Boughey v The Queen

Boughey v The Queen - [1986] HCA 29 - HCA 1986 case summary — Zoe

[43]

Section 182(3) of the Code expressly deals with one of the circumstances which would, at common law, not suffice to constitute a common law battery. It excludes from an "assault" any "act which is reasonably necessary for the common intercourse of life if done only for the purpose of such intercourse, and which is not disproportionate to the occasion". The effect of this provision is to exclude from an "assault", for the purposes of the Code, commonplace, intentional but non-hostile acts such as patting another on the shoulder to attract attention or pushing between others to alight from a crowded bus. Such acts are, if committed inoffensively, regarded by the common law as ordinary incidents of social intercourse which do not, without more, constitute battery. Section 182(4) of the Code deals with another of the more common excuses or justifications for what would otherwise be an unlawful battery at common law or an "unlawful assault" for the purposes of the Code. It provides that, subject to some qualifications and exceptions, "an assault is not unlawful if committed with the consent of the person assaulted". The Code also expressly deals with most of the other circumstances in which what would otherwise be battery (or "assault" for the purposes of the Code) is justified or excused by common law principles: due execution of the law (ss. 21-32), lawful correction (s. 50), reasonable prevention of criminal activity (ss. 34-39) and defence of person or property (ss. 40-49). The most obvious of the circumstances of justification or excuse at common law in respect of which the Code contains no express provision is the non-hostile application of force to a person to rescue or protect him or her from danger or injury (see below). Apart from the question of consent which the learned trial judge left to the jury in terms of which the applicant makes no complaint, it is not suggested that any of these other circumstances of justification or excuse was involved in the present case.

[47]

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 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. Later, the Chief Justice noted [17] : It seems to me that the absence of what I shall compendiously call "hostility" in the performance of the intentional act applying force to the person of another can be properly described in common law terms as a justification for such an act. Those passages must, however, be read in the light of the fact that the relevant issue in Phillips concerned whether the accused had moved the unconscious victim - to a place on a beach where she subsequently drowned when the tide came in - for the purpose of assisting or rescuing her in circumstances where she had been injured as a result of his prior act or for the hostile purpose of causing her further harm. To the extent that they provide literal support for the proposition that a physical attack upon a person cannot constitute common law battery unless accompanied by actual hostility towards the victim, they should not, in our respectful view, be accepted as good law. For our part, however, we read them as having no application to a case where the intentional physical contact is outside a "rescue" context and is not an incident of ordinary social contact but is, of its nature, likely to cause injury or affront to the person against whom the intentional application of force is directed. Thus, Barwick C.J. was at pains to point out that, in the case of an indecent assault, "the circumstances of the physical contact of one person with another which makes that contact indecent make it unnecessary upon a charge of indecent assault to establish some "hostility" over or above the actual circumstances of the indecency and the contact of the two persons" [17] . 1. (1971) 45 A.L.J.R., at p. 472. 2. (1971) 45 A.L.J.R., at p. 473. 3. (1971) 45 A.L.J.R., at p. 473.

[72]

The applicant told the police, in one of the versions he had offered of the deceased's death, that he had been asleep beside her and, when he woke, he had put his thumbs on and applied pressure to her carotid arteries because he wanted her to become "responsive". He said she had not reacted immediately, so he pressed harder for "quite some time". In evidence at the trial he said that, while they were engaged in sexual activity, he had applied pressure to her carotid arteries four or five times. He said that the application of pressure to the carotid arteries was a technique of sexual arousal which he and the deceased woman had practised on each other by mutual consent and which he had practised on other women with whom he had had sexual relations, again by mutual consent. The evidence of one of those women may have been understood as supporting his evidence in that respect. There was no evidence that on any previous occasion injury had been done to any of the women or to him, other than the inducing of a light-headed feeling. In fact, pressure on the carotid arteries can cut off the supply of blood to the brain and pressure on the carotid sinuses can produce cardiac arrest. The carotid sinuses are at the fork of the carotid arteries on either side of the neck. It was open to the jury to find that death may have been caused by the applicant's putting pressure on the carotid arteries or on the carotid sinuses or on both the carotid arteries and the carotid sinuses. It was therefore necessary to give the jury an appropriate direction as to the applicant's liability to conviction for the crime of murder or for the crime of manslaughter if the jury should find that pressure on her carotid arteries or carotid sinuses was the cause or a possible cause of the woman's death. For the purposes of the following discussion it is convenient to assume that the prosecution had proved that such an act was the cause of the woman's death and to put aside the other possible causes, although the medical evidence showed that manual strangulation which stopped her breathing had occurred and it was open to the jury to find that asphyxia contributed to her death.

[114]

The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur. If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word "probable" means likely to happen. That state of mind is comparable with an intention to kill or to do grievous bodily harm. There is a difference between the case in which a person acts knowing that death or serious injury is only a possible consequence, and where he knows that it is a likely result. In this and in other passages in the judgment in Crabbe , "likely" is equated with "probable" and both terms are contrasted with "possible". The meaning of "likely" may depend on its context, though the terms "likely" and "probable" are treated as synonyms by the Shorter Oxford and Macquarie Dictionaries. The equation of "likely" and "probable" in reference to the mental element in unintended murder is of long standing. Stephen in his Digest (art. 223(b)) spoke of knowledge that the fatal act will "probably" cause death or grievous bodily harm. On the other hand, the Draft Code of 1879 (s. 174) and the Report which accompanied it (Report of the Criminal Code Bill Commission (1879), p. 23) spoke of knowledge that an act is "likely" to cause death. There are compelling considerations of principle why "likely", when used in reference to knowledge of the prospect of death as an element in murder, should be understood as meaning probable, not possible. If it be murder to do an unlawful and fatal act with knowledge that it is possible that death will result, the mental element which stamps the truly heinous character on the crime of murder is relaxed. If that element of the crime of murder is relaxed so that knowledge of the possibility of death suffices to establish it, the distinction between murder and manslaughter by unlawful act would be hard to preserve. Absent an actual intention to kill or to do grievous bodily harm, the distinction would turn on mere epithets to describe the kind of possibility which is to be apprehended (subjectively for murder, objectively for manslaughter) in order to define one crime or the other - e.g., a substantial possibility for murder, a real possibility (or real risk) for manslaughter. Such a distinction is, in my opinion, too fine to grasp. 1. (1985) 156 C.L.R. 464. 2. (1985) 156 C.L.R., at p. 469.

[122]

The second limb of par. (c) of s. 157(1) introduces an objective and therefore novel mental state as an element in murder. The phrase "ought to have known to be likely to cause death" appeared in s. 174(d) of the Draft Code of 1879 in reference to an act done "for an unlawful object", where it was criticized as an unsatisfactory provision in the Draft Code which generally maintains the requirement of a subjective intention as the condition of liability to conviction for murder: see Russell on Crime, p. 495. Its introduction into the Code may have been intended to cover cases where an accused had killed while intoxicated and his intoxication precluded the drawing of an adverse inference as to his intention or state of mind at the time. However that may be, it covers cases where the accused does not have the knowledge prescribed by the first limb of the paragraph but where he ought to have had that knowledge when he was doing the unlawful act which caused death. The character of the act, the fact that it was likely to cause death (as the accused would have known had he thought about it) and the surrounding circumstances are material to a finding - I do not say that they are the only facts material to a finding - as to whether the accused "ought to have known". The criterion to be applied to these facts is whether any sober and reasonable man, having the accused's knowledge, experience and acumen, would have adverted to the possibility that his action might cause death and, adverting to that possibility, would have known that his action was likely to cause death. If the hypothetical sober and reasonable man would have known, it is right to find that the accused ought to have known that his action was likely to cause death. But the words "ought to have known" do not create a duty to inquire about facts before acting; they relate to inadvertence, not ignorance. An objection is taken to the summing up on the ground that the jury were invited to find the applicant guilty if he failed to read his medical texts to discover the nature of the danger of applying pressure to the carotid arteries or carotid sinuses before applying such pressure. The summing up did not, I think, go so far. I would not allow the appeal on this ground.

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Judgment (123 paragraphs)

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