Necessity for a specific direction on intent
41 It may be accepted and was conceded on behalf of the appellant, that foresight of consequences is a matter to be taken into account in determining whether or not a person intended those consequences: Regina v. Willmott (No. 2) (1985) 18 A. Crim. R. 42; Parker (supra). It has been clear for a long time in the law of New South Wales and in Australia that regard may be had to an act and its consequences as some evidence of whether or not an intention to cause those consequences existed, without heretically either equating foresight of consequences with intent or presuming it. The true position may be summarised thus, "… where a specific result is the obvious and inevitable consequence of a person's act which he has done deliberately, then that may be regarded as evidence of the actor's intent" (per Finlay, J., with whom Gleeson, CJ. and Campbell, J. agreed, reviewing that line of cases on inferring intent including DPP v. Smith (1961) AC 290; Regina v. Smythe (1957) 98 CLR 163; Regina v. Thomas (1960) 102 CLR 584; Regina v. Stapleton (1962) 86 CLR 358 which culminated in Regina v. Parker (supra); Regina v. Barreto (CCA, unreported 29 September 1993)). Where the consequence is obvious and inevitable and it is foreseen by the actor that the consequence is virtually certain, the inference it is intended is of such compelling force as not to require the circumstances be subjected to sophisticated analysis particularly where no factual issue is asserted to arise or no contrary explanation is given. Despite the able submission of the appellant's senior counsel, I consider the discussion in the United Kingdom in cases such as Regina v. Woolin (1999) 1 Cr. App. R. 8; in Canada in Regina v. Buzzanga & Durocher (1979) 49 CCC (2d) 369 and as expressed in the differing views of Mr. Mirfield and Professor Sir John Smith in 1999 Criminal Law Review 246-247 represents a level of debate of complexity entirely inappropriate to considering the real effect of what the trial judge said to the jury and what should have been said to the jury in this trial having regard to the instant evidence and issues.
42 Further, as to the implicitly asserted necessity to give a positive direction, I share the view expressed in various of the cases that usually it would be an error to expatiate upon the meaning of "intention" in a summing up. It may be that in an appropriate case, a direction such as that referred to in Regina v. Hancock [1986] 1 AC 455 might be called for but it could be expected such cases would be rare. For the reasons I have already stated, this, in my view, was not one of those cases. Thus, I consider this is not an appropriate case in which to examine the reasoning which gave rise to, or the appropriateness of, the guidelines referred to in Regina v. Hancock (supra). It may, in due course, be held in some appropriate case that the position in the United Kingdom and in Australia as to inferring intent from foresight of consequences is now the same and is as set out in Hancock (supra) by Lord Scarmon at 471:-
"… the House made it absolutely clear that foresight of consequences is no more than evidence of the existence of the intent; it must be considered, and its weight assessed, together with all the evidence in the case. Foresight does not necessarily imply the existence of intention, although it may be a fact from which, when considered with all the other evidence, a jury may think it right to infer the necessary intent."
43 I do not see that the jury might have been misled by what his Honour said in the context of this trial, such that they might have been diverted from their proper function or that there was any risk they might not have properly appreciated the effect of what the appellant expressly said and the evidence of what he did. Nor do I consider any positive direction expatiating on intent should have been given.
44 The evidence was all one way. There simply was no evidence in the case, including that of Mr. Orr, of any unintended stabbing to set against the appellant's account and the evidence of his act. Unless the jury were satisfied beyond reasonable doubt that there was no basis for self-defence, ie., that the appellant's account was untrue, then the appellant had to be acquitted. Plainly the appellant, on his own evidence, asserted self-defence and intended to disable his opponent by stabbing him. That was his case. Such a case presented "no issue" on intent as the self-defence asserted accepted the necessity to cause the relevant degree of harm. That was what he admitted, ie., "he said as much". The consequence of the stabbing was obvious and inevitable and the appellant foresaw that consequence would occur.
45 This is not a novel case. There have been others in which, not inappropriately, trial judges have referred to the effect of evidence of intent. In Bartho v. Regina (1978) 19 ALR 418, a stabbing case in which the High Court considered a direction that a jury should decide between guilt and innocence, are to be found (at 421), obiter, observations on a direction having the effect of suggesting to a jury there was on the evidence no real factual basis for doubt as to intent to inflict grievous bodily harm although leaving to the jury the legal entitlement to find the facts. Gibbs, J. (as he then was) held that such a direction was unobjectionable in the particular circumstances. Indeed there was no criticism of that direction by any member of the court. Barretto (supra) was also such a case.
46 This is not a case in which the questions agitated in the High Court in The Queen v. Crabbe (1985) 156 CLR 464 concerning foresight of consequences and wilful blindness raise any matter for consideration, particularly not, since Crabbe (supra at 467-468) was a decision which turned on the traditional common law definition of malice aforethought which embraced a killing done with knowledge that the act causing death will probably cause grievous bodily harm, although accompanied by indifference as to whether that harm is caused or not or by a wish that it may not be caused.