Pemble v The Queen

Pemble v The Queen - [1971] HCA 20 - HCA 1971 case summary — Zoe

[4]

The appellant and the deceased had been cohabiting for some period before the fatal day. However, some days before that day the deceased had apparently decided to terminate their relationship and to separate from him, a course which the appellant neither approved nor relished. The appellant made overtures to her with indifferent or perhaps I should say fluctuating success. But a definite break had come in their relationship a day or so before 25th September. On that day the appellant spoke to the deceased's father at the Darwin hotel. He told the appellant that the deceased had not come home the previous night. The father said to the appellant: "That daughter of mine is no good. She wants shooting." To which he replied: "Leave her alone Dad, she's only young." The father responded: "She'll come home with her arm or leg broken the way she is carrying on." After leaving the deceased's father the appellant had a couple of games of pool and then tried to find the whereabouts of a man through whom he hoped to obtain employment. A little after seven in the evening he arrived at a hotel called "The Dolphin" where he saw the deceased, her sister and her father. He offered them a lift out to the Fannie Bay Hotel in his car but was told by the deceased that they were going to Berrimah. The appellant went to Fannie Bay where he arrived about 8 o'clock in the evening. Just after he got there the father's remark about shooting played on his mind; "that he (the father) had said that he felt like shooting her himself". He was possessed of a single shot .22 gauge rifle which he had with him in his car which was at this time about 600 yards from the Fannie Bay Hotel. He then cut down both the length of the barrel and the butt of the rifle with a hacksaw for the purpose of enabling him "to creep up behind the deceased". Having left the car and the rifle in it, he went closer to the hotel where he saw the deceased and a man. The deceased was sitting on the mudgard of a car parked outside the hotel. He hadn't expected to see the deceased at the Fannie Bay hotel because he thought she had gone to Berrimah as she had said she was intending to do. When he saw the deceased on the car outside the hotel he decided to frighten her by use of the rifle in some fashion. He returned to the car, obtained the rifle, cocked it and approached the deceased from behind carrying the rifle in his hand about level with his shoulder and pointing upwards with his finger on the trigger. He didn't know the rifle was loaded, a bullet could have been left in it when he was last shooting geese. When he was a couple of feet from her he yelled out the deceased's name to attract her attention but then stumbled and the rifle discharged. He said he had no intention of hurting the deceased, that he loved her and that whilst he now realized it was a stupid thing to do he only meant to frighten her.

[9]

Now, I will venture for present purposes on a definition of both murder and manslaughter. On the question of murder, Gentlemen, I think for your present purposes you may regard it as the killing of one person by another, accompanied either by an intention to kill or by an intention to commit grievous bodily harm or by reckless indifference as to the consequences of the act complained of. As to manslaughter, it is considerably less easy to define. A lot of great jurists have had a lot of goes at defining manslaughter and it would seem that the best the law can really do is to put manslaughter into various categories. We can say generally that it is an act which is a killing, it is homicide, it is a killing which is punishable according to law, but which does not amount to murder, and that is a very general definition. For present purposes I would suggest to you as a matter of law - and this has long been established - that if, during the course of an unlawful act a person is killed, and if that unlawful act is not committed in such circumstances which made it murder, well then the person committing it is guilty of manslaughter. And these are legal matters, matters of law about which his Honour will direct you, but I simply ask you at this stage to bear them in mind, because it will be put to you that here there is clear evidence of an unlawful act on the part of the accused, that is, attempting to frighten a girl with a loaded rifle, or, if you like, pointing a loaded rifle at a girl. I cannot sensibly argue that that is not unlawful. And as a result of that unlawful act, as a result of an intervening circumstance about which he has already told the police, that is his stumbling, this led directly to the girl's death, but it was unaccompanied, it will be put to you, by any evidence, by any intention either to kill or to inflict grievous bodily harm, and therefore, on that evidence, my submission to you will be that a just verdict, and a verdict which will ensure that the accused, of course, will be punished, is that he should be found not guilty of murder but guilty of manslaughter.

[37]

The state of mind of the accused is rarely so exhibited as to enable it to be directly observed. Its reckless quality if that quality relevantly exists must almost invariably be a matter of inference. Although what the jury think a reasonable man might have foreseen is a legitimate step in reasoning towards a conclusion as to the accused's actual state of mind, a firm emphasis on the latter as the fact to be found by the jury is necessary to ensure that they do not make the mistake of treating what they think a reasonable man's reaction would be in the circumstances as decisive of the accused's state of mind. They need also to be reminded that the accused's circumstances are relevant to the decision as to his state of mind; for example his age and background, educational and social, his current emotional state and his state of sobriety. They should be expressly told that they need to be satisfied beyond any reasonable doubt that he must have foreseen, and in that sense did foresee, the consequences of the act he contemplated. It clearly is not enough to use the work "reckless" or the words "reckless indifference" to a jury in order to alert them to the state of mind which they must find to exist. No doubt to one familiar with a precise use of language a reckless indifference to consequence does involve an indifference to what is a known or foreseen consequence. But, in my opinion, it is far from adequate in the instruction of laymen as to the elements of the crime of murder merely to use a formula, such as has been done in this case, containing the expression "a reckless indifference" to consequence. It may be suspected that the jury in this case may have obtained from the several endeavours made in the summing up to indicate of what relevant recklessness might consist the notion of indifference to a foreseen consequence. But, I am not prepared to act upon any such impression which might be gathered from their intelligent questioning. In my opinion, the summing up was basically defective in not informing the jury and with the emphasis of which I have spoken, that actual foresight by the accused of the consequences of his acts was basic to the recklessness of mind of which they were told. I should add that it is in my opinion 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. I see no logical reason why in such a case as the present it should be probable, though of course, it must not be merely a remote possibility. It must be something which it is seen could happen so that if nevertheless the contemplated act is done it can be said that it was done with indifference to the fact that death or grievous bodily harm might ensue.

[44]

There may often be alternative views of the facts possible, or questions of degree, as for example, if so-called criminal or culpable negligence is put forward as a basis for a verdict of manslaughter, so that it may be necessary to take the opinion of the jury on the facts under proper direction as to what will suffice to make an act unlawful or the negligence criminal or culpable in or to the necessary degree. But in this case in my opinion there remained no question of fact or degree for the decision of the jury in relation to the possibility of a verdict of acquittal once it is supposed that they accept the appellant's statements. The question of a killing by misadventure could only arise upon an acceptance by the jury of the whole of the appellant's account. Whether or not on that account the act of the appellant was relevantly lawful so as to permit of acquittal was a matter of law. It must be for the judge to say whether on the appellant's account there was an attempt to commit the crime of assault. No question could arise that to brandish the loaded cocked rifle with the finger on the trigger within such close proximity as two feet of a human being was a dangerous act: and dangerous to the deceased. The question whether on the only possible view of the relevant facts, i.e., the account given by the appellant, the killing could be regarded as accidental was, in my opinion, a question of law. There could be no room, in my opinion, for the appellant's account to raise a doubt as to his guilt, except possibly in relation to an actual intent to kill or to inflict grievous bodily harm: in that connexion, on the one hand the summing up left it open to the jury to acquit if they had a doubt and on the other hand the jury did convict. The answer to the question whether upon the appellant's account of the happening the killing could be regarded as accidental must, in my opinion, be in the negative. Consequently, in my opinion, a verdict of acquittal on the ground of death by accident or misadventure was not open on the evidence and the trial judge was not required to direct the jury that they could acquit on that ground. This conclusion bears upon the propriety of the direction as to manslaughter with which I have already dealt: there is no need for me to pursue that matter further.

[45]

The only other submission of the appellant to which I need refer is the third, namely that there was an inadequate direction as to manslaughter. Where a verdict of acquittal because the death was by misadventure would not be warranted on the evidence, a summing up which properly and adequately defines the elements of murder and adequately relates them to the facts of the case and which instructs the jury that if they are not satisfied to the requisite degree of murder, so defined, they may return a verdict of manslaughter may be adequate, without any elaboration of the elements of manslaughter. To say in such a case that manslaughter is in the "area of lack of intent to kill, lack of intent to commit grievous bodily harm and of lack of reckless indifference" properly defined, might possibly be a sufficient description of manslaughter, though I do not think it is in any case an advisable course to so instruct a jury. In the present case, the sentence of the summing up "it must also lie in the third ground that I mentioned to you so often, that is, he had no care whatever of her safety and security and just acted arbitrarily and with no thought at all for her protection and safety" is to say the least far from clear. Indeed, it could be read as saying that it was the presence rather than the absence of reckless indifference which opened the possibility of a verdict of manslaughter. But it may be that the jury in the words of the sentence, following as it did the immediately prior sentences may have imported or apperceived the words "the lack of" before the reference to the third ground, which I think would express what the trial judge intended. However, having said so much, and being of opinion that there exists at least one ground on which this conviction should be set aside, I find no need to express a final opinion as to the essential adequacy of this summing up as to the elements of manslaughter. But I should add that such a summing up would be essentially erroneous if such a verdict of acquittal were open on the evidence. In such a case, unlike the present, there may be occasion to define for the jury the nature of the unlawful act which will make a killing in its course manslaughter and to assist the jury in their consideration of the relevant facts in that connexion. And in any case, distinctions between manslaughter and death by misadventure would need to be drawn and explained and the elements of each elaborated.

[90]

The grounds of my dissent from the order proposed, however, go even more deeply into what I regard as principles fundamental to the administration of criminal justice. The accused pleaded not guilty, thus putting everything in issue. The learned trial judge told the jury that the matter for them was "to decide whether you think this accused is guilty of murder, or something less". This instruction, although it may perhaps be explained as not meaning what it says, cannot be justified as a direction of law. To this matter I have made reference earlier and I do not propose to repeat what I then said. The point, which I wish to make now, is that this Court, in deciding as a matter of law, that a properly instructed jury could not, in good conscience, acquit the accused of any crime but must convict of murder or manslaughter, is adopting the learned trial judge's direction. It would be going beyond my purpose to discuss the different reasons advanced for this adoption. From what I have said it is obvious that I disagree with them. I say no more than that, however strong may be the evidence for a conviction, it is neither for a presiding judge at a trial, nor for this Court upon appeal, to decide that a jury must convict of one offence or another. In saying this, of course, I recognize that, in the exercise of the power conferred upon it by s. 47 (4), this Court can adopt the course there indicated if it appears to the Court "that the jury must have been satisfied of facts which proved" an appellant guilty of some different offence from that upon which he was convicted. The section, it is to be observed, preserves to the jury the responsibility of finding the facts in a criminal case. What facts of this description the jury found here, I do not know. The proposed order goes, as it seems to me, upon a somewhat different basis, viz. that as the jury could not, in law, have acquitted, it must, in finding a verdict of murder, have been satisfied of facts proving the accused guilty of manslaughter. I dissent on both points and with the use which it is proposed to make of s. 47 (4) of the Northern Territory Supreme Court Act.

[102]

On several occasions during his address to the jury the solicitor appearing for the appellant disclaimed any suggestion that his client should be acquitted of both murder and manslaughter. He asked the jury to acquit his client on the charge of murder and to return a verdict of guilty on the charge of manslaughter. The case was thus fought on the basis that the only question was whether the appellant was guilty of murder or not guilty of murder but guilty of manslaughter and it was in this way that the learned trial judge charged the jury. A number of criticisms, some of them I thought well founded, were directed to various aspects of the charge but I think it necessary to deal with one matter only which, apart from any of the other submissions made to us, seems to me to make it proper to order a new trial. The unsworn statement made by the appellant to the jury was undoubtedly open to criticism on many grounds but its weight was for the jury. From it I think it would have been open to them to infer that the case was one of accidental and not of unlawful homicide or at least to have had a reasonable doubt about the matter, and notwithstanding the course taken at the trial by the solicitor for the appellant I am of opinion that that issue should have been left to the jury. The attitude adopted by all concerned at the trial that a verdict of acquittal on both charges was not open seems to have been based upon the assumption that on the appellant's own statement he was approaching the girl, armed with the rifle, with the intention of frightening her; that in so acting he was committing an assault; and that if the rifle was fired accidentally as a result of the appellant stumbling in the course of that assault, he was at least guilty of manslaughter. But on the appellant's statement and from the fact that the bullet entered the girl's head behind her right ear, it may well have been that when he was approaching her she was turned away from him and was unaware of his approach. If so, the appellant would not, in my opinion, have been engaged in an assault upon the girl when the rifle discharged. As is pointed out in Russell on Crime, 12th ed. (1964), vol. 1, at p. 652: An assault, as distinct from battery, is a threat by one man to inflict unlawful force (whether light or heavy) upon another; it constitutes a crime at common law when the threatener, by some physical act, has intentionally caused the other to believe that such force is about to be inflicted upon him. The actus reus of assault thus consists in the expectation of physical contact which the offender creates in the mind of the person whom he threatens. The mens rea consists in the realization by the offender that his demeanour will produce that expectation. And at p. 653: As the gist of the crime lies in the effect which the threat creates upon the mind of the victim it is plain that on principle it can make no difference if the threatener in fact is quite unable to carry out the threat, provided the victim does not know this, but believes that the threat is about to be implemented. In these circumstances and despite the course taken by the solicitor for the appellant, I am of opinion that the learned trial judge fell into error in telling the jury, as in effect he did, that the case was one either of murder or of manslaughter. To my mind, on the appellant's statement to the jury and following upon appropriate directions from the trial judge, including a direction as to the elements necessary to be proved in order to establish the crime of assault, a verdict of not guilty on both charges might have been found.

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