APPLICATION for leave to appeal from the Supreme Court of the Territory of Papua and New Guinea.

BARWICK C.J. The applicant seeks leave to appeal against his conviction for (1967-68) P & NGLR 310 . According to the facts found by the learned trial judge who sat without a jury to try the case, the applicant and his wife, on the evening of the happenings giving rise to the charge, became involved within their house in a domestic altercation. Apparently the applicant, tired of the verbal exchanges, retired outside the house, presumably to contemplate in the darkness and to avoid further argument. But his wife, seemingly determined that he should not thus escape hearing her views upon whatever had been in difference between them, after an interval, followed him out of doors and there continued, as apparently he viewed the matter, to berate him. It was so dark that the applicant could not see her form or any silhouette of her: but, as she talked, he could form a judgment by the sound of her voice as to where she was. It would seem that he came to feel that he could stand no more of what to him rightly or wrongly was his wife's nagging. He decided that he should beat her, whether to induce in her a more harmonious frame of mind or as an assertion of his marital authority, does not appear; nor in truth does it matter. Suffice it to observe at this point that as the result of an Ordinance of the Territory of Papua and New Guinea, Native Administration Regulations, 1924, as amended, reg. 83, it would appear to be unlawful for a husband physically to chastise a wife. The applicant, whether or not he had been apprised of this statutory limitation upon his marital authority, picked up a stick intending to belay his wife. It was not a heavy stick and the blow which the applicant aimed at her, had it reached her, whilst no doubt it would have hurt her, would not have done her any physical harm. But, as the applicant did not know nor have reason to suspect, his wife had carried outside in her arms their five months old male child. The applicant aimed his blow with the stick at the source of the wife's voice. It landed on the child's head. The blow which would have been no more than moderate chastisement of the mother, caused the death of the child. The applicant was charged with and has been convicted of the manslaughter of the child. (at p49)

2. The Criminal Code of the State of Queensland has been adopted as The Criminal Code of the Territory of Papua and New Guinea. The relevant provisions of the Code are as follows:

s. 23: "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. . . ."

s. 291: "It is unlawful to kill any person unless such killing

is authorized or justified or excused by law."

s. 293: "Except as hereinafter set forth, any person who

causes the death of another directly or indirectly, by

any means whatever, is deemed to have killed that

other person."

s. 303: "Any person who unlawfully kills another under such

circumstances as not to constitute wilful murder or

murder is guilty of manslaughter." (at p49)

3. The trial judge, upon the facts I have outlined, concluded that by reason of this Court's decision in Mamote-Kulang v. The Queen (1964) 111 CLR 62; (1963) P & NGLR 163 , he was bound to convict the applicant of manslaughter. In the light of that decision, he felt unable to accept the submission made to him that the death of the child was an event which had occurred by accident within the meaning of s. 23 of the Code. (at p49)

4. Before this Court, a number of propositions have been put forward by the applicant in support of the general submission that he was not criminally responsible either for the blow struck on the infant's head or for the eventual death of the child. Not all of these propositions had been placed before the trial judge, but none of them require the finding of any fact not found by the judge. Having been favoured with a careful argument of these propositions, I intend to set out my understanding of them. (at p49)

5. First, it was said that under The Criminal Code, unlike the position at common law, there is no general notion of transferred malice, as, for example, the unlawfulness of an act which unintentionally kills supplying the "malice" to found manslaughter. It was pointed out that where the Code desired to resort to such a concept, it did so expressly in relation to specific offences: see ss. 301, 302, 317, 323 (2) which were instanced in this connexion. Counsel referred the Court to R. v. Callaghan (1942) QSR 40 ; Reg. v. Martyr (1962) QdR 398 and Reg. v. Dabelstein (1966) QdR 411 , as indicating the trend of opinion on this question in the Supreme Court of Queensland. Indeed, he claimed that the judgments in those cases amounted in all to a decision in that Court that killing in the course of doing anything in breach of a law was not merely because of that unlawfulness, manslaughter within the Code. The distinction is also recognized in some of the judgments in Mamote-Kulang v. The Queen (1964) 111 CLR 62; (1963) P & NGLR 163 . Consequently, it was submitted that the circumstance that it was unlawful for the applicant to beat, or to attempt to beat, his wife was irrelevant in relation to the present charge. (at p50)

6. Next it was said that the act to which s. 23 refers is an act which, of itself or in association with another element, either of specific intent or of consequence, would, if it were the act of the applicant, be visited with punishment under other provisions of the Code. The contrast sought to be drawn was between such an act and the physical movement of the applicant or of his body or parts of it which inaugurated such an act. In the instant case, it was said that the striking of the child would relevantly be an act of the applicant within the meaning of s. 23 and not the wielding of the stick, although that was a voluntary motion and intended to strike someone, that is to say, it was willed as an incipient blow. Counsel was unable to adopt in this connexion what was said in Vallance v. The Queen (1961) [1961] HCA 42; 108 CLR 56 , per Dixon C.J. (1961) 108 CLR, at p 60 , and per Windeyer J. (1961) 108 CLR, at p 80 . His submission favoured the view that the "act" in that case was the striking of the child and not the wounding. He did not go so far as to suggest that the consequence of the striking, i.e., the wounding, was part of the act for the purpose of applying s. 13, cf. Windeyer J. (1961) 108 CLR, at p 80 - "the whole deed whereby the bullet was caused to strike and wound". In this submission, the wounding in that case was an event, a conclusion to which Menzies J. came in Vallance v. The Queen (1961) 108 CLR, at pp 71, 72 . That case was decided, however, in relation to s. 13 of the Tasmanian Criminal Code which is not in the identical terms of s. 23 of the Code operating in the Territory of Papua and New Guinea and perhaps for this reason at least did not raise precisely the same problem as the instant case, even if, as I think, the expression "by chance" in the one is to be taken as equivalent to the expression "by accident" in the other. (at p51)

7. The applicant's next proposition was that an event in this case was the death of the infant and that it did occur by accident. Neither the applicant, nor a reasonable man so placed as he was, did or could have foreseen that the blow aimed at the mother would strike and kill the son. It was submitted that in so far as Mamote-Kulang v. The Queen [1964] HCA 21; (1964) 111 CLR 62 denied any part of that proposition, it was not well decided and ought to be overruled. (at p51)

8. Lastly, it was submitted that Mamote-Kulang v. The Queen [1964] HCA 21; (1964) 111 CLR 62 was distinguishable upon its facts from the instant case and that the trial judge was in error in considering himself bound to convict because of that decision. (at p51)

9. It is quite clear to my mind that the present facts are distinguishable from those in Mamote-Kulang v. The Queen [1964] HCA 21; (1964) 111 CLR 62 and that, notwithstanding the tendency of some of its reasoning, that decision did not require the conviction of the applicant. The essential facts in that case were that the applicant was found by the learned trial judge to have deliberately struck his wife a "good strong blow" in the region of the upper abdomen intending to hurt her and to cause her pain. Thus, there was no room in that case to question whether the act of striking the deceased was an exercise of the will of the applicant. Nor, unless the death were regarded as an event within s. 23, could there be any question that any step in the delivery or the landing of the blow or in the circumstances which led to the death was fortuitous. Therefore, putting on one side the question whether the death was in reality and relevantly an event in that case, a clear distinction emerges between the two cases in that in the present case a question does arise as to whether the blow on the child's head can be regarded as having been foreseen or whether anyone could have reasonably expected it as a consequence of the applicant's attempt to strike his wife. Thus, even on the assumption that the wielding of the stick in the attempt to strike his wife was relevantly the act within the first part of s. 23, it could be said that the striking of the child was an event, that is to say, a consequence of the wielding of the stick, which occurred by accident. On the other hand, it could be said that the striking of the child was the relevant act and not the willed act of the applicant. Therefore, on either of these assumptions, neither of which is inconsistent with any reasoning in Mamote-Kulang v. The Queen [1964] HCA 21; (1964) 111 CLR 62 that case does not determine the present. Further, that case can be so distinguished without accepting the view which seems to have been held by some members of the Court in that case that death cannot be an "event" within the meaning of s. 23 and that only some circumstance intervening between the act of the applicant and the death can be such an event: see the report p. 66. Therefore, in my opinion, at least because of this distinguishing feature, the case of Mamote-Kulang v. The Queen [1964] HCA 21; (1964) 111 CLR 62 does not determine the present. (at p52)

10. But it is not enough to my mind that that case does not require the conclusion that the applicant upon the facts before us is not criminally responsible, and particularly not so responsible as for manslaughter. It seems to me that it is necessary to determine what is the precise operation of s. 23 in this case: and that in turn requires, in my opinion, a decision as to what was the act to which the terms of s. 23 should be applied. (at p52)

11. That section is a general controlling provision but does not necessarily apply to and govern every section. But clearly, in my opinion, it governs ss. 291, 293, 300 and 303. What then was the act of the applicant which "occurred" or which did not "occur" by an exercise of his will for the purpose of s. 23? The choice on the facts of this case, in my opinion, is between the wielding of the stick and the landing of the blow on the head of the infant child. Clearly enough, if the latter were a willed act of the applicant it cannot be an event, nor can it be a fortuitous event. Further, if the child were struck on the head by an act in the exercise of the will of the applicant, the death of the child could not, in my opinion, be a fortuitous event. The applicant, conceding that he chose to strike the child in that fashion could scarce say either that he might not have foreseen its death as a consequence or that a person placed as he was would not have so foreseen. Thus in this case a problem which arose in Mamote's Case [1964] HCA 21; (1964) 111 CLR 62 does not arise. (at p52)

12. Whilst perhaps it cannot be categorically asserted that the two branches of s. 23 are in all their applications mutually exclusive so that what falls within the one can never at the same time fall within the other, the total operation of the section in general, in my opinion, is that an act which falls within the first part of the section and is accompanied by the will of the actor may bring a consequence which is accidental. It is such an operation of the comparable though not identical section which Dixon C.J. seems to have contemplated when explaining the meaning of "an event which occurs by chance" in s. 13 of the Tasmanian Code: see Vallance v. The Queen (1961) 108 CLR, at p 61 . It is to the consequences of the act or acts of the applicant so falling within the first part to which, in my opinion, the second part of these sections is directed. I am unable to see that death as a consequence of such an act cannot be relevantly an event. In my opinion, an unintended, unforeseeable, fortuitous death which results from an act which is a willed act casually related to that death, may be an event which occurs by accident or by chance. (at p53)

13. In including lack of intention in that expression of opinion, I ought to add that I do not regard the exercise of the will to which s. 23 refers to be identical with the presence of intention: nor do I regard the concept of the section to be the equivalent of voluntariness or simply to refer to the presence of volition. Of course, an intended act, in the sense that the actor intended by his action to achieve the full operation of that action as it proved to be in fact, must necessarily, in my opinion, be a willed act within the section. Here for instance, if the applicant had intended to strike the child, though without intent to maim or kill, his act in striking the child must be regarded as a willed act. His lack of intention to maim or kill would, in that connexion, not matter. On the other hand, in my opinion, that the applicant by an act of volition wielded the stick, does not mean that the striking of the child was his willed act. Further, an unintended act, in the sense that the actor did not intend to accomplish what the act in fact did accomplish, may yet be a willed act for the purposes of the section. The truth is, it seems to me, that we lack a sufficiently flexible and at the same time precise vocabulary in this area of discourse: and to make the matter more difficult of consistent expression, the word "intention" has more than one relevant use: and volition and voluntariness likewise. However, in connexion with s. 23, in my opinion, the exercise of will involves the making of a choice to do that which the physical activity of the applicant in fact does: e.g., in this case to land the blow on the head of the child. (at p53)

14. Therefore, it is necessary to my mind in this case to decide whether the striking of the child was an act accompanied by the will of the applicant or whether that striking was no more, relevantly, than a consequence of the wielding of the stick. If it be concluded that the relevant act for the purposes of s. 23 was the striking of the child and that it did not "occur" by the exercise of the will of the applicant, then it is the first part of s. 23 which precludes criminal liability on the part of the applicant in this case. On the other hand, if it be concluded that that act was accompanied by an exercise of the applicant's will, there is no room, in my opinion, for the view that the death of the child occurred by accident. That can only be accepted if the wielding of the stick was the relevant act of the applicant. (at p54)

15. That the applicant's will went with the wielding of the stick is beyond question. That he did not will or choose thereby to strike his infant son is equally beyond question. In my opinion, s. 23 in its first part is directed to an activity which either of itself or in association with some specific intent with which it is done, or with some particular consequence which follows it, attracts criminal responsibility. For it is to guard against such responsibility in the circumstances it describes that s. 23 is enacted as a general controlling provision. It seems to me that what will constitute the relevant act may possibly vary with the nature of the charge. In the instant case the liability to punishment comes from the killing of the child, that is to say from its death by reason of the blow struck upon its head: see ss. 293, 291 and 300 of the Code. That striking, in my opinion, was an act which with its consequential death constitutes in the circumstances the offence of manslaughter. The antecedent wielding of the stick was not, in my opinion, such an act. No punishment was imposed in respect of the wielding of the stick or in respect of that activity coupled with some particular intent or consequence of that wielding. In my opinion, its landing on the child's head and the subsequent death of the child cannot both be regarded as consequences which together with the wielding of the stick will attract punishment, or, put another way, the landing of the blow on the child's head cannot properly be regarded for the purpose of applying the section in this case as a consequence of the wielding of the stick. It is part of a single act of striking the child, not divisible into an inaugurating motion and a concluding phase. (at p54)

16. With every respect to those who may think otherwise, I have come to the conclusion that the relevant act in this case was the striking of the child on the head; that it was not an exercise of the will of the applicant, was not his willed act: and from the point of view of criminal responsibility not his act at all. I prefer to express my conclusion in this way rather than to say that the applicant did not intend to strike the child, though that truly can be said. I would prefer as far as possible to keep the use of the word intention to express the intention to achieve the consequences of a willed act, that is to say, to achieve some result, or consequence or to fulfil some purpose. (at p55)

17. Being of this opinion, I would grant leave to appeal, allow the appeal and quash the conviction of the applicant for manslaughter. (at p55)

McTIERNAN J. I am of opinion leave to appeal should be given to the prisoner. The question in the appeal arises under s. 23 of The Criminal Code (Queensland, adopted). The primary submission for the prisoner is that in virtue of the first rule in s. 23 he is not criminally responsible for the killing of his son. The conviction against which the prisoner appeals was for manslaughter. This offence is defined by s. 303. Killing is defined as causing death by any means whatever. Section 293 is the definition section relating to killing. It seems clear from the plan of the Code that s. 23 governs the criminal responsibility of a person charged with the crime of manslaughter (see s. 36 of the Code). In the first place it is necessary to decide what is the proper construction of the words "act" and "omission" in the expression "act or omission which occurs independently of the exercise of his will". I am of opinion the word "act" or "omission" means the external elements of the crime - what was done or omitted to be done rendering the person charged in a given case liable to punishment under the Code unless he is relieved by the rule that the "act" or "omission" was not intentional or willed by him. I adopt the words "external elements" from the judgment of Dixon C.J. in Vallance v. The Queen [1961] HCA 42; (1961) 108 CLR 56, at p 59 . This expression "external elements" or words of similar import are to be found in the textbook Criminal Law by Glanville Williams (see 2nd ed., Ch. 1, ss. 1-11) and the textbook Australian Criminal Law by Colin Howard at p. 12 and in the discussion at p. 342 et seq. It seems to me that in the light afforded by the context in which the words "act" and "omission" are found the former (the relevant word here) extends to the physical movement involved in the commission of a crime and the consequences of such action. This construction of the word "act" widens the rule in s. 23 under discussion beyond the limits of the principle of voluntariness, but of course the rule includes it. It is not without importance that the heading of s. 23 includes the word "intention". In my judgment therefore in the present case the "act" for the purposes of s. 23 was the bodily movement involved in striking with the stick and the impact of the blow on the child, the cause of death. The fact therefore that the accused did not lack physical capacity to control the physical action of striking at his wife with the stick did not take the accused out of the first rule in s. 23. The findings of fact made by the learned judge are not disputed. They are set forth in his reasons for judgment. He had no occasion to consider the question of the application of the first rule in s. 23, because the defence rested solely on the second rule. The findings raise a strong inference that the impact of the blow on the child was not intentional or willed, also that the cause of the death of the child was not a reckless disregard of any danger to the child involved in striking at the mother with the stick. In my judgment the first rule in s. 23 was applicable. In the view I take it is unnecessary to consider whether the second rule in s. 23 creating a defence of accident ought to have been held by the learned judge to discharge the prisoner of criminal responsibility. Therefore, I would allow the appeal. (at p56)

KITTO J. I agree in the judgment of Owen J., which I have had an opportunity of reading, and have nothing to add. (at p56)

MENZIES J. In my opinion the death of the appellant's child from being struck upon the head with a stick when the appellant aimed a blow at his wife in the dark and without knowledge or occasion for foreseeing that she was then carrying the child, was an event which occurred by accident. Furthermore I do not think that the decision of the Court in Mamote-Kulang v. The Queen [1964] HCA 21; (1964) 111 CLR 62 - where the deceased was killed as the direct result of a blow aimed at her by the accused - precludes me from coming to this conclusion. I do not regard the decision in the earlier case as denying that death, as the result of a blow, can be regarded as an "event" for the purpose of s. 23. (at p56)

2. Accordingly I would allow the appeal and quash the conviction upon the ground that, upon the findings made, s. 23 of The Criminal Code excuses the appellant from criminal responsibility for causing his child's death. (at p56)

WINDEYER J. This case arises out of a sad event. It seemed to me a simple case, because the accused father's killing of his child was, I consider, an unfortunate accident for which he, the father, was not criminally responsible. But to say only that would be to differ too summarily from the conclusions of the learned trial judge; and it would avoid some serious and fundamental questions which were pressed upon us in argument. I think therefore that I must explain the reasons for my conclusion and deal with propositions which were advanced. This involves some going over of topics on which I have in other cases stated my views. So far as I adhere to my already expressed opinions, and so far as I consider that, having regard to the decisions of this Court, I am at liberty to do so, I shall simply refer to what I have said elsewhere to avoid some repetition of reasoning. (at p57)

2. The basic and primary facts of the case are not in dispute. We should accept them as the learned trial judge has stated them. We should accept too his Honour's finding that "a case of criminal negligence based on a breach of s. 289 had not been made out" (1967-68) P & NGLR 310, at p 319 . (at p57)

3. I may say at this point that I do not see how s. 289 of The Criminal Code could have been invoked in this case. As I read it, it applies only when there has been a lack of care in the use or management of a thing of such a kind that, unless carefully managed and used, the life, safety or health of any person may be endangered by it. This seems to me to refer to negligence in the use of things which are in their nature dangerous in ordinary use. I would not myself have read the section as referring to the use in a dangerous way of a thing of any sort or kind. I confess that I doubt the essential validity of the distinction between things dangerous in themselves and things dangerous sub modo. Scepticism about this is growing: see Salmond on Torts, 14th ed. (1965) pp. 426-431. Any chattel used negligently, or for some purpose foreign to its ordinary use, can be a dangerous instrument. Nevertheless the description of some chattels as dangerous in themselves has long been known to the common law. It has too been adopted by the legislatures in such terms as "dangerous machinery". I say no more as to s. 289, because the point was alluded to, but not developed, in the argument. I prefer therefore not to express a concluded opinion on it, especially as it has recently given rise to differing opinions among the judges of the Supreme Court of Queensland. If the stick with which the accused struck at his wife and actually hit his child could be said to be a thing of a kind to which s. 289 applies, and assuming further that the accused failed to take proper precautions to avoid the dangers of its use, then he could not rely upon s. 23 of the Code to exculpate him from criminal responsibility: Callaghan v. The Queen [1952] HCA 55; (1952) 87 CLR 115, at p 119 , and see per Taylor J. in Evgeniou v. The Queen (1964) 37 ALJR 508, at p 511 . But as I consider that s. 289 had no bearing on this case, I leave it and turn to the main questions. (at p57)

4. The accused caused the death of his child. That means that, within the meaning of the Code, he killed his child (s. 293). Then s. 291 comes into play. It provides that

"It is unlawful to kill any person unless such killing is

authorised or justified or excused by law." (at p58)

5. The killing was unintentional; and it was for the accused an altogether unexpected consequence of his conduct. Clearly the case was not one of either wilful murder or murder as defined by s. 301 and s. 302. The prosecution said it was manslaughter, which is described in s. 303 as follows:

"A person who unlawfully kills another under such

circumstances

as not to constitute wilful murder or murder is guilty

of manslaughter."

In answer to this the accused said that the killing was, within the meaning of s. 291, "excused by law". For this s. 23 was principally relied on. But before going to it I think I should set out my understanding of the phrase "excused by law", which has an ancient derivation and a present sense. (at p58)

6. I discussed this in what I wrote in Mamote-Kulang's Case [1964] HCA 21; (1964) 111 CLR 62, at p 80 I merely repeat part of what I then said:

"I read the words of s. 291 'unless such killing is authorised

or justified or excused by law' as meaning authorized, justified

or excused by the common law, or by the Code itself, or by

some other enactment."

I am aware that this is not accepted by some people. They think that an excuse can never be looked for in the common law, because it is said that the common law has been displaced by the Code, and that matters of excuse must be found in the Code or some later statute. This may be true in Queensland by virtue of The Criminal Code Act, 1899. Sections 2 and 5 of that Act are taken to make the Code there the exclusive source of the law in all indictable offences, with only the exceptions which the Act specifies. The whole of the law on any topic dealt with by the Code must thus it is said be found in the Code. There is not in Queensland any provision like that of the Tasmanian Criminal Code Act 1924, s. 8, which expressly preserves

". . . all rules and principles of the common law which

render any circumstances a justification or excuse for any act

or omission, or a defence to a charge upon indictment, . . .

except in so far as they are altered by, or are inconsistent with,

the Code".

In New Guinea the Queensland Criminal Code is in force having been adopted by the Laws Repeal and Adopting Ordinance, 1921- 1939, s. 13. But, so far as I am aware, no provisions similar to The Criminal Code Act (Q.) have been enacted for the Territory. Nor, on the other hand, are there, so far as I know, any provisions similar to those of Tasmania expressly preserving common law defences. It seems to me, however, that the absence of an express retention of the common law does not mean that it has been entirely displaced by the Code except where the Code covers the whole of the ground. The rules and principles of the common law, as modified by statute in England before 9th May, 1921, are in force in the Territory so far as not abrogated by later legislation in force there: Booth v. Booth [1935] HCA 15; (1935) 53 CLR 1, at pp 29, 30 . Therefore, as I understand the position, any rule or principle of the common law which can stand with and give an actual content to any provision of the Code is to be regarded in construing and applying the Code. I therefore read s. 291 of the Code as having the effect that a homicide which is excused by any rule or principle of the common law is not unlawful in the Territory. I do not find anything in the Code which narrows the excuses for homicide which the common law allows, or which would make punishable any homicide which the common law would treat as guiltless. By the common law a homicide has, for centuries, been excused if it occurred by misadventure, per infortunium, or as some of the early writers, including Hale, put it, was "simply casual". In modern terminology this may be rendered as "by accident" or "accidental". But the common law excused only such homicides as were the accidental consequences of lawful and careful acts. Thus it was that Hale said that if a man "strike at one, and missing him kills another, whom he did not intend, this is felony and homicide, and not casualty or per infortunium": Hale, Pleas of the Crown I, at p. 39. If that statement, unqualified and unexplained, expressed the rule of the common law today, then the accused in the present case could find no exculpation in the common law. But the early common law doctrines of felonymurder and transferred malice have been much modified by judicial development in the course of years. I tried to explain these developments and the state of the law today in what I wrote in Mamote-Kulang's Case (1964) 111 CLR, at p 79 , and in Ryan v. The Queen [1967] HCA 2; (1967) 40 ALJR 488, at p 503 . So far as relevant to the present matter, I think it correct to say that by the common law today an unintended, wholly unexpected and unlikely killing is manslaughter if, but only if, it be the result of some act which is both unlawful and in the circumstances dangerous, or is the result of some conduct amounting to reckless negligence. The only thing which would stand in the way of the killing of the child in the present case being excusable by the common law is that in striking at his wife the accused was attempting to commit an unlawful act - unlawful by virtue of Native Administration Regulations, 1924 (as amended), reg. 83. Whether in this case provocation by the wife could have exonerated the accused had his attempt at chastisement been effective need not be considered. He made an attempt to do an unlawful act. But there is nothing to shew that it was an act of such a character as, within the present-day doctrine of the common law, would render inexcusable the unintended and unexpected killing of the child. Nor is there any finding that the killing was the result of criminal negligence; and the facts as found would not, it seems, have supported such a finding. I think, therefore, that the killing of the child was, within the meaning of s. 291 of the Code, excused by law, meaning by the common law. (at p60)

7. I realize that in thus finding an excuse in common law doctrine I may seem to take a short-cut and to by-pass some troublesome questions of the Code. I turn therefore to the route, through the Code alone, which counsel for the appellant invited us to follow. The argument revolved round s. 23 of the Code. I therefore set it out in full.

"23. 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.

Unless the intention to cause a particular result is expressly

declared to be an element of the offence constituted, in whole

or part, by an act or omission, the result intended to be caused

by an act or omission is immaterial.

Unless otherwise expressly declared, the motive by which

a person is induced to do or omit to do an act, or to form an

intention, is immaterial so far as regards criminal

responsibility." (at p60)

8. The phrase "criminally responsible" is defined, in s. 1 of the Code, as meaning "liable to punishment as for an offence". By s. 2, "an act or omission which renders the person doing the act or making the omission liable to punishment is called an offence". Sir Samuel Griffith, the draftsman of The Criminal Code, said, and his remark has been often repeated, that as a result of s. 23 it is now never necessary in Queensland to have recourse to the old doctrine of mens rea. Cooper C.J. and Lukin J. in the Supreme Court of Queensland said, in 1920, that

". . . the Queensland legislature have, by the express

provisions of ss. 23, 24, and 25, laid down in clear terms what

the law in future should be in regard to the very much debated,

very much misunderstood, and very confused doctrine of

what is referred to as mens rea": Thomas v. McEather

(1920) QSR 166, at p 175.

That was too sanguine an utterance. The "clear terms" have in recent times caused difficulties and dissents in courts; and learned discussions of them have led to some variety of opinion. Section 23 no doubt reflects common law doctrine ; and it also supersedes it. It does so using the language of analytical jurisprudence. It has been suggested that, strictly construed, this is too compressed to be compendious. (at p61)

9. Since its enactment in 1899 the Queensland Code has been copied and adopted elsewhere. The provisions of s. 23 now appear, in exactly the same terms, in the Criminal Codes of Western Australia, Kenya and Nigeria, and I believe of other African States ; and s. 13 of the Tasmanian Criminal Code is generally considered to have the same effect notwithstanding verbal alterations. All this would no doubt have been as pleasing to Sir Samuel Griffith as it would I imagine have been surprising to him to know of the difficulties and debates which the seemingly simple words of s. 23 have produced. (at p61)

10. Counsel's statement to us that s. 23 had no forerunner, and that it was entirely of Sir Samuel Griffith's devising, is I think only half correct. He had gathered the words for s. 23, and the ideas he sought to express in it, from well-known writings, including I assume the Report of the Criminal Law Commissioners of 1833. But he used the old words and known phrases to formulate a rule, not, as they had been previously used, for the exposition of a principle. The result has been to emphasize the distinction between interpreting a statute and reading a judicial explanation of common law doctrine. To say this is not to underrate the magnitude of the task of producing the Code or the merit of its accomplishment. It is merely to say that in interpreting and applying its general and governing provisions, of which s. 23 is one, attention has naturally become directed to the meanings of words as both the source and the definition of a rule. Judicial decisions as to their application in particular cases are never more than exegetical. They cannot add to, alter, or diminish the meaning or effect of the terms in which the rule is formulated. It is by the words, used in relation to their subject matter, criminal responsibility, that courts must be governed in every case. I go then to the words and phrases of s. 23. I do so with diffidence. Judges may have to decide, although doctors disagree. Yet anyone who carefully examines recent writings on the place of mental elements in crime becomes aware of disagreements between doctors, Doctors Glanville Williams, Turner and Hart, among others. And those who have written expressly about s. 23, among them Messrs. Okonkwo and Naish in their book on Criminal Law in Nigeria ; Dr. Howard in his Australian Criminal Law and Mr. Morris in the University of Queensland Law Journal, have demonstrated the linguistic problems that lurk in it. I do not propose to engage in lengthy citation of this academical literature. I simply acknowledge its suggestiveness while admitting to doubts and misgivings which it has created for me. Some of the questions which have arisen, or been raised, depend upon philosophical and psychological concepts which lie behind the words "act", "will", "event", "accident". Learned, but inconclusive, academic arguments about these words in relation to the idea of foresight of consequences resemble the debate, about matters different from law, described in Paradise Lost (Book II, 1. 558):

"Others apart sat on a hill retired,

In thoughts more elevate, and reasoned high

Of providence, foreknowledge, will and fate -

Fixed fate, free will, foreknowledge absolute,

And found no end, in wandering mazes lost."

But we must try to escape from wandering mazes and find an end, or at least reach a position beyond which we need not travel for the resolution of this and similar cases. One of the difficulties comes from the need to relate will to acts, and to define precisely the distinction, commonly accepted by lawyers, between intention and volition. These words are used glibly ; and often with little definition of the sense in which they are used. In Iannella v. French [1968] HCA 14; (1968) 119 CLR 84, at p 107 , I referred to what Professor Hart had said of the imprecise and varied senses in which the words "voluntary" and "involuntary" are used by lawyers. I need not repeat that. I am aware that Professor Hart's main thesis in the article in the proceedings of the Aristotelian Society from which I quoted has been trenchantly criticised by other learned persons : see Philosophical Review (1960), pp. 221 and 226 ; and that he has himself accepted the criticisms as in part justified. But the passage I quoted needs, I think, no emendation or subtraction. With it in mind, I have in this judgment eschewed the word "voluntary" as an adjective qualifying "act". Instead I use the phrase "willed act", a term which judgments of the Supreme Court of Queensland and writers on jurisprudence have made familiar. I have also avoided the words "wilful" and "wilfully". Etymologically I think that their meanings accord with "willed" and with "voluntary" in the sense of willed, and when dealing, in Vallance's Case [1961] HCA 42; (1961) 108 CLR 56, at p 79 with the description in the Tasmanian Criminal Code of an act as "voluntary and intentional", I translated this as a deed "done wilfully and intentionally". But it seems desirable, in considering the general terms of s. 23 of the Queensland Code, to avoid certain words or phrases which are used in relation to specific offences in the Code - such as "intentional omission" (s. 477), "advisedly" (s. 56), "wilfully and unlawfully" (s. 469), "wilfully" (s. 108). Therefore I shall use the term "willed act" to mean an act of an accused which is not one "which occurs independently of the exercise of his will" within the meaning of s. 23. (at p63)

11. This case seems to have turned at the trial on the meaning of the phrase "an event which occurs by accident". However, in the argument for the appellant before us, counsel urged primarily that the killing of the child was not a willed act. Alternatively and secondarily he said it had occurred by accident. I shall deal with these two propositions in the order in which they were put forward. (at p63)

12. In general, criminal responsibility is today attached to moral blame. And according to deeply rooted beliefs blameworthiness does not depend simply on what a man did, or on the results his actions caused. It depends upon his knowledge and his intentions when he acted - or upon his advertence to the possible consequences of what he was doing or was about to do, or his careless ignoring of them. That of course is trite. The doctrines of mens rea in the common law and of dole in the law of Scotland express this element in guilt. I see no reason for thinking that s. 23 demands any departure from this basic concept or that it at all attenuates it. The words used reflect a view of psychological processes which at the end of last century had become accepted, dominant and orthodox for legal purposes. They must be read literally. (at p63)

13. The first question was said to be, what is the scope of the word "act" in the phrase "an act which occurs independently of the exercise of the will"? Broadly speaking, two views of this have been put forward. They may be summarily described as follows. On the one hand, "act" here means some bodily movement. This is sometimes more exactly called a muscular contraction. On the other hand, the word "act" is said to comprehend all that has sometimes been called the overt acts of the accused, sometimes described as "the external elements of the offence charged" as distinct from whatever inward, that is mental, attributes must be added to make the actor guilty. In this sense "act" in s. 23 is close to what has been unhappily called the actus reus of an offence. (at p64)

14. I venture to repeat here a passage from what I wrote in Mamote-Kulang's Case (1964) 111 CLR, at p 81 . I said :

"The phrase 'independently of the exercise of the will'

refers, I think, to volition rather than to intention. The word

'will' seems to be used in the way in which it had come to

be used by writers on criminal law at the time the Code was

framed, that is with the meaning that it had for Austin rather

than for Blackstone. The language of s. 23 at this point may be

contrasted with the different language of s. 13 of the Tasmanian

Criminal Code which refers to an act that is 'voluntary and

intentional'. But, when read as a whole, the first sentence of

s. 23 seems to me to express the idea of a willed act done to

produce, and in fact producing, an immediate intended

consequence." (at p64)

15. What I thus said does add, and it was meant to add, some element of intention, end and purpose to the notion of a willed act as merely a bodily reaction to a mental stimulus. In short I do not read the word "act" in s. 23 as limited by its strict Austinian sense (see Austin, Lectures on Jurisprudence, Lecture XVIII) ; and I do not think that the judgments of the other members of the Court in Vallance's Case [1961] HCA 42; (1961) 108 CLR 56 require me to do so. That case turned upon the words of the Tasmanian Code. It seems to me that in its context in s. 23 the word "act" must refer to some act which, if it were a willed act, would render the doer of it liable to punishment for an offence. A man is not punishable for a bodily movement, but for a bodily movement which produces some prescribed consequences. For instance, pressing the trigger of a firearm is not of itself a punishable act. But if the firearm was loaded, and known to be loaded, pressing the trigger is not merely a dorsiflexion of the finger, it is, unless the weapon misfires, a discharging of it. If the weapon was levelled at some person at such a range that to discharge it must cause a wounding or killing, it is the wounding or killing which, as I see it, is the punishable act. (at p64)

16. When considering a man's responsibility for his willed acts it thus seems to me impossible to separate a willed physical movement, a muscular contraction, from any immediate, necessary and inevitable consequences. Together they make up the act, to the doing of which criminal responsibility attaches. Suppose a man hits a glass window with a heavy hammer, thereby shattering the glass. Would the breaking of the glass not be his act for the purpose of s. 23 ? Again, suppose a person orally demands money by threats of injury. Can the action of his vocal cords be separated from the resulting sound issuing from his mouth and its intended meaning to the hearer ? The use of threatening words would, I consider, be properly called his act. Again, if a man stabs another with a knife, why is not the wounding of the victim his willed act ? True, it can be said to be but the result of the act of plunging a knife into the victim's body. But it is an inescapable result and the wounding of the victim is therefore to my mind the act of the assailant. (at p65)

17. It will I trust be apparent from what I have said that I am not able to accept as valid, for all purposes and in all circumstances, a distinction between volition and intention as separate states of the mind, except in cases when an intent to produce a particular result is expressly made an element of a punishable act. Any act must no doubt precede its consequences ; but to ask was the act willed, and then was its result intended, seems to me in many cases to put a single mental process into separate compartments. I appreciate the idea of willed means to a desired end : and I hope I understand the sense in which the word conation has been used and the distinction between it and cognition. I do not for a moment dispute that the distinction between will and intention has been long accepted and is very satisfying and useful for many purposes of law. I am not qualified to pass an opinion on its philosophical and psychological validity. I therefore say no more than that in Professor Hart's recently published collection of his essays under the title Punishment and Responsibility - in particular perhaps Ch. IV, called Acts of Will and Responsibility and Ch. VI, called Negligence, Mens Rea, and Criminal Responsibility - there is much which must at least cause one to pause and ponder. (at p65)

18. As I understand s. 23 the act of the accused in this case was hitting the child on the head with a stick thereby killing him. Was this an act done independently of the will or was it willed ? The wielding of the stick was a physical act done in response to a mental stimulus. It was in every sense willed. But it was willed as a blow aimed at the woman, not at the child. Had it struck her, the assaulting of her causing her pain would have been in my opinion a willed act. It did not strike her. It is the striking of the child causing death which is said to result in criminal responsibility. Was that a willed act ? I think that it was not. In saying this I do not wish to be taken as endorsing all that was put to us by counsel for the appellant. Some of the hypothetical illustrations put in argument seemed to me to be extravagant and wide of the mark. I certainly do not mean to confound the doing of an act with the intent or purpose with which it was done. But I do not think that striking the child, who unknown to the accused stood in the way of the blow aimed at the mother, was a willed act, or part of a willed act of the accused. To exculpate the appellant in this way does, I realize, give the phrase "independently of the exercise of the will" a wider application than on occasions it has been given in the past. I therefore express my opinion on the first proposition put for the appellant with some hesitation. (at p66)

19. I go now to the second and alternative proposition. Here I have no hesitation at all. To my mind the striking of the child thereby causing death was an event which occurred by accident within the meaning of s. 23. There is no need to go to dictionaries in the search of a meaning for either "event" or "accident". (at p66)

20. An event in s. 23 clearly means a happening for which an accused person could be criminally responsible if it did not occur by accident and he was not otherwise exonerated. Therefore an event in this context refers to the outcome of some action or conduct of the accused, for a man cannot be responsible for an event in which he had no part at all ; and it would be unnecessary to say so. (at p66)

21. As to accident, for centuries courts and the great writers on the criminal law have spoken of misadventure or accident as, by the common law, excusing a homicide. There is no reason I think to seek for any new meaning for an old word now appearing in the Code and expressing an old idea. The only change which the Code has made is that whereas by the common law misadventure excused only a homicide which was not associated with an unlawful act, the Code provides that an accidental event is never of itself punishable, and it is immaterial whether it arose out of the doing of an unlawful act or of a lawful act. The only question then is, was the killing of the child "an event which occurred by accident" ? Accident is I think a matter of defence, in the sense that it is not necessary for the prosecution to negative at the outset the possibility of accident. But, as the ultimate burden is on the Crown of proving beyond reasonable doubt that the offence charged was committed, the accused must be acquitted of that offence if, on the whole of the evidence, it be doubtful whether any event which is an element of that offence occurred by accident. Professor Cross and Mr. Jones in their Introduction to Criminal Law, 5th ed., pp. 87, 88, say that "The defence of accident is based on the fact that the accused did not foresee that his conduct would have the consequences prohibited by the definition of the crime charged". In relation to homicide this must be read bearing in mind that in manslaughter the killing was never intended or foreseen. If it were, it is murder, not manslaughter. But, with this in mind, the remarks by the learned authors on the various meanings of accident - or perhaps it would be better to say the various ways in which an accident may occur as a ground of exculpation at common law - are a helpful summary. I quote several sentences.

"It (accident) may be contrasted with the defence of mistake

of fact because that defence goes to the accused's state of

mind concerning the circumstances surrounding his conduct,

rather than its consequences. We have seen, however, that

an accident may be caused by a mistake. Foster cites a case

in which a man left his gun unloaded and went to church.

The weapon was loaded while he was away, and he subsequently

killed his wife by firing at her, when believing, on reasonable

grounds, that it was unloaded. The death was the result of

an accident and, there being no criminal negligence, the

accused was acquitted of any unlawful homicide: Crown

Law 265."

"There are also cases of what may be called 'pure' accident

in which someone who was conscious of his controlled bodily

movements, and aware of all relevant facts, did not foresee

that his conduct would have the prohibited consequences

owing to the operation of influences having nothing to do

with his state of mind. Someone aims a bullet at a crow, but,

owing to the presence of a high wind or the fact that he is a

poor shot, he hits a house pigeon. In either event, he is said

to have killed the bird accidentally.

Sometimes, when the accused alleges that an event was

an accident, he simply means that he had no causal connection

with it. The matter is further complicated by the fact that

an event is often said not to have been an accident if it was

the outcome of negligence, and occasionally the broader

practice of describing all unintended consequences as accidental

is followed." (at p67)

22. In the light of the decision in Vallance's Case [1961] HCA 42; (1961) 108 CLR 56 it can now be said that an event occurs by accident if it was not intended, not foreseen, and unlikely, that is not reasonably to be foreseen as a consequence of a man's conduct. (at p67)

23. In the present case the striking of the child causing his death seems to me to answer the description of an event which occurred by accident. At the trial a view to the contrary was urged upon the learned judge, which he felt constrained to adopt. It was founded upon some observations in the case of Mamote-Kulang [1964] HCA 21; (1964) 111 CLR 62 . But the facts of that case were quite unlike the facts of this case. Statements in that case which proved misleading in this case were made in reference to those facts. There the accused had killed his wife by hitting her intending to hurt her. She died from the blow because she had an enlarged spleen the result of malaria. Now, so far as I know, it has always been the law - and the Code has made no alteration in this - that if a man strikes another without his consent intending to harm or hurt him, although not to kill him, if death ensues as a result of the blow, the homicide is criminal. If the intention was to cause grievous bodily harm, it is murder; if some lesser harm or hurt was intended, it is manslaughter. It matters not that the man who delivered the blow did not intend to kill. It matters not that death occurred because, unknown to him, the person he struck was frail and easily killed. If his blow actually caused the death of the person whom he intentionally hit, it is manslaughter at the least. This, for the time being at least, is the result of a long chapter in the history of our law. One consequence is that the moral blame in homicides less than murder varies greatly with circumstances. Sentences for manslaughter can thus justly vary from very light to very severe. A Scottish judge once said the crime of culpable homicide (which we call manslaughter) varies from a merely nominal crime to the very confines of murder: see Her Majesty's Advocate v. A.B. (1887) 15 R(JC) 30, at p 31 . (at p68)

24. The accused in Mamote-Kulang's Case [1964] HCA 21; (1964) 111 CLR 62 had no intention of killing his wife and it was found by the trial judge that

"he did not actually foresee her death as a possible

consequence of his attack. He acted in anger without thinking

about it".

Many natives in the Territory, and I suppose most Europeans there, do know of the danger of striking a person whose spleen has been enlarged by malaria: see the findings quoted (1964) 111 CLR, at pp 75, 76 . It may well be, therefore, that it was not right in that case to regard death as being not objectively foreseeable or probable. However, that was assumed to have been so. The defence was that the death was an event which occurred by accident. That led in this Court to some examination of the question of causation involved. Was there some factor other than the act of the accused which was in a relevant sense the cause of death, so that the killing was, so far as the accused was concerned, an event which occurred by accident. It was an old question, familiar in law, however questionable in philosophy, of asking was there what has been called a break in the chain of causation by what lawyers have described as a novus actus interveniens. Sir Frederick Pollock warned that

". . . the lawyer cannot afford to adventure himself with

philosophers in the logical and metaphysical controversies

that beset the idea of cause".

I said all that I can usefully say on this topic in National Insurance Co. of New Zealand Ltd. v. Espagne (1961) 105 CLR 569, at pp 590-596 . However, it may be permissible to say again that, in ascribing effects to causes, and in seeking the cause of an event, the purpose of law, civil and criminal, is to attribute legal responsibility to some person - "to fix liability on some responsible person", Lord Sumner said in Weld-Blundell v. Stephens (1920) AC 956, at p 986 . What seems to me to have been the mistake at the trial of the present case was to take references in Mamote-Kulang's Case [1964] HCA 21; (1964) 111 CLR 62 to the absence of any new factor between the blow and its consequence, the death, as meaning that unless there were such a factor present a homicide could never be said to have occurred by accident. In the present case the question whether there was an event which occurred by accident arose in an altogether different way, and matters alluded to in the former case could not, as I see it, have any bearing on this case. In this case the question is not whether death after a blow intentionally delivered was an event which occurred by accident. It is whether the striking of the child whereby he was killed was an event which occurred by accident. In my opinion it was, because it was not intended and it occurred as the result of the accused being both ignorant of a circumstance (the presence of the child) in which he wielded the stick, and without any foresight of the consequence of his doing so. These facts remove it from the area of mens rea and bring it within the description of an accidental event. (at p69)

25. Before leaving this part of the case it may be of interest to notice that cases similar to Mamote-Kulang's Case [1964] HCA 21; (1964) 111 CLR 62 have occurred in African jurisdictions where provisions similar to those of the Code prevail. In two reported cases the killing, by blows delivered in the course of quarrels, of persons whose spleens were enlarged by malaria has been taken to be manslaughter although death was neither intended nor expected: Friday Ntah v. The Queen (1961) All NLR 590 ; Saidi s/o Abdalla v. The King (1945) 12 EACA 99 . (at p69)

26. I should I think add that, notwithstanding some superficial similarity, the facts of this case differ materially from those in R. v. Tsagaroan-Kagobo (1965-66) P & NGLR 122 , a decision of Mann C.J. That was a case of reckless negligence, and I see no ground for questioning the correctness of that decision. (at p69)

27. Some argument was addressed to us on the basis of mistake, invoking s. 24. In the view I take it is not necessary that I say anything about that. (at p70)

28. In my opinion leave to appeal should be given. The case was fully argued and, as counsel for the Crown agreed that if we were in favour of allowing the appeal the conviction should be quashed, I consider that this should be the form of the order. As it seems that no other charge is to be laid against him, the prisoner should I consider be released. (at p70)

OWEN J. The applicant was indicted before the Supreme Court of the Territory of Papua and New Guinea upon a charge of having unlawfully killed one Kandamain Timbu on 8th January 1968 and was convicted. The trial took place before Clarkson J. (1), sitting without a jury and, as his Honour said, the facts were not disputed. The deceased was the son of the applicant and his wife and was five or six months old. During the night of 8th January a quarrel had developed between the applicant and his wife and the applicant left their house and sat down a short distance away. His wife followed him carrying the child and abusing him. He decided to chastise her and for that purpose picked up a light stick. It was dark and he could not see and did not know that his wife was then carrying the child nor could he or anyone in his situation have reasonably foreseen that the child would be with her at that hour. He aimed a blow at his wife with the stick but it struck the child on the head, fracturing its skull, and death resulted. The same blow delivered to an adult would be unlikely to have caused significant injury. (at p70)

2. One of the submissions made to the learned trial judge and before this Court was that the applicant was not criminally responsible for the child's death because of the provisions of s. 23 of the Criminal Code which is in force in the Territory. That section provides that:

"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."

Two arguments were put forward to us by counsel for the applicant. First it was said that the striking of the child was an act which occurred independently of the exercise of the applicant's will. Next it was said that the striking of the child and its death were events which had occurred by accident. I find it unnecessary to consider the first of these submissions since the second of them should, in my opinion, be upheld. Had the case been one in which the child had unexpectedly and unforeseeably been carried by someone other than its mother between the applicant and his wife at the critical moment with the result that the blow aimed at the wife had struck and killed the child, or had the case been one in which someone had unexpectedly and unforeseeably run between them and, receiving the blow aimed at the wife, had died as a result, the second limb of s. 23 would, in my opinion, have afforded an answer to a charge of unlawfully killing. In either such case, whether the "event" of which the section speaks should be regarded as the death or as the actual impact of the blow which resulted in death it would, in my opinion, have been one which occurred by accident and I can see no distinction between cases of that kind and the present case. The learned trial judge felt, however, that various passages to which he referred in the judgments of members of this Court in Mamote-Kulang v. The Queen [1964] HCA 21; (1964) 111 CLR 62 pointed to the conclusion that in the present case there had not been any "event" which had occurred by accident. But, as his Honour recognized, the facts in Mamote-Kulang's Case [1964] HCA 21; (1964) 111 CLR 62 were very different. There the accused intentionally aimed a blow at and struck his wife, the blow ruptured her spleen, which was greatly enlarged, and caused her death. The Court held that neither the blow nor the fact that the wife had an enlarged spleen nor the death was an event occurring by accident. (at p71)

3. In the present case the aiming of a blow at the wife was intentional but before it reached its target, a wholly unexpected and an unforeseeable event intervened. The child's head intercepted the blow aimed by the applicant at his wife. In these circumstances the fact that the blow struck the child was, it seems to me, an "event" which occurred by accident. (at p71)

4. For these reasons I would allow the appeal and quash the conviction. (at p71)

Leave to appeal granted. Appeal allowed. Conviction and sentence of and upon the applicant set aside.