R v Faure [1999] VSCA 166

[1999] VSCA 166

Court of Appeal (Vic)|1999-09-24|Before: WINNEKE, P., BROOKING and ORMISTON, JJ.A.

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Court

Court of Appeal (Vic)

Decision date

1999-09-24

Before

WINNEKE, P., BROOKING and ORMISTON, JJ.A.

Source

Original judgment source is linked above.

Judgment (41 paragraphs)

[1]

The applicant and Lorna Stephens had begun a relationship about three weeks before her death. She had previously been in a relationship with a man named Stewart, who was serving a prison sentence and likely to be released in the near future. The applicant had said that there might be trouble when Stewart came out of prison and found that Lorna Stephens had formed another relationship. According to Lorna's mother, Christine Stephens, the applicant had produced a revolver and said he would shoot Stewart.

[2]

At about 11 p.m. on 5 August 1997 the applicant and Lorna Stephens went to her home, a bungalow next to a house at 27 Seaview Parade, Dromana. According to the occupier of the house, David Dunlop, he heard a car arrive at the bungalow at about 11 p.m. and about ten minutes later heard what sounded like an argument in the bungalow between Lorna Stephens and a man. It went on for about five minutes, after which he heard a loud cracking noise, like a car backfiring. Then everything went quiet. About half an hour later Dunlop heard the same male voice out in the street calling out "Lorna". The man, who was the applicant, came to Dunlop's front door and Dunlop asked him why he wanted Lorna. The applicant told Dunlop that she had his car. In the driveway were two cars, one being Lorna's red car and the other a yellow car which Dunlop took to be the applicant's. The applicant went into the bungalow, where Dunlop joined him shortly afterwards. The applicant was just inside the front door and, asked by Dunlop if he had seen Lorna Stephens, said "No". Dunlop then went into the bedroom of the bungalow and found Lorna Stephens lying on the bed, still alive, but obviously wounded. Dunlop came out of the bedroom and found that the applicant had left the bungalow and was walking briskly away, down Seaview Parade, towards Boundary Road. Dunlop then alerted a neighbour, Terence Swaney, and an ambulance was summoned at 12.27 a.m. At about 1.30 a.m. the applicant was arrested in Boundary Road, not far from Seaview Parade; the police had been searching for him. On being cautioned by the arresting officer the applicant said, "It was only a game". The officer noticed what looked like dried blood and dirt consistent with digging in soil on the applicant's hands. Asked how he came to have blood on his hands, the applicant replied, "There is no blood on them". Other police officers arrived and, in company with the applicant, searched for the firearm. At the applicant's suggestion they went down Boundary Road towards the freeway, searching for it. The applicant said he was not sure where it was.

[4]

The recorded interview conducted with the applicant began at 2.17 a.m. It was broken off more than once, and these interruptions included the medical examination and the second unsuccessful expedition in search of the revolver. A number of times during the interview the applicant said he had been drunk or half drunk at the time of the shooting. He had begun drinking at about 11.30 a.m. on the day of the shooting and had drunk a great deal. (I continue to give parts of his account.) He had met the deceased at about 2.30 that afternoon and had been with her from then on. That night they had ended up at her bungalow. There he had unprotected vaginal intercourse with her and she also performed oral sex on him. Then they decided to play Russian roulette with a six-shot revolver he had borrowed. (I do not draw attention to any of the numerous inconsistencies appearing in the record.) He discussed with her the dangers of playing that game, saying, "You can die here". She replied, "You gotta die sometime". She, too, had been drinking. They agreed that they would fire no more than two shots each. (By this, he no doubt meant to refer to the pulling of the trigger.) He placed a single cartridge in the cylinder. The cylinder was spun each time before the trigger was pulled. When he pulled the trigger he aimed to skim her head. First she pulled the trigger; then he did; then she did it again; finally, he pulled the trigger and a shot was fired. They were lying on the bed as they played the game. He must have been too drunk and pointed the revolver the wrong way. The game of Russian roulette was not preceded by any argument or raised voices. The alcohol and drugs had affected his judgment and made him stupid. He had smoked marijuana at a friend's place that afternoon. After the shooting he panicked. She was still alive: she had a pulse. He went to the Dromana police station but no one was there. He was on his way back to the bungalow when he was apprehended. He knew that the deceased had hepatitis C. He also knew that she did not have AIDS because she had showed him the result of blood tests she had had.

[10]

His Honour distinguished wilful murder from reckless murder - understandably, those expressions were not used - by telling the jury, by way of modification of what might be called the usual definition of murder given to juries, that there were two different intents, either of which would, in conjunction with the other elements of the crime, constitute the crime of murder. The first was the intent either to kill or to do really serious injury and the second was the knowledge that it was probable that death or really serious injury would result from the act done. His Honour then gave a direction about inferring state of mind that was in perfectly general terms. The judge went on to tell the jury, turning to the particular case, that "there is no argument from the defence that the acts that caused the death were conscious, voluntary and deliberate and were unlawful and dangerous" and that the defence contended for a verdict of guilty of manslaughter. His Honour added that the real issue was "whether the prosecution has proved beyond reasonable doubt that the accused acted with one of those two intents which are the essential elements of murder". But unfortunately the judge did not go further at this point. Although he did, in the course of summarising the arguments of counsel, deal with the question whether the accused had been, or might have been, playing Russian roulette, he did not, before turning to the evidence and then to the arguments of counsel, say to the jury that, in considering what he had rightly described as the real issue, it would be important for them to consider whether they were satisfied that, as the Crown alleged in its primary case (of wilful murder), he simply aimed the revolver at the deceased and pulled the trigger as opposed to taking part with her in a game in which they took turns at pointing the revolver at each other and pulling the trigger. For, as one would expect and as one is able to ascertain from the charge where it summarised the arguments of counsel, the Crown case of wilful murder was put on the hypothesis that no game was being played. It also appears from the charge, in so far as it deals with the arguments of counsel, that the Crown case of reckless murder was put on the hypothesis that a game was being played. It would have been helpful to tell the jury, clearly and distinctly, and immediately or shortly after defining the crime of murder to them, that the Crown put two alternative views of the facts, its first and primary case being one of wilful murder, no game having been played, and its secondary case being one of reckless murder, on the basis that a game was being played. It is, as I have said, possible to get this from his Honour's summary of the case for the Crown and the case for the defence (although it does not appear as clearly as one would wish), but it would have been much preferable to deal with this clearly and distinctly and at an earlier stage, when relating the law to the facts of the case.

[13]

The Crown submits now that when regard is had to the judge's summary of counsel's final addresses - these have not themselves been transcribed - the jury can have been in no doubt that the evidence of intoxication was relevant for their consideration in both respects. But I do not consider that the charge was adequate to apprise the jury of the relevancy and indeed importance of the evidence of intoxication. It may well be that, as Mr Tehan argued, the defect in the charge is of more significance in relation to reckless murder. But even as regards wilful murder, while the nature of the weapon used and the manner of its use - discharging a firearm into the head at point blank range - could be said to provide a firm basis for an inference of murderous intent even in the face of considerable evidence of intoxication, I doubt very much whether this verdict could have been upheld by the application of the proviso to s.568(1) of the Crimes Act even if the Crown case had been left to the jury as one of wilful murder only, on the basis that the game of Russian roulette was an invention. It is very surprising that in the present case the judge gave no direction to the jury about the significance of intoxication in relation to murderous intent and the state of mind required for reckless murder, and it is surprising that the very experienced counsel appearing to prosecute and for the accused did not draw his attention to the omission. Apart from a fleeting and adventitious reference to intoxication in the introductory part of the charge in which the credibility of witnesses is dealt with in the usual general way, there is no reference to intoxication in that part of the charge which gives the jury the law. There is in the part which summarises the evidence a summary of the evidence given about how much drink the applicant had taken and its apparent effect on him and of the general evidence of an expert witness about the effect of liquor, and there is a summary of that part of the argument of the Crown prosecutor and counsel for the accused in which reference is made to the evidence of intoxication. Counsel for the accused seems to have relied on this evidence as accounting for what might appear to be guilty behaviour after the shooting, as explaining inconsistencies between accounts given by the accused and, as regards the mental elements of the crime charged, as throwing doubt on the existence of that element as regards reckless rather than wilful murder.

[27]

The second additional point worth mentioning concerns the case of reckless murder. The crime requires knowledge that it is probable that death or grievous bodily harm will result from the act. The requisite state of mind is predicated upon an objective fact - a probability. The existence of this probability - the danger, as it may presently be called - seems to have been not discussed but rather assumed at the trial. Counsel for the applicant addressed on the basis that the question was whether his client had been shown to have knowledge of the (implicitly admitted) danger. There is no reason for doubting the correctness of the tacit concession. If one assumes that the weight of the loaded chamber does not affect the probable outcome, and that the cylinder is spun each time the trigger is pulled, the playing of Russian roulette with a six-shot revolver is like throwing a die in the hope of not getting a six. The applicant told the police that the firearm discharged on the fourth occasion and that he and the deceased had agreed that they would fire no more than two shots each. The probability of getting a six in four throws of a die is 671/1296: Eggleston, Evidence, Proof and Probability, 2nd ed., p.,16. But the case is not to be approached as Pascal would have approached it. Juries are not to be directed in terms of an "odds on" chance: La Fontaine v. R. (1976) 136 C.L.R. 62 at 99 per Jacobs, J.; Boughey v. R. [1986] HCA 29; (1986) 161 C.L.R. 10 at 15 per Gibbs, C.J. and at 19-22 per Mason, Wilson and Deane, JJ.; R. v. Piri [1987] NZCA 6; [1987] 1 N.Z.L.R. 66. The approach of the law has been pragmatic in matters of this kind. It has regarded as "dangerous" for present purposes the pulling of a trigger even though the probability of the discharge of the firearm was mathematically quite low. As long ago as 1839 it was accepted by the distinguished English Royal Commissioners inquiring into the criminal law (Holdsworth, History of English Law, vol.15, p.143) that it would be murder if, knowing that one only of two (or three or four) pistols set before him was loaded, but not knowing which one, the accused, for the pleasure of it, picked up one pistol, put it to another person's head and pulled the trigger with fatal results. It is for this and another reason worth quoting at length from the Commissioners' fourth report, contained in (1839) 19 Parliamentary Papers, pp.23-25:

[28]

"We proceed to offer some observations and illustrations, with a view to show that in the ordinary case where death is occasioned by the doing an act attended with manifest peril to life, the conclusion is properly not one of law but of fact, and that it is for the jury to decide whether the offender wilfully exposed life to manifest peril. Upon their affirming or negativing this proposition, the question whether he be guilty or not of murder, ought, we think, to depend. The 'mens mala', - the heart regardless of social duty, - are figurative expressions used to denote the criminal apathy or indifference with which an act is wilfully done which puts human life in peril. Whether such a peril be wilfully occasioned is a question not of law but of fact, depending on a consideration of the nature of the act done, the circumstances under which it was done, the probability that the act under those circumstances would be fatal to life, and the consciousness on the part of the offender that such peril would ensue. If A, knowing that one of two pistols was loaded with ball, but without knowing which, took one, and applying the muzzle to the head of B, pulled the trigger and shot him, having by chance taken the loaded one, this would be murder; for A wilfully placed B's life in peril by his act. Here it was an even chance whether B was killed or not, - but it is evidence that the principle and the law founded upon it must be the same, even although the probability were less; as for instance, though the selection were made from three or four (one only being loaded) instead of two; although no doubt the degree of probability may be an important circumstance in ascertaining the fact of the intention of the offender to put in danger. Neither the nature nor the degree of peril can possibly be the subject of legal definition; as well the knowledge of the offender that such peril exists, as the wilfulness of his act in proceeding notwithstanding that knowledge, are necessarily matters of fact, the existence of which is for the consideration of the jury. It may no doubt frequently appear, from the particular facts found by the jury, that the offender did wilfully expose human life to manifest peril, but still, as in numerous instances the court may be unable to draw the conclusion from the mere facts, it seems to be clear, as a general position, that the question is one of fact for the jury. In particular, it may be noticed that the fact of knowledge on the part of the accused, of the peril he was about to occasion by his act, must very frequently depend upon mere circumstantial evidence, upon the effect of which it is the province of a jury to decide. Malice, in the legal sense of the word, means, according to Mr Justice Foster, the mala mens, the heart bent upon mischief, as evidenced by general symptoms and circumstances. When this definition is applied to an ordinary case of implied malice, as where a man throws a heavy stone over a wall into a street, through which many persons are likely to be passing, malice thus defined assumes a more precise meaning. The offender in such case does not intend the death or hurt of any one in particular, - the act may kill a stranger or may do no hurt at all: there is nothing, therefore, to make it criminal, and so to constitute implied malice, but the peril of destroying life wilfully occasioned. The 'heart bent on mischief' must in this case, and it is apprehended in all others, in the absence of a special definite rule of law which defines what is meant by implied malice, consist simply in the disregard of life manifested by exposing life to peril, although no malice in the popular sense of the term exist against any individual. It is the wilful exposure of life to peril that constitutes the crime. If one, knowing cakes to contain deadly poison, were to scatter them in a public street, and death were the consequence, the act would be murder, for the offender knew that what he did was likely to occasion loss of life; but if one did the same act without knowing or suspecting that the cakes contained poison he would be innocent in law as well as in morals, for, although the act be in truth equally dangerous whether knowledge exist or not, in the one case great peril to life is wilfully occasioned, and in the other not. And so in all cases it is essential to the criminality of the act, both in law and morals, not only that the act should in its own nature under the circumstances be attended with peril to life, but that the offender should be aware of such peril. Where the offender does an act attended with manifest danger to life wilfully, that is with knowledge of the consequences, he may properly be said to have the 'mens mala, or heart bent upon mischief'; but if he does an act, however dangerous it be in its own nature, without any knowledge or suspicion of its tendency, that is, if he does not wilfully place life in peril, he cannot be said to show the mens mala, or heart bent on mischief. In such cases, therefore, it is plain that implied malice in law, according to Mr Justice Foster's notion, means nothing more than the state or disposition of the offender's mind when he wilfully does an act likely to kill or wilfully intends to put life in peril; but this is a conclusion to be drawn from the facts, viz., the probability that death will result from the act under the particular circumstances of the case, and the intention of the offender to occasion the peril regardless of consequences. ... In so atrocious a case as that of scattering poison, above, supposed, no doubt could well be entertained as to the guilt of the offender, dependent as it is on the circumstances of the act being in its own nature attended with manifest peril to life, and of the criminal intention on the part of the offender wilfully to place life in peril. In other instances, although the evidence be not so cogent, it will be found that the difficulties arise not from the necessity of calling in aid the operation of any new principle, or the applicability of those adverted to, but merely from doubt arising upon the matter of fact. The degree of probability that death will ensue from the act is susceptible of every variety from moral certainty to the remotest possibility; - the intention of the actor is also capable of degrees, closely indeed dependent on the greater or less degree of probability of mischief, from a direct intention to destroy life, to perfect innocence. And such varieties, it may be observed, are not merely in proportion to the risk, but depend also on the knowledge and consciousness of the risk to life. These elements are obviously matters of fact, to be decided as facts; they are beyond the reach of definition, and when probability of loss of life from doing the act, the knowledge of that probability on the part of the offender, and his criminal intention to occasion the risk have been determined in fact, the principle of law applies. It is upon these principles that the different degrees of legal guilt, in the absence of a direct intention to kill, depend. If poison instead of being, as in the case above supposed, used in such a manner as to occasion manifest danger to life, and with consciousness and knowledge of such danger, were to be used for the destruction of rats by placing it in a closet locked for greater precaution, the loss of human life would still be a barely possible, although most improbable, result from the act; a thief might by possibility break open the closet, and mistaking the poison for food, eat it and die. Here the fatal result would occur without the least blame, legal or moral, on the part of him who thus laid the poison. But between these two extreme cases lie an infinity of others, in respect of which important legal distinctions are requisite, although they may vary almost imperceptibly from each other, and particularly as to the degree of risk to human life which may be incurred. ... [T]he question is properly one of fact, as dependent on the existence of peril, and the design to expose to peril."

[31]

Text writers have adopted the view that Russian roulette is dangerous in the sense now under discussion: Glanville Williams, Criminal Law - The General Part, 2nd ed., pp.59-61; Fisse, Howard's Criminal Law, 5th ed., pp.59-61; Gillies, Criminal Law, 4th ed., pp.632.3; Laws of Australia, Subtitle 10.1, para.68. They give the example of Russian roulette. So did White, J. of the Supreme Court of South Australia in R. v. Marshall (1986) 43 S.A.S.R.448 at 477, although the example given is of firing once with four rounds in a six-round chamber. In my own view it is dangerous in the necessary sense to fire once with one round in a six-round chamber. As a matter of interest, an example of Russian roulette in civil litigation where the player tried to cheat will be found in National and General Insurance Co. Ltd. v. Chick [1984] 2 N.S.W.L.R. 86, while in R. v. Lamb [1967] 2 Q.B. 981 the accused was charged only with manslaughter where he had pointed a revolver at a friend and pulled the trigger as a joke, the cylinder containing two cartridges, neither being opposite the barrel and the accused not knowing that the pulling of the trigger would rotate the cylinder. What Lamb did was of course very different from spinning the cylinder and I mention the case only as a matter of interest. In the criminal law, actual examples of Russian roulette are hard to find except in the United States. A Singaporean case in 1953 is mentioned by Glanville Williams, p.60, but there the charge was not one of murder. In 1946 the Supreme Court of Pennsylvania had before it an appeal by a young man of 17 convicted of the reckless murder of a 13-year-old boy with whom he had played "Russian poker": Commonwealth v. Malone 354 Pa. 180; 47 A. 2d 445 (1946). In Pennsylvania murder was divided into degrees by a statute which did not modify the common law rules defining murder, and in Malone the law was said to require for reckless murder an act of gross recklessness from which the defendant must reasonably anticipate death as likely to result. The youth had placed a single cartridge in one of the five chambers of a revolver - he swore it was the chamber immediately to the right of the firing chamber - and placed the revolver against the boy's side. He had then, without any spinning of the chamber, pulled the trigger three times, the third pull resulting in a fatal wound. The Supreme Court of Pennsylvania had no hesitation in affirming the conviction, observing (at 449) that the act had been done "in reckless and wanton disregard of the consequences which were at least sixty per cent certain from his thrice attempted discharge of a gun known to contain one bullet and aimed at a vital part of Long's body". In a later case - Commonwealth v. Ashburn 459 Pa. 625, (1975) - a hopeless attempt was made by the defendant to treat this remark as defining murder in the second degree as requiring an act at least sixty per cent certain to result in the death of another, and the Supreme Court of Pennsylvania said, at 633, that the application of the principles of law "does not depend on any precise mathematical calculation of the probable consequences of the defendant's acts". This accords with what was said in the passages cited above from La Fontaine and Boughey and in the New Zealand case of Piri. In Ashburn, according to the defendant he had produced a revolver to show to his companion, who then brought up the subject of Russian roulette; he himself had then loaded one chamber, pointed the gun at his companion and pulled the trigger twice; the gun had discharged on the second pull.