R v Besim [2004] VSC 169

Supreme Court of Victoria|2004-02-18|Before: Redlich J

Unlawful and dangerous act manslaughter - Objective test as to whether "dangerous act" - Meaning of reasonable person "in the position of the accused" - Emotions of accused - Whether to be attributed to reasonable person.

At a very late stage of the accused's trial for manslaughter by unlawful and dangerous act, it has become necessary to rule upon the nature and scope of the objective assessment that must be made by the jury in determining whether the accused's act was dangerous.

The jury must be directed as to the meaning of the word "dangerous". In Victoria the test for a dangerous act was laid down by Smith J in R v Holzer.[1] The definition of dangerous adopted by Smith J was in these terms:

".......the circumstances must be such that a reasonable man in the accused's position, performing the very act which the accused performed, would have realised that he was exposing another to an appreciable risk of really serious injury."[2]

Mr Forrest Q.C., who with Mr Collins appears for the accused, contends that as the test requires a jury to consider whether a reasonable person in the position of the accused would have realised that there was an appreciable risk, the reasonable person is to be invested with the emotions that any reasonable person in the accused's position would have experienced as a consequence of the events leading up to the act. Invested with those emotions the Defence has submitted to the jury, that a reasonable person would have been so overwhelmed by events that they would not have adverted to whether the act was inherently dangerous or likely to cause serious injury.

It is necessary to set out Counsel's closing address on this issue:

"The Crown must prove beyond reasonable doubt that the act was dangerous, and what makes an act dangerous for the purposes of manslaughter? The test is this: has the Crown satisfied you beyond reasonable doubt that a reasonable person in the position of the accused - and they are very important words, `in the position of the accused' - that doesn't mean standing somewhere near the vase table, that means in all of the circumstances in which the accused found herself at the moment she threw that vase. A reasonable person in the position of the accused and performing the very same act which Jenny Besim performed would have realised that she was exposing her husband to an appreciable risk of serious injury. That's the test for dangerousness. It's an objective test. That means you don't look into Jenny Besim's mind. You try to assess what would the reasonable person have appreciated at the time that the vase was thrown, but the reasonable person in all the circumstances that Jenny Besim found herself in."[3]

Counsel then submitted that the jury should not be satisfied that it was the accused's intention to hit the deceased on the head with the vase. Counsel went on to say:

"Mr Kayser said to you in his opening that you will have no difficulty in finding that Jenny deliberately aimed at her husband's head. We submit in all the circumstances you would be far from satisfied of it. And if that's right, we submit the question becomes a bit harder for the prosecution. As we see it the question is this on the issue of dangerousness; has the State, the Crown satisfied you beyond reasonable doubt that a reasonable person in Jenny Besim's exact position, that is, if you find these facts, having just been punched, having tired to summons the police, having tried to round-up the kids and get out of there, having almost, if you find it, being simultaneously being the subject of a threat to be burnt with the children in the house, that a reasonable person in that precise position and performing the act of throwing the vase at him would inevitably have realised that she was exposing her husband to the appreciable risk of serious injury. I will say it again because it's complicated. Has the Crown satisfied you beyond reasonable doubt that a reasonable person in Jenny Besim's exact position performing the exact same act would have realised that she was exposing the person at which she was throwing the vase to the appreciable risk of serious injury. That's an element of the offence that you have to be satisfied of beyond reasonable doubt. It's a matter entirely for you. If you form the view that a reasonable person in exactly that position may be so overwhelmed by the circumstances that confronted Jenny Besim, then we would submit that that reasonable person would have had no such realisation that he or she was exposing the other party to serious injury, or if you have a doubt about it, you would acquit on that basis alone. As I say, in my submission you will never get there. This case will stop at the issue of unlawfulness. But if you have to consider whether this act is dangerous, and if you have to apply that objective test to the reasonable person in Jenny Besim's exact position performing the exact same act, then in my submission the Crown have failed to prove that element of the offence as well."[4]

At the conclusion of Defence counsel's address the learned prosecutor took immediate objection to counsel's submission as to the law concerning dangerous act. The learned prosecutor submitted that the objective test was concerned only with the physical act of the accused and whether such act carried with it the appreciable risk of serious injury. The Crown submitted that the objective test did not encompass the question whether a reasonable person in the accused's emotional state would have adverted to whether the act was dangerous at the time that the act was performed.

Unintentional homicide, now generally referred to as involuntary manslaughter finds its origins in what was a rigorous common law rule that death resulting from any unlawful act constituted manslaughter.[5] The evolution of the present doctrine need not be examined though its origins have had a substantial bearing upon the scope and wording of the present rule.

Unintentional homicide as a crime distinct from murder was well established in its present form by the time that R v Larkin[6] was decided in England. Humphrey J said in a much cited passage:

"Where the act which a person is engaged in performing is unlawful, then if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently the doer of the act causes the death of that other person by that act, then he is guilty of manslaughter."[7] (emphasis mine)

Such a formulation of involuntary manslaughter was adopted by the Victorian Full Court in R v Turner[8] where it was observed:

"The correct statement of law is that a man is prima facie guilty of manslaughter if he, without having any intention to kill or do grievous bodily harm, kills another by an act which is both unlawful and dangerous."[9]

"Where an act which a person is engaged in performing is unlawful, then if it is at the same time a dangerous act, that is an act which is likely to injure another person and quite unintentionally he causes the death of that other person by that act, then he has committed the crime of manslaughter."[10]

In England, the test propounded by Humphrey J in Larkin that a dangerous act was one which was "likely to injure" was the subject of qualification in R v Church.[11] Edmund Davies J who delivered the judgment of the Court said:

"An unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm."[12]

Forseeability of the existence of risk of injury as referred to in Church was described in R v Lipman[13] by Lord Justice Widgery as relating:

"to the type of act from which a charge of manslaughter may result, not the intention (real or assumed) of the prisoner."[14] (emphasis mine).

The Court of Appeal in Lipman's case held that the crime of involuntary manslaughter did not require mens rea. In R v Haywood[15] Crockett J refused to follow _Lipman'_s case holding that involuntary manslaughter required the Crown to establish that the act of the accused causing death was conscious voluntary and deliberate. Crockett J referred with apparent approval to Edmund Davies J's statement in Church's case observing that constructive malice is the basis for this form of involuntary manslaughter.

In the Director of Public Prosecutions v Newbury[16] Lord Salmon delivering the leading judgment referred with approval to what had been said by Humphrey J in Larkin's case. Lord Salmon's judgment re-affirmed that it was unnecessary to establish that the accused knew that the act was unlawful or dangerous. His Lordship referred with approval to the judgment of Edmund Davies J in Church and then stated:

"The test is still the objective test. In judging whether the act was dangerous the test is not did the accused recognise that it was dangerous, but would all sober and reasonable people recognise its danger."[17] (emphasis mine).

In a dissenting judgment in Boughey v The Queen[18] Brennan J, though differing from the majority as to the proper interpretation of s.156 Tasmanian Criminal Code, referred to the judgments of Lord Salmon in Newbury and Lord Edmund Davies in Church. His Honour described the test as to likelihood of injury as:

"the risk which, if foreseeable by sober and reasonable people, makes an unlawful act dangerous so that death which is caused thereby is manslaughter. As Staughton J speaking for the Court of Appeal in R v Mitchell[19] said:

`there need not be any intention to injure or kill or any foresight that injury or death would be caused, provided that all sober and reasonable people would have recognised the act to be dangerous'."[20]

There are a series of Canadian decisions dealing with the Canadian Criminal Code which follow the decisions of Church and Larkin[21] and adopt the same test of foreseeability for a dangerous act.

A line of authority emerged in New South Wales which also followed the English authorities of Larkin, Church and Newbury but differed from Holzer in that the act needed only to be one likely to injure. It was regarded as sufficient that a trial Judge instruct a jury that they need only be satisfied that the act was dangerous, no further elucidation being required. R v Andrews;[22] Regina v Cheung;[23] Croft v R[24] and Coomer v R.[25]

Prior to Wilson v The Queen,[26] the Holzer test was only consistently followed in Victoria. R v Wills[27] and Crusius v R.[28] In Wilson v The Queen the approach taken by Smith J in Holzer was approved. The issue in the case concerned the level of harm that should be foreseen, the majority and minority judgments differing as to the degree of potential harm required to render an act dangerous.

Origins of the dangerous act test as formulated by Smith J

The origin of Smith J's test is not clear, as the authorities upon which his Honour relied were not identified. Although Brennan, Deane and Dawson JJ were in the minority in Wilson v The Queen, their joint judgment contains a number of relevant observations concerning the test which Smith J posed in Holzer and which I would respectfully adopt. Smith J, it appears, wished to achieve some approximation between the formulation of criminal negligence and the definition of a dangerous act. In Holzer's case, referring to criminal negligence Smith J said:

".......the accused must be shown to have acted not only in gross breach of a duty of care but recklessly, in the sense that he realised that he was creating an appreciable risk of really serious bodily injury to another or others and that nevertheless he chose to run the risk."[29]

The requirement of an "appreciable risk" may well be derived from Lord Atkins' statement in DPP v Andrews[30] as to criminal negligence. It appears that Smith J sought to use the same formula - "an appreciable risk of really serious bodily injury" - for both criminal negligence and unlawful and dangerous act manslaughter.

The formulation of criminal negligence as incorporating a subjective element was not followed by the Victorian Full Court in Nydam v The Queen.[31] In holding that the test for criminal negligence was an objective one, the Full Court considered that such a formulation would be consistent with the objective test of manslaughter by unlawful and dangerous act approved by the House of Lords in Newbury's case. The adoption and formulation of the objective test in Nydam's case is illuminating, in part because of the importance that was attached to the need for correspondence between the tests for dangerousness for negligent manslaughter and unlawful dangerous act manslaughter. In rejecting the subjective test which Smith J had posed in Holzer, the Full Court relied upon the dicta of Lord Atkins in Andrews which pointed to negligence as involving conduct alone and not the accused's state of mind.

Smith J also left battery manslaughter to the jury in Holzer. His Honour considered this category of manslaughter to involve a subjective test of intention and a low degree of harm. There were English decisions which treated battery manslaughter as a basis for manslaughter. R v Woods;[32] R v Garforth[33] and R v Sharmpal Singh.[34] The test, described in Smith and Hogan was whether "any reasonable man would necessarily have foreseen the risk of some harm resulting."[35]

The common direction given where death followed an abortion was, in England, that set out in R v Lumley[36] and in Victoria that given in R v Brown & Brian.[37] The direction in both cases was in these terms:

"If ...... a reasonable man could not have contemplated that death or grievous bodily harm was likely to result and death ensued, the proper verdict was said to be manslaughter".[38]

In R v Parmenter[39] Sholl J, relying upon the decisions of R v Lumley and R v Brown & Brian but not the English decision of Larkin, directed a jury on involuntary manslaughter in these terms:

"If a man unintentionally causes death in the course of committing an unlawful act not amounting to a felony, an act such as the accused contemplated or a reasonable man would have contemplated, as likely to create the danger of death or grievous bodily harm ... unintentionally causes death, that is manslaughter."[40] * Subjective test - Longley

Subsequently Sholl J in his judgment as a member of the Full Court in the R v Longley[41] suggested that this category of involuntary manslaughter involved an act the character of which the accused must have realised involved an appreciable danger of death or serious injury to another. This approach was based upon his previous direction in Parmenter and the decision in Brown & Brian. Sholl J in Longley incorrectly, in my respectful view, treated the decision of the Full Court in Turner as posing a subjective test.[42] In Wilson v The Queen, Brennan, Deane & Dawson JJ[43] stated that there was no authority to support the subjective test which Sholl had proposed in Longley's case.

Smith J had been a member of the Court in Longley. Smith J's formulation of the test for manslaughter by unlawful and dangerous act in Holzer may be derived from the language employed by Sholl J in Longley.[44]

The High Court in Wilson v The Queen also rejected battery manslaughter as a category of manslaughter, the majority concluding that it continued the rigour of the early common law and ought to play no part in contemporary law.[45]

This analysis of the origins of the Holzer formula for unlawful and dangerous act manslaughter suggests that some of the phraseology was derived from the subjective tests for criminal negligence and battery manslaughter. Consequently the formula is open to misunderstanding that subjective factors which may have diminished the accused's capacity to assess the risk can be attributed to the reasonable person.

Whether the genesis of the part of Smith J's formula in Holzer which is presently under consideration was the subjective test for criminal negligence or Sholl J's suggestion of a subjective test in Longley's case or the doctrine of battery manslaughter, all have been rejected by the High Court and laid to rest. A subjective element has no place in manslaughter by criminal negligence or unlawful and dangerous act. Battery manslaughter no longer remains a common law offence.[46]

The objective test formulated by Smith J in Holzer for unlawful dangerous act manslaughter has been in general use in this State for a long time. The head note reads:

"Under the doctrine of manslaughter by unlawful dangerous act the act must be criminal, but it is not necessary that the accused should have realised the risk he was creating."[47]

In R v Wills,[48] Lush J who delivered the judgment of the Court regarded the head note as a correct statement of the doctrine. In Wills' case it had been submitted that circumstances extending beyond the physical position of the accused and the act which caused death should be taken into account when determining whether a reasonable person would have realised that the act exposed another to an appreciable risk of really serious injury. The subjective mental state of the applicant was said to be a circumstance which should be considered when determining what a reasonable man in the applicant's position would have realised. The Full Court held that a reasonable person's appreciation of a dangerous act was not to be assessed by investing the reasonable person with the emotional or mental conditions of the accused. If it were otherwise the test would begin to take on a subjective appearance.

The objective nature of the assessment was explained by Lush J in the following terms:

"......it is sufficient for the present case to say that the circumstances relevant to the question whether a reasonable man would appreciate danger include the physical features of the situation and of the action of the accused man involved. I would not, for my part, include the idiosyncrasies of the accused man or his ephemeral emotional or mental state. They are matters peculiar to him which would affect his judgment of danger but the relevant judgment must be, by definition, the judgment of a reasonable man."[49]

These observations were viewed by Lush J as fully justified by the judgment of Lord Salmon in DPP v Newbury. Deriving force from the decision in Newbury, Lush J concluded:

"......one simply looks at what was physically done and decides whether it was likely to produce the appropriate degree of danger. There is, of course, scope for many matters to be included in an observation of what was physically done."[50]

Fullagar J, who agreed with the reasons and conclusion of Lush J made the following further observations:

".....I am clearly of opinion that the circumstances of the accused's situation which may be taken into account, whether or not they can include anything personal to him, cannot include anything personal to him which is sought to be included because it may affect his reasoning and his judgment on the question of whether the act is dangerous or not. It may be that facts of the kind sought here to be got in, which are personal to the accused man, might be got in in some circumstances if they were calculated to affect the actual quality of the act itself as dangerous or not when viewed by the reasonable man above, as it were - a question which is wholly unnecessary to decide in this case. (That the firer of the gun knew he suffered from a palsy might provide a case in point). But, like the learned Presiding Judge, I am of the opinion that the scenario, as it were, the state of the stage on which the act is committed which must be considered, cannot include matters which are calculated to influence the judgment of the actor himself as to whether the act was dangerous or not, because that would be to bring into the equation a judgment by a man whose reason and judgment are in a morbid and clouded condition, whereas the reasonable man for the purpose of this particular rule of law is a man who judges with the unclouded reasoning power of a healthy and reasonable mind. I entirely agree with the judgment which has been delivered."[51] (emphasis mine)

The High Court in Wilson v R [52] referred with apparent approval to the decision in R v Wills, the majority adopting in substance the formula from Holzer's case that the act must be one which exposes another to an appreciable risk of serious injury.[53] The majority concluded:

"In the end the jury had to determine whether the appellant's act in punching the deceased was, from the stand point of a reasonable person, an act carrying with it an appreciable risk of serious injury to the deceased."[54]

That the test calls for an objective assessment of the act performed by the accused in the physical circumstances of the accused is apparent from both the majority and minority judgments in Wilson v The Queen. The inquiry as to the realisation of a reasonable person in the accused's position is confined to the question, objectively determined, of whether the act was dangerous.

The judgments in R v Wills[55] support the broad proposition that anything personal to the accused which may affect the accused's reasoning or judgment is not to be attributed to the reasonable person. The reasoning of both Lush J and Fullagar J makes clear that the objective nature of the inquiry precludes any consideration of the reduced personal capacity of the accused to assess the risk. The act is to be judged according to the capacity for foresight of the reasonable person. R v Doyle[56]; R v Paris[57]; Stingel v The Queen[58] and Yeo.[59]

Recent cases in which the trial Judge's direction as to all or part of the objective definition of dangerous was said to be deficient, illustrate that the test involves an objective judgment as to whether the act performed by the accused carried with it an appreciable risk of serious injury. Jones v R[60]; R v Luu[61] and Pfitzner v R.[62] In R v O'Neill,[63] Gleeson CJ delivering the judgment of the Court, referred to a dangerous act, as suggested in Wilson, as one that carries with it an appreciable risk of serious injury. This is consistent with the approach taken by the Victorian Court of Appeal in R v PDJ.[64]

The law recognises limited circumstances in which an objective test permits certain personal characteristics of the accused to be taken into account. Thus the gravity of the conduct said to constitute provocation must be assessed by reference to the person's age, sex, race, ethnicity, physical features, personal attributes, personal relationship or past history. Having assessed the gravity of the conduct the question is whether provocation of that degree of gravity could cause an ordinary person to lose control. Masciantonio v The Queen;[65] R v Abebe.[66] Whilst the objective test for provocation will almost inevitably involve projecting the hypothetical person into the position of the accused at the time of the killing the provocative effect of the act or insult is to be assessed by reference to the powers of self control of a hypothetical ordinary person who is unaffected by any extraordinary attribute or characteristic of the accused. Stingel v R.[67] The Full High Court in Stingel stated that the test in Newbury, adopted in Nydam for criminal negligence, was entirely objective, no account being taken of the age of the accused. [68]

The expression "a reasonable man in the accused's position performing the very act the accused performed" relates to the physical circumstances of the accused and the nature of the act performed by the accused as viewed by a reasonable person. It is an objective test concerned with forseeability of serious harm to the victim. Emotions passions or the mental state of the accused at the time the act was performed and which may have impaired the accused's capacity to assess the risk are not to be attributed to the reasonable person.

While the idiosyncrasies or mental state of the accused which may diminish the accused's capacity to reason are not to be taken into account, any knowledge possessed by the accused that would bear upon whether the act was dangerous is to be attributed to the reasonable person. R v Wills[69] and R v Dawson.[70]

It is unnecessary to consider that line of authority to the effect that facts that would be known or appreciated by a sober and reasonable person as bearing upon the dangerousness of an act form part of an objective assessment of the act notwithstanding that the accused did not know of those facts or did not appreciate their significance. R v Watson[71]; R v Ball.[72]

Consideration of the physical and verbal abuse to which the accused had been subjected to determine whether a reasonable person would have at the time adverted at all to the risk of harm associated with the act are not matters which bear upon the objective assessment of the act or the known physical circumstances. These factors though they may be relevant to penalty do not clarify the objective dangerousness of the act. Were the scope of the test as Defence counsel contends, a direction would be required in all cases that the jury must consider all of the circumstances of the accused which may bear upon the accused's state of mind and which might lead to the conclusion that a reasonable person, affected by those circumstances, would not have adverted to the risk of harm associated with the act. Such an inquiry is not and has never been required for this form of manslaughter.

I will direct the jury in accordance with Holzer's case. As a consequence of the closing submission of Defence counsel, it will be necessary that I instruct the jury that the accused's emotions or state of mind or those that a reasonable person would have had in the circumstances in which the accused found herself are not relevant to the question whether the act was dangerous. I shall instruct the jury that whether the accused or a reasonable person in her position would have been so overwhelmed by emotions at the time of the act that they would not have adverted to whether the act was dangerous, is not a matter that they are to consider when making an objective assessment as to whether the act was dangerous.

[5] See Russell, William Oldnall (1964) Russell On Crime (10th ed), London, Stevens at 611; Snelling, H.A. 'Manslaughter by Unlawful Act' 30 ALJ 382 and Williams, C.R. `Unlawful Act Manslaughter', [1975] MonashULawRw 4; 1 Mon LR 234.

[12] Footnote 11 R v Church (1965) 2 All ER at 76.

[14] Footnote 13 R v Lipman (1969) 3 All ER at 415.

[17] Footnote 16 DPP v Newbury at 507.

[20] Footnote 18 Boughey v The Queen at 36.

[21] Regina v Lelievre (1962) 32 DLR(2d) 723; R v Adkins Unreported CABC 17 December 1987 and Stuart (1982) Canadian Criminal Law 202.

[35] Smith, J.C. (1998) Smith and Hogan Criminal law (6th ed.), London, Butterworths at 350.

[37] [1949] VicLawRp 32; [1949] VLR 177 per Lowe, Martin and Barry JJ.

[38] Footnote 36 R v Lumley Headnote at 635 and Footnote 37 R v Brown & Brian at 181.

[40] Footnote 39 R v Parmenter at 314-315.

[43] Footnote 26 Wilson v The Queen at 341.

[45] Footnote 26 Wilson v The Queen at 333.

[46] Footnote 26 Wilson v The Queen at 328-32; See also R v PDJ [2002] VSCA 211 at [67].

[53] Footnote 26 Wilson v The Queen at 333.

[54] Footnote 26 Wilson v The Queen at 335.

[55] Footnote 27 at 213 per Lush J and at 214 per Fullagar J.

[59] Yeo, Professor S., (1997) Fault in Homicide, Leichhardt, NSW, Federation Press at 212.

[60] (1995) 78 A Crim R 504 at 508 per Hunt CJ.

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