La Fontaine v The Queen

[1976] HCA 52

High Court of Australia|1976-07-01|Before: Jacobs JJ, Lush J

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Source facts

Court

High Court of Australia

Decision date

1976-07-01

Before

Jacobs JJ, Lush J

Source

Original judgment source is linked above.

Judgment (150 paragraphs)

[1]

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason and Jacobs JJ. La Fontaine v The Queen [1976] HCA 52

[2]

The applicant for special leave to appeal was charged before the Supreme Court of Victoria at Shepparton on 5th December 1975, with the murder on 14th September 1975, at Mount Beauty in that State of his brother, Kevin. After a trial of four days, the applicant was convicted of murder and sentenced to imprisonment for the term of his natural life. He unsuccessfully appealed to the Court of Criminal Appeal against his conviction.

[3]

The circumstances of the case out of which the charge arose are both simple and contained in a small compass. The applicant, David, at twenty-four years of age was the eldest of four brothers, the others being Kevin (the deceased) twenty-one, Peter seventeen and Adrian eleven at that time. They were all in the loungeroom of their parents' home on the afternoon of Sunday, 14th September, watching television, their parents having been absent during that day. David went through the front door to the verandah of the house. Words arose between him and the deceased relating to David's conduct on the verandah. The deceased latched the flyscreen door, thus excluding David from entry through it to the loungeroom. David went to the rear of the house, went to his bedroom, obtained and loaded his .22 automatic rifle with a single round; entered the loungeroom carrying the rifle pointed in the general direction of the deceased, then reclining on a couch or settee. As he entered, David said to the deceased, "I am going to bloody put a hole in you". David brushed aside the effort of Adrian to dissuade him, and upon the deceased rising and walking awkwardly, because of an ankle injury, towards him, David released the safety catch and discharged the rifle. The bullet passed near to the deceased's heart. He died very shortly thereafter.

[5]

The evidence may be summarised as follows. The day of the killing was a Sunday, and the accused, the deceased and two other brothers, Peter and Adrian, were on that day living at their father's house at Mount Beauty. During the morning the applicant, the deceased and Adrian went shooting together, after some bickering between the deceased and the applicant over matters connected with the shooting excursion. After shooting, they went to a gathering apparently organised by or on behalf of the local football club, at which there was a barrel of beer. At this gathering, the applicant drank eight or nine glasses of beer. The deceased and Adrian wanted to leave, and there was further bickering between them as to whether the deceased could drive the car which they were using. The reason for this was that on the previous day the deceased had severely sprained an ankle. In the end, the applicant drove the other two brothers home and they all had some lunch at home. The applicant then returned to the football club gathering and, arriving there at about one o'clock, remained until the barrel was empty at about two o'clock. The applicant was then involved in discussion with friends about the possibility of obtaining further supplies of beer, but eventually went home. After he had been to a neighbouring house in a further attempt to assist a friend to obtain some more beer, the applicant returned again to his home and there was further bickering apparently initiated by the deceased about the extent of the applicant's drinking. At a time which appears to have been shortly after four o'clock, all four brothers were in the livingroom of the house, where the television set was operating. The applicant cooked some steak, some of which he ate, and he possibly offered some to the others. One of the applicant's friends then came and reported that he had been unable to get the supplies of beer which he had been hoping to get, and invited the applicant to go into his house next door. The applicant said that he would be there in a minute, and proceeded to urinate on to the lawn or garden while standing on the verandah near the main or front entrance to his own home. This apparently incensed the deceased, and a further argument developed before or during which the deceased fastened the wire screen door of the house from the inside, the applicant being outside. After an exchange of words, the applicant asked the deceased to give him his cigarettes, and the deceased looked for them but informed the applicant that they were not there. The applicant then said that they must be on the kitchen table and he proceeded to the rear of the house. He entered the house by a different door from that which the deceased had fastened, obtained a rifle and a round of ammunition, inserted the round in the breach of the rifle and entered the livingroom. The deceased was watching the television set, lying on a couch at the opposite end of the room from the door through which the applicant entered, the length of the room being about eighteen feet. The applicant had the rifle at his hip and pointing at the deceased, and he said, "I am going to bloody put a hole in you". The youngest of the brothers, Adrian, who was watching the television set from a chair near the wall on the side of the room on the applicant's right as he faced the deceased, attempted to grasp the rifle and pushed it across to the applicant's left. The applicant pushed him away and told him to sit down, which he did. The deceased rose from the couch and moved one or two steps towards the applicant, and the other brother, Peter, also got to his feet and stood in a position beside the deceased. The deceased advanced further, and the applicant, who had brought the rifle down from the position into which it had been pushed by Adrian, took a step backwards and the rifle was then discharged. The deceased was at this time apparently in the middle of the room, and the applicant near the door through which he had entered. It is possible that his backwards step had taken him slightly outside the door. The bullet struck the deceased near the heart, and he died within a very short space of time.

[51]

Murder is unlawful homicide with malice aforethought. Malice aforethought means (a) An intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not; (b) Knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; At the time when Sir James Stephen wrote, in 1877, there was little authority to support his statement that knowledge that the act which in fact causes death will probably cause death or grievous bodily harm will provide the mental element that constitutes an unlawful homicide murder rather than manslaughter. However, it has since been accepted in the Supreme Courts of Victoria (Reg. v. Jakac [8] and Reg. v. Sergi [9] ) and South Australia (Reg. v. Hallett [10] ) that the passage cited from Stephen's Digest of the Criminal Law correctly expresses the law, and that view is confirmed by the decisions of this Court in Pemble v. The Queen [11] and of the House of Lords in Reg. v. Hyam [12] . It must now be taken to be the law that a person who does an act knowing that it is probable that death or grievous bodily harm will result is guilty of murder if death does in fact result, even though he had no intention to cause death or grievous bodily harm. In Pemble v. The Queen [13] Barwick C.J. went further, and said that it is "sufficient that the death or grievous bodily injury of the person towards or in connexion with whom the accused contemplated an act or omission should be foreseen by him as possible", and the question whether the foresight required to make the homicide murder should be a foresight of the probability, and not merely of the possibility, of death or grievous bodily harm has given rise to some discussion: see Glanville Williams, Criminal Law - The General Part, 2nd ed. (1961), p. 59 et seq.; Howard, Australian Criminal Law, 2nd ed. (1970), p. 57 et seq. and Reg. v. Hallett [14] . Although it is unnecessary to decide this question in the present case, I am, with all respect, unable to accept that the foresight of a mere possibility of death or grievous bodily harm would be enough. There is a great difference between the state of mind of an accused who is prepared to risk the consequences of death or grievous bodily harm that he foresees as probable and that of an accused who does no more than take the chance that death or serious injury may ensue although it seems an unlikely consequence. The act of the former is much more worthy of blame than that of the latter. To treat knowledge of a possibility as having the same consequences as knowledge of a probability would be to adopt a stringent test which would seem to obliterate almost totally the distinction between murder and manslaughter. I therefore respectfully agree with the views expressed by McTiernan and Menzies JJ. in Pemble v. The Queen [15] , that in cases of this kind an accused will not be guilty of murder unless he foresaw that death or grievous bodily harm was a probable consequence of his behaviour. 1. [1975] A.C. 55, at p. 95. 2. [1961] V.R. 367. 3. [1974] V.R. 1. 4. [1969] S.A.S.R. 141, at pp. 153-154. 5. (1971) 124 C.L.R. 107. 6. [1975] A.C. 55. 7. (1971) 124 C.L.R., at p. 121. 8. [1969] S.A.S.R., at p. 153. 9. (1971) 124 C.L.R., at pp. 127, 135.

[52]

It has become common to describe the mental state of an accused person who acts knowing that his act will probably cause death or bodily injury as one of recklessness or reckless indifference. Judges and textwriters alike have used those expressions: see Pemble v. The Queen [16] ; Howard, op. cit., p. 55 et seq.; Glanville Williams, op. cit., p. 60 et seq.; Russell on Crime, 12th ed. (1964), p. 41 et seq. Indeed the legislature itself has in some places adopted them. However useful those words may be as a compendious description of this mental state, they should not in my opinion be used by a judge when summing up to a jury in States where the legislation does not require it. To tell a jury that they may convict of murder when they are satisfied that the accused acted with recklessness or reckless indifference is to invite confusion between murder and manslaughter resulting from criminal negligence. In many, if not most, cases where the Crown alleges that the accused acted knowing that his act would probably cause death or grievous bodily harm it will also be alleged by the Crown, in the alternative, that the accused was guilty of criminal negligence. The expression "reckless" is also used to describe that very high degree of negligence which, if it causes death, amounts to manslaughter: see Andrews v. Director of Public Prosecutions [17] ; Evgeniou v. The Queen [18] . It is not easy to explain to a jury the difference between the reckless indifference which, if it exists, may justify a conviction of murder and that recklessness which would warrant a conviction for manslaughter. The purpose of a summing up is not to endeavour to apprise the jury of fine legal distinctions but to explain to them as simply as possible so much of the law as they need to know in order to decide the case before them. The mental element necessary to justify a conviction for murder in circumstances such as the present is sufficiently stated in the words of Sir James Stephen. It cannot assist, and may confuse, the jury to add to those words the gloss that the state of mind thereby described is one of recklessness or reckless indifference. It is enough to tell them that it is only if the accused actually knows that his act will probably cause death or grievous bodily harm that he can be convicted of murder. The extreme gravity of his offence lies in the fact that he fully realized the probable consequences of his act and was prepared to take the chance that they would ensue. If he did not in fact foresee that death or grievous bodily harm would probably be caused by his act, he would not be guilty of murder even though a reasonable man would have foreseen that such a result was probable; in those circumstances he might however be guilty of manslaughter.

[57]

He pointed out to you also that it required a definite and distinct intention; it involved recognizing the probability of injury; it involved a conscious reference to that possibility of injury and it involved a decision to carry on, regardless of the risk of injury. Taken alone, this was a misdirection for, as I have said, the jury were entitled to convict of murder only if satisfied that the applicant had acted with foresight that death or grievous bodily harm was a probable consequence of his action; foresight that death or grievous bodily harm was a possible consequence was not enough. At another point the learned trial judge said this to the jury: Of course the prosecutor says that if you reach the view that the intention of the accused was to frighten and not to kill but it nevertheless involved firing a weapon at close quarters, in the living room of the house with other people including the deceased there, that there was a probability or likelihood that if the bullet hit one of the people in the room, it could either kill them or cause serious bodily injury. That would justify your making use of the third kind of intent. That also was in itself a misdirection, and quite a serious one, for it is knowledge of the probability of the consequences, not their probability alone, that is essential to ground a conviction for murder. However, in the course of his charge the learned trial judge correctly instructed the jury again and again that a conviction of murder on this basis required proof that the accused had fired the shot knowing that it was probable that it would cause death or serious bodily injury. There are at least five passages in the course of the charge in which this direction was repeated. After the jury had retired and had deliberated for a time they returned seeking further instruction which the learned trial judge gave them. He then said: The third one [classification of intent] is that he discharged the rifle at the deceased knowing that the shot would more probably than not, or more likely than not, cause the death of or serious bodily injury to the deceased and that at the time that he did this he was indifferent as to whether death or serious bodily injury would be caused to the other. He even may have had an intention that it might not be caused. But if he knew, if you are satisfied beyond reasonable doubt that he knew that as a matter of probability, on a better than balanced basis, such serious injury would be caused, then that can justify your bringing in a verdict of murder if you are satisfied that he was capable of forming the intention or appreciation that he was indifferent as to whether the discharging of the firearm ultimately had that effect or not. That is consistent with his not wanting to kill the deceased but discharging the firearm at him knowing that there was a better than balanced risk that he could be seriously injured or killed. This direction clearly brought out to the jury that it was the knowledge or appreciation of the probability of death or bodily injury that had to be proved. Perhaps the words "better than balanced" were not well chosen but in my opinion the charge, taken as a whole, left the jury in no doubt that it was necessary to be proved that the applicant had foreseen the probability of death or grievous bodily harm.

[119]

It is to be observed that Stephen expressed the principle to include knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person. In my opinion this expression of the principle is correct. The need for a direction on this form of malice would arise for example in cases where the accused said or suggested that though it be found that he knew that his act of shooting at the victim would probably kill or seriously injure the victim his only actual intent was to get away or to prove to himself that he was brave enough in his own mind to do the act, or, it must be added, to frighten the victim, and that, that being the only intent actually in his mind, there was not an intent to kill or seriously injure. The law then says that there may nevertheless be malice in the absence of the actual intent to kill or seriously injure in such circumstances if there was a reckless indifference to what he knew to be the probable consequences of his act. Intent to kill or seriously injure, although it may be inferred as a fact from the doing of an act with knowledge of its probable consequence of death or serious bodily injury to the victim, is not the same as knowledge of the consequences of the doing of such an act. On the one hand intent may exist even though the knowledge of the actor is that the death of the victim is improbable. If a man were to fire a pistol into a dark place intending to kill another he would be guilty of murder even though he believed that the odds were greatly against him killing that other. It is the actual present intent which is sufficient. The actual present intent need not be the only intent. If in the examples which I have given in the earlier part of this paragraph there was, in addition to the intent to get away or to prove himself, an actual present intent to kill or seriously injure then the act is murder. On the other hand if the intent is not actually present, there is no intent in law. To say that there is in law an intent in such circumstances is to apply a legal presumption that a man intends those consequences which he knows to be probable but there is no such presumption. The question is one of fact. However, there may still be malice in the special circumstances of knowledge of probable consequence and reckless indifference to that consequence.

[121]

I come now to the position if the jury "accepted" the fact that the applicant fired in the direction of the deceased intending that the bullet would not hit him. Could they find him guilty of murder? It appears to me that they could only do so on a basis that it was sufficient in law that the applicant foresaw that the possible as distinct from probable consequence of the act was that the bullet would hit the deceased and was recklessly indifferent whether or not it thus caused his death or serious bodily injury. That, however, is not in my opinion sufficient to constitute murder. It could be said that he was reckless in the sense that appreciating the risk he decided to take that risk. But it is not murder to do an act which is risky to the life of another simply because the risk, the possibility of causing death or serious bodily injury of the other, is known to be probable. There must be indifference to known probable, not merely possible, consequences, and that indifference must be reckless. It is not appropriate to introduce into this use of the words "possibility" and "probability" connotations appropriate to the determination of questions in other fields of law such as satisfaction of a burden of proof or of adducing evidence. In the present context we are dealing with the state of a man's mind, with that state of mind which the word "malice" connotes. To say that a man knows in his mind that a consequence of his act is probable is to say that he believes that the consequence will happen or that he expects that it will happen even though he would be prepared to concede that it is not certain that it will happen. To say that a man knows in his mind that a consequence of his act is possible though not probable is to say that he believes that the consequence will not happen or that he expects that it will not happen even though he would be prepared to concede that it may happen. There is a great difference in moral and social content between the first state of mind and the second just as there is between the first state of mind and that of a man who knows that a consequence is possible but who has formed no opinion at all as to the degree of possibility. The difference between the first state of mind and the other two states of mind should be preserved in the law of murder. The words "malice aforethought" can be misunderstood if each of them is given a meaning different from the meaning which they bear in the law of murder. "Malice", it is well accepted, does not refer to the emotive state of the actor and "aforethought" does not mean "existing at a distinctly prior time". Nevertheless, a dislike of the possible confusion that the words may cause must not be allowed to obscure the fact that for a crime to be murder there must be a particular state of mind more wicked than an intention to take a risk with an appreciation that the risk is of death or serious bodily injury to another, an intention which may or may not be able to be described in pejorative terms depending upon the social usefulness of the intended action.

[128]

If you find that Sergi intended to miss Condo and merely to frighten him, again you ask yourselves, "Are we satisfied that was not done in self-defence?" If you are not satisfied that it was not self-defence, the verdict is not guilty of murder and of manslaughter. If you are satisfied that it was not self-defence, the verdict will be not guilty of murder, but you will have to consider whether you will find Sergi guilty of manslaughter This was in my opinion a perfectly correct direction. I would refer also to the passage in the judgment of the Court of Criminal Appeal [50] : It is necessary to guard against the danger that the jury, because words such as "likely" and "probable" are used loosely in common speech, may understand a charge which uses those words as meaning that malice aforethought is established if the accused realized or believed no more than that he was creating a substantial risk of death or grievous bodily harm. This misunderstanding may also arise from references to "recklessness" if it is not made clear to the jury what is the particular kind of recklessness that is requisite. It needs to be made quite plain to the jury that in order to bring the case within the principle, the Crown has to establish that when the accused did the act which caused the death he realized or believed that it was more likely than not that death or grievous bodily harm would be the result, or, in other words, that he realized or believed that the odds were against the deceased escaping without at least suffering grievous bodily harm. In substance I agree with what is there said but I would avoid the test of "more likely than not" or "odds against". What needs to be made clear in any exceptional case where the direction is needed is that the accused must have in his mind, must expect, that the victim will suffer death or serious bodily injury even though his mind is less than certain that this will be so. I think that this is conveyed by a direction that the accused knew that his act would probably cause death or serious bodily injury. 1. [1961] V.R. 367. 2. [1974] V.R. 1. 3. [1974] V.R., at p. 7. 4. [1974] V.R., at p. 10.

[137]

Of course the prosecutor says that if you reach the view that the intention of the accused was to frighten and not to kill but it nevertheless involved firing a weapon at close quarters, in the living room of the house with other people including the deceased there, that there was a probability or likelihood that if the bullet hit one of the people in the room, it could either kill them or cause serious bodily injury. That would justify your making use of the third kind of intent. But at all events, my suggestion to you is that you should satisfy yourselves that the rifle was aimed and that it was fired by pressing the trigger, after releasing the safety catch, before you would classify this as murder in the sense that you were satisfied beyond reasonable doubt. I have not given you a direction in law which involves your doing that; I have referred to these different classes of intent, but I want you to understand that that is a comment on the facts from my point of view. I have had to put it in a legalistic framework, but it is a matter for you as to whether or not you need to have evidence that the trigger was pulled, that the safety catch was off, and that that rifle was aimed before you can be confident of a verdict of murder. It might be said for the Crown, if the prosecutor had the opportunity to stand up in the middle of my charge, that the third category of intent does not involve the actual aiming or directing of the weapon at the victim. There are all kinds of situations which might involve debate about that, but I should be constrained as a matter of caution when applying such a complicated examination of intention as I regard the third class of intention, reckless indifference, I would be inclined to adopt the view, in this case, that unless you are satisfied that the rifle was aimed, that the trigger was pulled and that the safety catch had been put off by the accused then you should not, unless you are convinced by other facts, that you should not consider bringing in a verdict of murder in this case. This direction is partly on the law but mostly it is a view on the facts which the trial judge was entitled to express but which he made clear did not bind the jury. The direction of law is mainly in the first two sentences. It is a direction that the jury could find what he called the third kind of intent from the circumstances set out in the first sentence. Whether or not the statement "if the bullet hit one of the people in the room, it could either kill them or cause serious bodily injury" is the statement of a matter relevant to reckless indifference, the statement generally is seriously defective because it does not refer to the state of mind of the accused when it lists the circumstances and refers to the probability or likelihood that if the bullet hit one of the people in the room it could either kill them or cause serious bodily injury. The immediately succeeding passage suggests by implication that even if the rifle was not aimed and was not fired by pressing the trigger after releasing the safety catch, nevertheless the jury could find murder; for the learned trial judge specifically states that he gives no legal direction that the jury must be satisfied of the aiming and firing by pressing the trigger before they could find murder. For reasons which I have already expressed I regard this as erroneous in law, and when it is coupled with the immediately preceding reference to probability or likelihood, unrelated to the state of mind of the accused, it could all be taken to mean that the gross carelessness of the acts done in the circumstances referred to could establish murder. There is no need to state that since this could be taken to be the meaning of his Honour's words, the direction was seriously wrong.