R v Hodgson [1985] TASSC 40

Supreme Court of Tasmania|1985-08-21|Before: Dixon CJ, Windeyer J, Gibbs J, Menzies J, Nettlefold J, Cosgrove J, Cox J

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: R v Hodgson [1985] TASSC 40; [1985] Tas R 75; A40/1985

1 The essential point which arises in this case is the correct construction of s267(3) of the Criminal Code.

2 The phrase "An act causing injury to property" should be construed as referring to all the elements of the crime charged other than the mental element. The word "act" carries that meaning in s383(2) of the Code and I think it carries it in this subsection also. Construing the phrase in that way is to take the same approach as was taken by Dixon CJ and Windeyer J in Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56. It is now part of our legal history that that aspect of their reasoning in that case did not survive. What survived from that aspect of Vallance was the narrow view of the scope of the word "act" in s13(1). The survival of that narrow view and the whole context, considered with the aid of the light of legal history, supports the view that the wide meaning should be given to this phrase. A fundamental notion is that, if possible, effect should be given to every word of the statute. Obedience to that rule supports the construction which I have placed on the phrase under consideration.

3 The remaining question is what does the word "wilfully" cover. The learned trial judge followed the dicta of Gibbs J in R v Burnell [1966] Qd R 348 and specifically adopted the following passage from that judgment "... it is not enough that the accused did the act which resulted in setting fire to the building foreseeing that his act might have that effect but recklessly taking the risk; it is necessary that the accused did the act which resulted in setting fire to the building with the intention of bringing about that result."

4 The critical proposition in this view is that proof of recklessness will not suffice to ground liability to conviction in respect of any of the crimes governed by section 267(3). With respect, I do not agree and there are the following essential grounds for my dissent:-

(1) I prefer to follow the dicta in Vallance (supra) as to the scope of the term "intention". The dicta of Gibbs J on that point take a view which is so narrow as to conflict with the facts of legal history and the public interest.

(2) To follow the course stated in (1) will leave our law in Tasmania consistent, speaking generally, with the law in other important common law jurisdictions. We should not get our law out of line with the law of these places when there is no sufficient reason for doing so.

5 The dicta in Vallance (supra) which should be followed are:-

Dixon CJ at p59 (adopting Kenny, Outlines of the Criminal Law):-

"... in law it is clear that the word 'intention' like the word 'malice' covers all consequences whatever which the doer of the act foresees as likely to result from it, whether he does the act with an actual desire of producing them or only in recklessness as to whether they ensue or not."

"But in s13(1) I do not read the word 'intentional' as bearing a meaning which requires that the end must be positively desired. I take it in the sense explained by Sir Courtney Kenny, an explanation he gave when he published his book in 1902. He contrasts it with the more ordinary use of the word which excludes a result that a man does not desire but foresees as likely, one the risk of which he runs possibly with regret."

"This conclusion, moreover, seems to me in line with what had long ago been decided in relation to the offence of 'maliciously wounding' (24 and 25 Vict c 100 s20) viz., that an intention to do an injury of the kind in fact done is an element essential to liability but that whatever the doer of an act foresees as likely to result from it is within the ambit of his intention - see Kenny's Outline of Criminal Law 17th ed (1958) pp192-194."

"Because intent is a state of mind it becomes necessary to ask what is that state of mind; what for the purposes of the criminal law is comprehended in the idea of an intentional act. Under the law apart from the Code, an accused would be guilty of unlawfully wounding if his actual purpose was to inflict a wound: he would also be guilty if, without any actual purpose to wound anyone, but foreseeing that what he was about to do was likely to cause a wound to someone, he went on to do it. The common law treats what was done recklessly in that way as if it had been done with actual intent. It says that a man who actually realises what must be, or very probably will be, the consequence of what he does, does it intending that consequence. The word 'intentional' in the Code carries, I think, these concepts of the common law."

6 History teaches us that people were found guilty of crimes of this type on the basis of recklessness (R v Cunningham [1957] 2 QB 396 at 399). The word "wilfully" being a word of doubtful meaning, it is permissible to look at this history in construing the Code. There is no reason to think that Parliament intended to narrow the grounds of liability in this area. The reasons for the adoption of the word "wilfully" rather than the word previously used, "maliciously", are more likely to be found in the explanation given by Dixon CJ in Vallance at p59.

8 This Act expressly envisages liability based on recklessness and the authors of it saw this as being consistent with long established principle. (See Smith and Hogan: Criminal Law 5th ed p632). That Act has produced the difficult decision in Caldwell [1982] UKHL 1; [1981] 1 All E..R. 961 but that decision need not trouble us. The construction suggested above will leave our law consistent with the basic principles operating in England.

9 See Crimes Act 1958, Division 3, ss196 ff and R v Whitehead [1960] VicRp 3; [1960] VR 12 (Bourke's Criminal Law in Victoria, 2nd ed, p286).

10 Crimes Act 1900-1968, ss194 ff and s5 (Criminal Law in New South Wales, vol 1, pp12 and 244. Watson and Purnell).

11 See R v Lockwood ex parte Attorney-General [1981] Qd R p209.

12 Crimes Act 1961. Section 293 expressly recognises liability based on recklessness.

13 For these reasons I find myself in agreement with the view expressed by Cox J on this point in McIntosh and McIntosh v Lowe (1983) 8 A Crim R 471 at 477.

14 The case of R v Moloney [1984] UKHL 4; [1985] 1 All ER 1025 was a murder case and the court was concerned with the mental element in murder. The dicta in the case should not be taken as disturbing a long established principle in a very different area of the criminal law, namely, criminal damage to property.

15 With respect, for these reasons I am of the opinion that the learned trial judge failed to direct the jury correctly in that he failed to direct in accordance with the above extracts from the case of Vallance.

16 I have no doubt that it is a case where the Attorney-General should be granted leave under s401(2)(b) of the Code. An important point of law is involved and the defects in the summing-up could account for the acquittal.

17 It was argued that the Attorney-General should not be granted leave because he failed to notify his intention to appeal during the trial as required by s407(3)(a) of the Code. Of course, that argument is devoid of merit. But, with respect to those who hold a contrary view, I find that it lacks substance as well.

18 The essential first step in dealing with this argument is to classify or categorise the question. And the correct categorisation is one which involves a recognition of the important fact that, primarily, it is a question arising in the field of interpretation of statutes. It is to the cases and authorities on the interpretation of statutes to which we must first go in search of a solution. The rules of the criminal law are of secondary and not primary importance in the search for the correct solution. And the authorities on the interpretation of statutes provide us with some very helpful guidance. If s407(3)(a) were part of a statutory scheme providing a remedy by way of appeal to the citizen I have no doubt that the rule in Heydon's case would be regarded as applicable to its construction. And the scheme would have been treated as a remedial or beneficial one which was to be construed so as to give the fullest relief which the fair meaning of its language will allow. (See Pearce: Statutory Interpretation in Australia, 2nd ed, pp137-8). And there are cases which take that approach in the area with which we are concerned, namely, statutes providing for appeals in criminal cases. (See, for example, R v Mellor [1858] EngR 84; (1858) 169 ER 1084; R v Batchelor (No 2), [1935] NZLR 1016 at 1029). In Mellor Coleridge J said that such provisions "ought to receive the largest and most liberal interpretation".

19 n Batchelor (No 2) at p1029 Fair J said " ... the section is a remedial one, and should be construed liberally, unless there are strong considerations against such construction."

20 e are concerned with a provision which is part of a statutory scheme designed to give the Attorney-General a limited right of appeal. The remedy, in this instance, was created for the state and not the citizen. But that circumstance does not detract from the proposition that the statutory scheme should be construed with a view to giving full effect to the remedy which Parliament intended. s407(3)(a) is a subordinate provision in the scheme which should not be construed so as to frustrate the remedy but to advance it. That notion or a similar one has led to the situation that provisions regarding the giving of notice often receive a liberal interpretation (Maxwell on Interpretation of Statutes, 12th ed, p99 and the cases there cited).

21 Our friends in New Zealand have had statutory provisions providing for notice during the trial as a condition precedent to an appeal. I adopt the view expressed in Adams Criminal Law and Practice in New Zealand, 2nd ed, p839 concerning the meaning of the phrase "during the trial" in such a provision. That view is that the notion that the trial comes to an end with the verdict of the jury is too narrow and the phrase should be construed liberally.

22 he Queen v Vodden [1853] EngR 45; (1853) 169 ER 706 is authority for the proposition that a trial has not necessarily ended simply because a verdict has been recorded and the prisoner discharged. There is the following statement in Garrow and Willis: Criminal Law, 5th ed, p346:-

"If through mistake the wrong verdict is delivered by the foreman, it can be corrected provided this is done promptly after the verdict is recorded: R v Parkin (1824) 1 Mood 45; or after the prisoner has been discharged, but while the jury is still in the jury box: R v Vodden [1853] EngR 45; (1853) Dears 229; 23 LJMC 7 and Archbold's Criminal Pleading, 36th ed, p180."

23 or many purposes a trial is not at an end until sentence is passed (see G_arrow and Willis_ (supra) p357 or, perhaps, until immediately after the passing of sentence (Adams (supra), p839).

24 shall not attempt any formulation purporting to lay down a rule the application of which will supply a ready answer to the question when criminal trials end. Circumstances vary so much that we should not seek some rigid rule of universal application. We should proceed from case to case in a common sense way.

25 n this case I have no doubt that the prosecution gave notice "during the trial". The purpose of the paragraph in the Code is obvious enough. It is that the accused should be told at the trial whether the Crown intends to take the matter further or whether, on the other hand, his acquittal can be treated as final. That purpose was achieved in this case. To deny that is to be pedantic in an area where, in accordance with the rules I have quoted, a quite different attitude of mind is called for.

26 n officer of the court called upon to record what occurred "during the trial" would have done right to record that the prosecution gave notice. A journalist reporting the case would have been right had he reported "at the trial the accused was acquitted but the Crown gave notice of appeal". This non technical approach is the approach which the court should take as it is the one which conforms with the rules referred to above.

27 or these reasons leave to appeal should be granted and the appeal should be allowed. However, the Crown did not press for a new trial and, hence, one should not be ordered.

28 here are three matters for decision by the Court. They may be described as (1) The Preliminary Point, (2) The Merits of the Application for Leave, and (3) The Mental Element in the Crime of Arson. A resolution by the Court of either the first or the second matters in a way adverse to the Crown would dispose of the whole application. But, as I do not know what decision my brother judges will arrive at on the first matter, and believe that the Court will resolve the second matter favourably to the Crown, I must deal with matters 1 and 3. I will add a few words only in relation to the merits of the application for leave.

29 he respondent was charged on indictment with the crime of arson. The jury returned a verdict of "Not Guilty". Pursuant to s401(2)(b) of the Criminal Code the Attorney-General seeks the leave of this Court to appeal against the acquittal on a question of law alone. It is a condition precedent of any such appeal or application that the Attorney-General (or his counsel) should have notified "his intention to do so [ie, appeal] during the trial in the presence of the accused or his counsel". Section 407(3). When the jury returned to the court to announce their verdict, the following words were spoken:-

"ASSOCIATE: Are ten or more of you agreed upon your verdict?

ASSOCIATE: How say you, is the prisoner at the bar guilty or not guilty in respect of the one count of arson?

ASSOCIATE: Hearken to your verdict as the Court records it, you say that George William Hodgson is not guilty of arson, and so say ten or more of you.

HIS HONOUR: Yes, alright. Well, you are discharged from any further service now. That is the end of your service at this Sittings, ladies and gentlemen, thank you.

MR CULLEN: If it please your Honour, might I, on behalf of the Attorney-General, give you notice of appeal by the Crown?

30 It is common ground that the words used by Mr Cullen were spoken in the presence of the accused and his counsel and were a sufficient notification of the Attorney's intention to comply with the provisions of the Code. However, counsel for the respondent contends that, as the accused had been discharged before Mr Cullen spoke, the trial was concluded and the Attorney accordingly had not given notice of his intention "during the trial". Accordingly the condition precedent to the present application has not been fulfilled. There is no suggestion of any prejudice to the accused as a result of the time at which notice was given. The contention of counsel for the respondent is simply that the application for leave is incompetent for want of compliance with subs(3) of s407.

31 he question for determination is, therefore, whether the trial was concluded when Mr Cullen spoke. This involves a consideration of the nature of a "trial" and of the Attorney-General's power in relation to appeals. (I will hereafter use the term 'the Crown' to include the Attorney-General). It will be necessary to refer to a number of the provisions to be found in the Code. I wish, however, to begin by some references to the law in other jurisdictions.

Archbold 40th edn, Paragraph 619.

"Upon the delivery of the verdict, if the defendant is thereby acquitted on the merits, he is forever free and discharged from that accusation, and is entitled to be immediately set at liberty unless there is some other legal ground for his detention.

...

A verdict is not completed until a jury has dealt with all possible alternative verdicts open to them on the indictment. If a judge discharges a defendant before the jury have completed their verdict, the discharge is a nullity: R v Carter and Canavan (1964) 2 QB 1: 48 Cr App R 122."

Halsbury 4th edn, Vol 11, Paragraph 322.

"If the verdict is one of not guilty, the defendant must be immediately discharged, unless there is another indictment against him on which it is proposed to proceed.

If the jury find the facts in a special verdict, the defendant may be detained in custody or admitted to bail until judgment is given."

Green v Croome [1908] 1 KB, 277.

32 his was a civil case. The decision was that the time fixed for an application for a new trial was from the date of the finding and the discharge of the jury, and not from the date of the judgment on further consideration.

33 R v Grant [1951] 1 KB, 500 at 503. (Lord Goddard CJ delivering the judgment of the Court.

"The trial is not complete until sentence has been passed or the prisoner has been ordered to be discharged."

34 In one respect, this is consistent with the references in the Code to "a sentence passed on a person at his trial". (See s403(3A)).

35 Stone v Scaife [1944] NZLR, 698 at 700. Another civil case following Greene v Croome (supra). Callan J said:-

"The trial ended when the verdict was given and the jury discharged."

Para646 - "If the jury find that the accused person is not guilty, or give any other verdict which shows that he is not liable to punishment, he is entitled to be discharged from the charge of which he is so acquitted."

Para 624 - "A verdict is not complete until the jury have dealt with all the possible verdicts open on the indictment and the judge discharges the prisoner before the jury have completed their verdict that discharge is a complete nullity: See R v Carter (1964) 1 All ER 187; (1964) 2 QB 1; 48 Cr App R 122.

Where the foreman has delivered the wrong verdict by mistake it can be corrected provided this is done promptly after the verdict is recorded (R v Parkin (1824) 1 Mood 45); or after the prisoner has been discharged but while the jury are still in the jury box (R v Vodden [1853] EngR 45; (1853) Dears 229; 23 LJMC 7).

After the jury have been discharged and separated they cannot return to the box and give a verdict: R v Atkinson (1907) 7 SR (NSW) 713."

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37 I turn now to the Code. Section 384 provides that "When a person has been acquitted of a crime charged in an indictment he is entitled to be forthwith discharged, so far as regards that crime." I draw attention to the fact that the entitlement of the accused is to discharge forthwith.

38 A person who is convicted must be asked, after conviction, and before sentence, whether he has anything to say why sentence should not be passed on him. This is to give him an opportunity to move in arrest of judgment (s385). But the Crown cannot move in arrest of judgment on a proper acquittal.

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39 In the present case, the acquittal was not mistaken, nor in any way an improper exercise of the jury's function. The Crown's contention that the jury were not properly instructed in no way reflects on the propriety of the verdict. The accused's entitlement was discharge forthwith - not only discharge from custody but discharge "so far as regards that crime." The jury was discharged. It is not clear whether they had left the box, but that is for these purposes, immaterial. The accused was in fact discharged. The "trial", in every ordinary sense, was over. I therefore conclude that, unless some extended meaning ought to be given to the words "during the trial" Mr Cullen's notification to his Honour was not a compliance with the subsection. But before I move to consider whether it is appropriate to give the phrase that extended meaning, I wish to deal with another matter.

40 It was contended in argument that the trial judge should not have discharged the accused without asking counsel whether either of them wished to move the court, and that therefore the order of discharge was conditional or a nullity. I disagree. His Honour's order gave proper effect to the accused's entitlement. There was no motion which his Honour could reasonably anticipate. He had certainly, in my view, no duty to enquire of Crown counsel whether he wished to give notice of intention to appeal. There was no defect in the procedure of the court such as to require that his Honour vacate the order of discharge. His Honour did not in fact vacate the order of discharge, and in my opinion, he had, in the circumstances in which he found himself, no power to do so. It cannot be said that the discharge of the accused was ineffective in any way.

41 The words "during the trial" are plain enough. They should not, in my opinion, be given an extended meaning unless the context in which they appear is such as to suggest that Parliament so intended, or must, given the purpose of the subsection, be taken to have so intended.

42 It is clear that Parliament wished to ensure that acquittal remained as final as it could be consistently with giving the Crown a right to apply for leave to appeal. It obviously recoiled from the proposition that a person acquitted should be left to wonder whether he might not at some later time find himself once more in jeopardy. Such an intention accords with our traditional sense of justice. It is also clear from subs(4) of s407 that Parliament intended the notice to be given while the accused was still in the custody of the court. That subsection gives no power of arrest. It must follow that it was not intended by Parliament that notice should be given after the accused was at liberty to leave the court - as in most cases he would be after discharge. It must be assumed that when Parliament chose to limit the time during which notice might be given to the duration of the trial it was well aware of the meaning of that concept. It is not for the court to alter Parliament's decision.

43 The only remaining question is whether the requirement that notice be given "during the trial" is so inconsistent with the rights of appeal given to the Crown as to render those rights worthless. If this were so, it would be arguable that the words should be given an extended meaning. The Crown rights of appeal are set out in subs(2) of s401. They are -

Such an order can be made only after conviction (s385). There is room for notice to be given after judgment is arrested and before acquittal. Further, a notice of prospective intention can be given before judgment is pronounced, and, if necessary, a request for delay of acquittal so as to enable a final notice to be given. But, in my view, a notice of prospective intention, ie, that an application will be made if judgment is arrested, would be a compliance with s407(3).

(2) By leave against acquittal on a question of law alone.

If acquittal is directed, notice can be given either prospectively or between the indication by the trial judge of his intention to do so and the actual verdict. Counsel informs us that this latter course has been taken by the Crown in some cases. In a case like the present one, a prospective notice can be given at any time after the trial judge has ruled on the law. There is, in every case, an opportunity to do so.

(4) By leave against an order quashing an indictment

Motion to quash may be moved before arraignment, ie, before the trial (see ss351 and 352 and Archbold op cit, para120). If the indictment is quashed, the accused is entitled to be discharged, but may be re-indicted (s352(4)). In this context, the words "during the trial" can mean "during the trial of the motion" for no other trial has commenced. Where the defect in the indictment appears during the trial by jury, the words would have their ordinary meaning. Again, prospective notice can be given or the procedure suggested in relation to arrest of judgment could be followed. There will almost always be an opportunity to do so, and always counsel can request that an opportunity be provided. But in this case, as there is no acquittal, the argument is academic.

(5) By leave, against an order upholding a demurrer**.**

It seems to me that a demurrer must be made and filed after arraignment so that the trial has commenced. A judgment allowing a demurrer must order that the accused person be discharged from the premises set forth in the indictment. Only a prospective notice could be given, but that fact creates no real difficulty for the Crown. I see no unreality or rudeness in Crown counsel notifying the court that if his submission is rejected, he would wish to take the matter further and accordingly gives notice of intention to appeal. An intention need not be a present unconditional non-negotiable resolve. As everyone agrees in relation to the third matter before the Court, an intention is a state of mind.

44 It seems to me to follow that if the words are given their ordinary meaning, the subsection must be taken to contemplate that in the ordinary course of things the Crown will give prospective notice during or after the conclusion of the argument of the legal point with the resolution of which it is dissatisfied and which it wishes to argue again in this Court. I see no real difficulty for the Crown in that conclusion, certainly none that would warrant a straining of the language of s407(3). Parliament, in its anxiety to protect and preserve the finality of acquittal, chose a moment in time after which the notice may not be given. It may be argued that some other moment in time would have served its purpose as well or better, but that is beside the point. It is the Court's duty to give effect to the words of the statute. In my opinion, the application is incompetent.

45 The contention of Crown counsel is that the jury were incorrectly instructed as to the mental element in arson. He contends that they should have been instructed that proof of the deliberate act of igniting some paper or other material coupled with proof of foresight that the fire so ignited might spread to and char the building is sufficient to found a verdict of guilty. It was therefore necessary to determine whether the jury, consistently with the verdict of not guilty which they delivered on the instructions actually given them, could reasonably have found a verdict of guilty had they been instructed in the way suggested by the Crown. In my opinion, that question must be answered in the affirmative.

46 The directions which the learned trial judge gave to the jury are succinctly stated in the memorandum which he gave to them, which was in these terms:-

"(a) The accused cannot be convicted of the crime of arson with which he is charged unless the Crown proves beyond reasonable doubt that he unlawfully set fire to the building, and that at the time he did so he had the intention of bringing about that result.

(b) Intoxication of the accused, if any, at the time he set fire to the building, brought about by his voluntary consumption of intoxicating liquor or drugs or both could not provide the basis of a defence unless such intoxication rendered him incapable of forming the intention of setting fire to the building.

(c) The accused cannot be convicted unless you are satisfied beyond reasonable doubt that at the time he set fire to the building (if he did), he was not intoxicated by drink and/or drugs to the extent that he was incapable of forming the intention of setting fire to the building."

"The Crown must prove beyond reasonable doubt that if he did unlawfully set fire to the building, which is a question of fact for you, that at the time he did that he intended to bring about that result, ie he intended to set fire to the building.

Could I invite your attention to the fact that it's not as the phrase might sometimes be used loosely - loosely used 'intending to burn down the building' not that and that's not the ingredient of arson. The ingredient is setting fire to the building which is quite a different thing or may be quite a different thing. Setting it on fire, that's not the same as burning it down. It may in fact be burnt down but it's unlawfully setting fire to it, that's the basis of the charge and it must be proved beyond reasonable doubt that he intended to set fire to the building. That he knew what he was doing, he knew he was setting fire to the building, that that's what he was about and he intended to set fire to the building and he did set fire to the building. All those things must be proved beyond reasonable doubt,

That's in contention of course because the Defence is that he didn't intend to set fire to the building and in fact doesn't really know that he did set fire to the building, but assumes he must have had something to do with it because he was there when the fire started and he was the only person there, no doubt. You can infer from what he says when the fire started."

"I'll just go on now to remind you about the accused's version of events because the substance of what he says is clear enough. He was, to use again the vernacular phrase 'stoned', intoxicated to a high degree as a result of the very large amount of alcohol and the amounts of marihuana that he consumed over the same period of time and which therefore the Defence would ask you to infer, no doubt, had a cumulative effect on him and his evidence relates to the state of his intoxication and how he was feeling when interviewed and the like, all going to the proposition that he was so intoxicated and affected by alcohol and drugs that he didn't know what he was doing and was incapable of forming any intention of burning - of setting fire to the house and that in fact he has no memory whatever of having done so and therefore couldn't have intended to do it, never did in fact intend to do it and that therefore the two issues set out in points A and B of the document must be resolved in his favour because at least there must be a reasonable doubt the Defence is saying. You don't have to satisfied that he didn't intend to set fire to the building, it's only a question of whether there's a reasonable doubt whether he did. If there's a reasonable doubt whether he intended to set fire to the building he must be acquitted."

48 The notice of application for leave to appeal sets out the following two basic grounds alleging error.

1 That the Learned Trial Judge erred in law in directing the jury that the Respondent could not be convicted of the crime of Arson unless they were satisfied beyond reasonable doubt that he unlawfully set fire to the building in question and that at the time he did so he had the intention of bringing about that result.

2 That the Learned Trial Judge erred in law in failing to direct the jury that for the purposes of Section 267(3) the act causing injury to property could be said to have been done "willfully" if the accused person (1) had an actual intention to do the particular kind of harm that in fact was done or (2) deliberately did an act (ie that it was a willed act) aware at the time he did it that the result charged in the indictment was a likely consequence of his act and that he recklessly did the act regardless of the risk."

49 Then follow grounds as to the direction on intoxication, which Mr Mellick did not argue because they were, in his submission, only ancillary to these.

50 Ground 2 is instructive, because it makes a firm distinction between, on the one hand, an actual intention to set fire to the building and on the other hand an act "deliberately" done (a) with foresight that setting fire to the building was a likely consequence of that act and (b) done recklessly and regardless of the risk that such a consequence would ensue.

51 It seems to me that any argument based on that ground must at all times continue to assert that there is a difference between the two concepts contrasted therein, and that the mental element postulated in the second concept is a condition of the mind which falls short of "intention". If there is no difference, and the second concept is merely an expanded re-statement of the first, the only complaint which the Crown could sensibly make was that the learned trial judge failed adequately to explain "intention". But that is not the Crown's complaint here. It complains by its notice that the trial judge misdirected the jury, ie, directed their minds to an entirely inappropriate concept, with the result that they did not decide the true issue.

52 I mention this matter at the outset, because it seemed to me that Mr Mellick (for the Crown) did not in argument always adhere to the assertion of a difference between the two concepts. Indeed, in reply, he seemed clearly to be contending that, whenever the Code makes an intention to bring about a result a constituent of a crime, it means that the Crown must prove as the mental element no more than performance of a voluntary and intentional (s13) act coupled with foresight of the likelihood of the stated result. He said, for example, that the words "with an intention to cause the death of any person" in s157(1)(a) do no more than invoke the application of the second concept and that intention in s157(1)(a) is the same concept as that applicable to "wounding" in s172. That submission is, in my view, quite untenable.

53 However, it is perhaps unfair to Mr Mellick to dismiss[1] his argument in that way. It may be that the proposition which he was endeavouring to articulate was this:- Intent may be proved by evidence demonstrating that the accused foresaw the likelihood of the occurrence of the stated result and yet persisted in his voluntary and intentional act. With that proposition I would not argue, provided that it was qualified by some words such as "in an appropriate case" or " in some cases". But acknowledgment that evidence of foresight and persistence may sometimes enable a jury reasonably to infer the actual intent required by, say, s157(1)(a) must not be allowed to obscure the fact that it is the actual intent which the jury must find, however it is to be proved. 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, led Lord Hailsham LC in R v Moloney [1984] UKHL 4; [1985] 1 All ER 1025 at 1027f to say:-

"I conclude with the pious hope that your Lordships will not again have to decide that foresight and foreseeability are not the same thing as intention although either may give rise to an irresistible inference of such, and that matters which are essentially to be treated as matters of inference for a jury as to a subjective state of mind will not once again be erected into a legal presumption. They should remain what they always should have been, part of the law of evidence and inference to be left to the jury after a proper direction as to their weight, and not part of the substantive law."

Their Lordships in that case specifically characterised as wrong the following definition taken from Archbold, 40th edition, paragraph 1441a:-

"'With intent to' (1) Definition. 'In law a man intends the consequence of his voluntary act

(a) when he desires it to happen, whether or not he foresees that it probably will happen and

(b) when he foresees that it will probably happen, whether he desires it or not.'"

"I am firmly of the opinion that foresight of consequences, as an element bearing on the issue of intention in murder, or any other crime of specific intent, belongs not to the substantive law but to the law of evidence." (My emphasis)

54 This is not the place for a discussion of the kind of evidence which would enable a jury to infer intent from foresight. Lord Bridge suggests that a conclusion that the result was a natural and probable result of the act may provide the key. I have some misgivings about that, because it is possible to intend a result which is quite unlikely, eg, A intends to kill B and C with one shot or volley. He recognizes that B's death is probable, while it is quite unlikely that he will hit C. He nevertheless intends to kill both. I would prefer to say that the jury must be able to infer that the deceased so accepted the consequence as to assimilate it into his purpose. To give a crude example, A, avoiding arrest, comes upon a roadblock. He has time to stop, but does not. If he endeavours to go around the block, recognizing that he may not succeed and may kill someone, but doing his best to avoid that result, he does not, in my view, intend to cause death. If he deliberately crashes through the block, it may be inferred that he assimilated death or grievous bodily harm into his intent and therefore intended one of those results. For present purposes, it matters not whether my suggestion is correct. The important point is that foresight and intent are different concepts.

55 The question raised by this application is whether actual intent to set fire to a building is a constituent of the crime of arson. If the quotation from Lord Bridge's speech (supra), correctly states the law, then the question becomes - Is arson a crime of specific intent? The resolution of that question requires an examination of the Code and particularly Chapter XXXI which deals with "Arson and other unlawful injuries to property". The first section in that chapter is s267 which reads as follows:-

"(1) Every injury to property which is caused with intent to defraud is unlawful, although caused by the owner of such property.

(2) No person is justified in causing any injury to property by the fact that he has a partial interest therein.

(3) An act causing injury to property shall not constitute a crime under this chapter unless it is done wilfully and without claim of right."

56 To my mind it is plain that Parliament by this section, particularly subs(3) set Chapter XXXI apart from the rest of the Code as a whole. That is not to say mental element invoked by subs(3) is unique in the Code - it is not - but that Parliament, by that subsection, inserted into all the crimes created by the chapter a special element which would not be implied in other crimes in the absence of express words as to intent. This special element must, therefore, be different from and greater than mere foresight of a likely and proscribed consequence of an intentional and voluntary act. That is no more than basic mens rea, which is implied into every crime involving a consequence, unless there is a clear statutory provision or implication to the contrary. That proposition is part of the ratio decidendi of Vallance [1961] HCA 42; (1961), 108 CLR, 56. The actual decision was that intent is not an element in the crime of wounding, but, no matter by what path they travelled, each of the judges in the Court of Criminal Appeal and the High Court held that foresight was an element, even though wounding was not a crime of specific intent. As Windeyer J said at p77:-

"If that Section [13] had not been in the Code, the result would have been the same; for the idea that wholly accidental and unintended harm is not culpable is deeply embedded in our law."

57 That passage is, in my view, the key to the understanding of Vallance. All the difficulties which have bedevilled those endeavouring to construe and harmonize the separate and varying reasons given by eight judges for reaching the same conclusion have arisen from their Honours' attempts to cram into (or extrapolate from) s13 the whole doctrine of mens rea. It was a fascinating exercise, but one largely unnecessary. With or without s13, Vallance would not be guilty if he were unaware of the girl's presence. When, in the end, the narrow interpretation of "act" was adopted foresight had to be brought in by implication.

58 Since writing the first draft of these reasons, the High Court's decision in He Kaw Teh v The Queen has been handed down (11th July 1985). In my view, the reasons given by their Honours provide strong support for the propositions which I have stated, including the proposition that if s267 were absent from the Code, proof of arson would not be complete unless it were shown that the possibility that a building would be set on fire was foreseen by the accused.

59 What then, is the special mental element in Chapter XXXI? That must be construed from the words of s267(3) in the context of Chapter XXXI and the wider context of the Code itself. The actus of arson is setting fire to a building (for these purposes I ignore the other items enumerated in s268). That act causes injury to property and is not to be a crime unless it is (a) unlawful; and (b) done wilfully and without claim of right. Proof of four things is required to establish commission of the crime -

D That it was not done pursuant to a claim of right.

60 It is not even sufficient to prove intent. It is also necessary to negate any subjective claim of right and to establish unlawfulness (which may involve proving an intent to defraud). But for present purposes I must assume that there was no claim of right and no lawful justification, and that the act which caused the fire was voluntary and intentional. Only when that is assumed do we come to the word "wilfully". That word governs the words "sets fire to any building".

61 A manful effort was made by Crown counsel to establish the word as a "law word", meaning "recklessly". But Barwick CJ in Iannella v French (1969-70) [1968] HCA 14; 119 CLR 84 at 93 said that the denotation of the word "has depended, in each case where antecedent authority was not merely accepted and followed, upon the context of the statutory or contractual provision in which it was placed and upon the subject-matter with which the particular instrument dealt". He said also that in his opinion "the word contains in its connotation elements of purpose" (p.95) and that "knowingly" is only part of the connotation of "wilfully". McTiernan J said (at p99), "Taking the word 'wilfully' in its ordinary sense and speaking of its application to conduct generally, a deed for which ignorance, accident or compulsion can be pleaded as an excuse is not a wilful deed". Taylor J, at p101, equiparated "wilful" with "intentional" for the purposes of that case. Windeyer J said at p107, "It cannot be said that the word 'wilfully' has there [in the United States] any absolute and uniform sense. Much depends upon the subject and context." He referred without disapproval to R v Burnell [1966] Qd R, 348, and concluded that the word's "importance is in the meaning which it gives to its context". Owen J confined his short reasons to the facts of the case. In Burnell (supra), Gibbs J [as he then was] agreed with Gavan Duffy J in Lamberton v Hill [1944] VR, 11 at 12 that "'wilfully' has no established meaning in law, but varies with the context and with the general nature and purpose of the Act in which it is found." He went on to hold that in arson, as defined in the Queensland Code, it required proof of intent. Burnell was over-ruled in R v Lockwood Ex Parte Attorney-General (1981) Qd R 209, and I shall have briefly to examine that case later, but I wish to point out here that Lucas ACJ, (with whom Matthews J and WB Campbell J agreed) refer to "wilfully" as a "word of doubtful import", Douglas J adopted the first passage quoted above from Barwick CJ's reasons in Iannella (supra), and DM Campbell J said "'wilfully' has not been consistently interpreted in statutes defining criminal offences". I respectfully agree that the meaning of the word must be found in its use in its context.

62 I turn then to the Chapter XXXI context. Sections 269, 272, 273 and 274 stand in the same case as s268(arson). There is an additional mental element (cf s274 together with s272) but its content depends upon the interpretation of "wilfully". The crimes created by ss269A and 271 may be committed without the occurrence of any fire or injury. They do not contemplate any act causing injury to property. There is, therefore, no room for the operation of the word "wilfully". In each case, the Parliament filled the gap by inserting the words "with intent to". A similar insertion was made in s270(c) even though the same result could have been achieved in another way. These are very strong indications, in my view, that Parliament intended "wilfully" to be understood as meaning "intentionally". It has already been pointed out that where the words "with intent to" are used elsewhere in the Code, actual intention is made a constituent of the crime. Further, s271 contains an explicit reference to s174 where the phrase "wilfully or recklessly" is used, in reference to acts "likely to injure or endanger". One may, I think, fairly conclude that "wilfully" is intended to have a connotation of intent which "recklessly" has not. As Mr Kable (for the respondent) pointed out, the draftsman was astute to avoid any importation of "recklessly" into s271.

63 I turn now to the use of the word "wilfully" elsewhere in the Code. My survey will not be exhaustive.

Section 99 "Wilfully" is perhaps otiose, but will not bear the meaning "recklessly".

Section 101 Wilfully falsifying evidence must mean "intentionally".

Section 113 "Wilfully" making a false statement surely means "intentionally".

Section 137 Indecency. The content of "wilfully" in this section might be arguable, but I would prefer to read it as fully intentional (cf Windeyer J in Iannella v French (supra), at pp1089).

Section 156(4) (b) and (c) "Wilfully frighten" would, I think be interpreted as intentionally frighten (cf Menzies J in Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56 at 72).

Section 157(1)(f) - a similar provision to which the same comments apply.

64 I will not go on. The word is a chameleon, and there can always be subtle variations in its meaning. "Wilful omissions, for example, can prove difficult to interpret in different contexts. But there are enough instances to show, in my view, that given the special place of Chapter XXXI in the Code, the context within it, and the context outside it, the crimes created by that chapter are not completely proved unless the intent to bring about the stated result is proved. There is nothing contrary to principle in holding that "wilfully" means "intentionally". That, at any rate was the interpretation adopted by Gibbs J the present Chief Justice of the High Court, in Burnell and his predecessor, Barwick CJ in Iannella v French. Some writers, eg, Glanville Williams, maintain that it should always be so interpreted. While I will not go the whole distance with those authors, their attitude supports, I think, that interpretation in this context.

65 There is not, in my view, any warrant for an interpretation of Chapter XXXI which would require proof not of intention but of some mental element involving foresight of a higher degree of probability that the proscribed act would occur than likelihood, which term is itself one of uncertain content. There is nothing in the words of Parliament to suggest that it so intended, or to assist in defining just what degree of probability of the occurrence of the proscribed act it is necessary to prove to have been in the accused's mind at the relevant time. The proposal runs counter to the equiparation of "wilfully" with the phrase "with intent to", and it involves a degree of finesse in assessing the actual foresight of the accused which can only lead to confusion. I realise that the decision in Crabbe (High Court published 26th March 1985) requires proof of foresight of probability, but that decision relates only to the law of homicide in the non-Code States and may be something of an historical accident arising from the concept of "malice aforethought" which was discarded by the authors of the Code, who spelled out quite specifically the mental element in murder.

66 The decision in Crabbe was given only five days after the decision of the House of Lords in Moloney and apparently without reference to it. It is not too difficult to envisage a reconciliation of the two decisions. The High Court described deliberate action coupled with foresight of probable consequences as "comparable with intent" to bring about those consequences. Perhaps both Courts had the same concept in mind, but expressed it differently. Perhaps the High Court chose to formulate the test in the way it did out of a desire for comity with previous decisions of the House of Lords. One cannot say. But the case is not authority against interpreting "wilfully" as "intentionally".

67 It was argued that there is a social purpose to be achieved in reducing the mental element to "recklessness" of some sort. If that is so, it is a matter for the Legislature not the Courts.

68 I have not referred in detail to the Queensland cases of Burnell [1966] Qd R 348 and Lockwood (1981) Qd R 209 which gave rise to the differing contentions in this case. Neither is, in my view, binding. The legislation is different, and in Lockwood, Vallance (supra) was misconstrued. Of all the reasons there given, I prefer the reasoning of Gibbs J (as he then was) in Burnell, who spelled out the mental element wherever necessary.

69 I would rule, if that be necessary, that proof of the crime of arson requires proof that the accused intended by the voluntary and intentional act proved against him, to set fire to a building. It follows that, in my opinion, the learned trial judge's direction was correct.

70 At the trial of the respondent the Crown case was that the respondent had broken into the premises in question (a seaside house) and had there set fire to some flammable material which in turn had set fire to the house itself causing very substantial damage. There was evidence that the respondent had been in the general area of these premises on the day of the fire, that he had been driving a utility around and firing a shotgun at various targets in the bush. His shotgun was found near the burnt building and the following day he made an admittedly false report to the police that his gun had been stolen.

71 He was later interviewed by detectives and in a signed record of interview the following admissions appeared:-

"Q In relation to the Fire which destroyed the shack of Mr Lloyd BLYTH on the night of Friday the 23/12/83. Were you responsible?

A Yes.

.............

Q What happened when you got to the shack?

A It was the piss acting really. I do some strange things on the piss. I got there and on the spur of the moment I broke in and that was it.

Q How did you gain entry to the place?

A I knocked a big glass panel or door out of the back.

Q How did you do this?

A With a lump of wood. I just heaved it through.

Q What happened then?

A I went inside.

Q What did you do with your gun and belt?

A I left them outside the back.

Q What happened inside?

A I just looked around for I don't know what. I didn't have any intentions really. I've got money and my own boat so I really don't know what.

Q What happened then?

A When looking around in there for some reason I started worrying about being caught and leaving any evidence so I decided to burn it to cover anything up.

Q Did you in fact then set alight to this shack?

A Yes but it was on the spur of the moment and the piss helped.

Q What happened then?

A I can only say that I used paper because that's what I did use.

Q Where did you set the fire?

A I only used paper on the curtains area and the couch but I had had a fair bit of piss and I did have a puff or two of Marijuana.

Q What happened then?

A The curtains went up quickly and I took off.

Q How did you leave the place?

A The same way as I came in and I ran flat out home and stayed there.

Q Did you take your gun and belt with you?

A That was the real blue wasn't it. I was scared stiff and forgot it.

Q What happened then?

A Not much really. I worried my guts out about the gun being found but I couldn't go back that night because everyone was there and when I went and looked next morning that uniform copper was there with you fellows.

Q Why did you unlawfully enter the shack in question?

A Really it was on the spur of the moment. I had been on the piss and it happened. I don't know what I was looking for.

Q Why did you set fire to the shack?

A Like I said to cover any fingerprints or evidence that I or anyone had been in there.

Q Did you know what you were doing?

A I had had a few drinks but I knew what was going on."

72 The respondent gave sworn evidence at his trial of the consumption of no small amount of intoxicating liquor and of marijuana. In chief he gave evidence that he had broken a window with a piece of wood and, for reasons he could not explain, had entered the house. His evidence continued:-

"A I remember getting in as far as the front door and looking in and realising I was in the kitchen area um - after that I seen flames they were close to - around the area I was standing, not quite sure how the flames got there um- how they were actually lit. From there I realised I was in the house where I shouldn't have been - um, panicked and ran home, where I stayed.

Q Right, you recall being in the kitchen and that after you'd been in house you saw flames around where it was you were standing.

A Yeah.

Q And you panicked and you raced off home, right? Are you able to say what caused the flames?

A I can't say what caused the flames, or how the flames became lit.

Q Did you have cigarettes and matches on you?

A Yes I did.

Q Right. Do you have any recollection of using the matches for any purpose?

A No recollection at all.

Q Did you see any curtains that you recall?

A No.

Q Do you recall whether you saw a couch?

A No."

Later he gave this explanation of his lie about the gun:-

"Q Why did you tell Mr Coad that your gun had been stolen?

A Well it seemed at that time that finding a gun near the fire whoever is going to turn up to own a gun well claim a gun would be the person prime suspect.

Q And why was it that you then told him that the gun had been stolen? What were you trying to do?

A Well to cover up that it was the gun that I'd left there.

Q And to cover up - what other fact were you trying to cover up?

A Well mainly that I had anything to do with the fire."

73 He did not dispute signing the record of interview, but said that he was intoxicated while being interviewed and that the damaging admissions as to his purpose, to which I have referred, were, if made (and he said he could not recall making them), inaccurate and unreliable for he had never had any recollection of lighting the fire.

74 Just how much of the evidence the jury accepted is problematical, but it seems inconceivable that they did not accept that he was the sole author of the fire and that he caused it with matches by which he ignited paper, curtains or some kind of flammable material which in turn set fire to the fabric of the building.

75 The learned trial judge directed the jury that in order to convict the respondent they would have to be satisfied beyond reasonable doubt that he unlawfully set fire to the building and that at the time he did so he had the intention of bringing about that result. He also gave directions on the question of intoxication as it bore on his capacity to form the intention of setting fire to the building.

76 The Attorney General seeks leave to appeal against the acquittal on the ground (though the notice of appeal is not expressed precisely in this way) that the learned trial judge erred in failing to instruct the jury that, even if not satisfied that the respondent had an actual intention to set fire to the building, they should still convict if they were satisfied that he had deliberately done a willed act, aware at the time that he did it that the result charged in the indictment was a likely consequence of his act and that he recklessly did the act regardless of the risk.

77 The crime of arson is created by s268 of the Criminal Code and forms one of a group of unlawful injuries or potential injuries to property which are dealt with in Chapter XXXI of the Criminal Code. Section 268 provides:-

"268 - Any person who unlawfully sets fire to any building, erection, or structure whatever attached to the soil, whether the same is completed or not, or to any stack of cultivated vegetable produce, or of timber, or of mineral or vegetable fuel, or to any mine, or to any ship or vessel, whether completed or not, is guilty of a crime, which is called arson.

Charge: Arson."

"267 - (1) Every injury to property which is caused with intent to defraud is unlawful, although caused by the owner of such property.

(2) No person is justified in causing any injury to property by the fact that he has a partial interest therein.

(3) An act causing injury to property shall not constitute a crime under this chapter unless it is done wilfully and without claim of right."

78 The Attorney General contends that the word "wilfully" is, to put it shortly, sufficient to include the concept of recklessness embraced in the direction his Honour declined to give. The respondent contends that nothing short of an actual intention to set fire to the building will suffice to establish guilt of arson.

79 In Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56, it was held that to establish guilt of the crime of wounding under s172 the accused must be shown to have either intended that the victim be wounded or that foreseeing or adverting to the likelihood of the victim being wounded he nonetheless did the act which caused the wound, heedless of such consequences The case involved detailed consideration of s13(1) of the Code, which provides as follows:-

"13 - (1) No person shall be criminally responsible for an act, unless it is voluntary and intentional; nor, except as hereinafter expressly provided, for an event which occurs by chance."

80 Vallance established that the "act" for the purposes of that section was the physical act of the accused in discharging the weapon. It was this act which had to be shown to be voluntary and intentional. The view espoused by Dixon CJ and Windeyer J that it was the wounding which must be voluntary and intentional was rejected by the court. Kitto J at p64 said this:-

"When s13(1) speaks of an act being voluntary and intentional, before turning to the event and speaking of that as not occurring by chance, it seems to me to be addressing itself only to the question whether a person charged acted of his own free will and by decision, before asking whether that which eventuated from his act was a merely chance result."

"..... the applicant insists, s13(1) stipulates that no person shall be criminally responsible for an act, unless it is voluntary and intentional and this, it is said, means that an intent to wound must be proved. But in my view the provisions of s13(1) do not produce, and are quite incapable of producing, this result for it is one thing to speak of 'voluntary and intentional' acts when defining the general scope of criminal responsibility and another to speak of a specific intent accompanying acts done voluntarily and intentionally. To speak of an act being 'voluntary and intentional' is to speak of the essential character of the act itself and, of course, such an act may or may not be accompanied by an intent to commit some specific crime."

"I have therefore reached the conclusion that the direction and the only direction that the first part of s13(1) required in this case was that the accused could not be convicted unless the act of shooting was voluntary and intentional and the direction that was given, namely that the wounding must have been intentional cannot be supported by that provision."

81 It is wrong to suppose that the need to establish that the wounding be intended, or foreseen but inflicted recklessly, flows from the requirement in s13(1) that the physical act be voluntary and intentional or that there is to be found therein some expression of basic mens rea in the common law sense. As Neasey J pointed out in Williams v The Queen [1978] Tas SR 98 at 101, Crisp J gave the most detailed treatment of the words "voluntary" and "intentional" when Vallance's case was decided by the Court of Criminal Appeal ([1960] Tas SR 51). Neasey J expressed his agreement with the following passage therefrom:-

"As to the element of voluntariness there is no difficulty; the act must be the conscious product of a freely operating will. But the further requirement that it shall be 'intentional' is where the subtleties arise. If the distinction already drawn between 'act' and 'event' be overlooked and the Austinian formula applied that an act is intended when it is willed and when the ordinary consequences of the act are contemplated and desired (Austin's Jurisprudence, Vol 1, p441; and cf Holmes, Common Law, p53), then it is easy to see what difficulties ensue. But if the distinction between the primary act and the subsequent result be firmly grasped (remembering that the subsection itself goes on expressly to provide for 'events which occur by chance', ie were unintended and unforeseen), then it is plain that what must be intended in the case of a simple offence unaccompanied by a specific intent is the primary act only. On this basis the primary act is intended, 'if it exists in idea before it exists in fact, the idea realising itself as a fact because of the desire by which it is accompanied' and liability for consequences will ensue unless they can be said in the words of the section to 'occur by chance' (Salmond on Jurisprudence, 9th edn, p518). In other words, intention in this context is no more than an element in voluntariness and it is the concluding part of the subsection that states the rule as to results unforeseen and undesired.

All this can be taken straight from Stephen; the references have already been given."'

It is from s172 itself that the need to establish either an intention to produce the proscribed consequence or foresight and reckless disregard of that consequence derives (Vallance v The Queen (supra), see particularly Kitto J at pp63-64, and Taylor J at 67-68).

82 In The Queen v Martin [1963] Tas SR 103, the Court of Criminal Appeal was concerned with the mental element of the crime of bigamy and with the question whether or not the Crown must prove the absence of an honest and reasonable, although mistaken, belief by the accused that he was divorced where the accused had relied upon that fact by way of defence to such charge, At pp114-115 Burbury CJ said:-

"The starting point in the consideration of mistake of fact as a 'defence' to a charge of bigamy is to ascertain the external and mental elements of that crime as defined in the Code.

Since the decision of the High Court in Vallance's Case [1961] HCA 42; (1961) 35 ALJR 182, 108 CLR 56, it is clear that to ascertain the constituent elements of a crime under the Tasmanian Criminal Code it is necessary first to turn to the section constituting the crime to determine whether any particular mental element (eg specific intent or knowledge) forms part of the definition of that crime and then to go to s13 of the Code. So far as the mental elements made ingredients of the crime of bigamy are concerned they must therefore be taken to be exhaustively stated in s193 and s13. There is no room for the introduction through the common law of any further mental element in the nature of mens rea or guilty mind as an ingredient of the crime. Any mental element as a positive ingredient of a crime must be found within the Code itself. Section 14 does not affect that fundamental proposition. Although mistake of fact at common law is widely treated as part of the concept of mens rea its recognition in s14 as a ground of exculpation cannot carry with it the introduction into the Criminal Code of the common law requirement of mens rea as an ingredient in crime. The introductory words of s14 are, _'_whether criminal responsibility is entailed by an act or omission done or made under an honest and reasonable but mistaken belief ...' These words I think are not to be construed as importing into the Code the traditional common law principle that in crimes at common law the guilty mind (mens rea) must extend to all the elements of the crime."

83 Neasey J in considering the mental elements of the crime of bigamy likewise concluded that no specific mental element is prescribed by s193(1) and that no element referable to intention or other state of mind is made by Chapter IV an ingredient of the crime other than that the act of going through the form of marriage should be voluntary and intentional.

84 In Snow v The Queen [1962] Tas SR 271, the Court of Criminal Appeal decided that "the only mental element that s13(1) introduces into the crime of rape is that the accused's physical act of penetration must be voluntary and intentional and that an accompanying intent to penetrate the woman against her will is not a positive element of the crime" (per Burbury CJ and Cox J at 279). This principle has been re-affirmed by the Court of Criminal Appeal in Ingram v The Queen [1972] Tas SR 250 and Arnol & Ors v The Queen (1981) 7 A Crim R 291.

85 These applications of the principle stated in Vallance's case to the crimes of bigamy and rape, although being particularly directed to negative the proposition that the specific intention to do the actus reus is to be found in s13(1), equally in my view negative the proposition that basic mens rea in the form of reckless disregard of a foreseen risk is to be implied in that subsection. The oft quoted words of Windeyer J in Vallance's case (supra, at p78) in my respectful view tend to emphasise this. His Honour said (of s13):-

"This occurs among provisions of the Code obviously intended to have general application and to state fundamental principles of criminal responsibility. This one sentence compresses and comprehends the common law doctrine concerning mens rea. It does more than that. It supplants it. So that now, as Griffith CJ said of a similar provision in the Queensland Code, the aim of which he well understood, 'it is never necessary to have recourse to the old doctrine of mens rea': Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977, at p981."

It is instructive to turn to the sentence from Griffith CJ's judgment which immediately follows the passage quoted by Windeyer J It is:-

"The test now to be applied is whether this prohibited act was, or was not, done accidentally or independently of the exercise of the will of the accused person (s23)."

In the case of the Tasmanian Code the test is (leaving aside accident) whether the physical act was or was not voluntary and intentional, ie "a willed act; one which the person was aware he was doing and meant to do" (per Neasey J in Williams v The Queen (supra) at 102). The concept of basic mens rea has been supplanted in Chapter IV by the concept merely of a mind in the actor which knows what physical act he is doing and which means to do it.

86 Any need to establish a state of mind in an actor who either intends the prescribed consequence or who foresees it but does the physical act which brings it about recklessly is not to be found in s13. In Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR, 209, Gibbs J said at 231:-

"It must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person."

If actual foresight at least is required by the first limb of s13(1) there would be no need for an additional requirement in the second limb thereof that to establish a defence of accident there should be established not only an absence of foresight by the accused but absence of foreseeability by an ordinary person.

87 When Windeyer J said in Vallance (supra at 77), "the idea that wholly accidental and unintended harm is not culpable is deeply imbedded in our law", he was considering from what part of the Code might be extracted whatever element of intent or recklessness is necessary to make wounding a criminal offence under the Code. The idea nonetheless finds expression in the second limb of s13(1) which is intended to satisfy it.

88 In my view one must look beyond s13(1) to find what element of intent or recklessness must attend the crime of arson. With respect I do not accept that if the element of wilfulness in s267(3) is to be read as including recklessness, it requires no more than a basic mens rea which would otherwise attend every crime involving a consequence in the absence of clear statutory provision or implication to the contrary. Section 167A (causing death by dangerous driving) requires no element of intention to drive in a dangerous manner (still less to cause death) or of recklessness that the driving could constitute a danger (still less cause death). But for the provision of some words such as "wilful" in s267(3) it might well have been argued that arson might be committed if the unlawful setting fire to the building had resulted from an act which, although voluntary and intentional as required by s13, was nonetheless the result of carelessness rather than recklessness. Indeed such an interpretation might well have been thought to have merit in light of the fact that the Malicious Injuries to Property Act (27 Vic No 7) which dealt with injuries of the kind dealt with by Chapter XXXI immediately prior to the enactment of the Code had expressly provided that to attract criminal sanctions such injuries must be done not only unlawfully but "maliciously". It is clear that prior to the enactment of the Code the crime of arson could be committed by recklessness on the part of the accused as well as by conduct specifically intended to produce the proscribed consequence (R v Cunningham [1957] 2 QB 396).

89 I agree that the word "wilfully" has no fixed meaning at law, but varies in meaning depending upon its context. Within the Code itself it has no universal meaning. It is capable of bearing the restricted meaning contended for by the respondent or the broader meaning embracing recklessness for which the Crown contends. In light of the history of the interpretation of the crime of arson and related offences, it would seem unlikely that the framers of the Code intended to jettison the proscription of acts causing injury to property through recklessness. In saying that I am not ignoring the words of Dixon and Evatt JJ in Brennan v The King [1936] HCA 24; (1936) 55 CLR 253 at p263, "It is not the proper course to begin by finding how the law stood before the Code, and to see if the Code will bear an interpretation which will leave the law unaltered". But for the reasons given by Burbury CJ in Murray v The Queen [1962] Tas SR 170 at p172, the state of the previous law is not irrelevant where a word of doubtful meaning has to be interpreted.

90 Chapter XXXI deals with three categories of crime (four when one adds attempts as defined by s2 and proscribed by s299). The first category is that of acts causing injury to property. It is in respect of this category that, by virtue of s267(3), the Crown must show the whole actus reus to be done wilfully. Sections 268, 268A, 269, 270 (at least in part), 271 (again at least in part), 272, 273, 274 and 275 deal with cases of actual injury to property. The second category is that of acts (or omissions) of a potentially injurious character which, if accompanied by a specific intention to cause injury either physical or proprietary, are made crimes. Section 269A, 270 and 271 are of this kind and s275 has some similar qualities, for it is not perhaps the physical damage as such to the boundary mark which is sought to be deterred so much as the interference with proprietary rights which such damage may cause. The third category is that of threats of damage. Sections 276 and 276AA comprise this category.

91 Attempts to commit a crime require an actual intention to bring about the proscribed consequence (R v Bell (1972) Tas SR 127 and Haas v The Queen (1964) Tas SR 1). In the same way it seems to me that Parliament might consistently require that the doing of potentially injurious acts not in fact causing injury should be accompanied by a like intention. One imagines that these acts are prohibited if accompanied by such an intention because they may not be sufficient in law to constitute an attempt to commit some crime involving actual damage by virtue of their not having gone beyond the merely preparatory stage, and yet obviously it is highly threatening to society, that such acts, if done with an intention to cause injury, should be tolerated. In contradistinction, where actual injury is caused the draftsman has chosen to avoid employing the words "with intent to cause injury", but has used the word "wilfully". For my part I can only conclude that his choice of words was deliberate and that he thereby signified a difference in the kind of intent required to be established.

92 So far as the third category is concerned, it will be noted that it does not require the causing of actual damage, the doing of acts potentially injurious, nor the belief, intent or even expectation that injury to property will be done. The mischief aimed at is the causing of alarm to the recipients of the threats and/or the inconvenience and possible expense that taking of appropriate precautions is likely to cause. This category represents crime of a very different character to those of the other categories dealt with in the Chapter. Whatever may be the mental element required to establish guilt of crimes in this category, it seems to me that this does not assist us in determining what Parliament had in mind in respect of the other crimes.

93 My conclusion therefore is that, so far as the mental element is concerned on the proper construction of ss267(3), 268 and s13, the crime of arson may be committed if the accused deliberately does a willed act, aware at the time that he does it that the result charged in the indictment is a likely consequence of his act and if he recklessly does the act regardless of that risk.

94 In the circumstances of this case, the jury had to consider whether the physical act of lighting whatever flammable material caused the building to be set on fire was voluntary and intentional in the narrow sense and then to determine whether the act of setting fire to the building was wilful in the sense either that he intended it to be set on fire or that he did the physical act aware of the likely consequence but recklessly taking that risk. It would seem that his defence of intoxication raised matters which led to his acquittal. Had the jury been instructed on the aspect of recklessness, their assessment of the significance of the evidence of intoxication may have led to a different result. In my view the Crown has shown that the point of law was of immediate and practical significance in the trial of the respondent and that it is one of such general importance in the administration of justice in this State that leave should be granted to the Attorney General to appeal.

95 By way of preliminary point the respondent submitted that the Attorney General's application was incompetent by virtue of the fact that he did not notify his intention to appeal to the court against the acquittal on a question of law alone "during the trial" as required by s407(3). It appears that upon the verdict of the jury being returned the learned trial judge discharged the jury from further service at the sittings and ordered the discharge of the respondent whereupon Crown counsel on behalf of the Attorney General gave notice of appeal. It was common ground that these events occurred in immediate succession and that the respondent was at all material times within the body of the court, if not still in the dock. His counsel was present and the court was still in session.

96 I have had the advantage of reading the reasons for judgment of Nettlefold J and I respectfully concur with his reasons and conclusions in respect of this issue. The ordinary meaning of the words used in s407(3), requiring that the Attorney General (or an officer appointed to prosecute in any criminal proceeding - see s399) shall notify his intention to appeal against an acquittal, contemplate that at the time of the notification an acquittal shall have occurred. In respect of an appeal by him against sentence, he is required by para(b) of the subsection to give notice either during the trial or within 14 days of sentence. The ordinary reading of this likewise suggests that notice would be given after sentence was in fact passed. Yet the argument was that a trial ends with the verdict in the case of an acquittal and with the sentence in the case of a finding of guilt. While the section can be read to require the giving of prospective notice of intention to appeal, this requires in my view sufficient straining of the language to indicate that Parliament intended the phrase "during the trial" not in a narrow sense but in a liberal sense so as to give a real and effective remedy to the Crown, to be exercised upon notice to the respondent given at the time he stands trial and before all relevant procedures therein and ancillary thereto have been terminated. I do not propose to nominate the precise point at which the trial can be said to be concluded for this purpose, but in the circumstances of the present case I agree that it can properly be said that the Attorney General gave notice during the trial.

97 In my view leave to appeal should be granted and the appeal allowed. No order for a new trial is sought.

Criminal Damage Act 1971

At a glance

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Judgment (162 paragraphs)

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Legislation Cited (1)

Cases Cited (4)