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[1995] HCA 69
High Court of Australia
1995-07-13
Gaudron JJ, Brennan J, Green CJ, Wright J, Zeeman J
Original judgment source is linked above.
High Court of Australia Brennan, Deane, Dawson, Toohey and Gaudron JJ McGhee v The Queen [1995] HCA 69
The appellant and Ms de Vries lived together until 22 July 1992. Ms de Vries left their house and took up residence in a house where she shared a bedroom with a Mrs McDonald, with whom she had recently formed a lesbian relationship. The appellant was distressed by these events and, on 31 July, he sent Ms de Vries a message as a result of which they spoke on the telephone and an arrangement was made for her to call at the appellant's house at 6 pm that evening. She did not keep that appointment and, at some time after 6 pm, she telephoned him to tell him that she would not be meeting him as she had had too much to drink and was not able to drive. She suggested he come to her house and they talk in the car.
When the appellant arrived at the house he was admitted by one of the male occupants. He said that he saw Ms de Vries and Mrs McDonald sitting on the lounge room floor kissing. Ms de Vries spoke to him. He went away, came back and again spoke to Ms de Vries. Then he left once more but returned at about 9 pm, having picked up a rifle belonging to a friend in the meantime. Ms de Vries went outside to speak to him. She described him as being "pretty stressed out". She touched him on the cheek. He bent down and picked up the rifle and at one stage the barrel was pointing towards her. She grabbed hold of the barrel of the rifle and after some wrestling she was able to make her escape into the house. He went in pursuit of her, but Ms de Vries escaped through a bedroom window. He found Mrs McDonald in the bedroom. He fired the gun and wounded Mrs McDonald.
The appellant was charged before the Supreme Court of Tasmania on two counts: attempted murder of Ms de Vries and attempted murder of Mrs McDonald. He was convicted of the attempted murder of Ms de Vries and of unlawfully wounding Mrs McDonald. His appeal to the Court of Criminal Appeal against his conviction for attempted murder was dismissed (Green CJ and Wright J, Zeeman J dissenting). He appeals to this Court against the dismissal of his appeal by a grant of special leave which limits the grounds of appeal to what is in substance a single question, namely, whether a plea of provocation under s 160 of the Criminal Code Tas can be raised to defeat a charge of attempted murder. For the purpose of answering that question, the parties accept that the evidence was sufficient to establish the crime of attempted murder and, had Ms de Vries been shot and killed, would have been sufficient to raise the issue of provocation.
Section 2(1) of the Criminal Code Tas provides that:
An attempt to commit a crime is an act or omission done or made with intent to commit that crime, and forming part of a series of events which if it were not interrupted would constitute the actual commission of the crime. This provision follows s 74 of the English Draft Criminal Code of 1879 which in turn is based on the provisions of Art 29 of Sir James Fitzjames Stephen's A Digest of Criminal Law [1] . The Royal Commissioners who prepared the 1879 Draft included Sir James Fitzjames Stephen. They did not believe their draft s 74 "to do more than declare the existing law" [2] . 1. 9th ed (1950), p 24. 2. See the "Report of the Royal Commission appointed to consider the Law of Indictable Offences" (1879) [C 2345], p 19, printed in British Parliamentary Papers: Criminal Law (1847-1879), vol 6, p 387.
Section 2(1) of the Code prescribes two elements, namely, an "intent to commit that crime" and an act or omission done or made "forming part of a series of events which if not interrupted would constitute the actual commission of the crime". These are respectively the mental element (or mens rea) and the physical element (or the actus reus) of the offences of attempt created by s 2(1). The act or omission must be part of a series of events which is defined by reference to the intention possessed by the alleged offender at the time when the act was done or the omission was made. If that intention had been fulfilled the series of events would have constituted "the actual commission of the crime". The actual intent of an alleged offender both constitutes the mental element and defines the series of which the alleged offender's act or omission forms a part [3] .
The offence of attempting to commit a crime may be committed, although the offender voluntarily desists from the actual commission of the crime itself, and whether under the circumstances it was possible to commit such crime or not. Thus the offence of attempt is complete when an act is done or an omission is made with the relevant intent, even if it be impossible for the intended series of events to culminate in the actual crime [4] . 1. Alister v The Queen (1984) 154 CLR 404 at 421-423; Knight v The Queen (1992) 175 CLR 495 at 501, 508; R v Whybrow (1951) 35 Cr App R 141 at 147-148; R v Grimwood [1962] 2 QB 621; R v Spartels [1953] VLR 194 at 195.
Section 2 creates - and the common law of attempts defines - crimes different from the crime attempted. As Neasey J pointed out in R v Bell [5] , the mental element has been regarded as the gravamen of an offence of an attempt to commit crime. The intent of the alleged offender relates to the physical events the occurrence of which would, if not interrupted, constitute the crime attempted. That intent does not relate to any specific intent which is an element in the crime attempted.
Nevertheless, the crime of attempted murder at common law has uniformly been held to require an intent to kill [6] . The same view has been taken under the Tasmanian Code [7] . In principle, that must be so. Not because an intent to kill is a mental element in the crime of murder but because the causing of death is a physical element in the crime of murder and an attempt to commit that crime must have, as its mental element, an intention that death be caused. The crime of murder, defined by s 157 of the Code, has a number of alternative mental elements only one of which is an intention to cause death [8] . The specific intent required in attempted murder is not derived from s 157(1)(a); it is derived from the requirement that the offender intends that there should be a series of events culminating in the death of another person. Of course, if the death of a person were to occur as intended by an offender, the substantive offence would be murder precisely because the intent required for the attempt is the same as the intent prescribed by s 157(1)(a).
It is immaterial that the crime of murder is itself defined to include intents other than an intent to cause death. To establish the crime of attempted murder, it is not necessary to prove that the offender had one of the specific intents prescribed by s 157(1) superadded to the intent required to constitute an attempt. The intent required to establish the crime of attempted murder is not an intent to form one of the intents prescribed by s 157(1): it is merely an intent that the fatal result which would complete the events constituting culpable homicide should occur. As the voluntary commission of the offender's act or the voluntary making of the offender's omission, coupled with the intent (required by s 2) that death be caused, would constitute murder if the series of events were not interrupted, "the crime" intended is the crime of murder. An attempt which encompasses the culpable homicide of another person is necessarily attempted murder.
When an offender causes the death of another in circumstances and with an intent that would make the offence one of murder but for the provisions of s 160 of the Code, that section may operate to reduce the offence to manslaughter. Sub-sections (1) and (2) of s 160 read as follows:
(1) Culpable homicide, which would otherwise be murder, may be reduced to manslaughter if the person who causes death does so in the heat of passion caused by sudden provocation.
(2) Any wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self-control, and which, in fact, deprives the offender of the power of self-control, is provocation, if the offender acts upon it on the sudden, and before there has been time for his passion to cool.
Counsel for the appellant, whose argument was typically engaging, submits that provocation as defined by s 160 operates as a defence to a charge of attempted murder. The submission focuses on the words "that crime" and "the crime" in s 2(1). If the series of events intended by the offender had occurred and, by virtue of s 160, the culpable homicide had been reduced to manslaughter, "the crime" of murder would not have been committed. And, as there is no crime of attempted manslaughter, the provocation which would have reduced the murder to manslaughter if the intended series of acts had not been interrupted provides a complete defence to a charge of attempted murder. This argument finds support in a number of decisions in jurisdictions other than Tasmania. In R v Newman [9] and R v Spartels [10] , it was said that provocation would negate an intent to murder in the statutory offence of wounding with intent to commit murder. That view was followed by Blackburn CJ in R v Helmhout [11] who said that the phrase "intent to commit murder" could not be given its literal meaning as it can exist only in the mind of a person with sufficient knowledge of criminal law to know that what he intends to do will be murder. Blackburn CJ said [12] : Plainly, therefore, the phrase "intent to commit murder" as used in the Act (both the Victorian Act and the Crimes Act 1900 NSW is not used in the literal sense; it is not to be construed as denoting an actual state of a person's mind. It must, rather, be a pregnant or elliptical phrase, meaning "an intention to kill held in circumstances in which, if the killing takes place as intended, it will be murder". If the death of the victim, as a result of the carrying out of his intention by the accused, would not, for any reason, have entailed a verdict of guilty of murder, then the intention held by him, whatever it was, was held in circumstances other than those which satisfy the meaning of the phrase "intent to commit murder". Among these possible circumstances are those giving rise to the doctrine of provocation. On the other hand provocation does not, in Blackburn CJ's opinion, have any application to a charge of wounding with intent to commit grievous bodily harm [13] . On appeal [14] , the Full Court of the Federal Court agreed with Blackburn CJ that provocation was not available to defeat a charge of wounding with intent to do grievous bodily harm, but cautioned against accepting the reasoning found in Newman and Spartels . It was unnecessary for the Full Court finally to decide the question but it inclined to the view of Pape J in R v Falla [15] . In Falla Pape J, who declined to follow the previous authorities, said [16] : Wounding with intent to murder is a statutory crime and s 11(1) of the Crimes Act does not say that it is a crime to wound a person in such circumstances that, had death ensued, the assailant would be guilty of murder. What it does say is that "whosoever by any means wounds with intent to commit murder" shall be guilty of felony. On Pape J's reasoning, once an intent to kill is established, the accused is guilty of the offence of wounding with intent to commit murder unless he had a lawful justification for his actions. Provocation in his view [17] : is not a lawful justification or excuse for a killing, and, in my view, it should not be left to the jury, for once the necessary intent is established it is irrelevant that the law says that notwithstanding that intent the crime may be reduced from murder to manslaughter. He based this view on R v Cunningham [18] where it was held that provocation only arises in a case of murder to reduce murder to manslaughter, and therefore cannot be a defence to malicious wounding. In R v Farrar [19] , Hampel J, adopting the approach of Pape J in Falla , said: Provocation is as a legal concept quite different from that of self-defence. As the law now stands self-defence is open as a complete defence to all charges of intentional violence against a person, including murder. Provocation, however, has always been viewed as a peculiar doctrine founded historically in the need to ameliorate what was the automatic and drastic consequences of a conviction for murder: see R v Voukelatos [20] . 1. [1948] VLR 61. 2. [1953] VLR 194. 3. (1980) 42 FLR 53; 1 A Crim R 103; 30 ACTR 1. 4. R v Helmhout (1980) 42 FLR 53 at 56; 1 A Crim R 103 at 105; 30 ACTR 1 at 4. 5. R v Helmhout (1980) 42 FLR 53 at 58; 1 A Crim R 103 at 107; 30 ACTR 1 at 6. 6. R v Helmhout (1980) 1 A Crim R 464 at 469-470. 7. [1964] VR 78. 8. R v Falla [1964] VR 78 at 80. 9. R v Falla [1964] VR 78 at 80. 10. [1959] 1 QB 288. 11. [1992] 1 VR 207 at 208. 12. [1990] VR 1.
However, in R v Duvivier [21] , Mitchell J in the South Australian Court of Criminal Appeal reviewed the authorities and said [22] :
To attempt to commit murder is to attempt to kill in circumstances which will amount to murder. If a person attempts to kill in circumstances in which he is acting under provocation and does kill, his crime will not be murder but manslaughter. I can see no logical reason for conviction of an attempt to commit murder in such circumstances. Furthermore, the fact that the maximum penalty for a conviction for attempted murder is the same as the mandatory penalty for murder indicates the seriousness of the conviction for attempted murder. It is not, in my view, sufficient to say that provocation can be taken into account in sentencing. In my opinion therefore provocation is a defence to attempted murder. Her Honour found that a verdict of attempting to commit manslaughter was not open to the jury [23] . Therefore if the Crown has not negatived provocation on a charge of attempted murder the accused is not liable to be convicted of any offence on that count, unless alternative verdicts are open on the information. 1. (1982) 29 SASR 217; 5 A Crim R 89. 2. R v Duvivier (1982) 29 SASR 217 at 233; 5 A Crim R 89 at 94. 3. cf R v Duvivier (1982) 29 SASR 217 at 238; 5 A Crim R 89 at 106-107, per Zelling J.
With respect, I am unable to agree with that view. Provocation does not negative the existence of the specific intent or recklessness that is essential to establish the crime of murder but, "because that intent or recklessness is a product of provocation, the crime, the elements of which are otherwise made out, should be reduced to manslaughter" [24] . But that intent or recklessness is not the source of the intent essential to the crime of attempted murder. As the mental element of a crime of attempt is not necessarily the state of mind prescribed as an element of the corresponding completed crime, it does not follow that provocation affects the mental element in attempted murder.
The definition of attempt does not include the mental state of "sudden passion" that is essential to provocation. The ingredients of provocation, other than the initiating wrongful act or insult, are states of mind. But the states of mind that are imported into the definition of an attempt, either at common law or under s 2 of the Tasmanian Code, do not include the mental state of being provoked. Provocation can be distinguished from those "defences" which bear upon the culpability of a homicide, even an intended homicide. An act done with intention to cause death in circumstances where the act is excused as an act done in self-defence or where the act is done with lawful authority does not make the doer of the act guilty of attempted murder. But provocation never excuses or authorises the doing of a fatal act. An offender whose conduct and intent satisfy the elements of the crime of attempted murder is not excused because, if death had ensued as intended, he would have been guilty of manslaughter only, not of murder.
Sub-section (1) of s 160 is, by its terms, applicable only to "the person who causes death", not to a person who, though intending that death should be caused, does not cause it [25] . Sub-section (2) of s 160 applies only to the person causing the death when he "acts upon it" (the provocation) at the relevant time, that is, at the time of the doing of the act which causes the death. If s 160 were in some way to be incorporated into s 2, the element of intent in s 2 would have to incorporate much more than the specific intent to cause the death of a person. It would have to include a state of mind depriving the offender of the power of self-control at the time of doing the fatal act and a doing of that act "on the sudden, and before there has been time for his passion to cool". Incorporation of s 160 into s 2 is impossible. A direction to a jury that s 160 is incorporated into s 2 would be confused and confusing.
Moreover, where the facts of a case warrant consideration of s 160, the Code, by its terms, allows the jury to evaluate the conduct of an offender who has committed culpable homicide with any of the states of mind prescribed by s 157(1). That is manifest from the provisions of s 160(3) which define as a question of fact "whether the conditions required by subsection (2) were or were not present in the particular case". The purpose of s 160 is to provide, as the common law provides, a reconciliation between respect for the sanctity of the human life that has been taken and the recognition of the effect of provocation on human frailty [26] . When the punishment prescribed for murder was mandatory, that reconciliation had to be left to the jury. It never had to be left to the jury when the accused was charged with attempted murder: provocation could be evaluated by the judge in imposing sentence.
In my view the majority of the Court of Criminal Appeal was right to hold that s 160 has no application to the crime of attempted murder. The appeal should be dismissed.
This is an appeal from a decision of the Tasmanian Court of Criminal Appeal (Green CJ and Wright J, Zeeman J dissenting) affirming the appellant's conviction of attempted murder. The central question which it involves is one of statutory construction. It is whether, under the provisions of the Tasmanian Criminal Code (the Code), a person is guilty of attempted murder if, being provoked, he attempts to kill a person in circumstances where, if he had succeeded and the victim had died, he would not have been guilty of murder by reason of the provocation. If the relevant provisions of the Code were truly equivocal in relation to the answer to that question, a well-settled principle of statutory construction would require that it be answered against the Crown, that is to say, to the effect that such a person is not guilty of attempted murder. As Brett J observed in Dickenson v Fletcher [27] :
Those who contend that the penalty may be inflicted, must shew that the words of the Act distinctly enact that it shall be incurred under the present circumstances. They must fail, if the words are merely equally capable of a construction that would, and one that would not, inflict the penalty. 1. (1873) LR 9 CP 1 at 7. See also Chandler & Co v Collector of Customs (1907) 4 CLR 1719 at 1735; Yager v The Queen (1977) 139 CLR 28 at 50-51.
Ultimately, however, I find it unnecessary to rely on that principle of statutory construction. In my view, the effect of the relevant provisions of the Code is, as a matter of ordinary language, that a person who attempts to kill another person is not guilty of attempted murder if the circumstances of the case are such that he would not be guilty of murder if the attempt to kill had been successful. Since that conclusion is a dissenting one, I shall confine myself to a brief statement of my reasons for it. To a significant extent, those reasons reflect the dissenting judgment of Zeeman J in the Court of Criminal Appeal and the argument of the late Mr H J Kable QC who appeared for the appellant on the appeal to this Court.
The provisions of the Code which are directly in point are ss 157(1)(a), 160, 299 and, most important, s 2(1). Section 157(1)(a) reads:
(1) Subject to the provisions of section 160, culpable homicide is murder if it is committed -
(a) with an intention to cause the death of any person, whether of the person killed or not.
Section 160(1) provides: Culpable homicide, which would otherwise be murder, may be reduced to manslaughter if the person who causes death does so in the heat of passion caused by sudden provocation. It is to be noted that s 157(1)(a) is expressly made "subject to" s 160 and that s 160 applies not to "murder" but to "culpable homicide, which would otherwise be murder" (emphasis added). That means that, whatever may be the position at common law, the crime of murder is simply not committed under the Code in a case which falls within s 160. The only crime committed under the Code in such a case is manslaughter.
It was not argued on behalf of the appellant that s 160 can be directly applied to reduce what would otherwise be the crime of attempted murder to the crime of attempted manslaughter. Clearly, it cannot. Section 160 applies only to a case where there has been an actual killing amounting to culpable homicide. The appellant's argument is that provocation is available as a defence to a charge of attempted murder not by reason of the direct operation of s 160 but by reason of the indirect operation of that section through the provisions of the Code dealing with "attempting to commit" a crime.
Any person who attempts to commit a crime is guilty of a crime.
Charge: Attempting to commit [specify particular crime].
Section 2(1) defines an "attempt to commit a crime" as: an act or omission done or made with intent to commit that crime, and forming part of a series of events which if it were not interrupted would constitute the actual commission of the crime. The effect of the cumulative requirements of that definition is that, under the Code, the crime of attempted murder will not be committed unless there be: (i) "an act or omission done or made with intent to commit" the crime of murder; and (ii) which act or omission forms "part of a series of events which if it were not interrupted would constitute the actual commission of the crime" of murder. For the purposes of the present case, the critical requirement is the second, namely, that the series of events, of which the act or omission forms part, would, if it were not interrupted, constitute the actual commission of the crime of murder.
The Code does not provide a definition of the phrase "series of events" as used in s 2(1). That sub-section does, however, make clear that the "series of events" to which it refers in its second limb (or requirement) encompasses more than the "act or omission" and "intent" mentioned in the first limb. As a matter of ordinary language, the phrase "series of events" is apposite, in its context in s 2(1), to refer to the actus reus and the surrounding circumstances and to include any act, omission, mental state or other circumstance which is relevant to ascertaining whether the accused would, if he had done what he intended to do, have actually committed the particular crime. In my view, the phrase is used with that meaning in s 2(1).
It was argued on behalf of the Crown that s 2(1)'s requirement that the series of events would, if not interrupted, constitute the actual commission of the crime of murder should be construed as referring only to the elements of that crime and that provocation was not such an element. The answer to that submission is that it ignores the ordinary meaning of the language of the requirement, including the significance of the phrase "the actual commission". The inclusion of that phrase underlines the fact that the requirement is directed not to the existence or non-existence of theoretical "elements" of the particular crime but to the practical question whether the particular crime would have actually been committed if the series of events had not been interrupted under the Code.
It follows that the relevant "series of events" is not confined to the bare elements of the particular crime. It encompasses any circumstances whose existence would have precluded the actual commission of the crime if the relevant series of events had not been "interrupted". In a case such as the present where the alleged attempted crime under the Code is murder, those circumstances include both circumstances of lawful justification [28] , such as reasonable self-defence [29] or (in earlier times) execution of sentence [30] , which would have precluded the commission of any crime at all, and circumstances of mitigation, such as provocation [31] or post-natal disturbance [32] , which would have had the effect that the crime actually committed was not murder. In other words, if circumstances exist which would have satisfied the requirements of s 160 if there had been a homicide, s 2(1)'s requirement that the "series of events" would, if uninterrupted, "constitute the actual commission of the crime" of murder will not be satisfied. That means that, under the Code, provocation is, albeit indirectly, available as a defence to a charge of attempted murder.
It was also argued on behalf of the Crown that the above construction of s 2(1) would have the anomalous effect that a person who attempted to kill another in circumstances of provocation would be guilty of neither attempted murder nor attempted manslaughter notwithstanding the fact that, if the attempt had been carried to completion, he would be guilty of manslaughter. That submission seems to me to lack real force. Indeed, it seems to me that it would be more anomalous if a person were guilty of attempted murder in circumstances where he would be not guilty of murder if the attempt had succeeded. In any event, I am not persuaded of the correctness of the assumption underlying the argument. That assumption is that a person who attempts to kill another person in circumstances of provocation cannot be guilty of the crime of attempted manslaughter.
The basis of the proposition that, under the Code, a person cannot be guilty of attempting to commit manslaughter would seem to be a view that s 2(1)'s "intent to commit" manslaughter could not be satisfied. A person cannot, so it is said, intend to commit a provoked killing of another person. With due respect, that approach seems to me to fail to appreciate the true import of s 2(1)'s requirement of an "intent to commit that crime".
As Blackburn CJ pointed out in R v Helmhout [33] an intent to commit a particular crime "can literally exist only in the mind of a person who knows enough criminal law to understand that what he intends to do will be" that crime. In the context of s 2(1), the phrase "intent to commit that crime" plainly does not bear that literal meaning. The requisite intent will exist if the particular act or omission is done or made with whatever intent is necessary for there to be a commission of the particular crime in the circumstances which exist. That being so, it is no more to the point that a person will ordinarily not intend to commit the crime of manslaughter in the sense of intending to commit a provoked killing than it is to the point that a person will not ordinarily intend to commit the crime of murder in the sense of intending to commit an unprovoked killing. The intent to commit the crime of murder for the purposes of s 2(1) is an intention to kill in circumstances, including absence of provocation, where the killing would constitute murder. Correspondingly, an intent to kill in circumstances where the killing would constitute manslaughter by reason of provocation, for the purposes of s 2(1), is an intent to commit manslaughter. The point was well made by Blackburn CJ in Helmhout [34] :
Plainly, therefore, the phrase "intent to commit murder" as used in the Act (both the Victorian Act and the Crimes Act 1900 NSW) is not used in the literal sense; it is not to be construed as denoting an actual state of a person's mind. It must, rather, be a pregnant or elliptical phrase, meaning "an intention to kill held in circumstances in which, if the killing takes place as intended, it will be murder". If the death of the victim, as a result of the carrying out of his intention by the accused, would not, for any reason, have entailed a verdict of guilty of murder, then the intention held by him, whatever it was, was held in circumstances other than those which satisfy the meaning of the phrase "intent to commit murder". Among these possible circumstances are those giving rise to the doctrine of provocation. (Emphasis added.) 1. (1980) 42 FLR 53 at 56; 1 A Crim R 103 at 105; 30 ACTR 1 at 6. 2. (1980) 42 FLR 53 at 56; 1 A Crim R 103 at 105; 30 ACTR 1 at 6.
It follows that, if the circumstances of a case are such that an actual killing would not have been murder by reason of provocation, the first requirement of s 2(1) will be satisfied with respect to the crime of attempted manslaughter but not with respect to the crime of attempted murder. In such a case, the second requirement of s 2(1) will, as has been seen, also be satisfied as regards attempted manslaughter but not as regards attempted murder since the series of events would, if uninterrupted, have constituted "the actual commission of" manslaughter not murder.
It should be mentioned that the Court's attention was drawn to a large number of cases dealing with or relevant to the question of whether provocation constitutes a defence to a charge of attempted murder [35] . With the exception of a one page unreported ruling of Crawford J in the Tasmanian case of R v Anderson [36] , none of those authorities is directly in point since none of them arose under a Criminal Code containing a statutory provision, such as the Code's express subjection of s 157 to s 160 [37] , which makes plain that the crime of murder is simply not committed if the killing was relevantly provoked. Nor was any of those cases concerned with the effect of a statutory provision, such as s 2(1) of the Code, containing an express requirement that the relevant series of events would, if not interrupted, "constitute the actual commission of the crime" [38] of murder. In Anderson, Crawford J ruled that the effect of that requirement was that provocation was indirectly available as a defence to the crime of attempting to commit murder. His Honour explained:
What is the crime which would have really been committed? The crime which he would have committed if the woman had died would have been murder if there was no provocation, and it would have been manslaughter if there was provocation. So the Jury may reach the position of having to decide what crime would actually have been committed if the accused's wife had died as the result of the alleged choking, and, if they decide that the crime would have been manslaughter, there can be no conviction for attempting to murder. I agree with those comments. 1. See in particular (supporting a defence of provocation): R v Helmhout (1980) 42 FLR 53; 1 A Crim R 103; 30 ACTR 1; R v Duvivier (1982) 29 SASR 217; 5 A Crim R 89; R v Smith [1964] NZLR 834; R v Newman [1948] VLR 61; R v Spartels [1953] VLR 194; R v Bozikis [1981] VR 587; and (denying such a defence): R v Campbell (1977) 38 CCC (2d) 6; R v Falla [1964] VR 78; R v Farrar [1992] 1 VR 207; Roche v The Queen [1988] WAR 278; (1987) 29 A Crim R 168; R v Laga [1969] NZLR 417. And see also R v Bruzas [1972] Criminal Law Review 367. 2. Unreported; Supreme Court of Tasmania; 6 October 1965 (noted in [1965] Tas SR 277 (NC 21)). 3. See s 157: "Subject to the provisions of section 160 " And note the last paragraph of Art 223 of the 1877 Stephen Code which was not adopted in the Canadian Code or other Australian Codes. 4. A corresponding phrase - "constitute its [ie the crime's] actual commission" - appears in the definition of attempts contained in Art 49 of the 1877 Stephen Code upon which s 2(1) was based but which was not adopted in the Canadian Code or other Australian Codes.
In the present case, the Crown alleged that the appellant had attempted to shoot and kill Ms de Vries. It was common ground in this Court that the circumstances were such that, if the appellant had succeeded in killing her, an issue of provocation would have arisen. That being so, the effect of what has been written above is that provocation should have been left to the jury as a possible defence. It was also common ground that, in the particular circumstances of the present case where the appellant had already served the whole of his non-parole period at the time the appeal was heard, the only order which should be made in the event that provocation should have been left as a defence is an order quashing the appellant's conviction of the attempted murder of Ms de Vries. In those circumstances, and in a context where this judgment is a dissenting one, it is unnecessary that I consider whether it would have been otherwise appropriate to order a new trial or to have substituted a conviction of attempted manslaughter and remitted the matter to the Court of Criminal Appeal for the imposition of the appropriate sentence for that crime.
I would allow the appeal, set aside the order of the Court of Criminal Appeal and, in lieu thereof, order that the appellant's conviction of the crime of attempting to commit murder be quashed.
I agree with Brennan J, Toohey and Gaudron JJ that s 160 of the Criminal Code Tas (the Code) does not, in providing that provocation may reduce culpable homicide to manslaughter, apply to attempted murder. The language of s 160 clearly confines its application to culpable homicide which, apart from the section, would amount to murder. Under s 299 of the Code an attempt to commit an offence is a crime which is separate and distinct from the completed offence so that attempted murder is a separate and distinct offence from murder. Section 160, being restricted to culpable homicide, does not, therefore, apply to attempted murder.
There is, however, s 2(1) of the Code which defines an attempt to commit a crime as "an act or omission done or made with intent to commit that crime, and forming part of a series of events which if it were not interrupted would constitute the actual commission of the crime". The argument was put that if an attempted murder were provoked, it could not form part of a series of events which, if not interrupted, would constitute murder, because the provocation would reduce the murder to manslaughter. I am unable to accept that argument.
Provocation is not a justification or excuse for homicide as is, for example, self-defence. It is sometimes described as a partial defence, but in truth it is an anomaly which finds its explanation in history. Provocation provided the means by which the law avoided the imposition of a mandatory death sentence for murder when, having regard to ordinary human weakness in response to provocation, that sentence would have been unacceptably harsh [39] . At common law, provocation is no defence, partial or otherwise, to offences other than murder; it is something to be taken into account in sentencing [40] . However, notwithstanding the disappearance of mandatory sentences for murder [41] , the law continues to provide that murder may be reduced to manslaughter where the killing is provoked. Before provocation can be invoked, all the elements of murder must be present. That is to say, the accused must have caused death with the intention of killing or inflicting grievous bodily harm (putting recklessness to one side). It is only then that provocation may operate to reduce the offence of murder to manslaughter whether at common law or under the Code [42] .
Section 2(1) of the Code requires an attempt to commit a crime to be made with intent to commit "that crime". That cannot, however, mean in the case of attempted murder that the accused must intend to commit murder as such. Murder is a legal concept, being the legal consequence of a series of acts or events. It cannot matter whether the accused is sufficiently acquainted with the law to intend that legal consequence so long as he or she intends to do those things which, if done, would constitute the crime. In the present case, there can have been no attempted murder unless the accused intended to cause death. An intention to cause bodily harm which the accused knew was likely to cause death [43] would not be sufficient because an attempt must be accompanied by an intention to commit the completed crime and the completed crime of murder involves death [44] .
Section 2(1) also requires the act or omission relied on as an attempt to form "part of a series of events which if it were not interrupted would constitute the actual commission of the crime". The sub-section is there speaking of both the events and the legal consequence - the crime - which for present purposes is murder. Before provocation can have any application the events in question must constitute the crime of murder, for provocation only operates to reduce that legal consequence, murder, to a lesser one, manslaughter. If provocation has no application the legal consequence remains that of murder. Having regard to the terms of s 160, provocation has no application to reduce an offence, other than culpable homicide amounting to murder, to a lesser offence. It has, therefore, no application in the case of attempted murder. Section 2(1) requires consideration of events, including hypothetical events, in order to determine whether they would constitute the actual commission of the crime of murder. There can be no further consideration whether that legal consequence, if present (and it must be present before provocation can apply), should be reduced by reason of provocation. Any other approach to the matter would be to reduce attempted murder to a lesser offence or to no offence at all by reason of provocation and that is something not contemplated by s 160 of the Code. I agree that the appeal should be dismissed.
The grant of special leave to appeal in this matter confined the appellant to the following grounds:
In the event the Court was not called upon to deal with the third and fourth grounds. The appellant had already served the minimum sentence imposed on him and, as the respondent did not seek a retrial in the event that the appeal was upheld, it became common ground that if the appellant could make good either of the first two grounds, his conviction should simply be quashed, otherwise the appeal should be dismissed.
The appellant was convicted of attempting to murder Yvonne Gaye de Vries, contrary to ss 158 and 299 of the Code [45] . Section 158 provides that a person "who commits murder is guilty of a crime, and shall be sentenced to imprisonment for the term of his natural life". Section 299 provides that "[a]ny person who attempts to commit a crime is guilty of a crime".
There are definition and substantive sections in the Code that are relevant to the issue raised by this appeal. Before referring to those provisions it is necessary to set out briefly the facts giving rise to the appellant's conviction.
The appellant and Ms de Vries had lived in a de facto relationship for several years. That relationship came to an end when, on 22 July 1992, Ms de Vries moved out of the house in which both had been living and went to live with Mrs Judith McDonald, a fellow employee with whom she had formed a sexual relationship.
There were telephone conversations between Ms de Vries and the appellant, largely it seems at his instance. On 31 July Ms de Vries agreed to meet the appellant at his house. Some time after 6 pm on that day Ms de Vries telephoned the appellant to say that she could not meet him because she had had too much to drink but that he might come to her house where they could talk in the car. The appellant arrived at the house to find Ms de Vries and Mrs McDonald on the floor of the lounge room, apparently kissing. After a brief conversation with Ms de Vries the appellant left the house but returned an hour or so later. There was another conversation with Ms de Vries in the lounge room and the appellant left again.
At about 9 pm the appellant returned to the house yet again. Ms de Vries went out to speak to him. After some conversation he bent down and picked up a rifle. According to Ms de Vries' evidence, they "just wrestled with the rifle". It seems that the rifle was pointed at her "momentarily". According to the appellant he put the rifle under his chin and pulled the trigger but nothing happened. Ms de Vries ran away. The appellant went through the front door of the house, saw Mrs McDonald and shot her in the arm.
The appellant was charged, in relation to Ms de Vries, with attempted murder and, in the alternative, with assault. He was convicted of attempted murder. He was charged, in relation to Mrs McDonald, with attempted murder and, in the alternative, with wounding. The jury found him not guilty of attempted murder but guilty of wounding. The Court of Criminal Appeal dismissed the appellant's appeal against the conviction for the attempted murder of Ms de Vries.
Section 156 of the Code provides that homicide may be culpable or not culpable (s 156(1)). It then identifies the circumstances in which homicide is culpable (s 156(2)). It is not necessary to set out the section. While s 158 makes murder a crime, it is s 157(1) which specifies the cases in which, subject to the provisions of s 160, culpable homicide is murder. The appeal was argued on the footing that the only relevant paragraph of the sub-section is par (a) whereby culpable homicide is murder if committed:
with an intention to cause the death of any person, whether of the person killed or not. By s 159 culpable homicide not amounting to murder is manslaughter.
Section 160(1) provides that, if certain conditions are met, "[c]ulpable homicide, which would otherwise be murder, may be reduced to manslaughter if the person who causes death does so in the heat of passion caused by sudden provocation". Section 160(2) offers a definition of provocation. The term "provocation" is not used in the Code outside s 160 [46] .
As mentioned earlier, s 299 makes an attempt to commit a crime itself a crime. "Attempt" is defined in s 2 which, so far as is relevant, reads:
(1) An attempt to commit a crime is an act or omission done or made with intent to commit that crime, and forming part of a series of events which if it were not interrupted would constitute the actual commission of the crime.
(2) The offence of attempting to commit a crime may be committed, although the offender voluntarily desists from the actual commission of the crime itself, and whether under the circumstances it was possible to commit such crime or not.
It should be noted as well that the Code is not exclusive of the common law. Section 8 of the Act reads:
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, shall remain in force and apply to any defence to a charge upon indictment, except in so far as they are altered by, or are inconsistent with, the Code.
In Stingel v The Queen this Court said of provocation in the Code [47] :
One finds in the authorities, including some Tasmanian judgments, a perception that, in this particular field of criminal law, the common law, the Codes and other statutory provisions, and judicial decisions about them, have tended to interact and to reflect a degree of unity of underlying notions. Nevertheless, in the present case Green CJ commented: "the law relating to provocation in Tasmania has always been regarded as being derived solely from the Criminal Code." While the doctrine of provocation has its origin in the common law, the issue raised by this appeal is essentially one of the proper construction of the Code. 1. Stingel (1990) 171 CLR 312 at 320. Applied in Masciantonio v The Queen (1995) 183 CLR 58.
The principal issue posed by this appeal is whether s 160 of the Code can operate so as to provide a defence to a charge of attempted murder and, if so, with what consequences.
Green CJ and Wright J held that s 160 could not operate as a defence to a charge of attempted murder.
Directing his attention to s 160, the Chief Justice said that the section did not apply to any crime other than murder, that attempted murder is not a subsidiary form of murder but a distinct crime and so there was no possible room for the section to operate so as to reduce what would otherwise be attempted murder to attempted manslaughter. The appellant's argument was that in order to be satisfied that he was guilty of attempted murder the jury had to be satisfied that his act of taking up the rifle and pointing it or trying to point it was part of a series of events which, if not interrupted, would have constituted the actual crime of murder. Thus, according to the argument, the jury had to be satisfied that had the appellant actually killed Ms de Vries in circumstances which would otherwise have amounted to murder, that murder would not have been reduced to manslaughter by the operation of s 160. To that argument the Chief Justice's answer was that since the jury must have been satisfied that the appellant intended to kill Ms de Vries and a person cannot intend to commit a provoked killing, there could be no consideration of whether the killing might have been provoked. Put another way, to determine whether killing Ms de Vries would have constituted the crime of murder the jury must have regard to the elements of that crime and the absence of provocation was not an element of that crime. It followed that there was no occasion for the trial judge to direct the jury as to provocation.
Wright J conducted a close analysis of the Code and of the decided cases. He concluded:
The most persuasive basis for concluding that provocation does not operate to provide a basis for acquittal in cases of attempted murder lies in the recognition that in a conviction for manslaughter based on provocation, as distinct from such a verdict arising from the operations of the Code, ss 156 and 159, all the elements of murder are present Murder only becomes manslaughter by reason of the reduction achieved by law.
Zeeman J took a different view. His Honour accepted that s 160 has no operative effect in the sense that it cannot reduce attempted murder to attempted manslaughter. But, he said, the onus was on the Crown to disprove provocation and, if it failed to do so, the appellant could not be convicted of attempted murder because, if the attempt had been completed, the appellant would have been convicted of manslaughter rather than murder.
The argument of the appellant was that s 160 allows a defence of provocation to a charge of attempted murder and that that is also the position at common law. The argument has two prongs. The first, which is reflected in ground 1 of the notice of appeal, argues in effect that since provocation may reduce what would otherwise be murder to manslaughter, it may also operate to reduce attempted murder to attempted manslaughter. The second, which is reflected in ground 2 of the notice of appeal, argues that even if s 160 may not operate directly on a charge of attempted murder, it was necessary for the Crown to establish that if the appellant had murdered Ms de Vries, that murder would not have been reduced to manslaughter by reason of s 160.
Section 2(1) of the Code requires, for there to be an attempt to commit a crime, that there be "an act or omission done or made with intent to commit that crime". Thus, while culpable homicide may constitute murder under s 157 in some cases where there is no intention to kill, there can be no attempted murder without an intent to kill. At common law, attempted murder requires an intent to kill, no lesser intent being sufficient [48] . The same is true under the Code [49] .
The provision in s 160 of the Code that provocation may reduce what would otherwise be murder to manslaughter is a reflection of the common law. As to other offences under the common law the position was expressed in these terms in Holmes v Director of Public Prosecutions [50] :
In the case of lesser crimes, provocation does not alter the nature of the offence at all: but it is allowed for in the sentence. In the case of felonious homicide, the law has to reconcile respect for the sanctity of human life with recognition of the effect of provocation on human frailty. 1. [1946] AC 588 at 601, per Viscount Simon.
The language of s 160 is against the argument that provocation may operate to reduce attempted murder to attempted manslaughter. It is only "[c]ulpable homicide, which would otherwise be murder" to which the section refers. And as Green CJ pointed out, attempted murder is not a subsidiary form of murder. A criminal attempt is itself an offence, "separate and distinct from the crime alleged to be attempted" [51] . It is a distinct crime as is apparent from the Code and from the indictment which reads:
Attempted Murder - Contrary to Sections 158 and 299 of the Criminal Code.
Steven McGhee at Launceston in Tasmania on or about the 31st day of July, 1992 attempted to murder Yvonne Gaye de Vries.
The alternative argument focuses on what is involved in the crime of murder, in particular whether a provoked killing that would otherwise be murder can be treated as murder if there is provocation within s 160. The argument, in effect, is that a person cannot be convicted of attempted murder when, if the person had killed the other, that killing could not be murder because death was caused "in the heat of passion caused by sudden provocation". To put the matter that way is to import into the crime of murder non-provocation as an element and in turn to import it into the crime of attempted murder. There is no warrant for either step.
Under s 2(1) of the Code, the definition of attempt has two limbs. The first limb relevantly refers to an act done with intent to commit the crime of murder and the second limb refers to such an act forming part of a series of events which if it were not interrupted would constitute the actual commission of the crime of murder. Murder is culpable homicide which answers one of the descriptions in s 157 of the Code. Provocation does not qualify the circumstances in which culpable homicide constitutes murder. Rather, it assumes that there is a culpable homicide which constitutes murder in terms of s 157 and operates so as to reduce that culpable homicide to manslaughter. Section 159, which provides that culpable homicide not amounting to murder is manslaughter, is to be read with s 157 so that between them the two sections deal with the consequences of culpable homicide. But s 159 has nothing to say in the present situation. Sections 157 and 160 mesh, not in the sense that the latter says anything of the circumstances in which culpable homicide constitutes murder, but in the sense that what would be murder in terms of s 157 may be reduced to manslaughter in the particular circumstances referred to in s 160.
It is true that there are decisions which seem to lend some support to the appellant's argument but others tell against it. In any event most are from other jurisdictions, involving different language [52] . Thus, to the extent that the argument for the appellant was based on ss 2(1) and 160 of the Code, they are of little assistance. Particular reference should be made to the judgment of Crawford J in R v Anderson [53] where his Honour said in a passage which does not appear in the brief note of the case: "I hold that, in Tasmania, provocation is applicable to the crime of attempting to murder." His Honour drew particular support from the concluding words of s 2(1), saying:
What is the crime which would have really been committed? The crime which he would have committed if the woman had died would have been murder if there was no provocation, and it would have been manslaughter if there was provocation. So the Jury may reach the position of having to decide what crime would actually have been committed if the accused's wife had died as the result of the alleged choking, and, if they decide that the crime would have been manslaughter, there can be no conviction for attempting to murder. 1. Decisions that provocation is a defence to attempted murder include R v Smith [1964] NZLR 834 and R v Duvivier (1982) 29 SASR 217; 5 A Crim R 89. Decisions to the opposite effect include R v Laga [1969] NZLR 417; R v Bruzas [1972] Criminal Law Review 367; R v Campbell (1977) 38 CCC (2d) 6, followed in R v Wade (1994) 89 CCC (3d) 39 and R v Listes (1994) 95 CCC (3d) 178; R v Wells (1981) 28 SASR 63; 3 A Crim R 453; Roche v The Queen [1988] WAR 278; (1987) 29 A Crim R 168, approved in Bell v The Queen (1992) 62 A Crim R 66; R v Farrar [1992] 1 VR 207. 2. [1965] Tas SR 277 (NC 21).
The difficulties that result from this approach are apparent. The jury are asked to consider a situation which is to a considerable extent hypothetical. It is true that the approach requires the existence of evidence from which provocation might be inferred. But it is still a hypothetical situation in so far as the jury have to consider not only whether the series of events, if not interrupted, would constitute the actual commission of the crime of murder, but also whether the actual commission (if that had taken place) would have been in the heat of passion.
There is also an anomaly in that if there can be no conviction for attempting to murder in the circumstances, the accused must be acquitted. There are provisions in the Code which permit alternative verdicts (ss 333-342A) but none is relevant to the present charge. And s 332(1) reads:
Except as provided in this chapter no person shall on an indictment for a crime be convicted of any other crime.
It would follow, if the approach taken by Crawford J be accepted, that although provocation may operate to reduce murder to manslaughter, it may also operate to preclude any conviction for the crime of attempted murder. And this notwithstanding that there must in any event be an act done with intent to commit the crime of murder before there can be an attempt to commit that crime. If the language of the Code dictated that result, it would be a matter for the legislature to consider whether this apparent hiatus should be filled. But in our view there is no such hiatus.
In R v Duvivier [54] two members of the Court of Criminal Appeal, South Australia held that the doctrine of provocation applies to charges where an intention to kill is alleged so that it applies not only to a charge of murder but also to a charge of attempted murder. The statute with which their Honours were concerned was the Criminal Law Consolidation Act 1935 SA, s 18 of which created an offence of "attempts to commit murder". Mitchell J said [55] :
To attempt to commit murder is to attempt to kill in circumstances which will amount to murder. If a person attempts to kill in circumstances in which he is acting under provocation and does kill, his crime will not be murder but manslaughter. I can see no logical reason for conviction of an attempt to commit murder in such circumstances. Zelling J took much the same approach but concluded [56] : "I think, however, that attempted manslaughter is a misdemeanour at common law." 1. (1982) 29 SASR 217; 5 A Crim R 89. 2. R v Duvivier (1982) 29 SASR 217 at 223; 5 A Crim R 89 at 94. 3. R v Duvivier (1982) 29 SASR 217 at 238; 5 A Crim R 89 at 107.
It is apparent that the statutory regime in South Australia on which Duvivier was decided is different from the Code. To the extent that the observations of Mitchell J and Zelling J do not depend upon the particular language of the South Australian statute, they are, with respect, subject to the objections which we have mentioned in regard to Anderson [57] . Moreover, they overlook the unique nature of provocation which merely reduces murder to manslaughter in "allowance for human frailty" and in recognition that a provoked killing is "less heinous than an intentional killing by a person in possession of his self-control" [58] . Given the unique nature of provocation, there is no reason for symmetry between murder and attempted murder in this area.
The "series of events" to which the second limb of s 2(1) of the Code refers, as Neasey J noted in Haas v The Queen [59] , is a "notional series of events culminating in the actual crime, whereas necessarily in an attempt no such completed series can occur". It is that series of events which if it were put into effect would constitute the actual commission of the crime, in this case the crime of murder. In Haas [60] Neasey J thought it impossible to read sub-s (1) literally and still give effect to sub-s (2). We respectfully agree with Neasey J that sub-s (1) must be read down so as to mean "a series of events which would, if his purpose were achieved, constitute the actual commission of the crime" [61] .
There is a difficulty with the words "with intent to commit that crime" in the first limb of s 2(1). It is unreal to speak of the accused's intent to commit the crime of murder. As Blackburn CJ observed in R v Helmhout [62] :
An intent to commit murder can literally exist only in the mind of a person who knows enough criminal law to understand that which he intends to do will be murder. Plainly, therefore, the phrase "intent to commit murder" is not used in the literal sense; it is not to be construed as denoting an actual state of a person's mind. It must, rather, be a pregnant or elliptical phrase, meaning "an intention to kill held in circumstances in which, if the killing takes place as intended, it will be murder". At the same time, this observation must be taken in context. Blackburn CJ was dealing with an offence of wounding with intent to murder, an offence which did not include any equivalent of the second limb of s 2(1) of the Code. The observation does not therefore support the view that, in terms of the Code, attempted murder requires an intention to kill in circumstances which include the absence of provocation. It follows that, in order to convict the appellant of attempted murder the jury had to be satisfied that the act of pointing the rifle at Ms de Vries was part of a series of acts which, if uninterrupted, would have constituted the crime of murder as defined in s 157, read with s 156. 1. (1980) 42 FLR 53 at 56; 1 A Crim R 103 at 105; 30 ACTR 1 at 6.
In the present case the first step taken by Zeeman J, namely that where a person charged with murder sufficiently raises the question of provocation the Crown bears the onus of disproving it beyond reasonable doubt is unexceptional. So too is the second step that if the Crown fails to discharge the onus the accused cannot be convicted of murder. But the next step, namely that s 157(1) of the Code does not operate to make murder culpable homicide within any of the paragraphs in the sub-section if provocation is properly raised but not disproved, does not take the argument anywhere. It fails to have regard to what is involved in the definition of attempt in s 2(1). It takes the unwarranted step of applying the circumstances in which murder may be reduced to manslaughter to a different situation in which a person is charged with attempted murder. In that situation s 160 has nothing to say. The relevant principles must be found in ss 2, 156 and 157.
Any argument resting upon an analogy with self-defence is not persuasive. The reason why the analogy must be rejected is to be found in the ruling of Hampel J in R v Farrar [63] .
Self-defence, as it is now understood, is a complete defence because in appropriate circumstances it justifies extreme violence and even a killing which would otherwise amount to murder. Provocation, on the other hand, excuses a person from incurring the consequences of a conviction for murder but does not justify a killing which would otherwise amount to murder. It reduces murder to manslaughter. 1. [1992] 1 VR 207 at 209.
While reference has been made in these reasons to a number of authorities, the answer to the question raised by this appeal must be found in the language of the Code. In particular it must be found in a Code where the role of provocation is limited by s 160 to reducing the crime of murder to that of manslaughter. It has no other role to play.
McGhee
The Queen
(1984) 154 CLR 404
(1992) 175 CLR 495
(1980) 42 FLR 53
(1982) 29 SASR 217
(1976) 136 CLR 619
(1907) 4 CLR 1719
(1977) 139 CLR 28
(1995) 183 CLR 58
(1990) 171 CLR 312
(1981) 28 SASR 63