R v T [1996] QCA 258

R v T [1996] QCA 258 - QCA 1996 case summary — Zoe

[124]

[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]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] 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]An appendix to this judgment lists some of the cases in which various meanings have been assigned to each of those words.
[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]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]The Malicious Damage Act 1861 and the Offences Against the Person Act 1861.
[8]The Injuries to Property Act of 1865
[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]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]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]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]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](1980) (Cmnd. 7844)
[15]Colvin, "Causation in Criminal Law", Bond Law Review, vol. 1 (1989) 253

Parties

Applicant/Plaintiff:

# R

Respondent/Defendant:

T \[1996\] QCA 258

Legislation Cited (2)

Malicious Injuries Act 1861

Criminal Justice Act 1967

Cases Cited (13)

IN THE COURT OF APPEAL [1996] QCA 258

Giorgianni v. R. [1985] HCA 29; (1985) 156 C.L.R. 473

Iannella v. French [1968] HCA 14; (1967-1968) 119 C.L.R. 84

R. v. Crabbe [1985] HCA 22; (1985) 156 C.L.R. 464

R. v. Hancock and Shankland [1985] UKHL 9; [1986] 1 A.C. 455

R. v. Moloney [1984] UKHL 4; [1985] 1 A.C. 905

Royall v. R. [1991] HCA 27; (1990) 172 C.L.R. 378

Vallance v. R. [1961] HCA 42; (1961) 108 C.L.R. 56

I could not, however hard I tried, hope to emulate the outstanding erudition with which the speeches of your Lordships' House in Reg. v. Hyam [1974] UKHL 2; [1975] A.C. 55, studied the history and development of, and the authorities relevant to, the concept of 'malice aforethought', to use the anachronistic and now wholly inappropriate phrase which still lingers on in the definition of murder to denote the necessary mental element. ..."

There has been in this Court some difference of opinion as to whether the knowledge which an accused person must possess in order to render him guilty of murder when he lacks an actual intent to kill or to do grievous bodily harm must be a knowledge of the probability that his acts will cause death or grievous bodily harm (as Stephen's Digest of Criminal Law holds) or whether knowledge of a possibility is enough. In Pemble v. The Queen [(1971) [1971] HCA 20; 124 C.L.R. 107, at pp. 118-121], Barwick C.J. thought it sufficient that death or grievous bodily harm should be foreseen as possible but McTiernan and Menzies JJ. were of the opinion that it was necessary that the accused should have foreseen or known (the words are used without any apparent distinction) that death or grievous bodily harm would be a probable or likely (both expression are used) consequence of the act [(1971) 124 C.L.R., at pp. 127, 135]. The matter was considered again in La Fontaine v. The Queen [(1976) [1976] HCA 52; 136 C.L.R. 62]. In that case [(1976) 136 C.L.R., at pp. 85-86] Stephen J. agreed with the opinion expressed by Barwick C.J. in Pemble v. The Queen that it was enough that the accused foresaw the possible consequences of his acts but Barwick C.J. himself appeared now to think that it is an open question whether it is sufficient if the accused appreciated a possibility rather than the probability of serious harm [(1976) 136 C.L.R., at p. 69] . Gibbs and Jacobs JJ. held that in a case of this kind an accused would not be guilty of murder unless he foresaw that death or grievous bodily harm was a probable consequence of his behaviour [(1976) 136 C.L.R., at pp. 75-77, 94-100) and although Mason J. left the question open he noted [(1976) 136 C.L.R., at p. 91] that the suggestion made by Barwick C.J. in Pemble v. The Queen was not a view shared by McTiernan and Menzies JJ. In that case and that it was at odds with the speeches of the members of the House of Lords in Reg. v. Hyam [[1975] A.C. 55]. Clearly the balance of opinion on this Court has been in favour of the view that the mental state necessary to constitute murder in a case of this kind is knowledge by the accused that his acts will probably cause death or grievous bodily harm. The view that knowledge of a possibility is not enough has been accepted by the Full Court of the Supreme Court of Victoria and by the Full Court of the Supreme Court of South Australia: .

It is true that the meaning of the words 'probable' and 'likely' is liable to vary according to the context in which they are used: see Tillmanns Butcheries Pty. Ltd. v. Australasian Meat Industry Employees' Union [(1979) [1979] FCA 85; 42 F.L.R. 331, at pp. 346-347; 27 A.L.R., at pp. 380-382]; Australian Telecommunications v. Krieg [(1976) 14 S.A.S.R. 303, at p. 311]; Koufos v. C. Czarnikow Ltd. [[1969] 1 A.C. 350, at pp. 410-411]. 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. Be that as it may, however, one finds strong support in the Code itself for the conclusion that the word 'likely' was not used in s. 157(1) with the meaning for which the applicant contends.

... In our view, the word 'likely' is used in both ss. 156(2)(a) and 157(1) with what we apprehend to be its ordinary meaning, namely, to convey the notion of a substantial - a 'real and not remote' - chance regardless of whether it is less or more than 50 per cent: cf. Sheen v. Fields Pty. Ltd. [(1984) 58 A.L.J.R. 93, at p. 95; 51 A.L.R. 345, at p. 348] and Waugh v. Kippen [(1986) [1986] HCA 12; 160 C.L.R. 156, at pp. 166-167].

(1961) 108 CLR 56

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Legislation Cited (2)

Cases Cited (13)