58 There are very many "crimes" which are punishable under the Crimes Act (NSW), by imprisonment for life or for 25 years. For convenience a table of such offences is attached by way of an annexure to these reasons. While most of them are themselves crimes of specific intent, not all of them are. Some, for example s 32 (impeding endeavours to escape a shipwreck), s 46 (causing bodily injury by gunpowder etc) and s 204(b) (destruction of or damage to an aircraft or vessel) are made out by proof that the accused acted "maliciously", or with "reckless indifference". The Crimes Act provides, in relation to the definition of an act "done maliciously" that:
" 5 Maliciously : Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime."
59 Neither s 32 or s 46 are mentioned in part (a) or (b) of the table to s 428B(2), but s 204 is, however, included in part (b) of that table.
60 As was made clear in R v Stones (1956) 56 SR (NSW) 25 and R v Cunningham (1957) 2 QB 396, and, as s 5 of the Crimes Act also makes clear, crimes of malice require either intention or recklessness, each of which calls for a foresight of the consequences, in addition to the mental element required for basic intent.
61 The interpretation advanced by the Crown upon appeal would exclude some, but not all, forms of felony murder as offences of specific intent and would accordingly introduce another possible area of complexity in the directions which might, potentially, need to be given to a jury.
62 The issue before the Court comes down essentially to the question whether, as a matter of construction, bearing in mind the background to the amending legislation, murder, in all its forms, including cases of reckless indifference, and of felony murder, are to be regarded as coming within the operation of s 428B(1) and s 428C.
63 In support of the proposition that this question should be answered in the affirmative, counsel for the appellant placed some reliance upon the passage in Crabbe v The Queen (1985) 156 CLR 464, where the Court said (at 469):
" … on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur ".
64 That observation no doubt reflected the much criticised, although often quoted presumption of fact that a person intends the natural and probable consequences of his acts (for a criticism of its use see Smyth v The Queen (1957) 98 CLR 163, and Stapleton v The Queen (1952) 86 CLR 358 at 365.
65 In He Kaw Teh v The Queen (1985) 157 CLR 527, Brennan J, after noting the distinction in mental states between voluntariness and general (basic) intent, and between general and specific intent, made reference to this passage, in the course of observing at p 570:
" Both general intent and specific intent may be established by knowledge: the former by knowledge of the circumstances which give the act its character, the latter by knowledge of the probability of the occurrence of the result to which the intent is expressed to relate. But existing circumstances can be known more certainly than the probability of the occurrence of a future result, and therefore specific intent is usually established by proof of a desire or wish to cause the prescribed result, whereas general intent is usually established by proof of knowledge of circumstances prescribed by the statute as defining the act involved in the commission of the offence. Of course, proof of an actual desire or wish to do an act of the prescribed character is proof of general intent (cf Reynhoudt (1962) 107 CLR 381 at 398-399; Morgan at 210), but for practical purposes knowledge of the circumstances which give the act its character when an act is voluntarily done is the ordinary form of an intent to do it. A specific intent to cause a prescribed result can be, but is not ordinarily, established by knowledge that such a result will probably (or is likely to) occur: Crabbe (1985) 59 ALJR 417. Just as knowledge of the probable (or likely) results of an act establishes a specific intent to cause those results, so the doing of an act with knowledge that he circumstances are probably such as to make the act criminal establishes a general intent to do an act of that character." (Emphasis added).
66 These passages, and particularly that in He Kaw Teh, do need to be understood in their context. It is the case that a relevant state of mind, such as knowledge, or specific intent, can be inferred from conduct, or from the circumstances in which an act is done: see The Queen v Pereira (1988) 35 A Crim R 382 at 385. It does not, however, follow that intent and knowledge are synonymous, or equivalent states of mind for all purposes.
67 While the purposive rule of interpretation is embodied in s 33 of the Interpretation Act 1987 (NSW) and the provision contained in s 428H of the Crimes Act must be given full effect, so must the presumption that a beneficial interpretation is to be given to criminal legislation, when there is an ambiguity: R v Morgan (1993) 67 A Crim R 526 at 534 per Mahoney JA. Additionally, it is appropriate to have regard to the history of the development of the relevant law and the source from which the amending legislation was derived, here the decision in Regina v Majewski (1977) AC 443.
68 The justification for the creation of a distinction in relation to the offence of murder, between cases of specific intent, on the one hand, and reckless indifference, on the other hand, so far as the effects of intoxication are concerned, is not easy to see, and was not directly addressed in Regina v Majewski. So far as the House of Lords there dealt with the offence of murder, it was in the context of an offence charging an intent to kill or to cause grievous bodily harm. To that decision I will however return, since it needs to be understood in its historical context, and in the light of the policy considerations which appear to have prevailed over the illogicality in the development of the law which some of the Law Lords noted.
69 As Underwood J (as he then was) observed in Attorney-General's Reference No 1 of 1996: re Weiderman (1998) 7 Tas R 293 at 308-309, a code case which accordingly raised somewhat different considerations in relation the question there referred to the court:
" In early times, drunkenness was a circumstance of aggravation, not an excuse for criminal conduct. This attitude gradually ameliorated over the years so that drunkenness was neither a circumstance of aggravation nor amelioration until the mid 19th Century when there began to emerge in the common law a doctrine that drink might be pleaded in mitigation; but the limits of the doctrine were far from clear until R v Meade [1909] 1 KB 895 and a decade later, Beard [Director of Public Prosecutions v Beard (1920) AC 479]. In the latter case, Lord Birkenhead stated these conclusions at 501-502:
" 2 That evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent.
3 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.""
70 As Wright J also noted in Weiderman, at 316:
" Although Beard deals with intent and not with knowledge, it seems to me that the basic legal policy (there) acknowledged…should apply to all situations…where a subjective mental element is an ingredient of the crime alleged."
71 It may be noted that, at common law, knowledge was not an ingredient of the crime of murder: R v Moloney (1985) AC 905; and additionally, that Beard was rejected by the High Court in O'Connor v The Queen as stating the common law in Australia, particularly so far as the test was stated in terms of the capability of the accused forming intent.
72 The form of the offence, which involves reckless indifference to human life, has been regarded in this country as no less heinous than that which arises out of intent to kill or to cause grievous bodily harm. In Boughey v The Queen (1986) 161 CLR 10 (albeit a code case in which murder is defined in a significantly different way), Brennan J said (at 43):
" Although we have accepted in this country that an intention to kill is not necessarily the same mental state as knowledge that death will probably result, we have regarded the two mental states as comparable in heinousness. We have understood that to be the orthodox view of the common law. "
His Honour continued:
" In England, where the House of Lords has been astute to ensure that the doctrine of Director of Public Prosecutions v Smith [1961] AC 290 should not be revived in a new garb, their Lordships have relegated knowledge of the probability of death to the field of evidence, treating it merely as a foundation for an inference of an intention to cause death. In R v Hancock [1986] AC 455, at p 472, Lord Scarman noted that in R v Moloney [1985] AC 905, the House of Lords had 'made it absolutely clear that foresight of consequences is no more than evidence of the existence of the intent; it must be considered, and its weight assessed, together with all the evidence in the case. Foresight does not necessarily imply the existence of intention, though it may be a fact from which when considered with all the other evidence a jury may think it right to infer the necessary intent.' In this country we have followed a different path by declining to follow R v Smith and by acknowledging the separate mental states of intent and knowledge of likely consequences. But the notion which underlies both the judgment of this Court in Crabbe (1985) 156 CLR 464 and the speeches in Moloney and Hancock is that that the mental state which is necessary to establish the crime of murder when the accused does not actually wish that death should result from what he does is knowledge (or foresight) that that result is so probable or likely that the doing of the fatal act is as heinous as if the accused had wished that result. In either case the accused compasses the death of the person killed or of some other person. "
73 The absence of any logical basis for arbitrarily differentiating between the various forms of murder in terms of their seriousness, or between the public policy interests which make them punishable in accordance with s 19A of the Crimes Act, also has support in sentencing decisions such as Regina v Mills NSWCCA, 3 April 1995, Regina v JB and RJH (1999) NSWCCA 93 (in relation to felony murder); and Regina v Ainsworth (1994) 76 A Crim R 127, and Regina v Aiton (1993) 68 A Crim R 578 (in relation to reckless indifference).
74 As I have observed, the decision in Director of Public Prosecutions v Majewski (1977) AC 443, which was expressly not followed in O'Connor v The Queen, became the source for Part 11A. It was a case concerned with charges of assault occasioning actual bodily harm, and assault on a police officer in the execution of his duty. The defence of the accused was that the offences had been committed while he was suffering from the effects of alcohol and drugs. The question of law certified for the House of Lords was "whether a defendant may properly be convicted of assault notwithstanding that, by reason of his self-induced intoxication, he did not intend to do the act alleged to constitute the assault". That question was answered by all of the Law Lords, who sat on the appeal, in the affirmative.
75 The argument focussed upon the question whether the rule at common law, that self induced intoxication was not a defence, although mitigated for offences where special intent had to be proved, was still an effective rule. In the course of considering that question, considerable attention was given to the judgment of Lord Birkenhead LC with whom the other members of the Appellate Committee had agreed, in Director of Public Prosecutions v Beard (1920) AC 479, and, in particular, to the passage at p 504, which some commentators have suggested was contradictory of the primary thesis advanced by His Lordship as being confirmatory of the continued existence of the rule.
76 Consideration was also given to the logical and ethical basis for the distinction, which had been accepted between cases of specific and general intent. That, similarly, was a matter which had attracted critical comment, and in some jurisdictions, of which Australia became one, after the law was declared in O'Connor v The Queen (and see earlier Regina v Keogh (1964) VR 400 and Regina v Haywood (1971) VR 755); Scotland was another (Regina v Winchester, 1955, Unreported, and Her Majesty's Advocate v Kinnison [1870] 1 Coup 457; as was New Zealand (Regina v Kamipeli, unreported).
77 That the offence of assault is to be considered as an offence of basic intent, even though the striking is done with hostile intention, was seen by Lord Elwyn-Davies LC (at 471) and by Lord Edmund-Davies (at 487), to have support in the observations of Lord Simon of Glaisdale in Regina v Morgan [1976] AC 182 at 216:
" By 'crimes of basic intent' I mean those crimes whose definition expresses (or, more often, implies) a mens rea which does not go beyond the actus reus. The actus reus generally consists of an act and some consequence. The consequence may be very closely connected with the act or more remotely connected with it: but with a crime of basic intent the mens rea does not extend beyond the act and its consequence, however, remote, as defined in the actus reus. I take assault as an example of a crime of basic intent where the consequence is very closely connected with the act. The actus reus of assault is an act which causes another person to apprehend immediate and unlawful violence. The mens rea corresponds exactly. The prosecution must prove that the accused foresaw that his act would probably cause another person to have apprehension of immediate and unlawful violence, or would possibly have that consequence, such being the purpose of the act, or that he was reckless as to whether or not his act caused such apprehension. This foresight (the term of art is 'intention') or recklessness is the mens rea in assault."
78 The much cited passage in the speech of Lord Birkenhead LC (at 504), was to the effect that the course of decisions had established that:
" where a specific intent is an essential element in the offence, evidence of a state of drunkenness rendering the accused incapable of forming such an intent should be taken into consideration in order to determine whether he had in fact formed the intent necessary to constitute the particular crime. If he was so drunk that he was incapable of forming the intent required he could not be convicted of a crime which was committed only If the intent was proved. … In a charge of murder based upon intention to kill or do grievous bodily harm, if the jury are satisfied that the accused was, by reason of his drunken condition, incapable of forming the intent to kill or to do grievous bodily harm…he cannot be convicted of murder. But nevertheless unlawful homicide has been committed by the accused, and consequently he is guilty of unlawful homicide without malice afterthought , and that is manslaughter: per Stephen J. in Reg. V. Doherty (1887) 16 Cox C.C. 306, 307." (Emphasis added).
79 Thereafter his Lordship added, in a passage which has attracted judicial and academic comment, and a degree of puzzlement:
" I do not think that that the proposition of law deduced from these earlier cases is an exceptional rule applicable only to cases in which it is necessary to prove a specific intent in order to constitute the graver crime - e.g., wounding with intent to do grievous bodily harm or with intent to kill. It is true that in such cases the specific intent must be proved to constitute the particular crime, but this is, on ultimate analysis, only in accordance with the ordinary law applicable to crime, for, speaking generally (and apart from certain special offences), a person cannot be convicted of a crime unless the mens was rea. Drunkenness, rendering a person incapable of the intent, would be an answer, as it is for example in a charge of attempted suicide."
80 This passage was regarded as explicable by Lord Salmon (at 483), upon the basis that all His Lordship was intending to do was to "point out that drunkenness was relevant to all cases in which it was necessary to prove a specific intent or was not confined to those cases in which, if the prosecution failed to prove such an intent, the accused could still be convicted of a lesser offence". To similar effect were passages in the speeches of Lord Russell of Killowen (at 499), with which Lord Elwyn-Jones and Lord Diplock (at 473, 476) agreed. That the distinction between cases of general and specific intent was lacking in logic, was recognised, in particular, by Lord Solomon (at 482-483), by Lord Edmund-Davies by Lord Russell of Killowen (at 498), and in passing by Lord Elwyn Jones LC (at 469). Possibly, it was best articulated by Lord Salmon (at 482):
" As I understand it, the argument runs like this: Intention whether special or basic (or whatever fancy name you choose to give it) is still intention. If voluntary intoxication by drink or drugs can, as it admittedly can, negative the special or specific intention necessary for the commission of crimes such as murder and theft, how can you justify in strict logic the view that it cannot negative a basic intention, e.g., the intention to commit offences such as assault and unlawful wounding? The answer is that in strict logic this view cannot be justified. But this is the view that has been adopted by the common law of England, which is founded on common sense and experience rather than strict logic."