High Court of Australia|1999-05-13|Before: Callinan JJ

Charlie v R [1999] HCA 23; 199 CLR 387; 162 ALR 463; 73 ALJR 809 (13 May 1999)

Charlie v The Queen [1999] HCA 23

On appeal from the Supreme Court of the Northern Territory

R S L Wild QC with M J Carey for the respondent (instructed by Director of Public Prosecutions, Northern Territory)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Criminal law - Murder - Relationship between general Code provision establishing excuse from criminal responsibility and specific provision creating offence of murder - Whether accused must foresee death as a possible consequence of conduct - Principles of statutory construction - Relevance of common law in construction of Code.

Breedon v The Queen [1993] NTSC 114; (1993) 3 NTLR 119.

Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56.

GLEESON CJ. The facts, and the relevant statutory provisions, are set out in the judgment of Callinan J.

The appellant stabbed the deceased repeatedly in the chest and back with a large knife, and killed her. It was admitted at trial that the stabbing was not accidental. The jury were instructed that, if the stabbing was done either with intent to kill the deceased or with intent to cause her grievous harm, then the appellant was guilty of murder. They convicted the appellant of murder. The appellant argues that, by reason of s 31 of the Criminal Code (NT) ("the Code"), the appellant was excused from criminal responsibility for the death of the deceased, (that is to say, was not guilty of either murder or manslaughter), unless her death was foreseen by him as a possible consequence of the stabbing. The jury, it is argued, should have been instructed accordingly. The point was not taken at trial, but the possibility that the appellant lacked such foresight is said to be related to the fact that he had been drinking before he killed the deceased.

I agree with Callinan J, and with the majority in the Court of Criminal Appeal of the Northern Territory that, upon its true construction, the Code does not have the operation for which the appellant contends.

The argument for the appellant is that s 31(1), in its application to a case such as the present, relevantly refers both to an act, (the stabbing), and to the result of the act, which is referred to in the Code as an event, (the death of the deceased), and excuses the appellant from criminal responsibility for the act or for the event respectively unless it was intended or foreseen. The killing referred to in s 162(1)(a) involved both an act (the stabbing) and an event (the death). Whilst the stabbing was admittedly intentional, it may have been that the death was neither intended not foreseen. That possibility would have been open if the jury had found that the relevant intention for the purposes of s 162(1)(a) was not to kill but was to cause grievous harm.

A consequence of the appellant's argument is that, in its application to killing, which is a combination of act and result (event), s 31 may excuse a person from criminal responsibility for the result without excusing him from criminal responsibility for the act.

Counsel for the appellant did not wish to contend that his client bore no criminal responsibility for intentionally stabbing the deceased. Rather, he asserted that the offence which the appellant committed, assuming no foresight of the possibility of death, was that he did an act causing serious danger to the life or health of the deceased, contrary to s 154 of the Code. This conclusion is even more paradoxical than might at first appear. The penalty for an offence against s 154 varies according to whether grievous harm is caused to the victim. It would seem that the appellant, who, on this approach is excused from criminal responsibility for the death of the deceased, although not for the act causing her death, would be sentenced on the basis that the stabbing, whilst fatal, did not cause grievous harm.

McHUGH J. I agree with the reasons given by Callinan J for dismissing this appeal.

KIRBY J. This appeal, from an order of the Court of Criminal Appeal of the Northern Territory[1] presents a tricky problem concerning the Criminal Code (NT) ("the Code").

Upon that problem, the judges constituting the Court of Criminal Appeal divided[2]. Special leave to appeal was granted to permit re-argument of the point of difference. I favour the view expressed by the dissenting judge in the Court below. But I do not pretend that the point is clear or that the conclusion reached is unarguable. As Brennan J observed, when giving this Court's reasons for refusing special leave to appeal in an earlier case involving some similarities to this one[3], the section of the Code (s 31) which gives rise to the problem is a "curious provision which ... merits early and detailed consideration by the legislature". The drafting of that provision is said to have occasioned difficulties "for many years"[4]. An amendment of the Code followed Brennan J's observations in the earlier case[5] but not, alas, one removing the problem which must now be addressed.

The facts of the case are set out in the reasons of Callinan J. So are the relevant provisions of the Code, the issues for decision and his Honour's conclusions on the two points argued for the appellant. I am in agreement with Callinan J concerning the second point argued[6], upon the assumption that the first[7] is rejected. Accordingly, I can confine these reasons to the first point.

The question is whether, by reason of s 31 of the Code, the offence of murder created by s 162(1)(a) of the Code requires proof that the accused foresaw the death of the person killed as a possible consequence of his or her conduct. The appellant submits that it does. The Crown, with the support of the majority in the Court of Criminal Appeal, contends that it does not. The issue raised is a narrow one of statutory construction. It is addressed to the meaning and proper operation of the Code, which is in material respects (as Brennan J noted) peculiar and different from other codes and legislative provisions operating within Australia as well as different from the common law[8].

The appellant conceded, by formal admission made at the beginning of the trial, that he had caused the death of the person killed, as charged, by stabbing her with a knife. He did not rely upon self-defence, provocation or accident. From the outset, therefore, as recognised by the Crown Prosecutor's opening address to the jury, the central issue of the trial was whether the appellant had the state of mind required for murder under s 162(1)(a) of the Code. The facts are horrible. Nothing in them affords a ray of redeeming light so far as the appellant is concerned unless it be the preponderating evidence showing that the appellant and the deceased were each severely affected by alcohol at the time of the stabbing, and that there was no disclosed motive or reason, other than drunkenness, to explain the appellant's sudden violent attack upon his de facto wife, resulting in her death.

The problem being one of construction of the provisions of the Code, viewed from the vantage point of its language and in the context of its structure and apparent purposes, it is useful to start with a reminder of the rules governing the ascertainment of the meaning of a code such as that now under scrutiny. As I collected the applicable principles recently[9], it is unnecessary to repeat them at length. Although a code is enacted by legislation and thus attracts the general rules applicable to the task of statutory construction, it is a special type of legislation. It does not (unless expressly stated) set out to be a mere restatement of the pre-existing or common law[10]. It is not uncommon for codes, including in the area of criminal law, to introduce fundamental changes[11]. Accordingly, it is erroneous to approach the meaning of a code with the presumption that Parliament's purpose was to do no more than restate the pre-existing law[12]. The first loyalty, as it has been often put, is to the code[13]. Where there is ambiguity, and especially in matters of basic principle, the construction which achieves consistency in the interpretation of like language in similar codes of other Australian jurisdictions will ordinarily be favoured[14]. But before deciding that there is ambiguity, the code in question must be read as a whole[15]. The operation of a contested provision of a code, or any other legislation, cannot be elucidated by confining attention to that provision. It must be presumed that the objective of the legislature was to give an integrated operation to all of the provisions of the code taken as a whole, and an effective operation to provisions of apparently general application, except to the extent that they are expressly confined or necessarily excluded.

Remembering these rules, applicable to the relatively confined task in hand, is important in this case. It is easy to assume that, because the definition of murder by the common law (and most code and statutory provisions applicable in Australia) does not require on the part of the accused foresight of the possibility of death of the person killed, s 31 of the Code conforms to that approach. Not only would this involve the adoption of an erroneous attitude to the construction of the Code. It would also overlook many contemporary rules, and proposed reforms, of the law governing the mental element necessary to the crime of murder. For example, in the Australian Capital Territory, to establish murder, the prosecution must prove that the accused had an intention to kill the deceased or a "reckless indifference to the probability of causing the death of any person"[16]. In Canada, an intention to cause "bodily harm" is an element in the crime of murder only if the offender "knows [it] is likely to cause ... death"[17]. Similarly, in New Zealand an intention to cause "bodily injury" to the deceased (as distinct from an intention to kill that person) will lay a foundation for a conviction of murder only if it is "known to the offender to be likely to cause death"[18].

In England, the draft Criminal Code, prepared by the Law Commission in 1989, proposed[19] that murder be defined, in relation to conduct causing death, as involving either an intention to cause death or an intention "to cause really serious bodily harm coupled with awareness of the risk of death"[20]. The Australian Model Criminal Code has recommended that "[t]he crime of murder should not extend to cases in which the accused intended serious harm, rather than death, unless the accused was reckless as to the risk of death"[21].

These considerations, reflecting both present law and applicable legal policy, indicate that it would be perilous on the face of the provisions of the legislation in question here to assume that the Code was intended, by the enactment of ss 31 and 162(1)(a), to do no more than to reproduce the pre-existing law or to enact for the Territory the law then applicable in the majority of other Australian jurisdictions.

An attempt was made during argument to throw light on the subjective intentions of the drafters of the new Code. The Court permitted the Crown to supply extracts from the transcript of a seminar held in Darwin before the Code was enacted[22]. I entertain doubts that this material is admissible or relevant to the task in hand. But in any case, a study of the somewhat informal exchanges between identified and unidentified persons at the seminar casts no real light upon the problem of construction which now falls to be resolved. The only safe course is to examine the language and structure of the Code, without presuppositions, so as to derive the answer to the present problem from within its provisions.

Callinan J (like the majority in the Court of Criminal Appeal) has concluded that because s 162(1)(a) of the Code contains its own reference to a mental element[23], it expels the operation of the general provisions of s 31 and thus knocks away the foundation of the construction urged for the appellant. Any apparent disharmony between the Code and this conclusion is ascribed to the need to work out judicially the operation of s 31 as "specific solutions of particular difficulties raised by the precise facts"[24] of the given case in a way analogous to that suggested by Dixon CJ in Vallance v The Queen[25]. There an apparent disharmony was found between the general provisions of s 13(1) of the Criminal Code (Tas) and the specific provisions for the offence in question in s 172, eliciting Dixon CJ's suggestions. Whilst I accept the force of this reasoning, it does not convince me in this case.

First, there are purely textual difficulties. Section 31 of the Code appears in Pt II under the title "Criminal Responsibility". That general title, and the language of s 31 itself, suggests that its provisions apply to all of the specific offences enacted by the Code. Now it is true that this assumption may turn out to be erroneous, s 31 being of the kind of "introductory ... abstract statements of principle about criminal responsibility" which Dixon CJ ascribed in Vallance[26] to the "analytical conscience of an Austinian jurist" rather than the practicalities necessary to a criminal trial. However, on the face of it, s 31 is an over-arching provision. Moreover, it is one of very considerable importance to the operation of the Code given the centrality of intention as an element ordinarily necessary to constitute the criminality of the offences provided by the Code. In this sense, s 31(1) states, as a code principle of general application, a core tenet of our criminal law. It is not one which would ordinarily be confined or narrowed. In this context, s 31(2) is likewise, on the face of things, of general application. It is so expressed. There would need to be clear reasons why s 31 should be otherwise construed.

Secondly, there is a further textual clue as to the purpose of the legislature in this case. Section 31(3) states specifically that the section does not apply to the offence as defined by Div 2 of Pt VI. That division deals primarily with "dangerous acts"[27]. Part VI generally concerns "Offences Against the Person and Related Matters". Whereas s 162 is within that part, it is not within Div 2. It falls within Div 3. Although slips can occur in the drafting of legislation, it would not lightly be attributed to the legislature that it meant the over-arching provisions of s 31 not to apply to the offences defined by Div 2 and to an offence contained in Div 3 and expressed in s 162(1)(a). This is especially so because the legislature has taken the trouble to mention the former but is silent about the latter. In short, where the legislature meant the words of general application in s 31 not to apply to specified offences, it said so. It did not leave matters to chance. It did not leave the working out of the interrelationship between s 31 and the offences provided in the Code to reconciliation by judges of the operation of the general provisions as to intention and special provisions in particular offences in which intention was expressly referred to. On this basis alone, the legislature has given a clear signal. It is that s 31 is intended to apply to the offences (including murder) defined by Div 3 of Pt VI of the Code. It would require very clear language in an offence defined outside Div 2 of Pt VI, such as that in s 162(1)(a), to produce an exclusion which the legislature held back from expressing.

Thirdly, the construction urged by the appellant is more consistent, as it seems to me, with the earlier authority of the Court of Criminal Appeal of the Northern Territory in Breedon[28]. As stated, this Court refused special leave to appeal in Breedon. The reasoning in that case, as I read it, was not confined to the peculiarities of par (b) of s 162(1) of the Code. Whilst it is true that no particular mental element, intent or foresight was prescribed in s 162(1)(b), the reasoning in Breedon, which this Court declined to disturb, was expressed in very general terms. It found its anchor in the structure of the Code and the interrelationship between general provisions (such as s 31) and applicable specific offences (such as s 162). It was not based on the nuances in the definitions of the offences in s 162 to which argument is now attached.

This Court is not bound by Breedon. There are differences between pars (a) and (b) of s 162(1). But the first thoughts of the Court below on the structure of the Code and the interrelationship between the sections were, as it seems to me, correct. The hard facts of this case, and pre-existing and otherwise applicable law on the point, led the Court of Criminal Appeal, in my respectful view, into error. The majority of that Court accepted that s 31 applied to s 162(1)(a) of the Code, at least to the extent that it imposed a requirement that the act of the offender causing death must be intentional (ie willed). But once an interrelationship of any kind is conceded, it seems difficult to deny the operation of s 31 to its full extent and in accordance with its plain meaning.

Fourthly, the consideration which appears to have convinced the majority judges in the Court of Criminal Appeal[29], and the majority in this Court, is the fact that s 162(1)(a) "prescribes its own mental element". The implication is that this leaves no work for s 31 to do. Once it is accepted that there is work for s 31 to do, the normal rule of statutory construction would require that the provision be given effect to the fullest extent compatible with the operation of the particular provisions of the Code, in this case in s 162(1)(a). A clue that this was what the legislature intended is found by the use in s 162(1) of the adverb "unlawfully". This indicates to me that the offences listed in the sub-section - including the offence contained in par (a) - will not be made out simply by proof of a killing. It will be necessary for the Crown to show that the killing with the mental element defined was effected "unlawfully". Clearly enough, such a governing requirement will take the reader of the Code to those general provisions which differentiate conduct declared to be "lawful" from "unlawful". Such provisions appear in the general section of the Code dealing with "Criminal Responsibility" (Pt II). They include s 31 which falls within Div 4 entitled "Excuse". If there is a lawful "excuse", criminal responsibility will not be established. The killing, although undoubtedly proved as an event, will not be unlawful.

Fifthly, this leaves the problem of reconciling the general language of s 31 with the particular reference, in the case of the offence of murder under s 162(1)(a), to the fact that the offence may be proved although the offender does not intend the death of the person killed but does intend "to do to the person killed ... grievous harm". By s 1 of the Code, the phrase "grievous harm" has a particular meaning[30]. However, as Angel J pointed out in the Court below, there are certain difficulties in applying every part of that special meaning to s 162(1)(a) of the Code, saying "[p]ermanently to maim or to disfigure is to cause permanent injury to health, ie grievous harm as defined"[31]. Yet if the perpetrator intended the results to be permanent, this would ordinarily involve an intention that the victim should live. It may not involve any contemplation of the likelihood, or even the possibility, of causing death. Ordinary conceptions of criminal culpability would not support a view of the Code which rendered the offender in such a case guilty of murder, although there was no intent to kill, simply because the injury in fact resulted in death.

There is no reason why s 31 should not apply to the intent to do grievous harm specifically referred to in s 162(1)(a). By its terms, the section applies. And the result of its doing so is by no means unreasonable. It means that the offender must intend to cause an injury and objectively speaking that injury must be one which would endanger life, be likely to endanger life, cause permanent injury to health or be likely to cause such permanent injury. But once that intention is established, the person is excused from criminal responsibility unless the act, omission or event was "intended or foreseen by him as a possible consequence of his conduct"[32]. The act, omission or event in question is the killing. Section 162 of the Code may readily be reconciled with s 31 by reading the latter as requiring that, for any conviction of murder, an additional element of foresight for the possibility of death is necessary, beyond the other elements imposed by the specific provisions of s 162.

Sixthly, such a construction of the Code is far from irrational or unreasonable. Conviction of murder in the Northern Territory carries a mandatory sentence of life imprisonment[33]. In the eyes of the community, conviction of murder bears a particular stigma. Murder is now the most serious offence provided by law. Where there is doubt which cannot otherwise be resolved, a construction of the Code providing for the elements of the offence of murder, carrying such condign punishment, should be preferred which upholds the imposition of the requirement laid down by the general terms of s 31 in addition to that laid down by s 162(1)(a). This approach adopts a construction of the Code, the most modern statute of general criminal law enacted in Australia, which conforms to the unanimous recommendations in England of the Law Commission and in Australia of the drafters of the Model Criminal Code. It would apply to the "curious provision" of s 31 a meaning both rational and just. It is therefore the one which I favour.

The foregoing conclusion means that the trial judge should have instructed the jury in terms of s 31 of the Code that they could not convict the appellant of murder if the Crown had failed to prove beyond reasonable doubt that the appellant foresaw the death of the person killed as a possible consequence of his conduct. No such direction was given. To the contrary, the judge expressly directed the jury to consider "grievous harm" which did not endanger the victim's life and the foreseeability of the victim's death. Although the Crown argued that the "proviso" provisions of the Code[34] applied, to sustain the appellant's conviction of murder notwithstanding any misdirection, that submission must be rejected[35].

No application for the direction now sought was made at the trial. A submission based on the requirement of s 31, if explained to the jury, might well have been rejected by the jury in the facts of this case. However, the appellant was entitled to a trial according to law[36]. In particular, he was entitled to have all of the elements of the offence accurately explained to the jury. Especially as severe intoxication was a major element of the evidence adduced at the trial and the only real issue for the jury's determination was whether the appellant had the state of mind which the Code required for murder, once an error of direction in the ingredients of the offence is found, that is fatal to the lawfulness of the conviction[37]. A second jury, applying robust common sense, might well, properly directed, come to the same conclusion as the first jury did. However, they would do so after a trial in which the judge's explanation of the operation of the Code upon the offence charged was legally correct. Appellate courts are always vigilant about the accuracy of judicial explanations of the elements of the offence charged. They are particularly vigilant where an accused, convicted of murder, is serving the sentence of life imprisonment. There must therefore, in my view, be a retrial.

The appeal should be allowed. The order of the Court of Criminal Appeal of the Northern Territory should be set aside. In place thereof, it should be ordered that the appeal to that Court be allowed, the conviction and sentence of the appellant quashed and a new trial ordered.

HAYNE J. The facts and circumstances that give rise to this appeal are set out in the reasons for judgment of Callinan J and I do not repeat them.

I agree with Kirby J that the appeal should be allowed and a new trial held. Because this view does not command the assent of a majority of the Court, I state my reasons as shortly as I can.

Section 31 of the Criminal Code (NT) ("the Code") presents very difficult questions, not least in its possible application to the offence of murder proscribed by s 162. Two forms of intention are mentioned in s 162(1)(a) - "the offender intends to cause the death of the person killed or of some other person" and "the offender intends to do to the person killed or to some other person grievous harm". And yet s 31 speaks of excusing a person from criminal responsibility "for an act, omission or event unless it was intended or foreseen by him as a possible consequence of his conduct". How are these different references to intention to be reconciled?

The appellant admitted that his stabbing of the victim was not accidental. That is, he admitted that his act was intended. In those circumstances did s 31 apply and, if so, how did it apply?

I do not accept that because s 162 states the specific intent that must be proved to establish murder (an intention to kill or to cause grievous harm) it follows that s 31 has no application at all to cases of murder. Section 31 is a general provision intended to excuse criminal responsibility. There is no basis for limiting its application to only those provisions of the Code which state no specific intent. And the specific reference to s 31 in s 162(4) can only reinforce the view that s 31 is intended to apply in cases of murder. Once that step is taken, I do not consider it possible to limit the application of s 31.

Section 31 applies to excuse criminal responsibility "for an act, omission or event" and each of those expressions must be taken as intended to have work to do. In this case, the appellant's admission that his action of stabbing the victim was not accidental meant that s 31 had no application to that "act". But what was the relevant "event", and was that event intended or foreseen? The event must be taken to be the victim's death and the appellant contended that death may have been neither intended (the appellant's only intention being to do grievous harm) nor foreseen by him. It would follow, in my view, that if s 31 applied to excuse the appellant from criminal responsibility for this event - the death of the victim - he would be guilty of none of the homicide offences in the Code: for he would be excused criminal responsibility for the event of death.

This is said to be so startling a result as to require some confinement of the application of s 31 in its operation in connection with s 162. But in my view there is no satisfactory basis for confining s 31. And although a result that would excuse an accused from all homicide offences would certainly be at odds with the result that would obtain at common law, the Code is not intended to, and does not, reflect the common law. In any event, it might confidently be expected that the cases in which a jury could be persuaded that an accused formed an intention to do grievous harm but did not foresee death as a possible consequence will be very few and far between. The collective good sense of jurors will much more often than not recoil at any such suggestion.

The directions to the jury should have invited attention to the issues presented by s 31. They did not, and the appeal should be allowed.

CALLINAN J. The question in this case concerns the relationship between s 31 and s 162(1)(a) of the Northern Territory Criminal Code ("the Code").

The appellant, Kenny Charlie, was tried and convicted by a jury on 3 October 1995 of the murder of his de facto wife with whom he was then living. The appellant and the deceased lived at Yanyula Camp, an aboriginal settlement in Borroloola, in the Northern Territory. Their relationship had been a turbulent one. On 11 August 1994, the appellant and the deceased who were both intoxicated were involved in an argument. The appellant attacked the deceased striking her in the mouth with a blunt instrument, probably a full can of beer, and stabbed her repeatedly with a knife. Fatal blows were inflicted to the victim's chest and back.

At his trial, the appellant admitted that he had caused the victim's death by stabbing her with a knife. He did not attempt to rely upon self-defence, provocation or accident. The only substantial issue at the trial was whether the appellant possessed, at the time of the killing, such a state of mind as is required for murder under s 162(1)(a) of the Code.

It is convenient at this point to set out that and other provisions relevant to this case.

"Act" is defined in s 1 of the Code in this way:

"'act', in relation to an accused person, means the deed alleged to have been done by him; it is not limited to bodily movement and it includes the deed of another caused, induced or adopted by him or done pursuant to a common intention".

"... any physical or mental injury of such a nature as to endanger or be likely to endanger life or to cause or be likely to cause permanent injury to health".

"For the purposes of this Part, an offence is committed when a person who possesses any mental element that may be prescribed with respect to that offence does, makes or causes the act, omission or event, or the series or combination of the same, constituting the offence in circumstances where the act, omission or event, or each of them, if there is more than one, is not authorized or justified."

Section 23 of the Code falls within Div 1 of Pt II which bears the heading "Criminal Responsibility" and provides:

"A person is not guilty of an offence if any act, omission or event constituting that offence done, made or caused by him was authorized, justified or excused."

"(1) A person is excused from criminal responsibility for an act, omission or event unless it was intended or foreseen by him as a possible consequence of his conduct. > > (2) A person who does not intend a particular act, omission or event, but foresees it as a possible consequence of his conduct, and that particular act, omission or event occurs, is excused from criminal responsibility for it if, in all the circumstances, including the chance of it occurring and its nature, an ordinary person similarly circumstanced and having such foresight would have proceeded with that conduct. > > (3) This section does not apply to the offences defined by Division 2 of Part VI."

Division 3 of Pt VI is concerned with homicide, suicide, concealment of birth and abortion. Section 157 is in this form:

"Any person who causes the death of another directly or indirectly by any means is deemed to have killed that other person."

"(1) Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say: > > (a) if the offender intends to cause the death of the person killed or of some other person or if the offender intends to do to the person killed or to some other person grievous harm; > > (b) if death is caused by means of an act done when committing or attempting to commit an offence referred to in subsection (2) which act is of such a nature as to be likely to endanger human life; > > (c) if death is caused by administering any stupefying or overpowering substance for the purpose of facilitating the commission of an offence referred to in subsection (2) or for the purpose of facilitating the flight of an offender who has committed or attempted to commit such an offence; or > > > (d) if death is caused by stopping the breath of any person for either of the purposes referred to in paragraph (c),

is guilty of murder. > > > (2) The offences to which subsection (1) refers are - > > > > (a) any crime for which the offender may be sentenced to imprisonment for 14 years or longer; > > > > (b) any crime of which an assault or an intention to do or cause any injury or damage is an element and for which the offender may be sentenced to imprisonment for 7 years or longer; and > > > > (c) an offence defined by section 112. > > > > (3) In the circumstances referred to in subsection (1)(a) it is immaterial that the offender did not intend to hurt the particular person who is killed. > > > > (4) In the circumstances referred to in subsection (1)(b), notwithstanding section 31, it is immaterial that the offender did not intend to hurt any person or did not foresee the death of the deceased as a possible consequence of the act causing death. > > > (5) In the circumstances referred to in subsection (1)(c) or (d) it is immaterial that the offender did not intend to cause death or did not know that death was likely to result."

Murder was left to the jury on alternative bases: killing with intent to cause death, or killing with intent to do grievous harm. The trial judge made the following remarks in summing up to the jury:

"A foresight of the possibility of death is not what grievous harm is about. There's got to be an actual intent to cause grievous harm. In other words, an intent to do a physical injury to [the deceased] of such a nature as to endanger her life or be likely to endanger her life, or to cause permanent injury to her health, or to be likely to cause permanent injury to her health. > > So that's the nature of the intent that's required in the case of an intent to cause grievous harm. Foresight of the possibility of death is only an element to be considered in relation to manslaughter. ... > > So we're not talking about - when you're talking about murder, you don't worry about foresight of the possibility of death. You only need to worry about that if you come to manslaughter."

In the Court of Criminal Appeal, the appellant contended that the trial judge erred in not directing the jury that the law (s 31) required that in considering murder on the basis of an intent to cause grievous harm, they must, before convicting, be satisfied that death was foreseen as a possible consequence of the appellant's conduct.

The Court of Appeal by a majority (Martin CJ and Kearney J, Angel J dissenting) dismissed the appellant's appeal[38]. The majority held that s 162(1)(a) is not to be read as being subject to the requirement that the death in question was foreseen by the offender as a possible consequence of his conduct.

Martin CJ held that a person is excused from criminal responsibility for an act, omission or event unless one or other of the two mental elements referred to in s 162(1)(a) is proved beyond reasonable doubt. His Honour continued[39]:

"The mental element under s 162(1)(a) is expressed to be intent. On the face of it, foresight has no place. To be found guilty of the most serious crime in the criminal calendar, it is necessary that specific intent be proved, nothing more is required and nothing less will do. It is the intent to do the act which caused the death which elevates the criminal conduct to the most serious level. The defendant must be shown to have intentionally done an act (the 'means' in s 157) causing death, intending either to cause a death or to cause grievous harm to a person. In this case, was it the intent of the accused to cause the death of [the deceased] or do her grievous harm?"

"In spelling out an intent to kill as one of the alternative mental elements in s 162(1)(a), the legislature has provided specifically therein for what is otherwise the generally-worded requirement in s 31(1) that the 'event' must be 'intended'. There is no scope for the operation of that aspect of s 31(1). I consider that in also spelling out in s 162(1)(a) an alternative sufficient mental element - intent to do grievous harm - the legislature intended to set out comprehensively and exclusively in s 162(1)(a) the mental elements required for that type of murder. That is to say, I do not consider that the Code requires, or the legislature intended, in relation to the type of murder defined in s 162(1)(a) [original emphasis] that s 31(1) operates other than in its requirement that the homicidal act be intentional. It follows that I consider that the learned trial Judge's direction to the jury on this aspect was correct. I note incidentally that this construction preserves long-accepted notions of culpability and responsibility for criminal conduct, in this and other jurisdictions."

Angel J in dissent was of the view that s 31 could operate in circumstances in which an accused neither intended nor foresaw death as a possible consequence of his or her conduct[41]:

"An intention to kill or an intention to cause harm which was likely to endanger life would ordinarily subsume any question of foresight of death as a possible consequence of conduct. However, grievous harm also includes permanent injury to health which does not necessarily endanger life (s 1). It follows that the learned trial judge's direction concerning an intention to cause grievous harm in so far as that included permanent injury to health which did not endanger life ought to have been accompanied by a direction that the foresight of death as a possible consequence of the conduct was also required to be proven by the Crown. ... In my respectful view a person who intends to cause permanent injury to health which does not endanger life (eg, to disfigure or to maim) and who intends his victim to live or who gives no thought to the possibility of death as a consequence of his willed act can not be guilty of murder contrary to s 162 of the Criminal Code".

The only ground of appeal to this Court raises the same issue as was raised in the Court of Criminal Appeal:

"The Court of Criminal Appeal of the Northern Territory erred in holding that the offence of murder created by s 162(1)(a) of the Criminal Code does not require, by reason of s 31 of the Code, proof that death was foreseen as a possible consequence of the accused person's conduct."

The appellant's argument was that an act was not unlawful within the meaning of s 1 of the Code unless it was done without "authorization, justification or excuse" and that a person was excused from criminal responsibility for an event if it was neither intended nor foreseen as a possible consequence of an accused's conduct.

That s 31 is intended to have application generally and unless otherwise expressly provided, is to be inferred, it was submitted, not only from its generally unqualified language but also from the express exclusion in sub-s (3) of its application to the offences defined by Div 2 of Pt VI. (Division 2 of Pt VI deals primarily with "dangerous acts" (s 154) and falls within the same Part ("Part VI - Offences Against the Person and Related Matters") but not the same Division as s 162.)

The appellant relied upon Breedon v The Queen[42], a case in which both pars (a) and (b) of s 162(1) were considered. There, a Court of Criminal Appeal constituted by Martin CJ, Gallop and Angel JJ upheld an appeal against conviction of murder and aggravated robbery contrary to sub-ss 211(1) and (2) of the Code. At the trial, the Crown had sought to prove murder on any of three separate bases: first, that the appellant intended to kill the deceased; secondly, that he intended to cause him grievous harm; or thirdly, that the appellant caused the death by means of an act done when committing or attempting to commit a robbery[43].

In the Court of Criminal Appeal in this case, Martin CJ in distinguishing Breedon's Case said[44]:

"That was a case in which the Crown had asserted that the appellant caused the victim's death by means of an act done (stabbing) when committing or attempting to commit the offence of robbery, that act being of such a nature as to be likely to endanger human life (s 162(1)(b)). Subsection (4) of s 162 then provided: 'In the circumstances referred to in subsection (1)(b) it is immaterial that the offender did not intend to hurt any person'. No reference was made to the question of foresight on the part of the accused. At 129-130 the Court said:

'In the context of the present case, it is clear that the stabbing of the deceased is the relevant "act" for the purposes of s 31(1), and that the death of the deceased is the relevant "event" for the purposes of the section[45]. It follows that unless the stabbing was proved by the Crown to have been intended by the applicant or the death foreseen by him as a possible consequence of his conduct, then the applicant was excused from criminal responsibility for his conduct and its consequences ... '.

It was the appellant's case there that the stabbing had been accidental, occurring during the course of a struggle in circumstances where it was open to the jury to find him guilty of the offence of robbery. The references to the need for the Crown to prove that the stabbing was intended or the death foreseen were observations in the circumstances of that case, taking into account the provisions of s 162(1)(b) and (4) and the operation of s 13 in the circumstances. The fact that death occurred during the robbery was not enough to found a conviction for murder. No particular mental element, intent or foresight, was prescribed in s 162(1)(b). > > Section 162(4) was later amended to provide that in the circumstances referred to in subsection 1(b), notwithstanding s 31, it is immaterial that the offender did not intend to hurt any person or did not foresee the death as a possible consequence of the act causing death. Breedon has no bearing upon this case which falls to be considered under s 162(1)(a)."

61 Breedon's Case depended upon its own facts: s 162 has been amended since it was decided. Whatever view might be taken of its correctness or otherwise, it has nothing to say as to the operation of s 162(1)(a) in the circumstances of this case.

It is true that the language of s 31 is apparently unqualified. It has no analogue elsewhere in Australia and is part of the new Code which was introduced into the Northern Territory in 1983. The appellant's argument also gains some support from the specific reference to, and exclusion of the operation of s 31 of the Code in the case of murder as defined by s 162(1)(b). However, it should be noted that that sub-section, unlike sub-s (1)(a) requires no mental element at all. Sub-section (5) contains quite different expressions altogether and now provides that in the case of offences of murder under s 162(1)(c) and (d) it is immaterial that the offender did not intend to cause death or did not know that death was likely to result. That there are such differences in language to be found within the one section suggests that each of the sub-sections and paragraphs is unique and requires separate consideration according to its terms, but of course in the context of the Code as a whole.

Counsel for the respondent in his submissions contended that some guidance was to be obtained from the omission of the word "excused" from s 2 of the Code which provides that an offence is committed when a person possessing any prescribed mental element does, makes or causes the relevant act, omission or event in circumstances in which the act, omission or event is not authorised or justified. The respondent argued that the section, defining as it did what is required for the commission of an offence, specifically contemplates that "excuse" (unlike authorisation or justification) is of no relevance to the primary question whether an offence has been committed; that the role of the exculpatory provisions (if applicable) is to determine, once it has been decided that an offence has been committed, whether an offender should be held criminally responsible for his or her conduct.

This argument is not persuasive. The difficulty about it is that if authorisation or justification exists then no offence has been committed and a verdict of not guilty will be entered. The position might have been different had the phrase "constituting what would otherwise be an offence" been used, instead of the words "constituting the offence".

However, I have formed the view that the reasoning of the majority in the Court of Criminal Appeal with respect to the operation of s 162(1)(a) is correct. Kearney J in his reasons for judgment referred at some length to the judgment of Dixon CJ in Vallance v The Queen[46] who there discussed the proper approach to the construction of a criminal code in a case in which the appellant sought to rely on s 13 of the Tasmanian Criminal Code[47]. Speaking of that provision, Dixon CJ in Vallance said:

"But a study of the Code has made it apparent that the plan has not been, indeed from the nature of the thing it could not be, uniformly carried out."[48] > > ... > > "The difficulty may lie in the use in the introductory part of the Code of wide abstract statements of principle about criminal responsibility framed rather to satisfy the analytical conscience of an Austinian jurist than to tell a judge at a criminal trial what he ought to do. It may lie in that because it is followed by many chapters defining particular crimes more often than not in terms adopted long before as occasion demanded by a legislature introducing a new crime or crimes into a common law system, and prone to the use of definitions of a somewhat practical or earthy kind. In the Code these abstractions of doctrine are not the generalized deductions from the particular instances that follow: they come ab extra and speak upon the footing that they will restrain the operation of what follows."[49] > > ... > > "... I do not think it wise to go further in expounding the meaning and operation of this very elusive and difficult sub-section when it combines with a specific offence defined in terms which neglect or ignore the possibility of some mental element forming an ingredient in the offence. ... Indeed I think that it is only by specific solutions of particular difficulties raised by the precise facts of given cases that the operation of such provisions as s 13 can be worked out judicially."[50]

It is true that the Code was introduced some 22 years after the decision in Vallance but there can still be discerned in it specific provisions reflecting an intention to exclude from specific offences the application of general exculpatory provisions. The internal differences within s 162 also demonstrate that the elements necessary to found a conviction for murder may vary from situation to situation. So too, s 154 which is concerned with dangerous acts or omissions, although it requires as an element, foreseeability, that foresight is to be not the subjective foresight of the accused person but that of "an ordinary person similarly circumstanced" clearly foreseeing the relevant danger.

Section 162(1)(a) of the Code is not the only section which prescribes it own mental element. Sections 172 (procuring abortion), s 176 (stupefying in order to commit crime), s 177 (acts intended to cause grievous harm or prevent apprehension), s 182 (attempting to injure by explosive substances), s 249 (damaging mines) and s 272 (personation) are further examples.

Section 302[51] of the Queensland Criminal Code was the subject of a comment of Brennan CJ, Dawson and Toohey JJ in R v Barlow[52]. There, their Honours said of that provision which has some similarity to s 162(1)(a):

"Section 302 prescribes the specific intent (not merely foresight, much less foreseeability, of death or grievous bodily harm) which must be entertained by an offender before the offender is guilty of murder."

Whilst it must be accepted that each Code falls to be construed according to its own language, in case of ambiguity, it is appropriate that this Court lean in favour of a construction generally consistent with that of other Codes and with the general principles applied in the common law jurisdictions in this country. To exclude the operation of s 31 upon an offence governed by s 162(1)(a) is to adopt such a construction.

The trial judge and the majority in the Court of Criminal Appeal were right in holding that the express reference to intent in s 162(1)(a) meant that s 31 of the Code does not have the effect contended for by the appellant.

A separate argument was addressed to the Court by the appellant with respect to the alternative limb of s 162(1)(a): that the learned trial judge should have told the jury that if they were not satisfied that the appellant intended to kill the victim they must be satisfied that he intended to do her grievous harm, that is to say, that he intended to cause her physical injury of such a nature as to endanger or be likely to endanger life or to cause or be likely to cause her permanent injury to health, and, should have given them guidance in particular as to the meaning of words "or be likely to endanger her life ... or to be likely to cause permanent injury to her health".

The respondent submits that in this case the direction which was given by the trial judge was adequate having regard to the brutality of the attack upon the victim. The jury, it was contended, must have found intent: otherwise a verdict of murder could not have been returned. Once intent to kill or cause grievous harm was established, the force and persistence of the attack were incompatible with any unlikelihood of death or permanent injury to health, whether viewed objectively or subjectively. The direction referred to was in this form:

"A foresight of the possibility of death is not what grievous harm is about. There's got to be an actual intent to cause grievous harm. In other words, an intent to do a physical injury to [the deceased] of such a nature as to endanger her life or be likely to endanger her life, or to cause permanent injury to her health, or to be likely to cause permanent injury to her health. > > So that's the nature of the intent that's required in the case of an intent to cause grievous harm. Foresight of the possibility of death is only an element to be considered in relation to manslaughter."

The respondent's submission is correct. The direction which was given required that the jury be satisfied that the appellant was possessed of an intent to do physical injury such as to endanger her life or to cause death. The violence and the duration of the assaults upon the victim were of such brutality that the perpetrator could have intended no result other than permanent injury to her health, or death, and no other result was likely.

However, as the proper construction of the latter part of the sub-section was argued some consideration should be given to it. The question is whether the word "likely" when used in the definition of "grievous harm" in s 1 of the Code means, objectively likely or subjectively likely, or whether the definition taken as a whole contains both a subjective and an objective element. If the intention were that the definition was to have a subjective operation it would be necessary that the offender be shown to have intended to cause an injury which he was aware would endanger life, or be likely to endanger life, or to cause permanent injury to health or be likely to cause permanent injury to health[53]. There is some authority which appears to assume that an entirely subjective meaning is the correct one[54].

At common law it is for the jury to decide simply whether the accused intended to induce in the victim a condition of grievous bodily harm or death[55]. Accordingly, questions of the kind under consideration here will not ordinarily arise in the common law jurisdictions.

In my opinion, according to its ordinary meaning, the definition of "grievous harm" does not require any element of awareness of result. It is sufficient that for the purposes of s 162(1)(a), for a conviction of murder to be sustained, that the offender intended to do an act or to cause a physical or mental injury which was of such a nature as actually to endanger, or objectively viewed be likely to endanger life, or to cause, or objectively be likely to cause permanent injury to health. The absence of any reference to foresight and awareness in the definition of "grievous harm" supports such an interpretation.

Angel J who preferred an entirely subjective interpretation was of the view that a person who intended only permanently to main or disfigure, or to cause permanent injury to health would ordinarily have intended that the victim live, and did not contemplate the likelihood of the possibility of death. It is not inconsistent with ordinary notions of criminal responsibility that an offender, seeking to maim or disfigure somebody so as to cause permanent injury to health and who in the course of doing so causes death should be convicted of murder. The common law has never thought it anomalous that an offender having such an intention and taking such a risk should, if the consequences of the act exceed the intended purpose, be convicted of murder[56].

[1] Charlie v The Queen [1998] NTCCA 1; (1998) 7 NTLR 152.

[2] Martin CJ and Kearney J; Angel J dissenting.

[3] Breedon v The Queen [1993] NTSC 114; (1993) 3 NTLR 119. This Court refused special leave on 25 August 1994, (1994) 17 Leg Rep C10.

[4] See Kearney J in Charlie v The Queen [1998] NTCCA 1; (1998) 7 NTLR 152 at 168, referring to Pregelj v Manison (1987) 51 NTR 1. See also Jabarula v Poore [1989] NTSC 24; (1989) 68 NTR 26 at 30.

[5] Following Breedon v The Queen [1993] NTSC 114; (1993) 3 NTLR 119, the Code was amended by the alteration of s 162(4). See [1999] HCA 23 at [61] per Callinan J.

[8] See eg R v Cunningham [1981] UKHL 5; [1982] AC 566; cf R v Crabbe [1985] HCA 22; (1985) 156 CLR 464; Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10; Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.

[9] R v Barlow (1997) 188 CLR 1 at 31-33.

[10] Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10 at 30 per Brennan J.

[11] R v Martyr [1962] Qd R 398 at 413 per Philp J.

[12] Brennan v The King [1936] HCA 24; (1936) 55 CLR 253 at 263 per Dixon and Evatt JJ.

[13] R v Jervis [1993] 1 Qd R 643 at 647 per McPherson ACJ; R v Barlow (1997) 188 CLR 1 at 32.

[14] Zecevic v Director of Public Prosecutions (Vict) [1987] HCA 26; (1987) 162 CLR 645 at 665.

[15] cf R v Jervis [1993] 1 Qd R 643 at 652.

[17] Criminal Code (Canada), s 229. The Supreme Court of Canada has suggested that, by reason of the Canadian Charter of Rights and Freedoms no person may be convicted of murder unless that person meant to kill or cause bodily harm to the deceased knowing that death was likely; see R v Vaillancourt (1987) 47 DLR (4th) 399.

[19] Great Britain. Law Revision Committee on Offences against the Person (1980) (Cmnd 7844) at 14, adopted in the Criminal Code for England and Wales, Law Commission No 177, (1989), cl 54(1).

[20] See R v Powell [1997] 3 WLR 959 at 967 per Lord Steyn; [1997] 4 All ER 545 at 552 where the views of the Law Commission are endorsed.

[21] Australia, Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code, ch 5, DP June 1998, 53.

[22] Criminal Code Seminar, Darwin, October 1983.

[23] "[I]f the offender intends to cause the death of the person killed or of some other person or if the offender intends to do to the person killed or to some other person grievous harm".

[24] Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56 at 61 per Dixon CJ.

[25] [1961] HCA 42; (1961) 108 CLR 56 at 58-60.

[26] [1961] HCA 42; (1961) 108 CLR 56 at 58.

[28] Breedon v The Queen [1993] NTSC 114; (1993) 3 NTLR 119. It should be noted that s 162(1)(b) did have a specified mental element in relation to the foundation of the offence.

[29] Charlie v The Queen [1998] NTCCA 1; (1998) 7 NTLR 152 at 155-156 per Martin CJ, 166 per Kearney J.

[30] "[A]ny physical or mental injury of such a nature as to endanger or be likely to endanger life or to cause or be likely to cause permanent injury to health".

[31] Charlie v The Queen [1998] NTCCA 1; (1998) 7 NTLR 152 at 169.

[34] The Code, s 411(2). ("The Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred").

[35] Simpson v The Queen (1998) 72 ALJR 1199 at 1202-1203, 1208-1209; [1998] HCA 46; 155 ALR 571 at 576-577, 583-584.

[36] Gipp v The Queen (1998) 72 ALJR 1012 at 1017, 1038; 155 ALR 15 at 22-23, 50-51; HG v The Queen [1999] HCA 2; (1999) 73 ALJR 281 at 293; [1999] HCA 2; 160 ALR 554 at 571.

[37] The appellant's counsel at the trial made it clear that the defence case was that the appellant's level of intoxication was such that on the balance of probabilities he did not foresee the possibility of the death of the deceased. At the end of the trial and after a retirement of nearly five hours, the jury returned with a question which related to whether or not the accused had formed an intent. After further directions, the jury returned within ten minutes to convict the appellant on a unanimous verdict "finally" arrived at.

[38] [1998] NTCCA 1; (1998) 7 NTLR 152.

[39] [1998] NTCCA 1; (1998) 7 NTLR 152 at 156.

[40] [1998] NTCCA 1; (1998) 7 NTLR 152 at 167.

[41] [1998] NTCCA 1; (1998) 7 NTLR 152 at 169.

[42] [1993] NTSC 114; (1993) 3 NTLR 119.

[43] [1993] NTSC 114; (1993) 3 NTLR 119 at 129.

[44] [1998] NTCCA 1; (1998) 7 NTLR 152 at 155-156.

[45] cf Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209 at 231.

[46] [1961] HCA 42; (1961) 108 CLR 56.

"(1) No person shall be criminally responsible for an act, unless it is voluntary and intentional; nor, except as hereinafter expressly provided, for an event which occurs by chance.

(2) Except as otherwise expressly provided, no person shall be criminally responsible for an omission, unless it is intentional.

(3) Any person who with intent to commit an offence does any act or makes any omission which brings about an unforeseen result which, if he had intended it, would have constituted his act or omission some other offence, shall, except as otherwise provided, incur the same criminal responsibility as if he had effected his original purpose.

(4) Except where it is otherwise expressly provided, the motive by which a person is induced to do any act or make any omission is immaterial."

[48] [1961] HCA 42; (1961) 108 CLR 56 at 60.

[49] [1961] HCA 42; (1961) 108 CLR 56 at 58.

[50] [1961] HCA 42; (1961) 108 CLR 56 at 61.

"(1) Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say-

(a) if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm;

(b) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;

(c) if the offender intends to do grievous bodily harm to some person for the purpose of facilitating the commission of a crime which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such crime;

(d) if death is caused by administering any stupefying or overpowering thing for either of the purposes mentioned in paragraph (c);

(e) if death is caused by wilfully stopping the breath of any person for either of such purposes;

(2) Under subsection (1)(a) it is immaterial that the offender did not intend to hurt the particular person who is killed.

(3) Under subsection (1)(b) it is immaterial that the offender did not intend to hurt any person.

(4) Under subsection (1)(c) to (e) it is immaterial that the offender did not intend to cause death or did not know that death was likely to result."

[53] For a discussion of the meaning of the word "likely" in a criminal code see Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10; Simpson v The Queen (1998) 72 ALJR 1199 at 1205-1207 per Kirby and Callinan JJ; [1998] HCA 46; 155 ALR 571 at 579-582.

[54] Queensland has a comparative provision, Criminal Code, s 302(1) and see the definition of "grievous bodily harm" in s 1. In Willmot (1985) 18 A Crim R 42 at 44, the Queensland Court of Criminal Appeal did not expressly disapprove of that part of a judge's summing up in which he directed a jury that it had to decide "whether the accused realised that what he was doing was likely to endanger her life or cause permanent injury to her health".

[56] See for example R v Cunningham [1981] UKHL 5; [1982] AC 566; Hyam v Director of Public Prosecutions [1974] UKHL 2; [1975] AC 55; R v Miller [1951] VicLawRp 49; [1951] VLR 346.

Charlie v R [1999] HCA 23; 199 CLR 387; 162 ALR 463; 73 ALJR 809

At a glance

Court

Decision date

Before

Source

Judgment (160 paragraphs)

Charlie v R [1999] HCA 23; 199 CLR 387; 162 ALR 463; 73 ALJR 809 (13 May 1999)

Parties

Cases Cited (13)