing her to an appreciable danger of really serious injury would have been otiose and confusing.

"That the learned trial Judge erred in law in directing the jury that the contribution to the death of the deceased of any unusual or unexpected aspect of the physiology of the deceased (if there was any) would not provide a defence of accidental killing.

That the learned trial Judge erred in law in failing to give the jury directions with respect to the provisions of Section 13 of the Criminal Code insofar as it is there provided that 'no person shall be criminally responsible ..... for an event which occurs by chance'."

"No person shall be criminally responsible for an act, unless it is voluntary and intentional; not, except as hereinafter expressly provided, for an event which occurs by chance."

22 Paragraph 10 of the trial judge's memorandum to the jury reads:-

"If the elements of murder or manslaughter are established as set out above, the contribution to her death of any unusual or unexpected aspect of the physiology of the deceased (if there was any) would not provide a defence of accidental killing."

His Honour enlarged upon that direction in these terms:-

"Now the point that is being made in ten is that if there was any such abnormal susceptibility, it would not mean that the death was accidental if he had in fact, caused it, that is to say in law, it would provide no defence of accidental death because if you apply an unlawful assault to somebody else's person and you thereby cause their death, you have to take your chances as to what the physiological make-up of that person is. If the person has got an eggshell skull or an enlarged spleen or an abnormal susceptibility to vagus nerve stimulation well you are fixed with that, you cannot take advantage of that and say it is an accident because the person happened to have that abnormal physiological condition so if that did occur, it does not provide any defence of accidental death because accidental death would be a defence if it were open but it is not open on that basis."

23 The learned trial judge gave no directions in the terms of the second part of s13(1) of the Criminal Code.

24 Counsel for the appellant accepted that for the purposes of s13(1) an event can be said to have occurred by chance if it was unintended, unforeseen and was not reasonably foreseeable. Counsel therefore accepted that the only possible occasion for a direction under s13(1) would have been for the purposes of the jury's consideration of whether the appellant was guilty of murder under s157(1)(c) of the Criminal Code on the basis that he killed the deceased by an unlawful act which he ought to have known to be likely to cause death in the circumstances. He submitted that if contrary to his submissions on grounds 8, 12 and 14, it was proper when considering what the appellant ought to have known, to have regard to the potentially dangerous consequences of his act to which the appellant's medical training should have alerted him, then a direction under s13(1) should have been given because when the jury are determining whether an event was reasonably foreseeable for the purposes of s13(1), they should not attribute to the reasonable man the knowledge and attributes of the appellant. In my view that proposition is untenable. The determination of whether a reasonable person would have foreseen the happening of an event cannot be made in vacuo: the reasonable man must be placed in the defendant's circumstances, which circumstances will include any special knowledge or expertise possessed by the defendant.

25 In my view acceptance of the appellant's submission would be inconsistent with the decisions of the High Court in Mamote-Kulang v The Queen [1964] HCA 21; (1964) 111 CLR 62 and of Burbury CJ in Reg v McCallum [1969] Tas SR 73.

26 In McCallum's case the accused killed his wife by thrusting a candle into her vagina with such force

"that it penetrated the vaginal wall and peritoneal cavity and lacerated part of the mesentery of the small bowel. Mrs McCallum was not taken to hospital until the following night, Saturday, 3rd May. By this stage infection had set in and she died despite all proper medical and surgical treatment.

"Whether or not the penetration of the fornix and the laceration of the mesentery in the present case formed part of the accused's act for the purpose of s13(1) and s156(2)(a) and (c), I am not persuaded that there is any basis for a defence under the second limb of s13(1). The internal wounds to the deceased were caused directly and immediately by the act of the accused in inserting the candle into the deceased's vagina and those wounds caused her death. There was no chance occurrence intervening between the accused's act and the death so as to displace the operation of s153(2) of the Code, which provides

'Killing is causing the death of a person by an act or omission but for which he would not have died when he did, and which is directly and immediately connected with his death.'

The thrusting of the candle into the vagina was a deliberate act and immediately caused the wounds. I think the point is concluded against the accused by Mamote-Kulang v The Queen [1964] HCA 21; (1964) 111 CLR 62, notwithstanding the view expressed by Hanger J in his dissenting judgment in Reg v Dabelstein [1966] Qd R 411. I refer particularly to the judgment of McTiernan J at p64, the joint judgment of Taylor and Owen JJ at pp65-66, and the judgment of Windeyer J at p82. I would also refer to my own ruling in Reg v McDonald [1966] Tas SR 263, at pp265-268, where I stated my understanding of the views of the majority of the members of the High Court in Mamote-Kulang v The Queen [1964] HCA 21; (1964) 111 CLR 62 as to the expression 'event occurring by accident'.

There is nothing in the judgments of the members of the High Court in Timbu Kolian v The Queen (1969) 42 ALJR 295 which I think is inconsistent with the conclusion that the second limb of s13(1) cannot provide a defence in a case such as the present where a physical injury is caused directly by the intentional act of the accused and there is no accidental circumstance intervening between that act and death.

I therefore hold that as the injuries which resulted in the deceased's death were directly and immediately caused by the accused's willed act, a defence that the injuries or death were events occurring by chance is not open and I shall accordingly not direct the jury on the second limb of s13(1)."

1">27 In Mamote-Kulang v The Queen (supra) the accused killed his wife by an intentional blow to her stomach. Her spleen ruptured because it was abnormally large, but had it been of normal size it was unlikely that it would have ruptured. The Court held that in those circumstances the death could not be held to be an event which had occurred by accident within the meaning of s23 of the Queensland Criminal Code. Counsel for the appellant sought to distinguish the decision in Mamote-Kulang v The Queen on the ground that in that case the accused intended to harm his wife. It is true that the trial judge in that case did find that the accused intended to cause his wife hurt or pain, but that fact was not material to the conclusion reached by the majority. What was of critical significance was the fact that the blow was struck intentionally, not that it was struck with any particular motive.

28 In the instant case the appellant's act of pressing on the carotid artery was, the jury must have found, intentional, unlawful and an act which the appellant ought to have known was likely to cause the deceased's death. In those circumstances there was no room for the application of s13(1) and no occasion for a direction under it.

"That the learned trial Judge erred in law in permitting evidence to be adduced with respect to the training received by medical students and the knowledge of medical practitioners generally concerning the carotid arteries, the vagus nerve and the effect of pressure on either or both of them."

29 The evidence the subject of this ground was given by two medically qualified witnesses called by the Crown. It was submitted that their evidence was not admissible because it was not relevant. In my view the evidence was admissible. No objection to the witnesses' expertise was raised and it is inherently a part of any expert witness' expertise to be aware of what is generally known to others who are similarly qualified. The extent and nature of the appellant's knowledge of the matters referred to in this ground was a material fact, the witnesses' evidence as to what is generally known by medical practitioners was circumstantial evidence which was capable of being logically probative of that fact and the witnesses were qualified to give that evidence. The evidence was therefore admissible. Most of the appellant's arguments in relation to this ground really went to weight, not to admissibility. I would reject this ground.

"qThat the learned trial Judge erred in law and in fact in failing to adequately review the evidence of Dr Royal Cummings and Dr Ronald Parsons upon the issue of whether the death of the deceased might have been caused by pressure upon a hypersensitive carotid body and/or vagus nerve."

30 The learned trial judge expressly referred to the evidence given by Dr Cummings and Dr Parsons that some people are much more sensitive than others to pressure on the carotid sinus and reminded them of several passages in Dr Cummings' evidence in which he expressed his opinion as to the possibility of the deceased's death being caused or contributed to by such pressure. As I understand his submission counsel for the appellant virtually accepted that the trial judge's review of this evidence was adequate. It appears that the appellant's real complaint is that although the learned trial judge indicated to the jury that this evidence was relevant to the question of consent, he did not, or he did not sufficiently, relate it to the issue of the appellant's state of mind, including, in particular, whether he knew or ought to have known that his act was likely to cause death.

31 In my view there is no substance in this ground as originally formulated, or in its revised form. It is not incumbent upon a trial judge to repeat in his summing-up every argument advanced by the accused, nor, when he is referring to a particular piece of evidence is he obliged to refer to all the possible issues to which it might be relevant. Further, his Honour expressly reminded the jury of the appellant's claim that the carotid artery technique which he applied to the deceased was the same as that which he had applied in the past without any untoward consequences, but that on this occasion it had disastrous results which he did not anticipate and which the defence claimed he had no reason to anticipate. Finally, it appears that counsel for the appellant at the trial was not conscious of any deficiency in the way in which the trial judge dealt with the evidence given by Dr Cummings because, although he asked his Honour to give a further direction about another aspect of his evidence, he made no submission to the effect that the summing-up was deficient in the way now complained of.

"That the learned trial Judge erred in law and in fact in that he failed to exercise his discretion to exclude the evidence that the following passage of conversation took place between Detective Sergeant Blue and the Appellant:

'Blue: 'If I put the proposition to you that you were Miriam's slave and that you believed Miriam wished you to kill Begum, would that sound ridiculous?'

Appellant: 'It's not a ridiculous proposition, I agree, I don't know the psychology of it. This would be a very subconscious proposition.'

Blue: 'Could this have occurred that night?'

Appellant: 'Now that you sort of rang a bell, yes, it could have.'

Blue: 'Did it?'

Appellant: 'Basically I don't really know."

32 The evidence objected to was part of the evidence given by Sergeant Blue as to a series of interviews had with the appellant over a long period. The appellant concedes that the evidence was admissible, but submits that it ought to have been excluded by the learned trial judge in the exercise of his discretion. Counsel submitted in essence that the evidence should have been excluded because its probative value was slight and was outweighed by its prejudicial effect. In particular, he submitted that the trial judge erred in the exercise of his discretion because he exaggerated the probative value of these admissions.

33 When exercising a discretion of this kind a trial judge is not concerned with making concluded findings as to the probative effect of the evidence which is sought to be excluded. He is primarily concerned with the probative value which it is capable of having. When the appellant agreed that "this" could have occurred that night he might have been agreeing that he held the belief and feeling indicated by Sergeant Blue at the subconscious level, or he might have been conceding the possibility that that was his actual conscious state of mind on the night of the killing. If the latter construction were accepted then obviously the evidence was highly probative and it could not be said that the learned trial judge erred in reaching the conclusion which he did. Further, a positive reason for not excluding the evidence was provided by the fact that a little later in the course of the same interview another police officer, referring to the deceased, asked the appellant "Did you intend to kill her?" to which the appellant replied "I don't really know, I remember thinking of Miriam and that's about all". That statement and the statements which are the subject of this ground of appeal could be regarded as being linked and thus the probative value of each should be assessed in conjunction with the other. Unless there is very good reason for doing so, evidence should not be excluded if its exclusion is capable of affecting the construction or probative value of other evidence which is admitted.

34 In my view no error in the way in which the learned trial judge exercised his discretion has been demonstrated.

"That the learned trial Judge erred in law in failing to direct the jury that where death is caused by an act intended to cause bodily harm the homicide is not culpable unless the jury is satisfied beyond reasonable doubt that such act was not otherwise justified under the provisions of the Criminal Code."

"That the learned trial Judge erred in law and in fact when directing the jury upon the question of bodily harm by referring to the perpetration of acts of masochism upon the Appellant as examples of bodily harm without further directing the jury that if death resulted from such acts the homicide would not be culpable unless the jury was satisfied beyond reasonable doubt that such acts were not justified under the provisions of the Criminal Code."

35 Two basic submissions were made in support of these grounds. The first was that the learned trial judge failed to follow the format of s156 and s157 of the Criminal Code and instruct the jury that they must consider whether the homicide was culpable before they considered whether it was murder. The second was that the trial judge failed to direct the jury that an essential ingredient of the crime of murder when it takes the form defined by s157(1)(b) is that the homicide must be caused by an act which is not justified under the provisions of the Code.

36 When instructing a jury as to the elements of murder there is no need to follow the scheme which the draftsman has followed in s156 and s157 of the Code. The way in which Parliament finds it expedient to declare the law has no bearing upon the way in which a trial judge ought to instruct a jury as to the law. A trial judge's primary duty is to inform the jury in terms appropriate to the facts and circumstances of the particular case as to what are the essential ingredients of the crime which they are considering. His decision about the way in which he does so should be informed solely by his view of what format will make his exposition most readily understood by the jury. In my view, the method adopted by the learned trial judge in this case of telescoping[1] the provisions of s156 and s157 and giving the jury a single list of the ingredients of the different forms of the crimes of murder and manslaughter, resulted in the jury being instructed in a straightforward and lucid way as to what the law was in respect of the matters which they had to consider. Further, a positive reason for not instructing a jury in accordance with the appellant's submissions is that to do so would in my view result in the jury being instructed in the way of which the Court of Criminal Appeal and the High Court disapproved in Phillips' case (supra).

37 I turn to the appellant's second submission. The ingredients of the crime of murder as defined by s157(1)(b) of the Code are that the appellant killed the deceased by an act intended to cause bodily harm which the appellant knew to be likely to cause death in the circumstances and which was not justified under the provisions of the Code. Both at the trial and before this Court it was expressly and rightly conceded by counsel for the appellant that the only possible justification for the appellant's acts was that the deceased consented to them. When instructing the jury as to this form of murder the trial judge did not direct the jury that they would have to be satisfied that the appellant's acts were not justified by virtue of the deceased's consent. However, s53 of the Code provides that a consent given to the infliction of an injury likely to cause death has no effect as regards criminal responsibility. The learned trial judge directed the jury that before they could convict the appellant of murder as defined by s157(1)(b) they would have to be satisfied not only that the appellant knew that the bodily harm was likely to cause death, but that in fact it was likely to cause death in the circumstances. Thus the jury were instructed to consider the very issue which determined whether or not the appellant's act was justified under the Code. It is true that the distinction between whether the appellant knew that the bodily harm was likely to cause death and whether it was in fact likely to cause death, was not explicitly drawn in the written memorandum which the trial judge furnished to the jury, but in my view, in the light of his oral directions there was no reasonable possibility of their being misled by that.

"That the learned trial Judge erred in fact in directing the jury that there was evidence of sadomasochistic predilections and/or behaviour on the part of the Appellant."

38 This ground was pursued on the narrower basis that the trial judge was in error when he said to the jury that the appellant said in his evidence that he had sado masochistic predilections, whereas it was submitted that at no stage in his evidence did he admit to having sadistic tendencies. I accept the factual basis of this complaint: the appellant maintained throughout his evidence that although he had masochistic tendencies he did not have sadistic tendencies. However, his Honour went on to say:-

"He says that these predilections have been well-established since his childhood in effect; since he was thirteen he had his first experience connected with them, you will recall. Now, that is to say, his evidence is that he has had these well-confirmed tendencies for well over thirty years and since this proposition appears to be confirmed in the clearest way by the writings that were found in his home and the various articles, that is to say, objects found there and since it is confirmed also in the clearest terms by the evidence of Mrs Redman, presumably you will have no difficulty in accepting that this trait does exist with him and is well-established with him. Again, of course, these are questions of fact for you."

That summary contained no error of fact and in his summing up his Honour made clear to the jury the evidence and the tendencies to which he was referring. It may be that it was an error to characterise the predilections revealed by that evidence as sado masochistic, but, if so, it was not an erroneous assertion of fact but merely a misdescription which I am not persuaded was of such a nature as to give rise to any risk that the jury would have been misled. If it was an error it was not a material error.

"That the learned trial Judge erred in fact in directing the jury that it was open to the jury to infer that the Appellant formed an intention to kill as a result of some sadistic impulse."

39 In the course of his summing-up, after referring to the carotid artery technique of sexual stimulation employed by the appellant, the trial judge told the jury that they would have to consider whether they were satisfied that that technique was applied on the night of the death and, if so, whether it caused the deceased's death. His Honour went on to say that if they did reach that conclusion

"it would seem that you would then have to go on to consider whether her death being caused in that way - it was intended by the accused or not. The Crown - as you have heard from Mr Hope - contends that it was intentional. The pressure on the throat was applied with intention to cause death. Now clearly enough, this is a first major question - or I say first because that is the way it is put in the memorandum. It does not mean that you have to consider it first. You consider those matters in any way you see fit, but I am treating it for the sake of order as being one of the if not the first major consideration, whether the accused intended death by that means, if you are satisfied that that is how the girl died and that he applied the pressure.

Now I might just pause to mention that that is another question - that is to say what he intended, whether he intended death or not - another question which could only be decided by drawing inferences from proved facts - from all the relevant facts which have been proved. There is no direct evidence of course that he did intend death, though there is direct evidence from him that he did not intend death. But any inference at any rate that he did intend death could only be, as I have called it - an inference from the proved facts, there being no direct evidence about it. It would seem that if the pressure on the neck and throat were applied as part of a sadomasochistic practice during sexual activity, then if death were intentionally caused it would seem - though those are only possible explanations which occurred to me, you may think of others - it would seem that some sadistic impulse must have taken command of him or else he had some ulterior motive to kill her or he killed her for some other reason which does not immediately suggest itself as a possibility to me."

40 His Honour was not in that passage "directing the jury that it was open to the jury to infer that the appellant formed the intention to kill as a result of some sadistic impulse". In that passage the trial judge was doing no more than tentatively advancing the hypothesis that if the pressure to the deceased's neck had been applied as part of a sado masochistic practice during sexual activity and if death had been intentionally caused, it would seem that some sadistic impulse must have taken command of the appellant. Whether those conditions had been met and whether the hypothesis should have been accepted were left entirely to the jury. There is no substance in this ground.

"That the learned trial Judge erred in that he permitted Counsel for the Crown to:

(a) Suggest to the jury that the Appellant had lured the deceased to Hobart for the purpose of realising the fulfilment of his sexual fantasies and

(b) Put to the jury that the Appellant was a man with sadistic desires, who obtained sexual excitement from hurting or killing and who found pleasure in so doing."

41 Notwithstanding counsel for the appellant's reference to the Court's decision in McCulloch v R, No 28/1982, this ground was not based upon any allegation that by the use of inflammatory language or improper epithets about the accused, counsel for the Crown might have diverted the jury from their task. Nor, save for one minor matter of fact, was it suggested that counsel for the Crown in any specific respect misstated or misrepresented the evidence. The only ground is that the trial judge was in error in permitting counsel to invite the jury to draw the two inferences which are referred to. In my view, it would only be in very rare cases that such a ground could be sustained as a basis for setting aside a conviction. A trial does not miscarry merely because counsel in his address puts forward a tenuous hypothesis or seeks to persuade the jury that they ought to come to a conclusion which a trial judge or a court of appeal would regard as untenable. The sort of occasions which might justify a trial judge's intervention would be if counsel made misstatements of fact or of law, or misled the jury as to their function in such a way that there would be a risk of a miscarriage of justice if the trial judge did not correct the error, but nothing approaching that sort of situation has been shown to have occurred in this case. There was some evidence to support the hypothesis that the appellant did have fantasies about hurting and killing people and that the appellant's claim that he loved the deceased was false and that therefore his invitation to the deceased to come to Tasmania was not made bona fide. I express no view about the strength or the validity of the submissions made to the jury by counsel for the Crown: it is sufficient to say that I am not persuaded that they were such as to call for the trial judge's intervention.

GEOFFREY TREGARTHEN KILLEEN BOUGHEY v THE QUEEN

42 The appellant was convicted of the murder of Begum Majabi Ali. The evidence of Dr Royal Cummings which was not disputed - indeed it was relied upon - by the appellant showed that death occurred as the result of manual strangulation. The term "strangulation" refers to compression of the neck by any means whatever. Dr Cummings said that in this case death occurred as a result of the operation of one or more of the following mechanisms,

(a) stimulation of the carotid sinus with consequent nervous reflex - this may cause almost instantaneous stoppage of the heart;

(b) compression of the two carotid arteries causing cerebral anoxia - continuation of which for a relatively short period of time leads to unconsciousness and very quickly to death; and

(c) blockage of the airway causing asphyxia and eventually death.

Dr Cummings gave it as his opinion that probably at least two of these mechanisms[1] were operative, that is to say, pressure on the carotid arteries, and asphyxia, or blockage of the airway. He was unable to rule out stimulation of the carotid sinus as a possible cause of death. He said that stimulation of the carotid sinus will produce reflex slowing of the heart, but that if the pressure is continued the heart will normally exhibit a ventricular escape mechanism in that it will ignore the impulse coming down from the sinus and will recommence beating of its own accord. However, in some persons and in some cases this mechanism does not operate. He said that even if stimulation of the carotid sinus was the ultimate cause of death, the state of the body indicated that there had been some degree of asphyxia prior to death, and the bruising on the body indicated that the asphyxia came from pressure on the neck. In reply to questions from Mr Underwood who appeared for the appellant at the trial, Dr Cummings said that he was not able to disprove the hypothesis that death arose as a result of pressure on the carotid arteries in the neck being applied and released, applied again and released, over a period of some minutes so that some degree of asphyxia and some deprivation of the blood supply to the brain occurred, followed by a stimulation of the carotid sinus sending the heart into cardiac arrest, and so causing death. On any view of the evidence there was prior to death sufficient pressure on the neck to cause significant bruising and to produce a significant degree of asphyxia.

43 At the trial the appellant's defence was that he and the deceased had been engaging in sexual foreplay and that for the purpose of heightening the sexual excitement of the deceased he had been applying to her what came to be known at the trial as the "carotid artery technique" a technique with which he was quite experienced. He described this technique as the exertion of a gentle pressure over both carotid arteries for about ten seconds, the release of the pressure, more love play then the exertion of further pressure and so on. He said that it did "increase the sort of sexual excitement between both partners". He said that he had applied such pressure to partners in his student days. He said that he knew that by pressure on the vagal nerve (carotid sinus) one could slow the heart down for 10 to 12 beats. He said that he did not know that there was any risk of cardiac arrest in this technique. He said that he was on top of the deceased, and they were both in a sort of rising sexual excitation, that he put his thumbs on to her carotid artery, he operated the pressure and release mechanism four or five times at least, and then, while again applying pressure, she suddenly vomited and went limp. His defence was that he and the deceased were engaged in an acceptable and safe form of love play, and that her death occurred for a reason which was both unforeseen and unforeseeable.

44 As against this there was evidence that he gave the following answers to police questioning towards the end of a number of interviews during which he had given some false and misleading answers:

"Dr Boughey: What happened was I fell asleep with Begum. When I woke up I wanted Begum to become responsive. I put each of my thumbs to her carotid arteries and pressed, there was no immediate reaction so I pressed harder.

Sergeant Blue: How long were you pressing her carotid arteries with your thumbs?

Sergeant Blue: Was she breathing before you started pressing?

Sergeant Blue: Did you realise the implications as to what you were doing?

Dr Boughey: I just wanted her to become more assertive.

Dr Boughey: I don't really know, I remember thinking of Miriam and that's about all.

Sergeant Blue: Being a medical practitioner didn't you realise how dangerous this action was?

The reference to Miriam is a reference to a Mrs Redman, and there was some evidence that the appellant had the bizarre notion that he was the slave of Mrs Redman and would kill either at her request or for her.

45 There were fourteen grounds of appeal, each of which alleges an error, or errors on the part of the trial judge. The errors alleged fall into five categories.

2 Failure to exclude evidence which was inadmissible.

3 Incorrect exercise of the judicial discretion to exclude evidence the prejudicial effect of which outweighs its probative value.

I propose to deal with the alleged errors in those categories, and in that order.

46 Only one error under this heading is alleged by the appellant. That is a submission that the trial judge ought to have intervened to stop Crown counsel addressing in the way that he did, or alternatively that he should have corrected in his own summing up some of the suggestions made by Crown counsel.

47 His failure to do either, it was submitted, was a breach of his duty to conduct the trial fairly. It was submitted that Crown counsel invited the jury to draw unjustifiable inferences from the evidence, and in particular falsely painted the appellant as a person with sadistic desires who had lured the deceased to Hobart for the purpose of pursuing his sexual aberrations with her. It was contended that the trial judge gave added weight to these unjustifiable submissions by saying to the jury in the course of his summing up, the following:-

"The Crown on the other hand submitted that it was part of his overall design to get himself a woman of a simple and unsophisticated kind with the additional quality that she was dark skinned in order to enjoy some sort of aberrant sexual impulses that gave him pleasure."

48 A criminal trial is an adversary procedure. It is to be expected that counsel on each side of the Bar table will invite the jury to extract from the evidence inferences which are contrasting and conflicting. It is inevitable that in so doing counsel will advance propositions which opposing counsel regard as untenable. That is a feature of a fair trial, and does not of itself indicate injustice. There is, of course, a duty on counsel on both sides to be fair, although traditionally the impact of such a duty falls more heavily upon Crown counsel than upon counsel for the accused. But fairness is not incompatible with vigour, (McCullough v The Queen (Unreported), Serial No 28/1982, Court of Criminal Appeal). In my opinion there was nothing in the address of Crown counsel in this case which called upon the learned trial judge to interfere, and the passage which I have quoted from the summing up was a fair summary of the Crown's stance on this part of the case, a stance which it was justified on the evidence in putting to the jury. Specifically there was evidence to which I will refer later, that the appellant was a man of a sadistic turn of mind, and that he fantasised about killing in a context of sexual excitement. There was also evidence from which a jury could properly conclude that there was a considerable element of selfish dishonesty in the procedures whereby he persuaded the deceased to come to live with him in Hobart, and that he intended to pursue his abnormal sexual practices with her.

Failure to exclude evidence which was inadmissible.

49 Only one such error was alleged, and that is contained in ground 3 which reads as follows:-

"That the learned trial judge erred in law permitting evidence to be adduced with respect to the training received by medical students and the knowledge of medical practitioners generally concerning the carotid arteries, the vagus nerve, and the effect of pressure on either or both of them."

Essentially this ground refers to the evidence given by Dr Freeman who said that the exertion of pressure on both carotid sinuses at once may well stop the heart, and that it is universally recognised that it should never be done. He said that carotid sinus pressure as a diagnostic procedure is taught to fourth year medical students and the hazards that go with it are taught at the same level. He said that the use of unilateral carotid sinus pressure as a diagnostic technique is in all the text books and that it was a standard procedure long before he graduated in 1962. He said that the dangers of bilateral carotid sinus pressure were common knowledge among medical practitioners, and that he was taught it in Melbourne prior to 1962. It was said that this evidence was inadmissible because it was irrelevant, the appellant having graduated before Dr Freeman and in the United Kingdom and not at Melbourne University. In my opinion there is no merit whatever in this ground.

Incorrect exercise of the judicial discretion to exclude evidence

50 One error was alleged under this heading and that is set out in ground 13. It refers to a series of three questions from Sergeant Blue and three answers by the appellant. In my opinion it would not have been correct for his Honour to exercise a discretion to exclude that evidence and certainly he was under no duty to do so. In fact it is very arguable that the exclusion of that evidence in the context in which it occurred would have been more prejudicial to the appellant than its reception.

"That the learned trial judge erred in fact in directing the jury that there was evidence of sado-masochistic predilections and/or behaviour on the part of the appellant."

His Honour did quite often use the term "sado-masochistic" to describe the activities and desires of the appellant, but the principal passage to which attention was drawn on the hearing of the appeal is this:

"However probably some important questions which you will need to consider at some stage and probably at an early stage in the deliberations are whether you will accept the accused's account of what he said are his well established sado-masochistic predilections. That seems to be a background question which you will need to decide whether you accept existed or not. He says that these predilections have been well established since his childhood in effect; since he was thirteen he had his first experience connected with them, you will recall. Now that is to say, his evidence is that he had had these well-confirmed tendencies for well over thirty years and since this proposition appears to be confirmed in the clearest way by the writings that were found in his home and the various articles, that is to say, objects found there and since it is confirmed also in the clearest terms by the evidence of Mrs Redman, presumably you will have no difficulty in accepting that this trait does exist with him and is well-established with him. Again of course, these are questions of fact for you."

52 It will immediately be noted of course that his Honour left the matter to the jury. But it is equally obvious that his Honour was describing the activities of the appellant as activities of a sado-masochistic nature. The term "sado-masochistic" is defined in the Oxford English Dictionary as "The co-existence of sadism and masochism in one individual; and the need both to inflict and to suffer pain, or to assert power over another and to be submissive, combined as one psychic condition evidenced in sexual relationships (frequently in a fantasised manner) or socially as an outlet for aggressive or destructive impulses." The jury would, in my opinion, have understood that his Honour was referring to such a concept.

53 Now it is true that the appellant did not describe his predilections as "sado-masochistic". He staunchly maintained throughout the trial that his predilections were masochistic only and that he was not in any sense affected by sadistic fantasies or desires. Insofar as his Honour's remarks may be taken to mean that he described himself as sado-masochistic, they constitute an error of fact. But there was a wealth of evidence from the appellant as to the activities in which he engaged and in which he found pleasure. If it is true to categorise these activities as sado-masochistic, then the error which his Honour made is of no consequence. It is therefore necessary to examine the evidence which he gave. He said that in his early years he found that by hurting himself he obtained a certain amount of sexual pleasure. He said that when he was about 20 he formed an association with a physiotherapist who enjoyed hurting him during sexual experiences, and that he enjoyed it also. He said that she practised bondage upon him, and that he enjoyed it, and that she demonstrated to him the carotid artery technique. She applied that technique to him, and he found that it gave him enjoyment. He in turn applied the carotid artery technique to her. He also applied it to his wife, but she did not like it, and the results were not satisfactory. He had a number of extra-marital affairs in the course of which he obtained pleasure from being hurt. As I have already indicated, he engaged in unusual sexual activities in his student days and part of his technique was to apply carotid artery pressure to his partners, resulting in increased stimulation to both parties. He said that he injected Xylocaine into his body as a sexual stimulant, and that he gave similar injections to his partners. The effect of the Xylocaine was to release inhibitions. Speaking of his relationship with Mrs Redman, he said that he performed bondage on her but she did not like it and he did not persist. When asked about a document written by him which contained the words, "I will kill Jean Boughey on the 30th of April Friday last day of April signed Geoffrey Boughey.", he said, "Well it is a fantasy. Within again the sexual connotation of sexual fantasies you get fantasies of wanting to hurt other people". He said he never contemplated acting out that fantasy. He said he had been involved in some group sex, and that during a sexual incident in Cornwall with Mrs Redman he put a pillow over her face to create a heightened sexual excitement. Mrs Redman did not like that. Later at Nice he applied the carotid artery technique to her, and she did not enjoy it. He said that he had previously done it to her on one or two occasions. Then there was evidence that prior to the death of the deceased, he had tied her by wrists and ankles to the four corners of the bed. In my opinion there was ample evidence that the sexual proclivities of the accused could properly be described under the heading of sado-masochism. Any error of fact made by the learned trial judge in the passage quoted is insignificant.

"That the learned trial judge erred in fact in directing the jury that it was open to the jury to infer that the appellant formed an intention to kill as a result of some sadistic impulse."

By this ground the appellant complains of the following passage from the summing up.

"There is no direct evidence, of course, that he did intend death. Though there is direct evidence from him that he did not intend death. But any inference at any rate that he did intend death could only be, as I have called it, an inference from the proved facts there being no direct evidence about it. It would seem that if the pressure on the neck and throat were applied as part of a sado-masochistic practice during sexual activity, then if death were intentionally caused it would seem - though these are only possible explanations which occurred to me, you may think of others - it would seem that some sadistic impulse must have taken command of him or else he had some ulterior motive to kill her or he killed her for some other reason which doesn't immediately suggest itself as a possibility to me."

55 The short answer to this ground is that his Honour did not direct the jury as it is suggested in ground 7 that he did. The true meaning of that passage, in my opinion, is that his Honour was directing the jury that there was no motive for intentional killing unless it could be properly inferred from the evidence that he was overtaken during the incident by some sadistic impulse or had some unidentified ulterior motive. His Honour did not suggest that there was any evidence from which such a sadistic impulse could be inferred. His Honour did go on to say that the Crown had submitted that sadistic impulses were mixed with the masochistic impulses in the appellant, but he did not, in my respectful opinion, misrepresent this evidence to the jury.

"That the learned trial judge erred in law and in fact in failing to adequately review the evidence of Dr Royal Cummings and Dr Ronald Parsons upon the issue of whether the death of the deceased might have been caused by pressure upon a hypersensitive carotid body and or vagus nerve."

This ground itself misinterprets the evidence. One assumes it refers to the lack in some persons of an escape mechanism of the heart. Further, it is in conflict with ground 1 which complains that the trial judge directed the jury that abnormal susceptibility of the deceased would not provide a defence. The fact is that his Honour did direct the jury as to the relevant aspects of this evidence and in my opinion there is no merit whatever in this ground.

57 Errors of law are alleged in grounds 1, 2, 4, 8, 9, 12 and 14. The resolution of the allegations contained in these grounds depends in the first place, in my opinion, upon a proper analysis of the provisions of s157 of the Criminal Code. The relevant parts of that section read as follows:-

"157(1) Subject to the provisions of section 160, [provocation] 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;"

58 It will be noted that Chapter 17 of the Code begins by defining homicide, then moves to a definition of culpable homicide, and defines murder in s157 by setting out the circumstances in which culpable homicide is murder. Both at the trial and on appeal, strenuous efforts were made to persuade the trial judge on the one hand and this Court on the other that the summing up could not be complete and correct unless the jury were first told about homicide, secondly, about culpable homicide and in that context given a definition of murder. This is the very course which met with the disapproval of the Court of Criminal Appeal and the High Court in Phillips v The Queen (1971) 45 ALJR 467 and (1971) Tas SR 99. However, putting that to one side, I turn to examine s157 in order to see whether the criticisms of the summing up made in support of these grounds are valid.

59 The gravamen of those criticisms is that his Honour's decision to refrain from giving the jury specific directions as to s156 meant that the jury were left in ignorance of the fact that homicide caused by an act intended to cause bodily harm would not be murder if the jury were left with a reasonable doubt as to whether that act may have been justified under the provisions of the Criminal Code. (Section 156(2)(a)). In considering the argument, it is necessary to bear steadily in mind that the only possible justification of the appellant's acts (if they were so intended) which was open on the evidence was the consent of the deceased to those acts. So much was specifically conceded at the trial by counsel for the appellant. It was, in my opinion, a proper concession.

60 That being so, s53 of the Code becomes relevant. That reads as follows:-

"No person has a right to consent to the infliction -

(a) of death upon himself;

(b) except as provided in section 51, of an injury likely to cause death; or

(c) of a maim for any purpose injurious to the public,

and any consent given in contravention hereof shall have no effect as regards criminal responsibility."

61 In considering paragraph (a) of s157(1) the jury were required to consider whether they were satisfied beyond reasonable doubt that the appellant intended to kill the deceased. If they so found, it would not in my view be open to them to regard consent to physical acts coupled with ignorance of the purpose of those acts, as a valid consent. Consideration of consent to acts intended to cause and in fact causing death the purpose of which was understood by the deceased would be irrelevant because of s53. So consent could not be in issue. No justification was available. Therefore to direct the jury as to justification would have been unnecessary and confusing.

62 The argument for the appellant in these grounds really centred on paragraph (b). Here also s53 created a difficulty for him because the jury were required, in considering this paragraph, to decide, applying the appropriate standard of proof, whether the appellant caused bodily harm to the deceased which he knew to be likely to cause death. Section 53 deprives of effect on criminal responsibility any consent "to the infliction ... of an injury likely to cause death." The appellant contended that those words point to an objective test and that the state of mind of the accused is irrelevant. Crown counsel conceded that the test is objective, but argued that the word "knew" in paragraph (b) refers not only to the state of mind of the appellant but to the factual likelihood of death ensuing from any intentional bodily harm caused to the deceased by the appellant. It was also contended that "injury" and "bodily harm" bore different meanings. It is possible that, in the abstract, there is some merit in that contention. But I am in no doubt that bodily harm likely to cause death is an injury, and an injury likely to cause death is bodily harm. So the core of the argument must lie in the meaning of the word "knew". In ordinary parlance when one speaks of "knowing" one is referring to a state of conviction in the mind which is correct. That is to say, one is encompassing the notion not only that the person concerned has a fixed belief about the existence of some fact or truth, but also that that fact or truth exists. If one wishes to refer to a conviction about a supposed fact or truth which may or may not exist, one uses the word "belief". Knowledge is certain, belief is uncertain. This understanding of the word seems to be consistent with one of the definitions given in the Oxford English Dictionary namely, "Intellectual acquaintance with, or perception of, fact or truth." Sometimes the word "knew" is used as equivalent to belief when the matter of fact as to which belief exists is made the subject of separate proof. This would seem to be the way in which the word is used in s16 of the Code, and also in s258. In a sense, therefore, the word takes its colour from its context. The context in s157 is illumined by the use of the word "known" in paragraph (c) because the word as there used must refer to a likelihood which does exist, or, to illustrate and emphasise the meaning of the word, is known to exist. If that is the meaning of "known" then a similar meaning ought to be given to the word 'knew". That is obviously the way in which his Honour understood the word because in his summing up to the jury he said, when interpreting paragraph (b) of s157 -

"Was what he intended bodily harm within the meaning of that expression? If it was, was it bodily harm which he knew, that means, which he in his own mind knew, was likely to cause her death in the circumstances? Was it likely to cause her death in the circumstances? That depends on the medical evidence no doubt. If it was, did he know it was? Are you able to infer that he knew it was? That depends on all the relevant evidence."

It is not without significance that in the legal submissions made to his Honour prior to the summing up, it appears that counsel on both sides accepted without question that the word "knew" means believing in the existence of a fact which is and is known to be a fact. The complaint made on appeal is that ,"knew" means "believed" and therefore paragraph (b) does not state, as a necessary ingredient of the crime, proof that the bodily harm inflicted was in fact likely to cause death. Therefore it is said one must look for that ingredient in s156, and it follows that although the necessary ingredient was mentioned by his Honour in the summing up, it was omitted from the memorandum which his Honour supplied to the jury, that being expressed only in the terms of paragraph (b) of subsection (1) of s157. The jury could therefore have been misled by the memorandum.

63 My opinion of the matter is this. As a matter of law the word "knew" in paragraph (b) compendiously states two ingredients of the crime of murder, namely the existence of the fact of the likelihood of death, and the accused's knowledge of that likelihood. There is therefore as a matter of law no need to have recourse to s156 because consent to an injury in fact likely to cause death is irrelevant to criminal responsibility. Consent is not a justification.

64 Further, the definition which his Honour gave the jury in the memorandum, namely, "He intended thereby to cause the deceased bodily harm which he knew to be likely to cause her death in the circumstances" would be understood by the jury as requiring them to be satisfied beyond reasonable doubt first of all of the likelihood of death being caused by the bodily harm which the accused intended, and secondly, that the accused knew of that likelihood. In the absence of any suggestion in the course of three addresses, that "knew" meant merely "belief" and bearing in mind his Honour's oral direction to the jury, there is not in my opinion the faintest possibility that the jury understood paragraph 3A(2) of the memorandum as meaning that it was not necessary for the Crown to prove, or for them to be persuaded that the bodily harm which the accused intended to cause was likely to cause death.

65 There is another reason for interpreting the word "knew" as encompassing the fact of the likelihood of death, and that is that paragraphs 157, (1)(a), (b) and (c) are in a descending order of severity of proof. As it is clear that the words "ought to have known" in paragraph (c) encompass both the fact of the likelihood and the requirement that the accused ought to have known of that likelihood, it is totally unlikely that a less stringent test is proposed in paragraph (b).

66 In my opinion as paragraph (b) encompasses all that could be encompassed in s156, there was no need for his Honour to address the jury as to s156. His direction as to paragraph (b) was quite adequate for the case. His Honour did direct the jury as to consent in relation to paragraph (c), but that was because the infliction of bodily harm is not an ingredient of murder under paragraph (c). That paragraph refers to an unlawful act - in this case an assault, and consent was relevant in that context.

67 The next matter arising out of the interpretation of s157 relates directly to the phrase "or ought to have known", in paragraph (c) because issue is taken with this direction which his Honour gave to the jury:-

"The phrase to which I would like to direct your attention mainly here is 'ought to have known'. Here you consider what in your view the accused ought to have known in all his then relevant circumstances. All his then relevant circumstances would include many factors; it would include, for example, the fact that he is a medical practitioner; the nature of his medical practice over the years; his training; his sexual experiences; the extent to which, if any, his medical training and experience should have alerted him to the dangers of applying carotid artery pressure, assuming you accept the medical evidence, or the extent to which, if any, that experience - his experience - should have alerted him to the desirability of studying medical literature in order to acquaint himself with the dangers, if any, of such a practice and the physiological actions involved and the like."

It is argued that it is stretching paragraph (c) too far to require the appellant to have recourse to medical literature and books before undertaking the application of pressure on the carotid arteries of the deceased. It is to be noted that his Honour's direction did not, as counsel argued, impose upon the appellant an obligation to study medical literature. What it did was to direct the jury to consider the state of mind of the appellant, and to consider whether in the state of his knowledge he ought to have proceeded to perform the unlawful act alleged or whether he should have desisted from performing that act until he had investigated the possible consequences of his act. As Windeyer J said in Phillips (supra), paragraph (c) directs the tribunal to take into consideration the "necessary mental element of knowledge of the likely consequence of the act". That interpretation creates no difficulty when one is considering what the offender knew, but is somewhat more difficult when considering what the offender ought to have known at the time of performance of the unlawful act. In my opinion it directs attention to a circumstance in which the offender does not know that death is a likely consequence of his act, but has that degree of knowledge which would cause a reasonable man in his circumstances and with his attributes to recognize the danger of persisting in his proposed actions without further thought or inquiry. That is to say, the phrase couples the act with the knowledge of the danger and applies a jury-type test (the reasonable man test) to persistence in the act. A man blinded by passion may perform an act which does in fact cause death and escape liability for murder because he has no means of knowledge of the likelihood of death as a result. But if he does appreciate that death may be a likely consequence of his act but through wilful ignorance or passion is unable to assess the degree of likelihood or the mechanism by which death will occur, he will not escape responsibility. If, for example, in this case the appellant was aware that pressure to the neck might cause asphyxia, or was aware that occlusion of both carotid arteries would cause, or might cause cerebral anoxia, or was aware that pressure on both carotid sinuses might cause such a stimulation as to result in cardiac arrest, and was not sufficiently informed to be sure that death was a likely consequence of one or more of these pressures, but was aware that it might well be possible by examination of the appropriate medical literature to confirm or dissipate such fears, he would be in a situation where to proceed with those acts without further investigation would be to proceed with them when he ought to have known of that likelihood, that likelihood having been proved to exist. The phrase in my opinion refers to a state of mind falling short of knowledge of the likelihood, but amounting to an acknowledgement of the possible existence of the likelihood which is hidden from him by his unexcused ignorance. It may be useful to compare manslaughter by an unlawful act with murder in the terms of paragraph (c). An unlawful act (1) which is in fact dangerous, that is, likely to cause significant harm, and (2) which in fact causes death may lead to a conviction for manslaughter. A conviction for murder requires, in addition, (1) proof that the act was so dangerous as to be likely to cause death, and (2) proof that the offender knew that, or not knowing it, is not able to excuse his ignorance, or, to put that another way, cannot excuse, on the ground of ignorance, his persistence in the unlawful act. It is for the jury to say whether the proof of these matters is made out.

68 If that summary is correct, then his Honour's direction to the jury was correct because he suggested to them that they should consider whether the appellant's training and experience should have alerted him to the desirability of further inquiries before proceeding with an act which after all was unlawful. In my opinion this argument fails.

69 The next argument put was that the jury should have been directed that an act is not unlawful unless it is dangerous. But an act which the offender ought to have known to be likely to cause death in the circumstances is by definition a dangerous act. As the jury was satisfied beyond reasonable doubt at the least that the appellant ought to have known that his act was likely to cause death, then they have found that it was in fact dangerous. This argument also fails.

70 The next argument with which it is necessary to deal is a contention that an assault is not unlawful unless it is performed with a hostile intent. Counsel for the appellant relied upon the judgment of the High Court and the Court of Criminal Appeal in Phillips' case (supra), and in particular the judgment of Sir Garfield Barwick in a passage which appears at p472. His Honour there said that physical contact -

"is not a battery at common law, in my opinion, unless it is made in 'an angry, revengeful, rude and a hostile manner', a description from Hawkins' Pleas of the Crown. Nor is it in my opinion necessarily a battery at common law to make contact with another for some purpose of the person making the contact in which the person touched or handled has, or could have an interest or benefit of his or her own, none of the other features of a battery being present.

In considering this argument it is necessary to bear in mind that his Honour the trial judge directed the jury that that appellant would not be guilty of murder if the deceased truly consented to the assault, because the assault would then not be unlawful, but would be justified. The argument therefore proceeds on the basis that, although the deceased did not consent, the acts of the appellant were not unlawful because they were not hostile, having been performed for the purpose of giving her pleasure by increasing her sexual excitement. The insensitive arrogance of this argument is breathtaking. It suggests that an unconsenting woman may lawfully be taken by the throat and rendered subject to asphyxia, cardiac arrest or cerebral anoxia if the person doing that act intends thereby to increase her sexual excitement. No mention is made, of course, of any suggestion that the person who would receive the sexual excitement was the appellant rather than the deceased.

71 However it is necessary to deal with the argument as a matter of law. Section 182 of the Criminal Code provides that an assault is the act of intentionally applying force to the person of another. There can be no doubt that the appellant in this case intentionally applied force to the deceased. Section 184 provides that any person who unlawfully assaults another is guilty of a crime. There is nothing in the Code which suggests than an assault must be performed with a hostile intent. The intentional application of force to the person of another is a crime unless it is not unlawful. It will not be unlawful if it is justified. It will be unlawful if it is not justified. The Code, as his Honour the trial judge pointed out to the jury, specifically provides for a number of justifications. Self-defence was not an issue here, and consent is by definition outside the argument. Counsel for the appellant however relies on s8 of the Criminal Code Act 1924, which provides that,

"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."

What that section does, as the marginal note indicates, is to preserve common law defences. It does not purport to introduce into the Code common law definitions. The Code's definitions are complete in themselves, but they are subject to the preservation of special defences at common law and justification or excuses which were available at common law. All that Phillips' case decides in this context is that an assault would not be unlawful if it were done for the purpose of assisting the deceased without any intent to expose her to danger - see Burbury CJ at p482. In other words, that a common law battery, or a Code assault, can be justified if the purpose is one that is ameliorative of the person assaulted. The ameliorative purpose justifies the assault, it does not change the definition of assault. In my opinion it is absurd and monstrous to suggest that an act designed to produce a state of heightened sexual excitement in a girl who was not consenting thereto is an ameliorative purpose. It should also be noted that the jury have found that the acts of the accused did expose the deceased to a danger of which he knew or ought to have known.

72 Finally, the appellant contended that the learned trial judge should have left to the jury the latter half of s13(1) of the Criminal Code on the basis that it was possible that death in this case occurred by chance. Counsel defined a chance event as one which is unintended, unforeseen and unforeseeable. As the jury at the very least found that the accused ought to have known that his act was likely to cause death, it follows that in their opinion it was foreseeable. That is the end of that argument. It is also the end of the argument that the learned trial judge was wrong in directing the jury that if they were satisfied of all the other ingredients of murder, the fact that the deceased had some unusual physiology would not provide a defence.

73 My opinion is that the appeal should be dismissed.

GEOFFREY TREGARTHEN KILLEEN BOUGHEY v THE QUEEN

74 I have had the advantage of reading the reasons for judgment of Cosgrove J and respectfully agree with all that he has said. I desire only to add a few comments on what I regard as the most substantial grounds of appeal.

75 Mr Proctor summed up his argument on these grounds in the following submission which was not without impact:-

"On the way this aspect of the case was left to the jury this appellant could have been convicted of murder on the basis that he did an act to which the deceased did not consent because she was asleep and he as a medical practitioner should have found out from medical books that this was an act that was likely to cause death and that was it. And there is no mention of the need for hostility. There is no mention of the need for the act to be inherently dangerous in the sense contended for and there is no emphasis on the objectivity of the test of 'ought to have known'. We would submit that if he has been found guilty of murder on that basis simply that he did an act that was not consented to and one which he would have realised was dangerous if he had gone and looked up the books then that is a miscarriage of justice in that we would submit that the law requires that more be shown than that."

76 As Cosgrove J has pointed out the act which caused death and which the jury must be taken to have found was in fact likely to cause death is ex hypothesi an inherently dangerous act. The fact that it may not have been done with hostility, as described by Barwick CJ in The Queen v Phillips (1971) 45 ALJR 467 at pp472 and 473, does not make the assault (which that act clearly was) any the less unlawful if it was not consented to by the deceased by reason of her being asleep at the relevant time. If the jury did not rely on s157(1)(a) and (b) of the Criminal Code they found that a homicide occurred therefore as the result of the appellant's unlawful and inherently dangerous act of applying manual pressure to the neck or in the region of the neck of the deceased and that this act was one which, if he did not know it to be likely to cause death in the circumstances, he ought to have known to be so likely. The learned trial judge charged them to consider all the appellant's then relevant circumstances, reminding them at the conclusion of the passage cited by my brother Cosgrove that he had named only some of the relevant circumstances and that it would be for them to consider all the circumstances which they thought relevant in order to decide what he ought to have known. The circumstances the learned trial judge specifically mentioned were the fact that the appellant was a medical practitioner, the nature of his medical practice over the years, his training. his sexual experiences, the extent, if any, to which his medical training and experience should have alerted him to the dangers of applying carotid artery pressure or the extent, if any, to which that experience should have alerted him to the desirability of studying medical literature in order to acquaint himself with the dangers, if any, of such a practice and the physiological actions involved. It is not a fair summation of that passage to suggest that it directed the jury that mere failure of a man who was a medical practitioner to study medical literature before embarking on the act in question was a circumstance sufficient of itself to enable them to conclude that he ought to have known it was likely to cause death. What in essence the jury were in my opinion instructed to consider was whether he had an appreciation of some potentiality for danger in such acts and to determine beyond reasonable doubt whether, having regard to all the factors they considered relevant, it could be said that he ought to have known the assault was likely to cause death in the circumstances.

77 The Criminal Code of this State postulates that causing death by doing an unlawful and inherently dangerous act and doing so with this kind of wilful blindness can properly be categorized as murder, notwithstanding the absence of any wish to cause death or bodily harm of any kind to anyone. In my view there is no substance in the appellant's complaints.

78 Mr Proctor conceded that a defence under the second limb of s13(1) could only succeed if the jury had relied on that part of s157(1)(c) which requires that the offender ought to have known his act was likely to cause death in the circumstances, for if they were satisfied that he fell within any part of s157(1)(a), (b) or the first part of (c) the event must have been intended or foreseen. He submits that if they did rely on the part I have mentioned the event would have been foreseeable applying a purely objective test, but that if this Court holds that the jury could have regard to the considerations the appellant complains of in respect of ground 8, the event was not necessarily foreseeable by the appellant and the jury should therefore have been directed to consider whether the event might have occurred by chance. In other words if what a man ought to have known can be determined by or equated with what a reasonable man would have foreseen, the appellant could not say that the event occurred by chance; but if in assessing what the person doing the act ought to have known, the jury can take into account the fact that he was a doctor and the fact that he in their view ought to have looked up medical books and if it need not be shown that the act was hostile or inherently dangerous then the act need not necessarily be reasonably foreseeable. That submission of counsel depends in part on the proposition that the act was not inherently dangerous, a proposition which as has been said cannot be sustained, but I leave that aside as the submission was further reduced to the proposition that even in the events that the appellant ought to have known the act to be likely to cause death and that death was foreseeable by a reasonable doctor placed in his circumstances, the jury could still only convict if they were satisfied beyond reasonable doubt that an ordinary man in the street would know such an act was likely to cause death.

79 Counsel relied firstly upon observations of members of the court in Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56. At p61 Dixon CJ said this of the relevant words of s13(1) "nor ... for an event which occurs by chance":-

"I think that this somewhat difficult phrase covers events which the person who might otherwise be criminally responsible neither intended nor foresaw as possible results of his conduct: they must too be fortuitous in the sense that no one would reasonably expect them to occur as a consequence of that conduct."

"I agree that an event which the person charged actually foresaw as a possibility substantial enough to be worthy of attention in deciding whether to do the act or not cannot properly be described as having occurred by chance; but it does not follow that every event which he did not foresee may be so described. In addition to having been unforeseen by him it must, I think, have been one so unlikely to result from the act that no ordinary person similarly circumstanced could fairly have been expected to take it into account. In a provision relating to a consequence of an act voluntarily and intentionally done, and denying criminal responsibility for that consequence if it has occurred by chance, it seems to me that 'by chance' is an expression which, Janus-like, faces both inwards and outwards, describing an event as having been both unexpected by the doer of the act and not reasonably to be expected by any ordinary person, so that it was at once a surprise to the doer and in itself a surprising thing."

80 In Timbu Kolian v The Queen (1968) 119 CLR 419 Windeyer J said at p67:-

"In the light of the decision in Vallance's Case it can now be said that an event occurs by accident if it was not intended, not foreseen. and unlikely, that is not reasonably to be foreseen as a consequence of a man's conduct."

81 Gibbs J in Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209 said at 231:-

"It must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person."

82 In my view the test does not contemplate an ordinary man in the street who has none of the characteristics or circumstances of the doer of the act. Indeed in the passage cited above from Kitto J's decision in Vallance v The Queen his Honour specifically referred to an "ordinary person similarly circumstanced". In my view the circumstances in which a judgment is to be made concerning the question whether the appellant ought to have known his act to be likely to cause death should likewise surround the notional ordinary man when one asks whether the event was reasonably foreseeable by him. It would be absurd to suppose that the knowledge of and the resources available to a scientist experimenting in the use of chemicals who, by an unlawful and inherently dangerous act, causes death should, once the jury have found that such consequence was not foreseen by him, be discarded in considering what was foreseeable by an ordinary person similarly circumstanced and that the question of chance should be determined by reference to what an ordinary man not possessed of his expertise and attributes might not be capable of foreseeing.

83 In my view, in the circumstances of this case, as the jury found that at least the appellant ought to have known his act was likely to cause death, they must have found that death was a consequence of his act foreseeable by him and by an ordinary person similarly circumstanced: There was accordingly no room for the application of s13. I would dismiss the appeal.

tasInLaw edit: The paper copy has "telecoping"[.]

tasInLaw edit: The paper copy has "mechanims"[.]