R v David Weiderman [1996] TASSC 150 (28 November 1996)

Criminal Law - Particular offences - Offences against the person - Homicide - Murder - Code provisions - Culpable homicide (Tasmania) - Act known by offender to be "likely to cause death" - Whether accused "ought to have known" - Whether presence of mental disorder relevant to whether accused "ought to have known". Criminal Code (Tas), s157(1)(c). Hawkins v R (No 3) [1994] TASSC 148; (1994) 4 Tas R 376, Boughey v R [1986] HCA 29; (1986) 161 CLR 10, applied. Hawkins v R [1994] HCA 28; (1994) 179 CLR 500, followed.

Criminal Law - General matters - Criminal liability and capacity - Defence matters - Intoxication - Particular offences - Murder - Whether intoxication relevant to effect of mental disorder on actual or imputed knowledge. Criminal Code (Tas), ss17(2) and (3), 157(1)(c). Snow v R [1962] Tas SR 271, Palmer v R [1985] TASSC 53; [1985] Tas R 138, applied. Hawkins v R [1994] HCA 28; (1994) 179 CLR 500, Boughey v R [1986] HCA 29; (1986) 161 CLR 10, followed.

Direction to be given to the jury is that regard may be had to the evidence of disorder and the inter-relationship of intoxication with such disorder in its consideration of whether the accused ought to have known of the probability of death occurring by reason of his conduct.

(RULING DURING COURSE OF TRIAL) 1. The accused stands indicted of the crime of murder by shooting his father with a firearm. The Crown case is that he killed, either to relieve himself of the burden of a seriously impaired dependant, or to relieve his father of cruel suffering. There is evidence that the father wished to end his own life but, lacking the capacity to perform the act, tacitly permitted his son to effect his desired purpose. The deceased had been an underground miner, proud of his physical skills. He had retired but was not destined to enjoy a much-earned peace. In 1994 - 1995 he developed a condition diagnosed as frontal lobe dementia or Altzheimer's disease. He suffered from disorientation, memory loss, impairment to motor function and incontinence. His deteriorating condition caused his eldest son, on his return to Tasmania, to remain in order to live with and care for his father. In June 1995 father and son attended Dr Kulinski, the medical practitioner who had long attended to the health of the deceased. Doctor Kulinski eventually made the diagnosis of dementia. The accused was afforded the status of an assisted carer of his father. The condition of the deceased further deteriorated and he was assessed as being eligible for admission to a hospice or home. As a long term resident of Rosebery he was reluctant to move to the North West Coast, so consideration was given to settlement in Queenstown. Admission was confirmed and on 25 January 1996 Sister Ver Meulen of the West Coast District Hospital rang the accused informing him of the decision. Arrangements were made for the accused and his father to inspect the facility. Shortly thereafter, Sister Ver Meulen rang the deceased requesting that the accused contact her so that definite arrangements could be put in place. On receiving no reply, she again spoke to the deceased, repeating the request. It is a reasonable inference open to the jury that the deceased neglected, deliberately or otherwise, to pass on the message. On one view it could be said that the receipt of the message affected his decision to take his life rather than be committed to an institution. In any event, the accused was aware that his father could be cared for in an institution even if he was unaware of the exact date of permitted admission. There is cogent evidence which would permit the jury to conclude that the act of killing was designed to alleviate suffering rather than to remove an intolerable burden.

2. On 9 February the accused took the life of his father. During the course of the day the accused had consumed a considerable amount of alcohol and at about 5pm was taken home in an intoxicated state by a friend, Wayne Harper. Harper found the deceased at the house, drinking, with a 12 gauge shotgun at his feet. He removed two cartridges from the weapon and replaced the gun in a rack inside the house. At about 6.10pm a neighbour observed the accused and his father leave the house and move towards an outside shed. She saw the accused, followed by his father, carrying two weapons. Shortly thereafter she heard the discharge of a firearm. The accused shot his father with a single shot fired from a .22 rifle. He told police that his father had decided to take his own life and that he had accompanied his father, whom he loved, outside, in order to be with him. At the last minute, his father being unable to complete the act, had looked at him, said farewell and looked away. In compliance with his father's tacit invitation, he fired a single shot at his father's head. He has given evidence on the trial that at the time he fired the weapon his father had hold of the shotgun which was pointed towards the ground. He said that he had no recollection of pulling the trigger and does not know why he fired. He claimed that he had no intention to take his father's life but had simply intended to be present when his father took his own life. There exists corroboration of his claim that his father intended suicide. Another son of the deceased has given evidence that in December 1995 his father had taken a weapon to a stream in order to kill himself "without mess", but had been prevented by that son. The accused gave evidence that he had removed a firearm from his father on a number of occasions prior to 9 February 1996. Doctor Kulinski believed that one such occasion had been mentioned to him by the son. The observation of Harper, who had seen the deceased with a loaded shotgun shortly before the act of homicide, gives meaning to the finding of an unused shotgun cartridge near the body of the deceased. The claim by the accused that his father had intended to take his own life by means of a shotgun is not implausible.

3. The Crown case is that the accused intended to take the life of his father by the discharge of the rifle and that such constitutes the crime of murder by virtue of the operation of the Criminal Code, s157(1)(a). In the alternative, the Crown relies upon the provisions of s157(1)(c) which states: "... culpable homicide is murder if it is committed ... (c) by means of any unlawful act ... which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person;"

4. The accused has called evidence from a psychiatrist who stated, in his opinion, that the accused suffered from a mental condition at the time of the act of killing. He diagnosed the condition as being an anxiety disorder, the nature of which did not give rise to the conditions required by the Code, s16. Nevertheless, the effect of the opined condition, together with the effects of intoxication, was to cause confused thinking which could inhibit the ability to appreciate consequences within the meaning of s157(1)(c). The issue raised is whether such evidence may be used by the jury in considering whether the "offender ... ought to have known" that his act was "likely to cause death in the circumstances".

5. The defence position is that the accused was in a maelstrom of emotion and thought exacerbated by alcohol caused by the dilemma concerning the appropriate response to his father's need. The reason for his response might be confused but the purpose of his act, ie, the discharge of the weapon, was clear, namely the ending of his father's life. However, the accused maintains that he has no recollection of his thoughts at the time of discharge and the question of his intent is in issue. The issue raised by the defence is one which requires consideration by the jury. In part the issue is one of the reception of evidence and in part relates to the meaning of s157(1)(c). The question was defined by the High Court in Hawkins v R [1994] HCA 28; (1994) 179 CLR 500 at 517 - 518 in the following terms: "The appellant's notice of appeal to the Court of Criminal Appeal challenged the correctness of leaving the issues [the psychiatric evidence] under par (c) to the jury, but par (c) received little reference in the judgments in the Court of Criminal Appeal and was not made the subject of any particular issue in this Court. Assuming that the evidence of the psychiatrists would have been relevant to and admissible on the issue whether the appellant knew that his conduct was 'likely to cause death in the circumstances', it is another question whether that evidence would have been relevant to and admissible on the issue whether the appellant 'ought to have known' that his conduct was 'likely to cause death in the circumstances'. And if that evidence was irrelevant to and inadmissible on that issue, it is a further question whether the verdict of the jury, construed by reference to the evidence admitted on the trial, necessarily carries findings adverse to the appellant that culpable homicide was committed (i) by means of an unlawful act (ii) which the offender ought to have known to be likely to cause death."

6. The question of culpable homicide is, of course, different to that of murder and involves differing criteria. In the present case the evidence is admissible on the trial in relation to the Code, s157(1)(a). But the issue is whether the jury may make use of it in consideration of s157(1)(c).

7. Section 157(1)(c) refers to knowledge, appreciation or awareness. It contains no words ordinarily used in relation to the element of specific intent. The Code, s17(2) permits the use of evidence of intoxication in relation to the existence or otherwise of a specific intent but by virtue of s17(3), otherwise such evidence "shall not rebut the presumption that a person intends the natural and probable consequences of his acts".

8. The presumption is that a person who causes a projectile to travel to the body of another is presumed to intend the consequence of impact, namely death or bodily harm. Evidence of intoxication is not permitted to rebut that presumption. The proposition may be illogical or anomalous (R v O'Connor (1979 - [1980] HCA 17; 1980) 146 CLR 64, Barwick CJ at 86 and Director of Public Prosecutions v Majewski [1976] UKHL 2; [1977] AC 443 at 483) but is grounded in policy.

Evidence of Disorder 9. The defence have called opinion evidence from a psychiatrist to the effect that the offender may well have been suffering from a mental disorder or disease at the time of the homicide and that such a condition, although incapable of supporting a finding of insanity, may have affected the formation of an intent. In Hawkins v R (supra) the High Court did not find it necessary to determine whether such evidence is relevant to the issue whether a person "ought to have known" that his act was "likely to cause death in the circumstances". The Court of Criminal Appeal in Hawkins v R (No 3) [1994] TASSC 148; (1994) 4 Tas R 376, applying the meaning afforded to s157(1)(c) in Boughey v R [1986] HCA 29; (1986) 161 CLR 10, determined that such evidence was relevant to whether the particular accused, with the knowledge and capacity actually possessed, ought to have thought about the likely consequence of conduct. The opinion evidence is relevant to the issue required to be considered by the jury. The problem is in relation to the use, if any, which may be made of the state of intoxication of the accused.

Evidence of Intoxication 10. Counsel for the accused contends that if evidence of disorder may be used by the jury in its consideration of whether the offender knew or ought to have known that his act was "likely to cause death or bodily harm", then the effect of the decisions of the High Court in Boughey v R (supra) and of the Court of Criminal Appeal in Hawkins v R (No 3) (supra) warrant the conclusion that evidence of intoxication may be similarly used where its effect is inextricably linked to the disorder. It is not contended that evidence of intoxication, absent disorder, has application to the Code, s157(1)(c). It is first necessary to consider whether the effect of s157(1)(c) is evidentiary rather than substantive. The English equivalent has long been regarded as evidentiary. In adopting an objective test for murder in Director of Public Prosecutions v Smith [1961] AC 290, the House of Lords related the knowledge of the offender to the presumption that a person intends the natural consequences of his or her act, although the court preferred to replace the term with that of "the reasonable man". The effect of that decision was reversed by the provisions of the Criminal Justices Act 1967, s8 (R v Wallett [1968] 2 All ER 296) with the House of Lords returning to the issue in R v Moloney [1984] UKHL 4; [1985] AC 905. Lord Bridge, in delivering the speech which was agreed to by all others, concluded at 928: "I am firmly of opinion that foresight of consequences, as an element bearing on the issue of intention in murder, or indeed any other crime of specific intent, belongs, not to the substantive law, but to the law of evidence."

11. The English position can be stated as: 1 A person's conduct is intentional if it was his or her conscious purpose to bring about a particular consequence.

2 A person's conduct is intentional where he or she is aware that a consequence will almost certainly follow from such conduct.

3 Evidence or probability or likelihood may be used by a jury in its consideration of the preceding propositions.

12. Australian courts have preferred to regard foresight of consequence as a substantive ingredient of criminal responsibility, relating it to the traditional terminology of "malice aforethought" (La Fontaine v R (1976) 136 CLR 62, R v Crabbe [1985] HCA 22; (1985) 156 CLR 464). In the joint judgment of Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ in R v Crabbe (supra), their Honours observed at 469: "The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded ... as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur."

13. In adopting the substantive approach, Australian courts have followed the test propounded in Stephen's Digest of Criminal Law, 1 ed, 1877, Article 233 at 144 which states: "Murder is unlawful homicide with malice aforethought.

Malice aforethought means any one or more of the following states of minds preceding or co existing with the act ... by which death is caused ... . ... 14. Knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;"

15. Stephen, at 145, provides the illustration of "(4) A waylays B, intending to beat, but not intending to kill him or do him grievous bodily harm. A beats B and does kill him. This is manslaughter at least, and may be murder if the beating were so violent as to be likely, according to common knowledge, to cause death." citing Rowley's Case Fost 294 in support of the example. He further cites the words of Cockburn LCJ in R v Desmond, Barrett and Others Times Reports, April 28, 1868 that: "If a man did an act, more especially if that were an illegal act, although its immediate purpose might not be to take life, yet if it were such that life was necessarily endangered by it if a man did such an act, not with the purpose of taking life, but with the knowledge or belief that life was likely to be sacrificed by it, that was murder."

16. In his Commentaries on the Laws of England, 21 ed, 43, proposition 3 is expressed as "intention to do any act which is likely to result in death or grievous bodily harm, whether such result is intended or not".

17. The Code incorporates knowledge or imputed knowledge into the substance of the law of criminal responsibility. Although it is treated as a crime of general intent, it is really the existence of a state of mind possessing actual knowledge or which, given the surrounding circumstances, ought to have received and assimilated such knowledge which gives rise to criminal responsibility. As Brennan J stated in He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523 at 568: "... knowledge ... is the mental state ordinarily applicable to the circumstances in which a relevant act is done or omission is made and, where a mental state is applicable to results, it may be either foresight of the possibility of their occurrence (if recklessness is an element) or knowledge of the probability (or likelihood) of their occurrence or an intention to cause them (if a specific intent is an element). A mental state is inherently hard to define, and the definition of mens rea is beset by problems of terminology."

18. The concept differs from one expressed in evidentiary terms. In his dissenting judgment in R v Hodgson [1985] TASSC 40; [1985] Tas R 75, Cosgrove J, referring at 93 to "the confusion between, on the one hand, the nature of some basic evidence from which a conclusion may be drawn and, on the other hand, the actual constituent of the crime" concluded at 94 "that foresight and intent are different concepts". He considered that it was possible to reconcile the decisions of R v Moloney (supra) and R v Crabbe (supra), believing both courts to be expressing the same concept in differing terms. Irrespective of that possibility, there is little doubt that the ingredient of knowledge or foresight is one of the substantive laws provided by the Code (Palmer v R [1985] TASSC 53; [1985] Tas R 138 and Boughey v R (supra) at 10).

19. The provisions of the Code, s17(2) and (3) reflect the common law position stated by Lord Birkenhead in Director of Public Prosecutions v Beard [1920] AC 479 when he said at 503: "That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts."

20. Although in Viro v R (1976 - [1978] HCA 9; 1978) 141 CLR 88, Gibbs J concluded, at 109, that the proposition cannot "be accepted as correctly stating the law for Australia", and although the High Court has on numerous occasions disapproved of the use of the presumption that a person intends the natural and probable consequences of an act (Stapleton v R [1952] HCA 56; (1952) 86 CLR 358, Smyth v R [1957] HCA 24; (1957) 98 CLR 163 and Parker v R [1963] HCA 14; (1963) 111 CLR 610), the provisions of the Code, s17(3) remain in force.

21. In Snow v R [1962] Tas SR 271, Burbury CJ and Cox J believed there to be some illogicality in subs(3), and further that it stated a misleading maxim. They paid regard to the observations of the High Court made in the above cases and, at 287 - 288, quoted with approval the note of Megarry QC in 72 LQR 166 - 167 that: "On a number of occasions it has been pointed out in these notes that the maxim that a man must be held to intend the natural and probable consequences of his acts is in accord with ordinary experience if it means that, in the absence of any other explanation, it is reasonable to assume that the actor intended the foreseeable consequences of his act, but, on the other hand, there is little justification for this maxim if it is interpreted as an absolute, objective test which must be applied whatever the actual circumstances may be. When applied to the murder cases, the maxim, if interpreted as providing an objective test, leads to the odd result that a man may be hanged for being stupid, and not because he intended to kill."

22. In their opinion, at 289, "one may call it a presumption or inference that the results which follow were intended". Crawford J, at 291, thought it unwise to conclude, before the matter fell for decision, that the criticisms expressed by the High Court should be applied in Tasmania. In acknowledging the difficulties posed by the wording of s17(3), he thought that "probably what the proposition means is that drunkenness alone is not a defence, and that it was not intended to be taken to mean that evidence of drunkenness is not relevant to the various aspects of mens rea, intend, mistake or knowledge". He summarised his view, at 299, "that the Code is silent on the effect or admissibility of evidence of intoxication in relation to offences to constitute which a specific intent is not essential". In Palmer v R (supra) Nettlefold J, at 147, regarded the provision as enacting the presumption which underpins the decision in Director of Public Prosecutions v Majewski (supra), but "only for the purpose of denying exculpatory effect to the evidence of drink taken" and that such was based on the requirement of public policy. Cox J, as he then was, at 155, found "it impossible in the circumstances of [the] case to find any justification for saying that intoxication was a relevant consideration in determining whether the appellant's voluntary and intentional act was one which he knew or ought to have known to be likely to cause death in the circumstances". The decision in Palmer v R (supra) is, of course, binding and requires application. The issue requiring consideration, however, arises out of the judgments of the High Court in Boughey v R (supra) and Hawkins v R (supra) and of the Court of Criminal Appeal in Hawkins v R (No 3) (supra).

23. In Boughey v R (supra) Mason, Wilson and Deane JJ, with whom Gibbs CJ agreed, at 28 - 29 determined that: "The starting point of the inquiry on the question whether an accused ought to have known that his or her actions were likely to cause death must be the knowledge, the intelligence and, where relevant, the expertise which the particular accused actually possessed" since: "It is what the particular accused, with his or her actual knowledge and capacity, ought to have known in the circumstances in which he or she was placed."

24. In the same case, Brennan J, at 45, stated that: "The criterion to be applied ... is whether any sober and reasonable man, having the accused's knowledge, experience and acumen, would have adverted to the possibility that his action might cause death and, adverting to that possibility, would have known that his action was likely to cause death. If the hypothetical sober and reasonable man would have known, it is right to find that the accused ought to have known that his action was likely to cause death".

25. The difficulty occasioned by the reasoning of the High Court in Hawkins v R (supra) and of the Court of Criminal Appeal in Hawkins v R (No 3) (supra) is that there no longer exists a requirement of a reasonable or ordinary person. Accepting that knowledge involves the reception of information from the surrounding circumstances or a state of awareness or consciousness received through the senses, it is difficult to see how evidence of impairment to such reception could not be relevant. In this case the process might be impaired by the operation of a mental disorder which, in turn, could be affected by the ingestion of alcohol. To permit the use of such evidence would, in my respectful opinion, be relevant to the aspect of knowledge referred to by Crawford J in Snow v R (supra). Absence of mental disorder would preclude use because of policy and require the test of a sober and reasonable man as stated by Brennan J. Presence of mental disorder requires consideration of the capacity of a person to assimilate information and conduct a reasoning process using such material. The effect of alcohol on that disorder is relevant and not precluded by policy.

Conclusion 26. 1 The Code, s157(1)(c) creates the crime of murder when knowledge of consequence is present. Knowledge of consequence is presumed if the surrounding circumstances ought to have given rise in the mind of the actor to an appreciation of probability.

2 The provision is substantive and not evidentiary.

3 The subjective characteristics of the actor determine whether appreciation of probability ought to have been held.

4 The Code precludes, by reason of policy, the use of intoxication as a "defence" to the crime of murder as defined by s157(1)(c).

5 The Code, s17(3) does not preclude the use of evidence of intoxication in the consideration of the question of actual knowledge. It may be used by a jury in its consideration of whether an accused knew of the probability of consequence.

6 Evidence of the existence of a mental disorder is relevant to the capacity of a person to possess an appreciation of risk.

7 Evidence of intoxication insofar as it interacts with the mental disorder is relevant to capacity and is not precluded by reason of policy.

27. The direction which will be given to the jury is that regard may be had to the evidence of disorder and the inter-relationship of intoxication with such disorder in its consideration of whether the accused ought to have known of the probability of death occurring by reason of his conduct. If the jury is not satisfied that such a disorder was existent at the time of the act of shooting or did not operate on the mind of the accused at such time, then evidence of intoxication is irrelevant to the deliberations of the jury with respect to this question.