R v MAURANGI AND RIVETT No. SCCRM-00-140 [2000] SASC 347

2 Section 12A was inserted in the Act by the Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act 1994 which, inter alia, provided for the abolition of the classification of offences as felonies and misdemeanours. It reads:

"A person who commits an intentional act of violence while acting in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more (other than abortion), and thus causes the death of another, is guilty of murder."

3 In R v R; R v G [1995] SASC 4997; (1995) 63 SASR 417 a court constituted by five judges had to consider whether the common law felony murder doctrine applied to a participant in a joint criminal enterprise other than the perpetrator of the death that occurred in the course of or in furtherance of the enterprise. The Court unanimously held that if two persons are engaged in an armed robbery, only one of them holding a knife which kills the victim, then both are guilty of murder.

4 In a judgment with which three of the other four members of the court agreed, King CJ said at p 420:

"The common law as to felony murder applied in South Australia at the time of the subject incident. Since then it has been abolished by statute in consequence of the abolition of the concepts of felony and misdemeanour, and has been replaced by a more or less equivalent provision: Criminal Law Consolidation Act 1935, s 12A. The common law rule as formulated by this Court in R v Van Beelen (1973) 4 SASR 353 at 403 is that 'it is murder to cause death in the commission of or in furtherance of the commission of a felony involving violence or danger'."

5 Parenthetically, I note that the Full Court in Van Beelen said immediately before the words just quoted by King CJ "abortion cases apart".

"The felony murder rule is part of the common law and is now entrenched in the statute law of South Australia, in equivalent form, by s 12A of the Criminal Law Consolidation Act."

6 The fifth member of the court, namely Perry J, agreed that the appeals should be dismissed "substantially for the reasons given by King CJ", but said that he wished "to sound a note of caution as to the construction of s 12A". At pp 424-425 in a passage that counsel for the accused, Rivett, called in aid for his submission, Perry J said:

"Although there has been some uncertainty as to the precise formulation of the felony murder rule at common law, the law applicable in this State has been settled by the passage which appears in the joint judgment of Bray CJ, Mitchell and Zelling JJ in R v Van Beelen (1972) 4 SASR 353 cited by King CJ, which I repeat (at 403): '... it is murder to cause death in the commission of or in furtherance of the commission of a felony involving violence or danger.'

That statement of the rule considered in the context of the preceding discussion at 400 et seq makes it plain that an act resulting in death may be caught by the rule even if it is not a violent act and even if it does not occur in the course of a felony the commission of which involves violence as opposed to danger.

Furthermore, at common law the act causing death may be accidental and no specific intention need be proved other than that involved in the elements of the foundational crime; see, for example, P Gillies, Criminal Law (3rd ed, 1993), p 624:

'It is unnecessary that the act causing death be accompanied by any element of mens rea other than, of course, the mens rea associated with foundational felony. Thus, one inadvertent act causing death will incriminate D in felony murder.'

An example of a common law felony not involving violence but which involves danger and is therefore capable of giving rise to the application of the common law rule is arson: see the discussion in Howard's Criminal Law (5th ed. 1990), pp 64-71.

In contrast with the common law rule, s 12A requires an intentional act of violence, and to that extent, would, on the face of it, have a more limited application. There may be a question also as to the meaning to be given to the word 'intentional' when it appears in the section.

However, the section is not of application in the present case, and consideration of its meaning and scope must await the hearing of a case to which it applies."

7 The Crown agreed with the submission for the accused that R v R; R v G (supra) establishes that the common law as to felony murder has no application since the 1994 amendment to the Act.

8 Counsel for the accused, Rivett, stressed the words "and thus causes the death" in s 12A. He submitted that the causative act of violence in this case could only be a shooting at the deceased. The Crown had to prove that his client intentionally shot at his victim. The word "intentional" in the section should be construed to mean an intentional shooting at the deceased. Only such a shooting could be a causal act of violence, he submitted, and he sought to rely on dicta in Ryan v The Queen [1967] HCA 2; (1969-1970) 121 CLR 205, and on R v Marshall (1986) 43 SASR 448 and on appeal (1987) 49 SASR 133 at 146-151.

9 The case of Owen v South Australia [1996] SASC 5574; (1996) 66 SASR 251 is a recent authority which holds that it is permissible to look at the Minister's Second Reading Speech in order to identify the purpose of a statutory amendment (see at 255-256). In his Second Reading Speech introducing the Bill to amend the Act in 1994, the Attorney-General said:

The felony murder rule goes back a very long time in the history of the criminal law at common law. In general terms, it is murder if a person kills another by an act of violence committed in the course of commission of a felony involving violence. The point of the rule is that an accused will be guilty of murder in such a case even if he or she has not had the fault elements (such as an intention to kill or cause grievous bodily harm) normally required for conviction for murder. This rule applies only in relation to felonies.

It was abolished in England in 1957, and is no longer law in the ACT. It has been declared to be contrary to the Charter of Rights in Canada. It was recommended for abolition by the Mitchell Committee, the Victorian Law Reform Commissioner, the Victorian Law Reform Commission, the Queensland Criminal Code Review Committee and the Canadian Law Reform Commission.

Against this unanimity of professional opinion, there can be no doubt that the doctrine has been employed in recent highly publicised cases in South Australia, and it has a certain popular appeal. When Victoria abolished the distinction between felonies and misdemeanours in 1981, it enacted a provision retaining the rule to a large degree.

This Bill adopts the latter course, despite a number of submissions to the Government that sought to have the rule abolished entirely. The reason is that such a reform would be controversial, and that controversy would be destructive of the main aim of the Bill - which is to abolish the anachronistic distinction. ...

Clause 5 inserts a new section 12A into the principal Act. New section 12A provides that a person who causes death by an intentional act of violence committed in the course of furtherance of a major indictable offence punishable by imprisonment for ten years or more is guilty of murder. This provision may be seen as providing a statutory replacement for the common law 'felony-murder rule', although the scope of the statutory rule is somewhat different as it applies only to serious crimes. There is, however, a specific exception for causing death in the course or furtherance of an illegal abortion, to preserve the common law leniency in relation to this offence."

10 I also notice that the Victorian Full Court in a joint judgment (Murphy, Murray and Gobbo JJ) in R v Butcher [1986] VicRp 4; [1986] VR 43 at p 51 referred to the Second Reading Speech of the Minister introducing the Bill for the Act there under consideration. It was called the Crimes (Classification of Offences) Act 1981, and it abolished the classification of offences as felonies and misdemeanours. Section 3A of the same Act abolished the felony murder rule. It reads:

"(1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to life imprisonment or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.

(2) The rule of law known as the felony-murder rule (whereby a person who unintentionally causes the death of another by an act of violence done in the course or furtherance of a felony of violence is liable to be convicted of murder as though he had killed that person intentionally) is hereby abrogated."

11 I have found the judgment in R v Butcher (supra) extremely helpful, both as to what constitutes an act of violence and as to relevant questions of causation. To quote from the headnote at p 43:

"The applicant was convicted of murder arising out of a killing which occurred in the course of an armed robbery. The applicant, armed with a knife, had attempted to rob the proprietor of a milk bar. According to the applicant's record of interview the deceased was stabbed when he advanced towards the applicant while the applicant was holding the knife in front of him to threaten the deceased. The trial Judge ruled that armed robbery (Crimes Act 1958, s 75A) was a crime 'the necessary elements of which include violence' for the purposes of s 3A of the Crimes Act 1958. The Judge further ruled that for the purposes of s 3A the act of menacing the deceased with a knife was capable of being found by the jury to be an act of violence which caused the death of the deceased."

As to what constitutes an act of violence, their Honours said at pp 53-54:

"In our opinion, the word 'violence' where it is used in s 3A is not to be understood to refer only to physical force but rather to include those aspects of intimidation and seeking to intimidate by the exhibition of physical force or menaces as in the past have been considered to constitute violence.

When the words 'act of violence' and 'crime the necessary elements of which include violence' are used in s 3A, violence is used in a descriptive sense. 'Act of violence' means an act of a violent kind, for there is no legal definition of violence as such inside or outside which any particular act or threats may be said to fall. Nor is there any common law crime in which violence is by definition an element.

This view is also consistent with violence as understood during the development of the English language. As a matter of etymology, violence is a word having its origin in the Latin violentia, often connoting vehemence or impetuosity. It is not synonymous with the use of physical force, although physical force falls within its meaning. It is a word of wider significance in the law, as the cases show. Smith and Hall in their English-Latin Dictionary give as their first meaning of violence: 'inherent overpowering force, whether physical or mental'. In the Oxford English Dictionary violence is defined as follows: '(Law) unlawful exercise of physical force, intimidation by the exhibition of this.'

Howard and others are of the view that reference in the felony murder rule to an act of violence is misleading, 'for the act which causes death may not be violent in any helpful sense'. He prefers, as we have mentioned, the use of the words 'dangerous act': Howard, Australian Criminal Law 2nd ed., p 64.

However, it seems to us that if the word violence in the phrase 'act of violence' is understood to be used in its etymological sense and in the descriptive way that it has been used in the cases, and to embrace actual force used to overcome or nullify resistance and as well, threats or menaces to induce fear and terror or to intimidate in order to remove or nullify resistance, the phrase is apt to express the type of act which is required to call in to play the felony murder rule under s 3A.

Hobbes appears to have appreciated the difference between robbery and theft when he said: 'Robbery is committed by force, or terror; of which neither is in theft, for theft is a secret act.' To rob is said in the Oxford English Dictionary to mean 'to despoil by violence.'.

The intention of the actor is vital in robbery. As we have said, it is not necessary to prove that actual fear was inspired. If a man is waylaid and rendered unconscious by a blow from behind and his money then taken from his clothing, this is robbery, if the intent of the actor was to steal by overpowering. If a drunken person is unable to see the gun levelled at him by another, but against his will his money is then taken, this is robbery. If a courageous person is not frightened by the threats or menaces intentionally made, but his money is nonetheless taken, this is also robbery.

The very old cases which held that running against a person, for the purpose of diverting his attention, whilst his pockets are rifled is robbery, do so on the basis that the use of force with intent is sufficient. But the intent now required may be a preparedness or intent to overpower the party robbed, to seek to prevent his resisting - either by actual force or by intimidation, and not merely to get possession of money or goods on him or in his keeping: R v Gnosil [1824] EngR 432; (1824) 1 C & P 304; R v Walls and Hughes (1845) 2 C. & R. 214; R v Edwards (1843) 1 Cox CC 32.

If there is not actual force used then the putting in fear or seeking to put in fear must be intended to induce the victim through fear to part with his money or goods in his keeping.

The intent to cause the victim to fear personal injury is most common, by terror resulting from such threatening, by word or gesture, as in common experience is likely to create an apprehension of danger and induce a person to part with his property for the safety of his person. The removal of the power of resistance by threats or menaces (as by surrounding a person - without touching him), and the taking of his money is robbery - for to take away or to seek to take away a person's power of resistance is to use force: R v Hughes and Wellings (1825) 1 Lew CC 301; R v Reane (1794) 2 East PC 734; [1730] EngR 19; 2 Leach 616. In the latter case, Eyre C.J said that a man might be said to take by violence, who deprived the other of the power of resistance, by whatever means he did it.

Similarly, removal of resistance by threats of injury to property or to reputation have been held sufficient threats of violence to provide the necessary element in robbery: R v Simons (1773) 2 East PC 731; R v Spencer (1783) 2 East PC 712.

These cases are simply illustrative of the fact that violence must be interpreted to include threats such as in common experience would be expected or likely to take away resistance, which has always been considered to be an element, necessary to prove, in the crime of robbery.

Without attempting to deal exhaustively with what other acts may or may not be considered to be acts of violence, we are satisfied from our reading of the cases that holding out a knife towards another person whilst he is three to four feet away and at the same time demanding money from him, is capable of being found to be an act of violence within the meaning of s 3A(1)."

Mr Barrett QC did not dispute that the presentation of a loaded firearm at another in a menacing manner is an act of violence.

12 Both counsel devoted much time to commenting on the judgments in Ryan's case (supra), but before reviewing those judgments I propose to consider the case of Rex v Jarmain [1946] KB 74 which was referred to by four of the High Court judges in Ryan. The facts bear some similarity to the case at Bar. Jarmain purchased an automatic pistol for the purpose of committing armed robbery. He entered the office of a garage holding the pistol with its loaded magazine in his right hand. He found the cashier counting the day's takings. According to his statement to the police and his evidence, he pointed the pistol in his right hand at her saying, "I'll have that, sister." She continued to write for some moments, then put down the pen, looked at him and said, "Don't be silly." The safety catch being released, Jarmain cocked the pistol but then ejected the round from the chamber. This he did, he said, to frighten her. He then recocked the gun and took it in his left hand saying, "This ain't no toy". The cashier said, "Don't be absurd". In evidence Jarmain said that though he kept the loaded pistol in his left hand pointed at Mrs Phillips to frighten her, she had treated him with scorn and he did not know what to do, that he was thinking what to do when the gun went off, and that he had not intended to press the trigger. The cashier died from wounds she received. Having grabbed some of the money Jarmain escaped.

13 Wrottesley, Stable and Lynskey JJ in a joint judgment said at pp 80-81:

"In effect, the argument for the appellant here rests on the proposition that you must isolate the pressure of the appellant's finger on the trigger of the pistol from all the surrounding acts and circumstances which made it a deadly thing to do. The act in the performance of which the appellant killed the dead woman was robbery with arms which was compounded of many elements and circumstances. The pistol must be loaded, cocked and presented at the woman, as well as fired, in order that her death might result, and it was admitted that all these elements were present and that all but the last were brought about by his voluntary act. Even if the pistol had never been fired, it is clear that the appellant committed upon this woman a felony involving violence. He even completed the robbery ...

We think that the object and scope of this branch of the law is at least this, that he who uses violent measures in the commission of a felony involving personal violence does so at his own risk, and is guilty of murder if those violent measures result even inadvertently in the death of the victim. For this purpose the use of a loaded firearm, in order to frighten the person victimized into submission is a violent measure. The recent case of Rex v Hulton and Jones (Court of Criminal Appeal, February 19, 1945 unreported) decided in this court, is clear authority for this proposition."

14 In Ryan's case the accused entered a service station and pointed a cocked sawn-off rifle with the safety catch removed at the attendant and demanded money. The attendant took money from the till and put it on the counter. The accused attempted to tie the attendant up with one hand, still pointing the loaded gun with the other. Following a movement by the attendant, the accused's finger pressed the trigger according to the accused without any intention on his part to do so. The attendant was killed instantly. At the trial the defence was conducted on the basis that the killing, being criminal but accidental, was manslaughter, not murder. The applicant was convicted of murder and the High Court refused special leave to appeal.

15 At the time s.18 (1) of the Crimes Act, 1900 (NSW) provided:

"(a) Murder shall be taken to have been committed where the act of the accused, or thing by him committed to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of an act obviously dangerous to life, or of a crime punishable by death or penal servitude for life." (My emphasis).

16 Whilst Jarmain's Case was not directly in point as an authority in Ryan's case, Barwick CJ disapproved of some of its reasoning. On the other hand, Taylor, Owen and Menzies JJ found the reasoning persuasive. Windeyer J expressed no opinion.

17 Having regard to the argument before me about the use by the South Australian Parliament of the word "caused" in Section 12A, it is necessary to quote from some of the judgments. At page 218, Barwick CJ said:

"For if the presentation of the gun which subsequently discharged without the willed act of the applicant is to be chosen, a question of causation is involved. That presentation in the setting of its circumstances must cause the death. It seems to me that it could only be held to do so if the unwilled discharge of the gun ought to have been in the contemplation of the applicant at the time. There was, in my opinion, evidence on which the jury could have come to that conclusion. As I have emphasized, the safety catch was not applied: the applicant had his finger on the trigger: he was engaged in withdrawing the cord from his pocket, itself an activity limiting the applicant's freedom of movement and reducing his concentration in the handling of the weapon: and, although the deceased had been pliant whilst faced with the gun, he could not be counted on to remain so, particularly when he knew from the applicant's own words that he, the applicant, was about to do something which in the ordinary course would involve the use of both his hands and so remove or greatly reduce the threat of the gun. But the choice of the act causing death is not for the presiding judge or for the Court of Criminal Appeal: it is essentially a matter for the jury under proper direction.

... [T]he jury, having concluded that the discharge of the gun was involuntary could have concluded that the act causing death was the presentation of the cocked, loaded gun with a safety catch unapplied and that its involuntary discharge was a likelihood which ought to have been in the contemplation of the applicant when presenting the gun in the circumstances. In that event, their verdict should have been guilty of murder."

At page 231, in their joint judgment, Taylor and Owen JJ said:

"It was argued before us that the act which caused the wounding and almost instantaneous death of Taylor was the pressure of the applicant's finger on the trigger of the loaded and cocked rifle; that it was open to the jury to conclude that that act was an involuntary one, unwilled by the applicant, because it was what counsel before us described as a 'reflex action' resulting from a sudden movement by Taylor; and that the jury should have been directed to acquit of both murder and of manslaughter if they found that to have been the fact or had a reasonable doubt about the matter. But the fact is that the wounding and death were caused by a combination of acts done in pursuance of the design to commit the robbery. They included the loading and cocking of the rifle, the failure to apply the safety catch, the presentation of the rifle at Taylor with the finger of the applicant on the trigger in circumstances in which an attempt at resistance might well have been expected. No suggestion was or could be made that these acts were involuntary. They were done deliberately and were as much part of the act causing death as was the pressure of the trigger which fired the rifle. It is impossible to isolate the act of pressing the trigger from the other circumstances and argue that it, alone, caused the wounding and death. In these circumstances we doubt very much whether a jury could reasonably conclude that Taylor's death was not caused by any act of the applicant or entertain a reasonable doubt about the matter."

"... I do not accept the contention of counsel for the applicant that the act causing Taylor's death ought, for the purposes of s 18(1) of the Crimes Act, to have been regarded as the mere pressing of the trigger to discharge the rifle. In these circumstances, I think it was not necessary for the trial judge to tell the jury - as it was contended he should have said - that, if merely pressing the trigger were the particular act of the accused which they found was the cause of Taylor's death, then the evidence might well cause them to doubt whether that very act was done either with intent to kill or inflict grievous bodily harm or with reckless indifference to human life. Indeed, I would have regarded such a direction as involving a misdirection."

18 Reverting to Butcher's case, I make no apology for quoting at length from the judgment on the issue of causation because I agree with Mr Snopek, counsel for the DPP, that notwithstanding the different wording of the Victorian provision, that reasoning is applicable to my ruling here. Their Honours said at pp 54-56:

"[I]t was further submitted that the act of the applicant in producing and deliberately pointing the knife towards the stomach of the deceased with the purpose and intent of frightening him did not cause his death.

At the same time, it was submitted that the entry of the knife into the deceased's stomach was a separate act which caused his death and that it was necessary for the jury to find this latter act was willed by the applicant and to be instructed accordingly.

Dealing with the latter point, the law is that in a charge of murder the act which causes death must be proven to have been willed, even though its consequences may not have been intended: cf Ryan v R [1967] HCA 2; (1967) 121 CLR 205, at p 214, per Barwick CJ; at p 231, per Taylor and Owen JJ.

.... The holding out of the knife clearly was a willed act. The question for the jury was, did it cause the death of the deceased. The submission was that it was not open to find that it did.

We have already set out the only evidence of the events, which appears in the applicant's signed interview with Detective Sergeant Morrison, which is to be read along with his unsworn statement.

Both of these accounts appear to paint a picture of the applicant deliberately holding the knife out in his right hand towards the deceased some three to four feet away, hoping to frighten him into handing over the money in his keeping believing that he might be stabbed. Then, as the deceased, after being pushed away by the applicant's left hand (he was close enough to be pushed) rushed at the applicant, the applicant continued to hold the knife out and it entered the deceased's body.

One view of the evidence open is that the applicant consciously continued to hold the knife out intending or hoping, as he said, that the deceased would 'stop' his forward move or 'freak out'. Another view might be that the applicant, although deliberately holding the knife out intending to frighten the deceased, did not have time to remove the knife when the deceased rushed at him, and the deceased was consequently stabbed. It may be assumed, on this latter view, that the consequence of the intended and willed act of holding the knife out was itself not intended. But as Barwick CJ pointed out in Ryan v R [1967] HCA 2; (1967) 121 CLR 205, it does not matter that the consequence of a willed act was not intended.

As we have said, we are persuaded that the real question which arises on this appeal is one of causation. Was it open to the jury to conclude that the willed act of the applicant in presenting the knife towards the deceased's stomach whilst standing three to four feet from the deceased caused his death when he ran upon it. The learned trial Judge told the jury that it was open to them so to find.

The attempt to isolate the cause of death and to identify it as the entry of the knife into the body of the deceased, or the rushing forward of the deceased cannot be sustained. A single cause of death is not always able to be isolated. As a matter of law there need not be a sole cause of death, and in the instant case the presentation of the knife towards the stomach of the deceased, whilst standing three to four feet away, as well as the assumed forward movement of the deceased, may be seen to combine so that both can be postulated as legal causes of the death of the deceased.

His Honour said: 'I have said that I shall deal separately with this question of causation, and I have said that although Mr Faris, for Butcher, conceded that the use of the knife by the accused caused the death of the deceased, it is still a matter for you. When I use the expression, "The use of the knife caused the death", in one sense, of course, it did, because the knife was held in the hand of the accused when it entered the body of the deceased, but that somewhat begs the question. For the accused to be found guilty, the Crown must prove that his act caused the death of the deceased. It may be said that there was more than one cause which contributed to the death, and I direct you that the Crown does not have to prove that it was the accused's act of holding the knife which was the sole cause of the death. The fact that the deceased moved forward - if you think he did or may have done - does not necessarily mean that the accused's act in holding out the knife was not the cause of the stabbing. The reaction of men to threats upon them are known to vary widely. The man who threatens his victim, you may think, must realize that the consequential reaction cannot be predicted with certainty. Some victims may retreat; some may advance, and you may think that common sense dictates that a man cannot say, "Yes, I held out the knife towards his abdomen. Yes, I meant to terrify him. I thought he would give in or retreat, but he advanced towards me, therefore, my holding of the knife did not cause the stabbing." You may think that such reasoning would not accord with common sense. On the other hand, it may be that some intervening action, you feel, is so much a cause of the knife entering the body of the deceased that you may not be satisfied beyond reasonable doubt that it was the accused's act which caused the death. If the deceased did move forward, nevertheless, it would be open to you to find that, as a matter of common sense, in the light of all the circumstances, the accused's act in holding out the knife caused the stabbing and, therefore the death, notwithstanding the fact that some movement of the deceased contributed to it as one of the causes.

You will bear in mind that the onus rests upon the Crown to prove that the act of the accused in holding out the knife caused the death of the deceased.'

In our view, this direction was both correct and adequate."

Their Honours then quoted further passages from the judgment of Taylor and Owen JJ in Ryan's case which I have quoted and continued at p56:

"In the present case, it would be quite unrealistic to isolate the forward movement of the deceased - as was submitted - and to conclude that it was this movement alone which caused his death. We should think that such a conclusion would be wrong in law, and a direction to the jury that they could so decide would be a misdirection.

Nor was it possible, in our opinion, to conclude that because of the speed of forward movement of the deceased, the applicant was unable to do anything and that therefore the act of the knife entering the body of the deceased whilst it was being held out by the applicant was an involuntary or unwilled act: see Ryan v R [1967] HCA 2; (1967) 121 CLR 205 at pp 244-6, per Windeyer J.

Accordingly, in our opinion, it was open to the jury to find that exhibiting the knife, pointing it at the stomach of his victim when he was only a few feet away, whilst at the same time demanding his money, was an 'act of violence' which caused the death of the deceased, and was done in the course or furtherance of a crime of robbery the necessary elements of which include violence."

Their Honours then quoted further passages from the judgments in Ryan's case which I have already quoted, and continued at pp 58-59:

"We intend to reserve for future consideration, if necessary, the issue whether s 3A of the Crimes Act 1958 (Vic) is applicable in a case where some unforeseen foreign agency intervenes whilst an act of violence is being performed in the course of a relevant crime and death results. It may simply be a matter of causation, in which case it would be for the Judge to rule whether as a matter of law it is open to find that a relevant intentional act of violence caused death, and for the jury to decide whether in fact the intentional act of violence caused death. That is not this case.

Having examined his Honour's charge in the light of the several submissions made, we are unable to find that any error has been demonstrated."

19 Mr Barrett QC sought to rely on Marshall's case (supra). The facts were as follows. The accused elected to be tried by judge alone. He was charged with the murder of a police officer. While under the influence of alcohol and marijuana, and while armed with a .22 rifle he proceeded over a period of an hour and a half through a suburban area firing in the air and at persons and cars. Three police cars had been attracted to the area by this activity. The accused became aware of these cars and their interest in him, and began a programme of retreat and hiding. A police car driven by the deceased saw the accused, and went towards him. The accused knew that it was a police car, that it was in pursuit of him, and that he had been seen. He fired his rifle (held at the hip) at the police car in his clear vision. That shot killed the driver of the police car. The accused gave evidence on oath that he did not intend to kill or injure any occupant of the car, but that he fired from the hip at a certain part of the car either to provoke a chase or to frighten the police. He then fled and attempted to evade the police.

20 The trial judge found him guilty, inter alia, of felony murder. The foundational felony was the offence of unlawfully and maliciously shooting at any person with intent to prevent the lawful apprehension of any person, (s 21 of the Act). The trial judge held that on the facts the intention of firing at a part of the car was an intention to shoot so close to the driving police officer that it constituted an intention to shoot at the driver.

21 The Court of Criminal Appeal (Jacobs, Johnston and O'Loughlin JJ) agreed with the trial judge on this point and held that the meaning of "shoot at any person" in s 21 of the Act is "shoot to hit".

22 I do not agree with Mr Barrett QC that his submission derives any support from R v Marshall. The foundational felony there was s 21 of the Act, and the decision turned on the wording thereof.

23 As far as counsel and I am aware there have not yet been any rulings on s 12A. Professor Gilles in his Criminal Law 4th ed p 637 comments:

"D must have the mens rea for the foundational major indictable offence, and D must intentionally commit the operative act of violence."

24 There is no doubt that s 12A changed what was the common law relating to felony murder. The Crown does not now have to prove that death was caused in the commission of or in furtherance of the commission of "a felony involving violence or danger". Parliament has substituted the following in lieu "a major indictable offence punishable by imprisonment for ten years or more (other than abortion)". Upon my reading of the Hansard report, that was the only change intended.

25 Mr Barrett contrasted the drafter's use of the word "intentional" in s 12A with the word "unintentionally" in the Victorian enactment, and submitted that that necessarily involved a further change to what had been the common law as to felony murder. I do not agree. In the Victorian enactment, the word "unintentionally" is linked directly with the causation of death, whereas in the South Australian enactment the word "intentional" is directly linked with "act of violence".

26 Notwithstanding the differences in the drafting of the Victorian section, the reasoning of their Honours in Butcher's case fortifies my initial view that the intentional pointing of a loaded and cocked shotgun at a person at close range in a menacing manner constituted an "intentional act of violence", and that it was open to a jury consistently with at least a majority of the High Court in Ryan's case, to find that such an act caused the death in the course of an armed robbery, even if it was not the sole cause, and I so ruled.

27 In the event the accused, Rivett, at trial, gave a different version of the facts, stating that he was handed the shotgun by Maurangi and that he was holding it when the deceased was shot, but denying that he loaded or cocked it, and denying that he knew it was loaded and cocked. The accused Maurangi denied he was there, but elected not to give evidence. They were both convicted of manslaughter.