Griffiths v The Queen

The appellant was a boy of the same age as John. They were in the same class at the Caboolture High School. They had been best friends. The appellant was charged with and convicted of the manslaughter of John Apps. The case against him rested chiefly on the evidence of two girls, Jodie Parker and Leeanne Clack. Jodie Parker gave evidence that, at some time after John Apps' body had been found, the appellant said to her:

I know whose body is up in the mountains. I know whose it is and I was the one that killed him. If you tell anybody I'll do the same to you. The second statement was made to Leeanne Clack with whom the appellant had been friendly. In the course of the conversation he said: I shot [or I killed] John. It was an accident. I didn't mean to do it. Under cross-examination, she thought that he had said "killed" rather than "shot" and she affirmed that he had used the word "accident".

The appellant, who did not give evidence at his trial, was interviewed by the police to whom he gave differing versions of when he had last seen John Apps and of what John had said to him. He told the police at one stage that John used to go shooting with someone from the Caboolture school but that he, the appellant, did not know who it was. According to the evidence of two other school-mates, Janelle Bingham and Shandelle Smerdon, the appellant told them that he had heard from John Apps who was in New South Wales and that Apps was going to send his address up to the appellant.

The trial judge put the case to the jury on the simple basis that they should convict or acquit according to whether they found beyond reasonable doubt that the appellant had made the admissions deposed to by Jodie Parker and Leeanne Clack and had been telling the truth when he did so. He gave the jury this direction as to criminal responsibility for the killing:

The Crown does not contend that the accused killed the deceased for any particular reason or with any particular intention or whatever. It does not have to do that and it does not do that and you should be very clear about that. Any killing of the deceased could, for argument's sake, have arisen through the careless handling of a rifle. You might think that if the accused did kill the deceased, then that is the most likely explanation, but you need not and really should not wonder about those things, because it involves entering into a field of speculation. [Emphasis added.] Later in the summing up his Honour said: The Crown must establish, in addition, that any such killing was unlawful. That is, not authorised, justified or excused by law. I direct you that the evidence raises no issue of such authorisation, justification or excuse. If, therefore, you are satisfied, beyond reasonable doubt, that the accused killed the deceased at or about the date and place alleged in the charge, then you will conclude that the killing was unlawful and you will find the accused guilty of the charge. His Honour thus effectively withdrew from the jury any issue arising under the provisions of ss 23 and 289 of the Criminal Code Qld.

Section 23(1) (a key provision in Ch V - Criminal Responsibility) provides, inter alia:

Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident. The onus of negating the application of s 23 rests on the Crown. [1] 1. See s 36 and Mullen (1938) 59 CLR 124.

The express provisions of the Code relating to negligent acts and omissions include s 289:

It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health, of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger, and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty. In order to establish criminal responsibility for causing a death under s 289, the Crown must prove that an accused was guilty of that degree of negligence which is punishable as manslaughter under the common law: Callaghan; [2] Scarth . [3] 1. (1952) 87 CLR 115 at 124. 2. [1945] QSR 38.

If the appellant in fact fired the bullet which entered the body of John Apps and thereby caused his death, the appellant's criminal responsibility for manslaughter depended on proof that: (i) the act of firing the bullet was willed or voluntary, that is, the act was not done independently of the exercise of the appellant's will [4] (s 23, first limb) and the death of the deceased did not occur by accident, that is, it was a foreseen or foreseeable result of that act [5] (s 23, second limb) or, alternatively, (ii) that the death of John Apps was caused by criminal negligence (s 289). These were elements of the offence charged. The crime of manslaughter can be committed either by a voluntary act which causes death in circumstances which do not amount to murder [6] or by criminal negligence. Although the trial judge thought that careless handling of the rifle was the most likely explanation of the appellant's killing of John Apps, the alternative bases for conviction of manslaughter were issues for the jury. No particulars were asked for or given which confined the issues for the jury's determination to one basis or the other.

1. Timbu Kolian (1968) 119 CLR 47 at 53, 62-63; Falconer (1990) 171 CLR 30 at 40; 50 A Crim R 244 at 249-250. 2. Vallance (1961) 108 CLR 56. 3. s 303.

A plea of not guilty puts all elements of the offence charged in issue and a trial judge is wrong to withdraw any element in issue from the jury, no matter how cogent a Crown case may be. That is not to say that a particular direction must be given as to each element of an offence in a case where no contest as to a particular element is raised in the conduct of the trial and where the evidence does not itself raise an issue as to the existence of that element. It is one thing not to give a direction on an issue; it is another to withdraw an issue from the jury's consideration. In this case, the trial judge erroneously withdrew from the jury critical issues, the burden of proof of which lay on the Crown.

Moreover, his Honour expressed an opinion to the jury that:

it is totally unproductive for you to be turning your minds to question of motive. Really, all we know about the relationship between the accused and the deceased is that it was a favourable, friendly one. I think the Crown would be quite prepared to accept that there is no apparent reason here why the accused would be in the least interested in bringing about the death of John Apps. That's not the Crown case. He's charged only with causing the death. Any question of motivation or reason is, frankly, to my mind, anyway, irrelevant. It may have some bearing on your assessment of the facts, I don't know, but in terms of proof of the case, that's not an area into which the Crown need or does go. [Emphasis added.]

In so far as the evidence failed to disclose a motive for the appellant to kill John Apps, it was right to say that the Crown did not have to prove the existence of a motive to kill or to do grievous bodily harm. [7] However, in this case the evidence pointed to an absence of a motive. That was a factor which was relevant to the jury's determination of the appellant's guilt of manslaughter: see Sharmpal Singh. [8] But no objection was taken to the summing up on this point. Nor was the point raised on appeal.

The Court of Appeal by majority (Pincus and Davies JJA, Fitzgerald P dissenting) dismissed the appellant's appeal. The chief point argued on appeal was whether the evidence was sufficient to establish that the accused had killed John Apps. It was on this point that that Court divided. It seems that on appeal the relevance of s 23 was raised as a subsidiary point. Fitzgerald P did not have to discuss it as he would have quashed the conviction on the ground that it was not open to a reasonable jury to find that the appellant had killed John Apps. The majority, being of the contrary opinion, addressed the issue of accident. Their Honours said:

There was evidence before the jury on which it could be concluded that the appellant shot Apps without meaning to do so The jury was satisfied that Apps was killed by the appellant and may well have thought that he did not mean to do so; but there was no possible path, logically, to a positive conclusion either that the circumstances were such as to exonerate the appellant, on the basis of accident or that they were not of that character.

The question is whether a bald statement that a death by shooting was an accident is enough to throw on the Crown the burden of excluding s 23 In our opinion, the mere assertion does not go far enough to require the defence to be put to the jury.

With respect, the ultimate onus of proving all elements of the offence, including either the voluntary or criminally negligent firing of the fatal bullet, rested upon the Crown and, if the evidence available to the Crown did not discharge the onus, the appellant was entitled to be acquitted. That is the principle clearly laid down in Woolmington v DPP. [9] In Woolmington, a case of homicide by shooting, the appellant had given a version of the confrontation between himself and his wife, the deceased. He said the firing of the gun was an accident in that whilst he was getting the gun from under his shoulder and was drawing it across his breast it accidentally went off. [10] It was in reference to this evidence that the well-known statement was made about the golden thread of English criminal law and Viscount Sankey LC said: [11] When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused. His Lordship went on to explain: If the jury are either satisfied with [the accused person's] explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted. [Emphasis added.] In this passage the common law term "unintentional" means "involuntary" or "unwilled" and those were the terms preferred by Barwick CJ in Ryan . [12] In that case, his Honour said: by whatever adjective or adjectival phrase it is described, the deed which was not the result of the accused's will to act cannot, in my opinion, be made the source of criminal responsibility in him. It is impossible to suppose that the majority in the Court of Appeal did not appreciate where the ultimate onus lay in this case. Their Honours must have had in mind the common situation where the evidence simply reveals that the alleged offender, being presumably of sound mind, consciously did the act which is an element in the offence charged. Commonly, evidence of that kind is sufficient to discharge the Crown's ultimate onus of proof [13] unless the alleged offender adduces or is able to point to some evidence which suggests that the doing of the act was involuntary. In the absence of any such evidence, it is frequently unnecessary and inappropriate for the trial judge to give a specific direction about voluntariness. That is the position when, in the circumstances revealed by the evidence, human experience would regard the act done as having been done under the conscious control of the doer. 1. [1935] AC 462; (1935) 25 Cr App R 72, applied to the element of accident under the Criminal Code Qld in Mullen. 2. [1935] AC 462 at 472; (1935) 25 Cr App R 72 at 85. 3. ibid (at 482; 95-96). 4. (1967) 121 CLR 205 at 213. 5. Bratty v A-G (Northern Ireland) [1963] AC 386 at 407, 413; Falconer (1990) 171 CLR 30 at 40-41, 43, 61, 68, 83; 50 A Crim R 244 at 249-251, 252, 265-266, 271-272, 283.

However, some acts done by a sane person while conscious may be involuntary, as Woolmington itself illustrates. In Ryan , Barwick CJ dealt with this situation in canvassing what he called "the fourth view" of the evidence in that case. The "fourth view" was that the firing of the fatal shot by the accused was a "reflex or convulsive, unwilled movement" of a part of the body or its muscles. [14] In reference to this view of the evidence, his Honour said: [15]

it is consonant with principle, that an accused is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act. The lack of that exercise which precludes culpability is not, in my opinion, limited to occasions when the will is overborne by that of another, or by physical force, or the capacity to exercise it is withdrawn by some condition of the body or of the mind of the accused. An occasion such as the fourth view of the evidence in the instant case would, in my opinion, be an instance of a deed not the result of a culpable exercise of the will to act If voluntariness is not conceded and the material to be submitted to the jury wheresoever derived provides a substantial basis for doubting whether the deed in question was a voluntary or willed act of the accused, the jury's attention must be specifically drawn to the necessity of deciding beyond all reasonable doubt that the deed charged as a crime was the voluntary or willed act of the accused. If it was not then for that reason, there being no defence of insanity, the accused must be acquitted. 1. (1967) 121 CLR 205 at 209. 2. ibid (at 216-217).

In the present case, on the view of the evidence adopted by the majority, two schoolboys, best friends without any evidence of hostility between them, were out in the mountains together with a gun; the gun went off and killed one boy and the other went away and tried to lay a false trail about the incident but, when acknowledging that he shot or killed the other, said it was an accident. On that evidence, the possibility that the death was due to "accident" - stumbling when the gun was cocked and loaded or some other kind of accident - was clearly raised. Evidence that the appellant gave false or different stories about his contacts with John Apps did not disprove that John's death was caused by "accident". Indeed, it is arguable that that evidence did not tend to disprove accident. [16] The burden of disproof that rested on the Crown was substantial, not merely formal. To establish that the appellant was the person who had the gun when the fatal shot was fired, the Crown relied, inter alia, on the admission he made to Leeanne Clack. The Crown had to take that statement as a whole so that the version of facts that it contained at once implicated and tended to exculpate the appellant. [17] That evidence clearly raised the issues to which s 23(1) relates.

1. See the discussion in Edwards (1993) 178 CLR 193; 68 A Crim R 349. 2. See Jack v Smail (1905) 2 CLR 684 at 695.

The alternative basis on which the accused might have been held criminally responsible for the fatal act is criminal negligence in the handling or firing of the gun so as to attract the operation of s 289 of the Code. Again the jury was given no direction as to the character of the act which had to be established beyond reasonable doubt before they could convict of manslaughter on the basis of criminal negligence. And the evidence on which the Crown relied to prove that the appellant was the person who shot John Apps presented a substantial obstacle to the discharge by the Crown of the burden of proving criminal negligence just as it presented a substantial difficulty in the way of proving that the fatal shot was fired voluntarily.

For these reasons it appears that the trial miscarried. The trial judge and the majority of the Court of Appeal failed to acknowledge the existence of the live issues, the burden of proving which lay on the Crown. The appeal must therefore be allowed. We do not have before us the whole of the evidence in the case and we are thus disadvantaged in attempting to determine whether the evidence as a whole was sufficient to support a conviction for manslaughter. But, as it turns out, the absence of a full record does not matter. The Crown does not seek an order for a retrial if the conviction is quashed. The important factors in that approach are the age of the appellant and the period that he has already served in actual custody. And we note that, in reference to the Crown's onus of excluding the application of s 23, the majority of the Court of Appeal said:

Since there was no possible means of telling how the bullet came to be discharged, it is impossible to see how the Crown could have discharged such an onus and, if the jury took a direction placing the onus as to accident on the Crown seriously, the result must have been an acquittal. In these circumstances, the appropriate order, following the view of the facts adopted by the Court of Appeal, is that a judgment of acquittal be entered.

Accordingly, the appeal should be allowed, the order of the Court of Appeal set aside and in lieu thereof the appeal to that Court should be allowed, the verdict set aside, the conviction quashed and a judgment and verdict of acquittal entered.

The detailed facts and the provisions of ss 23 and 289 of the Criminal Code Qld (the Code) are set out in the judgment of Brennan, Dawson and Gaudron JJ. We agree with their Honours that the directions of the learned trial judge were inadequate and that the appellant's conviction of manslaughter cannot stand. However, while agreeing in many respects with their Honours' reasons, we take a somewhat different approach in reaching that conclusion.

The learned trial judge directed the jury that the Crown did not contend that the appellant had shot the deceased boy "for any particular reason or with any particular intention". His Honour indicated that it was consistent with the Crown case that the killing of the deceased could have arisen "through the careless handling of a rifle". As we followed the argument, it is common ground that the Crown's case at the trial was based on s 289 of the Code and was that the appellant had been so careless in the use or management of the rifle with which he killed the deceased that he was in breach of the duty imposed by that section. If the killing involved such a breach of s 289, the introductory words of s 23 ("Subject to the express provisions of this Code relating to negligent acts and omissions") precluded the applicability of the exculpatory provisions of that section. [18] If the killing did not result from such a breach, those exculpatory provisions were obviously applicable. In those circumstances, the directions which the learned trial judge gave should have been focused upon the ingredients of manslaughter pursuant to s 289. Examination of his Honour's directions discloses that his Honour failed to give any express directions at all about the requirements of that section.

The jury's verdict makes plain that they accepted, as they were entitled to do, the uncontradicted evidence led by the Crown to the effect that, on two separate occasions, the appellant had admitted, or rather asserted, that he had "killed" or "shot" the deceased. In the absence of any contrary or qualifying evidence, it was open to the jury to find that, in making that admission or assertion, the appellant had been telling the truth. Clearly, the jury made that finding. On the basis of it, the essential facts proved against the appellant were as follows. The appellant shot the deceased boy in the back of the head. The shooting took place in a deserted part of the Glasshouse Mountains area of Queensland. After the shooting, the appellant left the deceased either dead or dying. There was nothing at all in the evidence to suggest that the appellant took any step, either openly or anonymously, to procure aid or attention for the victim or for his corpse. To the contrary, the appellant subsequently fabricated an account of a phone conversation with the deceased which would, if accepted, be calculated to conceal his death. After the deceased's body was finally discovered, the appellant untruthfully denied any involvement in the deceased's death when questioned by the police. Subject to one qualification, the appellant has never proffered any explanation of how he had come to shoot the deceased in the back of the head. That sole qualification is that, in one of the two conversations in which the appellant asserted that he had "killed" or "shot or killed" the deceased, he claimed that it was "an accident" and that he "didn't mean to do it". On the other hand, in the other conversation, he threatened the person to whom the assertion that he had "killed" the deceased was made that he would "do the same to" her if she told "anybody". In all the circumstances, it was plainly open to the jury to conclude that, notwithstanding the age of the appellant, [19] the appellant's callous and dishonest actions after he had shot his "best friend" in the back of the head gave rise to the inference that the shooting had, at the very least, been the result of carelessness of the kind which constituted a breach of s 289 of the Code. Indeed, the directions of the learned trial judge and the absence of any request on behalf of the appellant for further or different directions would seem to indicate that it was common ground at the trial that the issue between the Crown and the appellant was whether the appellant had in fact killed the deceased. Nonetheless, it was necessary for the learned trial judge to direct the jury about the essential ingredients of manslaughter pursuant to s 289. [20]

1. Fifteen at the time of the deceased's death, 16 at the time of the alleged admissions and 19 at the time of trial. 2. See, eg, Callaghan (1952) 87 CLR 115 at 121 as to the applicability of the distinction between criminal and civil negligence to s 289.

Ordinarily, the appropriate order in a case such as the present would be that the appellant's conviction be quashed and that there be a new trial. The appellant has, however, served most of the period in actual custody which he would have been required to serve pursuant to the original sentence and the Crown has informed the Court that it does not seek an order for a new trial. In these circumstances, we concur in the orders proposed by Brennan, Dawson and Gaudron JJ.