Kaporonovski v The Queen

Kaporonovski v The Queen - [1973] HCA 35 - HCA 1973 case summary — Zoe

[12]

The first paragraph of s. 23, after the introductory proviso as to negligent acts and omissions, states two rules which, although they deal with related matters, are quite distinct. For present purposes the discussion of these rules may be confined to the case of acts, since it was acts and not omissions that resulted in the applicant being held criminally responsible in the present case. The first rule, that a person is not criminally responsible for an act which occurs independently of the exercise of his will, requires that the act for which a person is criminally responsible shall be his own act, and an act which results from the exercise of his will. Thus the section has been held to have the effect that an employer is not liable for the act of his servant done without his authority and contrary to his instructions (Hunt v. Maloney; Ex parte Hunt [2] ), that a person driving a motor vehicle would not be liable for causing the death of another if he had fallen asleep without any prior warning of his inability to keep awake and in circumstances where a reasonably careful driver would not have been aware that he was likely to fall asleep (R. v. Scarth [3] ) and that a person is not criminally responsible for acts done in a state of automatism caused by an injury to the head (Cooper v. McKenna; Ex parte Cooper [4] ). Of course other sections of the Code may render the exculpatory provisions of s. 23 inapplicable; for example, s. 7 may render a person who falls within its provisions criminally liable for an offence committed by another, and ss. 27 and 28 will govern cases of insanity and intoxication that might otherwise have fallen within s. 23. However, the first rule of s. 23, in so far as it applies to acts of the accused himself, requires that those acts should be of his own volition - that he should have willed that the acts themselves should happen. That rule is not concerned with the consequences of an act which the accused has willed. It is the second rule, that a person is not criminally responsible for an event which occurs by accident, that exculpates an accused from liability for the accidental outcome of his willed acts. Moreover, neither rule deals with the result intended to be caused by an act or omission; the second paragraph of s. 23 renders that immaterial unless the intention to cause a particular result is expressly declared (that is, in the provision creating the offence) to be an element of the offence constituted, in whole or part, by the act or omission.

[18]

The statement that no person shall be criminally responsible for an act, unless it is voluntary and intentional refers, I think, as a mere matter of construction, to an act for which, if done voluntarily and intentionally, a person would be criminally responsible. The definition of criminally responsible in s. 1 seems to confirm this construction. The "act" referred to is thus a deed that, if done wilfully and intentionally (and in cases where a specific intent is an ingredient of the crime, done with that intent), would make the doer criminally responsible. Since nothing less than the act of wounding would, if done intentionally, give rise to criminal responsibility, he too considered that the wounding was the act to which s. 13(1) referred. However, this view was rejected by Kitto and Menzies JJ. Kitto J. said [9] : In my opinion, s. 13(1) is framed with a recognition that there is a distinction to be drawn between, on the one hand, a bodily action performed by a person, entailing criminal responsibility either per se or in virtue of some quality of the action, some consequence caused by it , some accompanying intent or state of mind , and, on the other hand, something eventuating in consequence of the action and attracting a criminal responsibility which the action otherwise would not have produced. When s. 13(1) speaks of an act being voluntary and intentional, before turning to the event and speaking of that as not occurring by chance, it seems to me to be addressing itself only to the question whether a person charged acted of his own free will and by decision, before asking whether that which eventuated from his act was a merely chance result. Menzies J. said [10] that the "act" was the act of shooting and not the act of wounding - the latter was the "event" or result brought about by the "act" of shooting. The other member of the Court, Taylor J., did not expressly deal with the question, although the reasons which he gave for his judgment [11] suggest that he was of a similar opinion to Kitto and Menzies JJ. 1. (1961) 108 C.L.R., at pp. 60-61. 2. (1961) 108 C.L.R., at p. 79. 3. (1961) 108 C.L.R., at p. 64. 4. (1961) 108 C.L.R., at p. 71. 5. (1961) 108 C.L.R., at pp. 68-69.

[19]

In my respectful opinion, the differences between s. 13(1) of the Tasmanian Code and s. 23 of the Queensland Code are not such as to render it necessary to give to the word "act" in the latter section a meaning different from that which it bears in the former. However, in Timbu Kolian v. The Queen [12] , the meaning of s. 23 of the Code, as adopted in Papua and New Guinea, fell for consideration and three members of the Court took the view that the question was not concluded by Vallance v. The Queen [13] . The facts were that the accused had, in the darkness, picked up a stick and aimed a blow at his wife but had struck and killed a baby who was being carried in his wife's arms. The accused did not know of, and had no reason to suspect, the presence of the baby. The whole Court held that the operation of s. 23 required the acquittal of the accused. Barwick C.J. and McTiernan J. were of opinion that the first rule in s. 23 applied. Their view was that the "act", for the purposes of s. 23, was the striking of the child on the head, and not the actual wielding of the stick. Kitto, Menzies and Owen JJ., on the other hand, considered that the second rule applied; Menzies J. said [14] that the death of the child from being struck upon the head with the stick was an event which occurred by accident, and Owen J. (with whom Kitto J. concurred) said [15] that the fact that the blow struck the child was an event which occurred by accident. Windeyer J. held that both rules applied: the act of the accused, namely hitting the child on the head with a stick thereby killing him, was not an intended act; alternatively, the striking of the child causing the death was an event which occurred by accident. Although in this case three members of the Court adopted an interpretation of s. 23 similar to that given to s. 13(1) of the Tasmanian Code by Dixon C.J. and Windeyer J. in Vallance v. The Queen [15a] , and the other members of the Court did not expressly dissent from that interpretation, it would in my opinion be quite wrong to regard the decision as an authority binding this Court to adopt that interpretation. To hold that the second rule applied, and that the death of the child was an event caused by accident, was in my opinion implicitly to reject the view that the first rule was applicable. Although of course one set of facts may call for a consideration of both rules and, as Timbu Kolian v. The Queen shows, those called upon to decide the question may agree that s. 23 applies while differing as to which rule is applicable, nevertheless, as Barwick C.J. pointed out in Timbu Kolian v. The Queen [16] , the second rule is directed to the consequences of an act which was accompanied by the will of the actor. Although it may be that in an exceptional case the applications of the two rules may not be mutually exclusive, that is not true of circumstances such as those under consideration in Timbu Kolian v. The Queen. The decision of Menzies, Kitto and Owen JJ. in that case that the killing or the striking of the child was an event which occurred by accident ought to lead to the conclusion that neither the killing nor the striking of the child was an "act" which occurred independently of the will of the accused. The Court was in effect evenly divided as to whether the first rule in s. 23 applied, and the question of the meaning of the word "act" in that section remains an open one upon which I am now free to give effect to my own opinion.

[21]

I can, with respect, appreciate the force of the argument that since s. 23 is intended to relieve an accused person from responsibility in the cases to which it applies, the "act" referred to must be one which renders the person doing it liable to punishment. However, it would in my respectful opinion be a departure from the ordinary meaning of the word to regard "act" as including all the ingredients of the crime other than the mental element. As has been pointed out, in many cases the bodily acts of the accused by themselves do not entail any criminal responsibility. Putting aside cases where a specific intention is required, there are many offences which are constituted only if the act of the accused was accompanied by some extrinsic circumstance (e.g. absence of consent on a charge of rape or the age of the girl on a charge of unlawful carnal knowledge) or had some particular consequence (e.g. the causing of grievous bodily harm, as in the present case). It would be straining language to regard the word "act" as extending to all such external circumstances. Further, the phrase "negligent acts" in the first paragraph of s. 23, and the word "act" in the second and third paragraphs, obviously can only apply to physical actions and do not refer, for example, to the consequences of those actions. However, perhaps the strongest indication of the intent with which "act" is used in the first paragraph of s. 23 is to be found in the very words of that paragraph, which, by distinguishing between an act and its consequences, show that "act" is not intended to embrace the consequences as well as the action that produced them. Section 23 is elliptical and when it speaks of criminal responsibility for an act or for an event it does not mean that the act or event per se would necessarily give rise to criminal responsibility, but rather refers to an act or event which is one of the circumstances alleged to render the accused person criminally responsible. It seems to me that this must be beyond argument in so far as the section refers to an event, for an event - the consequences of an act - alone could hardly give rise to criminal responsibility. In my opinion the "act" to which the first rule refers is some physical action, apart from its consequences - the firing of the rifle rather than the wounding in Vallance v. The Queen [17] and the wielding of the stick, rather than the striking or the killing of the baby in Timbu Kolian v. The Queen [18] . I thus respectfully adopt the views of Kitto and Menzies JJ. in Vallance v. The Queen [17] rather than the contrary opinions.

[35]

Thus by s. 269 of the Code a person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault. The assault is justified but if death be caused by the assault the mere fact that the assault was justified is immaterial to the question whether the killing was justified or excused. The question fell for discussion again in Reg. v. Johnson [28] , where the Court of Criminal Appeal was called upon to consider the meaning of provocation in s. 304 of the Code, a section which appears in Ch. 28 ("Homicide: ") and which then read as follows: 304. Killing on provocation. - When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute wilful murder or murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only. (The words "wilful murder or" have since been omitted from the section.)The actual decision in that case was that the word "provocation" in s. 304 was used in the sense in which it was understood at common law and not with the meaning given to it by s. 268. In reaching that conclusion Philp J. [29] expressed again his earlier opinion that s. 269 affords no exculpation so far as manslaughter is concerned. Lucas J. was of a similar opinion. He said [30] : Wilful murder and murder are not offences of which an assault is an element, and it is only in connection with offences of wilful murder and murder that s. 304 has any operation. It is true that many, perhaps most, cases of wilful murder and murder are cases in which an assault has occurred, but this does not, in my opinion, make these offences offences of which an assault is an element. These remarks of Philp and Lucas JJ. were treated by Hart J. in Reg. v. Sleep [31] , as mere dicta and not binding upon him, and upon consideration he followed the earlier authorities and held that s. 269 affords a defence to a charge of manslaughter. In Reg. v. Day [32] Hoare J. took the same view. These authorities were discussed by the Court of Criminal Appeal in Reg. v. Williams [33] , where it was held that the interpretation of ss. 268 and 269 reached in Reg. v. Johnson [28] was correct and that Reg. v. Sleep [31] was wrongly decided. Notwithstanding this decision, in Reg. v. Pickett [34] , Hart J. held that the facts in Reg. v. Williams [35] had raised no question of provocation and that the observations of the Court in that case were only dicta: he accordingly felt free to adhere to the views that he had earlier expressed in Reg. v. Sleep [35a] . It was in the light of this striking conflict of judicial opinion that a Special Court of Criminal Appeal of five members was convened in the present case. 1. (1911) 5 Q.J.P. 129. 2. [1930] Q.W.N. 22. 3. [1952] St. R. Qd. 269, at pp. 288-289, 303-305. 4. [1962] Qd. R. 398. 5. [1962] Qd. R., at p. 414. 6. [1964] Qd. R. 1. 7. [1964] Qd. R., at p. 5. 8. [1964] Qd. R., at p. 20. 9. [1966] Qd. R. 47. 10. Unreported, 7th June 1966; Supreme Court of Queensland. 11. [1971] Qd. R. 414. 12. [1964] Qd. R. 1. 13. [1966] Qd. R. 47. 14. [1972] Qd. R. 425. 15. [1974] Qd. R. 414. 16. [1966] Qd. R. 47.

[43]

It has been said that the fact that the definition of "provocation" appears in s. 268, in the chapter dealing with assaults,rather than in s. 1, the definition section, of the Code, provides an indication that the definition is intended to be applied only for limited purposes. It has also been said that the introductory words of the definition show that it governs the meaning of "provocation" only when that term is used in the Code in respect of an offence which, as enacted, makes an assault an element. However, the word "provocation" appears in the Code only in ss. 25, 268, 269, 270 and 304, although the word "provoked" is also used in ss. 271 and 272, and "provoke" is used in ss. 61 and 73. In none of those sections is "provocation" used with reference to an offence of which an assault is declared to be a necessary element. It is of course clear that the definition in s. 268 must govern the word provocation in s. 269 - if that were not so, and if it did not apply to s. 304, it would have no effective application at all. However, strictly speaking, "provocation" in s. 269 is not used with reference to any offence, for the section describes circumstances in which no offence has been committed notwithstanding that there was an assault, for the person who committed the assault is absolved from criminal responsibility for it. Further, s. 269 is expressed to apply to any case in which an assault has been committed upon a person who has given provocation for the assault and there is nothing in that section to confine its operation to cases where the offence as defined specifies an assault as an element of it. If the definition in s. 268 is to apply to the term provocation in s. 269 - as it must - the opening phrase of s. 268 cannot mean "used with reference to an offence of which an assault is expressly declared to be a necessary element". The phrase, which is imprecise and not well chosen, must therefore be given some such meaning as "used with reference to a case in which an assault in fact formed an element (or the sole element) of the offence charged". On this view the definition would apply to s. 304 in cases where the manslaughter was caused by an assault. But whatever meaning is given to the phrase in s. 268 it is impossible to avoid the conclusion that the definition of provocation in s. 268 applies to the term as used in s. 269, and since all that s. 268 does is to define the meaning of "provocation" there is no justification for regarding the introductory phrase in that section as imposing a further limitation on the scope of s. 269.

[47]

Certain other arguments have been advanced in favour of the view that s. 268 can only apply in relation to offences of which an assault is a necessary element according to the definition of the offence, and does not define the word as used in s. 304. It has been said that even if the definition contained in s. 268 were read into s. 304, the statement of the law with respect to the reducing effect of provocation on charges of murder would be defective and that recourse must in any case be had to the common law to fill the gap. In particular it has been suggested that s. 304 does not contain any express requirement that the accused should be "in fact deprived by the provocation of the power of self-control" and does not contain a requirement that "the force used is not disproportionate to the provocation" (cf. s. 269.). However, s. 304 speaks of an act done "in the heat of passion caused by sudden provocation" and those words imply that the act was done by a person who, acting in the heat of passion, had lost his power of self-control. As to the absence from s. 304 of a requirement that the force used should not be disproportionate to the provocation, the omission was in my opinion deliberate. Section 304 applies only to cases in which the person who gave the provocation has been killed, and the force used that resulted in the killing must necessarily have been disproportionate to the provocation offered, except perhaps in a case where a complete defence would have been available on the ground of self-defence. In my opinion there is no reason on the face of the sections why the definition in s. 268 should not be read into s. 304 as well as into s. 269. It has also been said that s. 304 can apply to a killing which has been caused otherwise than by an assault, e.g. as the result of an interference with a ship, motor car or aircraft, and that this shows that s. 268, which applies only to assaults, has no application to s. 304. Murders effected by damaging the vehicle in which the person killed was travelling or about to travel are not unknown, but it must indeed be a rare and exceptional case - if indeed one has ever arisen - where the interference with a vehicle which resulted in death was done in the heat of passion rather than as a result of malevolent deliberation. However that may be, in my opinion the framers of s. 304 did not contemplate that the doctrine of provocation could apply to a case in which the killing had been brought about in circumstances in which there was no assault. I reject the conclusion that s. 304 was intended to incorporate some of the common law rules as to provocation. On the contrary, in my opinion s. 268 provides the definition of provocation in s. 304, and if this is so, the words of s. 268 cannot be restricted to the case of offences whose definition includes an assault as an element.

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