R v T [1996] QCA 258

But the trial judge was subsequently referred to the decision of this Court in Reg. v. Crabbe [(1985) [1985] HCA 22; 156 C.L.R. 464] in which the common law concept was considered. Crabbe settled the question whether the knowledge on the part of the accused required for this aspect of malice aforethought was of the possible consequences of his act or the probable consequences. It was held that it is not enough that he does the act which causes death knowing that it will possibly cause death or grievous bodily harm; he must do it in the knowledge that it will probably cause death or grievous bodily harm. ...

It was submitted by the applicant that the trial judge was bound to direct the jury in terms of knowledge of the probability of the consequences as laid down in Crabbe and that the reference in that passage to 'the risk of the probability of those consequences occurring' was incorrect or inadequate. The prosecution, on the other hand, submitted that the trial judge was bound to do no more than direct the jury in the terms of the statute and that Crabbe, dealing as it did with the common law, had no application.

Although the use of the term 'reckless indifference' in s. 181(1)(a) must be sufficient to justify its use by the trial judge, the judgment of the Court in Crabbe avoids the use of that term in relation to malice aforethought at common law, reflecting the view of Gibbs J. in La Fontaine v. The Queen [(1976) [1976] HCA 52; 136 C.L.R. 62, at pp. 76-77] that it is a term to be avoided because it is not easy to explain to a jury the difference between reckless indifference which, if it exists, may justify a conviction of murder and that recklessness which would warrant a conviction for manslaughter by criminal negligence. Nevertheless the term 'reckless indifference' has frequently been used in relation to malice aforethought at common law (see Pemble [(1971) 124 C.L.R., at pp. 119, 127, 135]) and there is no reason to suppose that when it is used it has any different meaning in that context from that which it bears in the definition of murder in s. 18(1)(a). ... If at common law, in the context of murder, knowledge of the probability, rather than the possibility, of the consequences is required to constitute reckless indifference to them, then it seems to us that the same requirement should be imported into a statutory provision which purports to define the crime of murder by reference to reckless indifference without any elaboration of what is meant by that term: see Reg. v. Annakin [(1988) 37 A.Crim.R. 131].

Nothing that was said in Crabbe was intended to prescribe any set formula, provided that knowledge of the probability or likelihood, and not the possibility, of the consequences was the applicable test. As was said by a majority in Boughey v. The Queen [(1986) 161 C.L.R. 10, at p. 20]:

'In the context of the content of the element necessary to constitute common law murder, the gravity of the charge requires that the content of the requirement that an accused knew of the probability or likelihood that his acts would cause death be not discounted. Even in that context, however, it will ordinarily suffice to convey what is involved in the requirement if the direction to the jury is framed in the words of the joint judgment in Crabbe, namely, that the accused knew that death or grievous bodily harm was the probable or likely consequence of his act and if reference is made to the distinction which was there stressed, namely, the distinction between what is probable or likely on the one hand and what is only possible on the other."

Toohey and Gaudron JJ. (who dissented on a point which is not presently significant) said at pp. 424-425 in connection with the question of causation:

"The question whether an act of the applicant caused the death was one to be answered as a question of objective fact. It did not depend upon the applicant's appreciation of the consequences of any act of his. The Full Court of the Supreme Court of South Australia observed in Reg. v. Hallett [[1969] S.A.S.R. 141, at p. 149]:

'Foresight by the accused of the possibility or probability of death or grievous bodily harm from his act, though very relevant to the question of malice aforethought, has nothing to do with the question of causation.'

Of this observation, Howard's Criminal Law, 5th ed. (1990), p. 35, n. 48 comments:

'It may well be argued that attempting to divorce causal responsibility from foreseeability of risk is spurious. Everyday attributions of causal responsibility are immediately affected by foreseeability and estimates of risk; probability is a guide to life. ... The position expressed in Hallett is also difficult to reconcile with the fright or self-preservation cases where the long-standing rule is that D is not causally responsible where V's death is attributable to an unreasonable reaction on the part of V or some third party.'

Conceding the force of these comments, we are nevertheless of the opinion that the members of a jury are less likely to be confused if foreseeability is not introduced into the direction on causation and if the jury are told that whether an act of the accused caused the death is 'a question to be determined by them applying their common sense to the facts as they find them': Campbell [[1981] W.A.R., at p. 290; (1980) 2 A.Crim.R., at p. 161]. Consistent with this approach, the jury may be told that, if the victim's reaction to the act of the accused said to have caused the death was quite disproportionate to the act or was unreasonable, the chain of causation was broken."

"The Court of Criminal Appeal said that 'two things must be taken to be established concerning the concepts of reckless indifference to human life':

'First, the concept requires that the accused know that it is probable that the act in question will cause death. Secondly, in contrast with the concept of malice aforethought at common law, reckless indifference to grievous bodily harm is insufficient.

In that regard Gleeson C.J. referred to Reg. v. Solomon [[1980] 1 N.S.W.L.R. 321]; Reg. v. Crabbe [(1985) [1985] HCA 22; 156 C.L.R. 464]; Pemble v. The Queen [(1971) [1971] HCA 20; 124 C.L.R. 107]; La Fontaine v. The Queen [(1976) [1976] HCA 52; 136 C.L.R. 62]. There can be no doubt that the language of s. 18(1)(a) - 'reckless indifference to human life' - requires that there be indifference to the probability that the accused's act will cause death: see Reg. v. Annakin [(1988) 37 A.Crim.R. 131, at pp. 150-151]. Gleeson C.J. doubted that the present case was one 'where the jury could properly have concluded that this aspect of intention existed'. What was the 'intention' which the Chief Justice had in mind? He had earlier referred to the difficulty of accommodating a state of mind which includes knowledge that the act is probably one that will cause death, with reckless indifference to the consequences. The applicant complained that, having regard to the decision of this Court in Reg. v. Crabbe, the trial judge erred in failing to make it clear to the jury that the death of the victim must be seen as a probability, not a mere possibility. However, the Court of Criminal Appeal concluded that the direction was, in this regard, adequate.

It can be seen that the notion of reckless indifference gives rise to two questions in the present case. The first is whether the charge to the jury sufficiently brought home that there must be an indifference to human life, that is, some animadversion by the applicant to the death of the deceased, not merely injury to her, albeit injury of a serious nature. The second is whether the charge sufficiently brought home to the jury that reckless indifference involves a willingness to run the risk of the probability, as distinct from the possibility, of death ensuing. Reckless indifference is an awkward concept but we are not persuaded that the jury were likely to have been misled by anything the trial judge said in this regard. They were told to concern themselves with the risk of the probability of death resulting from the applicant's actions and his indifference to those consequences. In the circumstances, it is hard to see that the trial judge could have made the point much more clearly than he did. Nevertheless, the doubt expressed by Gleeson C.J. remains."

McHugh J. discussed causation at considerable length, and said at pp. 441-442:

"In most criminal cases, the issue of causation is not controversial. If an accused's act or omission is causally linked with the event or occurrence, it is always only one of the conditions which were jointly necessary to produce the event or occurrence. Ordinarily, however, the application of the commonsense test of causation is enough to determine whether the accused's act or omission was sufficiently significant to make him or her 'causally responsible' for the event or occurrence in question. But there are two cases where the invocation of commonsense principles of causation often provides little assistance to the jury. The first is the case where an accused's act would not have brought about the event or occurrence without the intervention of a subsequent act of the victim or a third party. The second is the case where, notwithstanding the accused's act or omission, the event or occurrence could have been prevented if the victim or a third person had taken action to avoid the consequences of the act or omission. In these cases, common law judges have sought to use more specific tests for determining whether 'but for' acts or omissions of the accused were 'causally responsible' for the event or occurrence. The common law judges have used at least four tests for this purpose. They are: (1) the operating and substantial cause test; (2) the natural consequence test; (3) the reasonable foresight of the consequences test; and (4) the novus actus interveniens test, which is used sometimes in conjunction with and sometimes independently of one of the other three tests. Unfortunately, the cases show no consistent pattern in applying these tests. Frequently, one test has been used to the exclusion of the others without any express recognition of the existence of the other tests: see Colvin,[15] loc. cit., p. 259."

At pp. 447-448, after reference to the circumstance that the trial judge's direction to the jury in Royall was based on the direction approved by the Full Court of the Supreme Court of New South Wales in R. v. Grimes and Lee (1894) 15 N.S.W.R.(L). 209, his Honour continued at pp. 447-448:

"The direction in Grimes and Lee concentrated on the state of mind of the victim and required a finding of causal connexion if the objective facts made the fear well-founded and reasonable. Thus, on a Grimes and Lee direction, it is not enough that the conduct of an accused person has induced the victim to take a course of action which resulted in injury or was a substantial, operating cause. The fear of the victim must be both 'well-founded and reasonable'. It is, however, not easy to understand what is meant by a well-founded and reasonable fear. If the fear was well-founded, it is difficult to see how any question of reasonableness could arise. Further, the direction in Grimes and Lee did not take into account whether the conduct of the victim was reasonably foreseeable; nor did it take into account whether what the victim did was the natural consequence of the defendants' conduct. Consequently, the law as laid down in Grimes and Lee is difficult to reconcile with the law as laid down in many of the cases decided in this century.

The purpose of this extended discussion of the case law has been to demonstrate that the rules concerning causation are in an inconsistent and unsatisfactory state in cases where harm to the victim has occurred because of the subsequent acts or omissions of the victim or a third party. This branch of the law is in evident need of rationalisation. When such a situation exists, it is the duty of this Court, as the ultimate appellate tribunal of the nation, to seek to achieve that object by recourse to the underlying principles of the common law."

After noting at p. 448 that "[j]udicial and academic efforts to achieve a coherent theory of common law causation have not met with significant success, McHugh J. concluded his discussion of causation at p. 451 as follows:

"..., in a case such as the present, an accused should not be held to be guilty unless his or her conduct induced the victim to take action which resulted in harm to him or her and that harm was either intended by the accused or was of a type which a reasonable person could have foreseen as a consequence of the accused's conduct. In determining whether a reasonable person could have foreseen the harm suffered by the victim, any irrational or unreasonable conduct of the victim will be a variable factor to be weighed according to all the circumstances of the case."

After stating that the victim's jumping to her death was a reasonably foreseeable consequence of the appellant's violence, his Honour continued at p. 452:

"Moreover, I think that a reasonable jury were entitled to find that even at the time of the breaking open of the door the applicant had the intention to kill her or cause her grievous bodily harm or was recklessly indifferent to her life. A reasonable jury were entitled to find that, having regard to the violence which had taken place at the earlier stage, the applicant broke open the door with intent to kill the deceased or to inflict grievous bodily harm upon her to realized that his actions would probably cause death to the deceased and was recklessly indifferent to that occurring. It is beside the point that the applicant may not have intended to kill the deceased or inflict grievous bodily harm on her, or may not have foreseen the probability of the deceased dying, by jumping or falling out of the window. ..."

Then, commencing at p. 454, his Honour considered the phrase "reckless indifference to human life" in the New South Wales legislation, and said at pp. 454-456:

"This Court has held that it is only if an accused knew that his or her act or omission would probably cause death or grievous bodily harm that he or she can be convicted of murder in a case where the Crown alleges that the act done or omitted was done with 'reckless indifference': Reg. v. Crabbe [(1985) [1985] HCA 22; 156 C.L.R. 464].

The principle which this Court applied in Crabbe was an adoption of Art. 223 of Stephen's Digest of the Criminal Law (1877) which was concerned to explain what was meant by the common law concept of 'malice aforethought'. That term is not used in s. 18 .... Indeed the object of s. 18 and its predecessor was to do away with the phrase 'malice aforethought': Parker v. The Queen [(1963) [1963] HCA 14; 111 C.L.R. 610, at p. 655], per Windeyer J. Why then should the principles in Crabbe be applied to the statutory concept of 'reckless indifference to human life'? Stephen's definition, which this Court adopted in Crabbe, did not use the term 'reckless'. Furthermore, that definition extended to knowledge that an accused's act or omission would probably cause grievous bodily harm. But the most important distinction between Stephen's definition and s. 18 is that 'indifference' was not an element in his definition. As this Court pointed out in Crabbe [(1985) 156 C.L.R., at p. 470]: 'It is not the offender's indifference to the consequences of his act but his knowledge that those consequences will probably occur that is the relevant element.' In contrast, 'reckless indifference' is the criterion in this part of s. 18.

The foregoing considerations constitute a formidable barrier to the application of the principles expounded in Crabbe to the element of 'reckless indifference' in s. 18. It is a barrier which is not weakened by recognizing that the term 'reckless' in its ordinary meaning covers cases where the actor does not know that the consequences of his or her action are probable. Thus, The Macquarie Dictionary, 2nd rev. ed. (1987) defines 'reckless' to mean '1. utterly careless of the consequences of action; without caution ... 2. characterised by or proceeding from such carelessness'. Moreover, in statutory offences the term 'recklessness' is often interpreted as including the case where the accused knew or recognized that there was a substantial risk that his or her action would bring about the prohibited consequences: cf. Reg. v. Smith [(1982) 7 A.Crim.R. 437, at p. 440]. See also Commissioner of Police v. Caldwell [[1982] A.C. 341, at pp. 353-354].

Despite the force of the foregoing considerations, however, I think that the better interpretation of s. 18 is that the element of 'reckless indifference to human life' requires proof of knowledge on the part of an accused that his or her act or omission would probably cause death. The New South Wales Court of Criminal Appeal took this view of s. 18(1) in Reg. v. Annakin [(1988) 37 A.Crim.R. 131]. In determining the meaning of 'reckless indifference' in s. 18(1)(a), it is a matter of considerable importance that the paragraph is defining the elements of the offence of murder. It is not to be supposed that the legislature would intend that a person who was conscious of no more than the possibility that his or her act or omission might cause the death of a person should be found guilty of murder. Still less is it likely that the legislature intended that carelessness or heedlessness as to the possibility that a person's act or omissions might endanger life was sufficient to constitute murder if the acts or omissions resulted in the death of a human being. The state of mind of a person who knows that his or her act or omission, if done or omitted, will probably cause death cannot be distinguished in terms of moral culpability from the state of mind of the person who intends to kill or inflict grievous bodily harm. But there is a real distinction in terms of moral culpability between the latter two states of mind and the state of mind of a person who acts or fails to act even though he or she knows that there is a possibility that the act or omission might cause death. If acts or omissions accompanied by knowledge of the possibility that they might result in death were within s. 18(1)(a), many acts and omissions previously classified as manslaughter would have to be regarded as murder.

A further factor pointing in favour of the application of the Crabbe test to s. 18(1)(a) is that the state of mind described in that test was often described at common law as 'reckless indifference': see, e.g., La Fontaine v. The Queen [(1976) [1976] HCA 52; 136 C.L.R. 62, at p. 76], per Gibbs J. and the authorities to which he refers; Crabbe [(1985) 156 C.L.R., at p. 470].

For the foregoing reasons, I think that the better view is that the principle in Crabbe is applicable to the element of 'reckless indifference to human life' in s. 18(1)(a))."

Despite the suggestion by Gibbs C.J. in Boughey that Crabbe might appropriately be reconsidered in the light of Hancock, Australian authority does not presently support a conclusion that, for the purposes of Chapter 46 of the Code, an unlawful act is done wilfully only if "... the probability of the [damage or fire] taken to have been foreseen must be little short of overwhelming ...": cp. Marshall. On the other hand, neither a "bare" nor a "real and substantial" possibility of damage or fire is sufficient: cf. Boughey. Crabbe and Royall, taken together, indicate in my opinion that the conjunction of likelihood and recklessness in the test of wilfulness stated by the Court of Criminal appeal in Lockwood is only satisfied if the damage or fire which results from an act is foreseen as more probable than not, and indeed as so probable (or likely) that the act is properly described as reckless in circumstances in which recklessness must be such as to attract criminal responsibility for a serious offence. The requirement of criminal recklessness in connection with the act influences the degree of probability of the resulting damage or fire which must be foreseen.

In the present instance, it is a critical factor in any consideration of the appellant's state of mind, i.e., in whether he foresaw that the fire which he caused by flicking his lighted cigarette onto the papers was so probable that his action was reckless, that he was 14 years old at the time. The trial judge was, of course, aware of that. However, questions remain whether he turned his mind to the true nature of the Lockwood test and, even if he did, whether the conclusion that the appellant acted wilfully was open on the evidence.

In considering the latter question, it is necessary to have regard to not only the appellant's age but also the circumstance that his action, flicking the lighted cigarette onto the papers, had no obvious purpose other than starting a fire and occurred in the course of breaking, entering and stealing from the shop which his action set alight. In my opinion, it was open to inference that the appellant intended to set fire to the shop, and it necessarily follows that it could be inferred that he foresaw a sufficient probability of the shop becoming alight to make his act of flicking the cigarette onto the papers reckless.

While the trial judge's process of reasoning lacks detail, there is no indication he misunderstood or misapplied the Lockwood test, and his conclusion was, in my opinion, correct in the circumstances.

It follows that his verdict is not unsafe or unsatisfactory, and there has been no miscarriage of justice. The appeal should be dismissed.

Examples (of cases other than those referred to in the text) of the various meanings attributed to the words "wilfully", "intentionally" and "likely" in accordance with the contexts in which they are used are provided below.

Davies v O'Sullivan [No. 2] [1949] SAStRp 14; [1949] S.A.S.R. 208 at 210-211, per Napier CJ; which was referred to and adopted by some members of the Court in Iannella v French [1968] HCA 14; (1967-1968) 119 C.L.R. 84; Lewis v His Honour Judge Ogden (1984) 153 C.L.R. 682 at 688;

Bergin v Brown [1990] VicRp 78; (1990) V.R. 888 at 295, per Orminston J.

R v Turnbull [1943] NSWStRp 56; (1943) 44 SR(NSW) 108, per Jordan CJ, (followed in Iannella v French at pp.108-109, per Windeyer J);

(c) Knowingly and indifferent to the consequences-

Taylor v Pope (1979) 21 S.A.S.R. 468 at 470, per Wells J.

R v Harrison [1957] VicRp 15; [1957] V.R. 117 at 120, per Barry J;

Iannella v French at 95, per Barwick CJ (considered in Bergin v Brown at 892 and Fitzgerald v Montoya (1989) 16 N.S.W.L.R. 164 at 171-172, per Rodgers A-JA);

Little v James (1987) 63 L.G.R.A. 272 at 274, per Cox J.

Re Mayes and the Legal Practitioners Act [1974] 1 N.S.W.L.R. 19; (referred to by Mr Glanville Williams in his text "Criminal Law, The General Part", 2nd ed. at p.65; applied in Noyes Brothers Pty Ltd v Johnson [1988] VicRp 74; [1988] V.R. 787 at 817, per Southwell J;

Regina v Hodgson (1985) Tas.R. 75 at 106, per Cox J; followed in Gina Gardenal-Williams (1989) 43 A. Crim. R. 29;

"H" (A Child) (1994) 74 A. Crim. R. 330, per Scott J.

(f) Intentionally bad conduct or conduct that is blameworthy or deserving of serious censure-

Sherras v De Rutzen [1895] 1 Q.B. 918 at 921;

McPherson v Repatriation Commission (1989) 87 A.L.R. 275, per Morling J;

Wheeler v New Merton Board Mills Ltd [1993] 2 K.B. 669 at 677.

(g) Conscious exercise of will, different from intentionally-

R v Holmes [1960] W.A.R.122 at 123, per Jackson SPJ

(a) An apprehension that the risk is highly probable: R v Hyman [1974] UKHL 2; (1975) A.C. 55; referred to in R v Wilmont (No. 2) (1985) 2 Qd.R. 413 at 416, per Campbell J.

(b) Knowledge (Giorgianna v The Queen [1985] HCA 29; (1985) 156 C.L.R. 473 at 504-507).

(c) Wilful blindness may be treated as equivalent to knowledge: He Kaw Teh [1985] HCA 43; (1985) 157 C.L.R. 523 per Gibbs CJ, referred to by Toohey and Gaudron JJ in their dissent in Buhri Kural v The Queen [1987] HCA 16; (1987) 162 C.L.R. 502.

(d) Less than actual knowledge, such as the awareness of the likelihood of the occurrence is sufficient: Buhri Kural v The Queen, per Mason CJ, Deane and Dawson JJ.

(e) The prosecution must prove that the offender (assuming his mind to be sufficiently normal for him to be capable of criminal responsibility) knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing: R v Turnbull [1943] NSWStRp 56; (1943) 44 S.R.(N.S.W.) 108 at 109, approved by Windeyer J at p.108-109 in Iannella v French and referred to by Gibbs CJ in He Kaw Teh v The Queen at 530-531.

(f) Embraces the concept of blameworthiness: Re Stuart and Chief of the General Staff (1944) 122 A.L.R. 486.

(g) Connotes an element of purpose: Iannella v French, Barwick CJ at p.95.

(h) "...covers all consequences whatever which the doer of an act foresees as likely to result from it, whether he does the act with the actual desire of producing them or only in recklessness as to whether they ensue or not.": Per Professor Kenny in his text "Outline of Criminal Law" which was quoted by Dixon CJ in Vallance at p.59. An element of recklessness is also referred to in Sweet v Parsley [1969] UKHL 1; [1970] A.C. 132 at 162.

(a) Synonymous with the meaning of "probably" or contrasted to the meaning of "possibly"-

R v Hallett [1969] S.A.S.R. 141 at 153;

Transport Ministry v Simmonds [1973] 1 N.Z.L.R. 359, per McMullin J;

Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 27 F.L.R. 400, per Bray CJ;

Brown v Sheppard (1986) 42 S.A.S.R. 153 at 157, per Cox J;

Department of Agriculture and Rural Affairs v Binnie [1989] VSC 836; [1989] V.R. 836 at 840ff, per Marks J;

Hand v Hell's Angels Motorcycle Club Inc. [1991] FCA 633; (1991) 25 A.L.D. 667 at 672;

Haymon v Deland and Anor [1992] NTSC 96; (1992) 111 F.L.R. 62 at 66, per Martin J;

The State Bank of South Australia v Hellaby (1992) 59 S.A.S.R. 304 at 312, per King J.;

Irving v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 457; (1993) 44 F.C.R. 540 at 543, per Ryan J;

Goss v Swan [1994] 1 Qd.R. 40 at 41, per Derrington J.

Dunning v United Liverpool Hospitals' Board of Governors [1973] 1 W.L.R. 586; [1973] 2 All ER 454, per Lord Denning MR at 590; 457;

Modbury Hospital v O'Loughlin (1988) 49 S.A.S.R. 452 at 464, per Bollen J; The State Bank of South Australia v Hellaby (supra), at 325.

Dunning v United Liverpool Hospitals' Board of Governors at 593; 460, per James LJ; followed in The State Bank of South Australia v Hellaby at 320 and 321, per Matheson J.

(d) Substantial or a real and not remote chance, regardless of whether it is less than 50%-

Sheen v Fields Pty Ltd (1984) 58 A.L.J.R. 93 at 95, per Gibbs CJ (adopting what Deane J said in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85; (1979) 42 F.L.R. 313; 27 A.L.R. 367); Waugh v Kippen and Anor [1986] HCA 12; (1986) 160 C.L.R. 156 at 166 and 167;

Soulis v Total Corrosion Control Pty Ltd (1994) 11 S.R.(W.A.) 28;

Soulian v Independent Wool Dumpers Pty Ltd (1994) 11 S.R.(W.A.) 299 at 300, per Sadleir J; Fraser v Southern Cross Homes (WA) Inc (1994) 11 S.R.(W.A.) 68 (applied in York v Tempo Cleaning Services Pty Ltd (1994) 11 S.R.(W.A.) 208; Psaila v Wormald Australia Pty Ltd (1994) 11 S.R.(W.A.) 182; O'Grady v Captain Choppers Pty Ltd (1994) 10 S.R.(W.A.) 378; Australian Electoral Commission v Lalara and Ors (1994) 53 F.C.R. 156 at 166, per O'Loughlin J; following Jungarrayi v Olney (Kenbi Land Claim) (1992) 34 F.C.R. 496 at 506;

Colonial Mutual Life Assurance Society Ltd v Wilson Neill Ltd [1994] 2 N.Z.L.R. 152 at 161.

(e) Degree of contingency falling short of probability or less than a probability but more than a remote possibility-

Poignand v NZI Securites Australia Ltd and Ors [1992] FCA 369; (1992) 37 F.C.R. 363.

(f) A real chance or possibility, not more probably than not-

State Pollution Control Commission v Blayney Abattoirs Pty Ltd (1991) 72 L.G.R.A. 221 at 224, per Hemmings J.

I have read the reasons of the President. I agree with what his Honour has said about the question whether the appellant had the capacity to know that he ought not to do the act in question: s. 29 of the Criminal Code. The remaining point is whether the evidence was such as to support a finding that the appellant "wilfully and unlawfully" set fire to the shop; it is wilfulness which is in question. I agree with the conclusion of the President that there was evidence to justify the judge's view of the case.

It was decided in Lockwood [1981] Qd.R. 209, that the element of wilfulness in such a context as this may be satisfied, even where all that can be proved is that the accused has done the act complained of recklessly, foreseeing that the relevant consequence was likely to ensue. In Lockwood, the relevant consequence was damage to property; here, it was setting fire to a shop.

A question arises as to the meaning of the word "likely" in the Lockwood rule; it is capable of meaning "more probable than not", but I doubt if it was used in that sense by the judges who decided Lockwood. The problem was only briefly touched on in argument, and I am inclined to the view that it is unnecessary to reach a conclusion about it in this case. I will confine myself to some tentative observations.

The ordinary use of the word "likely" in such context conveys "the notion of a substantial - a 'real and not remote' - chance regardless of whether it is more or less than 50 per cent": Boughey (1986) 161 C.L.R. 10 at 21. It is true that the word "wilfully" in the expression with which we are concerned, "wilfully . . . sets fire to**. . .**", ordinarily has a meaning which excludes mere negligence and includes only acts positively intended to set fire to one of the things mentioned in s. 461. But since Lockwood, it must be accepted that in Ch. XLVI of the Code the word "wilfully" has a wider scope and covers, as I have said, acts done recklessly by a person who foresees that setting fire to, e.g., a building is likely to be the result.

A person who has deliberately thrown some lighted matches close to highly combustible material contained in a building, without setting fire to it, may think there is a less than even chance that throwing another match will set the building alight; if another match is thrown and the building burns down, I am inclined to the view that the question for the jury will be whether the accused foresaw that there was a substantial chance that a further match would set the building alight. But as I have said, it is not essential to reach a definite opinion on the point in the present case; on any view the judge's finding, quoted by the President, as to the appellant's state of mind at the time when he disposed of his cigarette, involved a correct application of the Lockwood test. The verdict was a safe one and the appeal should be dismissed.

This is an appeal against conviction for arson. The conviction was recorded by a District Court Judge sitting alone as a Childrens Court. The facts were that the appellant and another youth had broken into a fast food shop in the early hours of the morning and stolen money and property. Shortly before the offenders left the premises the appellant discarded a cigarette in an area where there were papers, which caught fire and burnt the building. The grounds of appeal were that:-

(a) the trial judge erred in law in ruling that there was a case to answer

(b)the verdict was not supportable upon the evidence

(c)the conviction was unsafe and unsatisfactory and

(d)the evidence was not sufficient to ground the inference of fact made by the trial judge.

The decision in R. v. Lockwood, ex parte Attorney General (1981) QdR 209 by a specially constituted Court of Criminal Appeal of five judges established that to prove an offence under s.469 of wilfully and unlawfully destroying or damaging property, it is not necessary to prove a specific intent to destroy or damage the property. While the element "wilfully" could be proved by the existence of such an intent, it is sufficient to establish that there was a willed act (in the sense contemplated by s.23) on the part of the offender and that at the time of doing the act the offender was aware that it was a likely consequence of doing the act that the property named in the indictment would be destroyed or damaged, but nevertheless did the act recklessly taking the risk of the destruction or damage occurring. Lockwood overruled an earlier decision in R. v. Burnell (1966) QdR 348. An underlying premise in the judgments in Lockwood is that the word "wilfully" will bear the same meaning in other sections in the same chapter (Ch. 46) of the Criminal Code in which the arson section, s.461, is included.

The proposition stated above is derived from the judgment of Lucas ACJ with whom Matthews and W B Campbell JJ. agreed. Douglas J. who had been a member of the Court in Burnell pointed out that because of the terms of the trial judge's direction in Burnell, the argument proceeded from "quite different premises" from that in Lockwood. Because of the form of the trial judge's challenged direction and way in which Burnell was therefore argued, discussion of any further meaning than "intentionally" was not germane to the issue in that case. Douglas J. was of the view that had the Court in Burnell been referred to the conceptual discussion of the word "intentional" in Vallance v. The Queen [1961] HCA 42; (1961) 108 CLR 56 it would have affected what had been said, especially by Gibbs J. at pp. 355-6. Douglas J. accepted as correct the Crown's submission that the word "wilfully" required of the Crown "no more proof than that the accused person deliberately did an 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 wantonly and recklessly did the act regardless of that risk". DM Campbell J. said that the meaning of "wilfully" was "wide enough to include a brand of recklessness, viz. acting with indifference to the likelihood of a foreseen result occurring". None of the judgments in Lockwood discussed the meaning of "likely" or "likelihood". In his decision, the learned trial judge simply repeated the test in Lockwood without further elaboration.

At the time of the offence the appellant was 14 years of age. In determining whether there was sufficient basis to safely convict him it is necessary to consider what the appellant said about the circumstances in which he discarded the cigarette. The following passages of the record of interview contain what he said about the fire:-

"Now, what can you tell me in relation to the fire that occurred at the pizza shop?-- (Inaudible).

Yeah?-- (Inaudible) working, got the money in. I was smoking and when - when I was going out I just chucked a cigarette on the floor and it went on the paper.

Then we got the money and that and he grabbed the cigarettes and then we just went out -I flicked my cigarette down and then we just went out through the front door.

And how did that start the fire?-- I don't know. When I flicked it down there, I don't know. Then when we got back to Ricky's (inaudible) I was knocking around on the hockey field and just seen all this smoke there.

Now, you said here that you flicked a cigarette. Can you tell me where abouts?-- The drawer was like that and there's papers to the side of the drawer and I flicked it down there as I was going out.

Were you in possession of a lighter that night?-- No.

How did you light the cigarette?-- I lit it off Ricky.

Ricky's told me that you lit some papers and the fire was started and he put the fire out then you left the shop. Any comment to make about that?-- I just flicked the cigarette out and we left.

Why did you put the cigarette in there?-- I don't know, it's just where I flicked it.

Ricky's also said to me that you said, "let's burn this place" and he said, "No". And you said, "I'm going to anyway"?-- No.

Any comment to make about that?-- I didn't say that.

What did you say?-- Nothing. I just flicked it down and he goes let's get out of here.

Was any conversation about burning the shop down?-- No.

Why did you put your cigarette down there?-- That's where I flicked it.

Well, why put your cigarette there?-- It's where I flicked it.

Ricky has also informed me that you had a cigarette lighter that night. Any comment to make about that?-- I didn't have a cigarette lighter, he had the light.

Yes, he said that too, he's had one too?-- I didn't have a lighter.

Did you - when you flicked the cigarette down, did you think there was a chance that it could catch fire?-- No.

Why? Why didn't you think it would catch fire?-- I just didn't think it would like light up or anything."

One of the issues argued was that there was insufficient proof of the appellant's capacity to know that he ought not to do the act which he did (s.29(2)). The appellant was not asked any questions specifically designed to establish his capacity to know that he ought not to do the act. However, before the learned trial judge the issue of capacity was all but conceded by defence counsel on the basis that the apparent level of comprehension in other respects during the record of interview may well lead to the conclusion that the appellant had the capacity to know that he should not flick a lighted cigarette into papers because of the risk of fire and that he ought not to burn the shop.

At the end of the Crown case a submission that there was no case to answer was made. It was rejected by the learned trial judge. The appellant elected not to give evidence. The learned trial judge acted upon the view of the facts that the accused deliberately disposed of the cigarette by flicking it into an area beneath the counter of the shop where flammable items were stored. He said that the only rational reason on the evidence for his doing so was to bring the burning cigarette into contact with the flammable material. He observed that the answers indicating a lack of intention to start a fire were self-serving statements to which little weight could be given. He had earlier said that in order to convict the accused he must be satisfied beyond reasonable doubt that he was aware that a fire was likely to result and yet flicked his cigarette into the materials reckless of the risk. He also distinguished in another part of his reasons between a random disposal of a cigarette which would not be sufficient to satisfy him beyond reasonable doubt of the intention to start a fire, and an appreciation that a fire was likely and deliberate disposal of a cigarette in a place where there was flammable material. He said that he was satisfied beyond reasonable doubt that the accused was aware of the likelihood of a fire starting and deliberately disposed of his cigarette underneath the counter reckless of the risk.

There was in my view ample basis to interpret the passages quoted above in the record of interview as a basis for a finding that the disposal of the cigarette into the papers behind the counter was deliberate. Once that finding was made, even allowing for the immature age of the offender, it was almost inevitable that there would be a finding that such disposal occurred recklessly in disregard of the risk of fire that he must have foreseen as a highly probable consequence of flicking the cigarette into the papers. That would be sufficient to dispose of the present appeal because there was an ample basis for finding that the appellant had deliberately and recklessly discarded the cigarette knowing that he had done so in a place where a fire was likely to occur and burn the building. Because the evidence supports a high degree of probability that a fire would occur it is unnecessary for me to discuss the meaning of the word "likely" which was left unresolved in Lockwood and the subsequent Court of Appeal decisions referred to by the President. That issue was not fully argued before us, having been raised in a cursory fashion only in an interchange between counsel for the applicant and the Court early in the submissions.

In the circumstances, I would have preferred to reserve my opinion on the question until an occasion when it arises directly and is fully argued. However, because each of the other members of the Court have referred to the question, I feel obliged to give an indication of what I consider to be the focal issue, as to which I would need to be persuaded. That is that where criminal responsibility depends on the conjunction of foresight that a consequence is likely to occur and the doing of an act deliberately and recklessly after having foreseen the likelihood of the consequence occurring, proof that it was foreseen that the consequence is more probable than not is necessary rather than a lower threshold.

1. [1]Environment Protection Authority v N (1992) 26 N.S.W.L.R. 352 at 355, per Hunt CJ; Bergin v Brown [1990] VicRp 78; (1990) V.R. 888, per Orminston J at 892; Fitzgerald v Montoya (1989) 16 N.S.W.L.R. 164 at 168 and 169, per Rogers A-JA and Iannella v French [1968] HCA 14; (1967-1968) 119 C.L.R. 84 at 93 and 95 per Barwick CJ and at 108 per Windeyer J.
2. [2]Burhi Kural v The Queen [1987] HCA 16; (1987) 162 C.L.R. 502 at 504; Sherras v De Rutzen [1895] 1 Q.B. 918 at p.921 (which was subsequently referred to in He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 C.L.R. 523, per Gibbs CJ with whom Mason J agreed); Cameron v Holt [1980] HCA 5; (1980) 142 C.L.R. 342 at 346 and 348 and Iannella, per Barwick CJ at p.95
3. [3] R v Hind and Harwood [1995] QCA 202; (1995) 80 A.Crim.R. 105 at 113 per Fitzgerald P; Poignand v NZI Securities Australia Ltd and Ors [1992] FCA 369; (1992) 37 F.C.R. 363 at 371, per Gummow J; Australia and New Zealand Banking Group Ltd v Harper and Ors [1987] FamCA 4; (1987) 89 F.L.R. 454 at 460; Boughey v R (1986) 161 C.L.R. 10, per Gibbs CJ at 14 and Mason, Wilson and Deane JJ at 20 and Brown v Sheppard (1986) 42 S.A.S.R. 153 at 157, per Cox J.
4. [4]An appendix to this judgment lists some of the cases in which various meanings have been assigned to each of those words.
5. [5]Proof by the prosecution that an accused (subjectively) intended a consequence will not only establish an intention to cause that result if it is an essential element of an offence but will also negative accident; proof that the accused (subjectively) foresaw the consequence will also negative accident: Mamote-Kulang of Tamagot v. R. [1964] HCA 21; (1964) 111 C.L.R. 62, 85; Vallance, pp. 61, 65, 82; Kaporonovski v. R. [1973] HCA 35; (1973) 133 C.L.R. 209, 231.
6. [6]It is unnecessary, on this occasion, to consider how the requirement implicit in sub-s. 23(2) that the prosecution must prove more than that an event did not occur by accident if an intention to cause a particular result as an essential element of an offence is to be satisfied in ordinary circumstances once accident, as redefined in Van Den Bemd, is negatived. However, the proof that an act was intentional does not necessarily establish that an accused person intended the natural and probable consequences of that act; the intent of an accused is not necessarily the intent to be attributed to an ordinary person in the circumstances: R. v. Hawkins, [1994] HCA 28; (1994) 179 C.L.R. 500, at pp. 509, 513-514, 517.
7. [7]The Malicious Damage Act 1861 and the Offences Against the Person Act 1861.
8. [8]The Injuries to Property Act of 1865
9. [9]In R. v. Knutsen [1963] Qd.R. 157, which was referred to in Lockwood, both members of the majority made reference to Griffith's letter to the Attorney-General: see per Stanley J. at p. 172 and per Mack J. at p. 184.
10. [10]According to Pearce DC & Geddes RS, Statutory Interpretation in Australia, Butterworths, 1996 at 56, "in order that a reference to extrinsic materials may have the potential to change an interpretation of legislation which would otherwise have been arrived at, it is necessary for a court to conclude that one of the conditions of [s. 14B] has been met. That means the court must conclude, without taking account of any materials forming part of the Act, that the provision in question is 'ambiguous' or 'obscure' or that, taking account of its context and underlying purpose or object, the ordinary meaning leads to a result that is 'manifestly absurd' or 'unreasonable'. Further, the language of extrinsic material cannot be substituted for the text of a statute and it remains the function of the Court to give effect to the will of Parliament as expressed in the enactment. This is especially so where an intention disclosed by extrinsic material which is unexpressed in an Act is restrictive of the liberty of the individual" Re Bolton; ex p. Beane [1987] HCA 12; (1987) 162 C.L.R. 514, 518 per Mason C.J., Wilson and Dawson JJ. See also Catlow v. Accident Compensation Commission [1989] HCA 43; (1989) 167 C.L.R. 543, 549-550 per Brennan and Gaudron JJ. Nonetheless, pursuant to s. 14B (and similar provisions in other jurisdictions) the Court may refer to any relevant material outside the legislation even when the provision is clear on its face, (Commr of Australian Federal Police v. Curran (1985) 55 A.L.R. 697 at 706-7 per Wilcox J.; and Gardner Smith Pty. Ltd. v. Collector of Customs (Vic) (1986) 66 A.L.R. 377 at 383-4; see also Humphries v. Poljak [1992] VicRp 58; [1992] 2 V.R. 129 (Vic Sup Ct FC)), but only to confirm the literal meaning of the provision. (Re Australian Federation of Construction Contractors; Ex parte Billing [1986] HCA 74; (1986) 68 A.L.R. 416 at 420). Further, there have been occasions where provisions similar to s. 14B have been assumed to complement the common law principles: see Alexandra Private Geriatric Hospital Pty. Ltd. v. Blewett ; Re Tasmanian Ferry Services Ltd. and Secretary, Department of Transport & Communications ; at 408; Lemair (Australia) Pty. Ltd. v. Cahill at 171-2 per Kirby P.; Re Bolton; Ex parte Beane ; at pp. 227-228; cf Gerhardy v. Brown ; at 497 per Mason J. and 507 per Wilson J.; Hoare v. R. ; at 360-1.)
11. [11]The draft Bill for the Code was first presented to Parliament in 1898. The Bill was read for a second time and then referred on to a Royal Commission (whose members included Sir Samuel Griffith CJ, and other judges of the Supreme and District Courts of Queensland) to report on the draft. The second reading speech, made by the Minister for Justice, referred to Griffith's letter of 29 October 1897, commented on part of the contents of the letter and made mention of the fact that the letter was at the disposal of the legislative assembly. (Hansard, 8 November 1898 at p. 1046.) Thus, the letter was "... a relevant document, that was laid before ... the Legislative Assembly by the member bringing in the Bill." (s. 14B(3)(e) Acts Interpretation Act 1954) The Report of the Royal Commission (Legislative Council Journals, Queensland, Session 1 of 1899, vol. 49 at p.103) recommended minor amendments to s. 25 (now enacted as s. 23), but made no comment in relation to the use of the terms 'malice' or 'maliciously'. When the Bill was returned to Parliament for the second time (Hansard, 7 November 1899 at p. 818), the previous history of the Bill in Parliament was referred to. (Hansard, 8 November 1898 at p. 1046).
12. [12]See, for example, Smith v. Corrective Services Commission (N.S.W.) (1980) 147 C.L.R. 134, 139; Waugh v. Kippen [1986] HCA 12; (1986) 160 C.L.R. 156, 169; Director of Public Prosecutions' Reference No. 1 of 1992 and No. 1 of 1993 (1993) 65 A.Crim.R. 197, 203-206; R. v. Clare [1993] QCA 558; [1994] 2 Qd.R. 619; Kelsey and Mansfield v. Hill [1995] 1 Qd.R. 182.
13. [13]It is unnecessary for present purposes to consider all aspects of the concept of malice, or the developments in England which progressed through D.P.P. v. Smith [1961] A.C. 290; R. v. Hyam [1974] UKHL 2; [1975] A.C. 55; and R. v. Cunningham [1982] A.C. 567 to Moloney, and subsequently, R. v. Hancock and Shankland [1985] UKHL 9; [1986] 1 A.C. 455.
14. [14](1980) (Cmnd. 7844)
15. [15]Colvin, "Causation in Criminal Law", Bond Law Review, vol. 1 (1989) 253