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[1991] HCA 27
High Court of Australia
1986-11-16
McHugh JJ, Dawson JJ
Original judgment source is linked above.
The applicant's case at the trial, as expressed in his unsworn statement, was that, after the deceased had entered the bathroom to take a shower, he had become concerned for her. He had heard a thump on the wall. He said that he knew that the deceased had used amphetamines over a long time and that she suffered from epilepsy which caused her to faint or become unconscious. This knowledge, it was suggested, was the foundation of his concern for the deceased and of the claim that she took her own life by voluntarily jumping out the window. The applicant forced the lock with a knife and banged against the door until it opened. He said: "When I finally got it open she was going out the window." There was evidence that, in his record of interview, he said that, when the bathroom door opened, "I just saw the back of Kelly going out the window. She just jumped out." The applicant denied that any violence was done to the deceased or that he touched her in the bathroom. Moreover, his case was that he did not cause her death or intend to injure her.
The case was left to the jury on the footing that it was for them to determine whether the applicant had caused the deceased's death in any of the three ways suggested by the Crown. The trial judge instructed them that, if they were satisfied that the applicant caused the deceased's death, they should consider whether he had the requisite intent. His Honour stated that the requisite intent would be satisfied by an intent to kill, an intent to inflict grievous bodily harm or reckless indifference to human life. In making this statement his Honour did not differentiate between the three ways in which the Crown suggested that the applicant had caused the deceased's death; in other words, the jury was left with the impression that, if they were satisfied on the issue of causation in any one of the three suggested ways, the requisite intention would then be satisfied by an intent to kill or an intent to inflict grievous bodily harm or reckless indifference to human life.
With respect to the issue of intention, the trial judge told the jury:
The first question is whether, at the time of the act bringing about the death, that being the time when the deceased left the building and fell to the ground below, there was present in the accused an intent to kill; and if you are satisfied that there was such an intent to kill you would not need to consider the next two matters, namely whether there was an intent to do grievous bodily harm or whether the act of the accused, done at that time, was done with a reckless indifference to her life. If you are not so satisfied of an intent to kill then you must consider whether the accused had the intent, at the relevant time, to inflict grievous bodily harm. Grievous bodily harm means nothing more and nothing less than really serious bodily harm such as might be suffered by a person who fell from a height. A little later, in the context of his instructions relating to reckless indifference, the trial judge told the jury that they were to consider the applicant's actual state of mind at "the time when the deceased fell from the building to the ground below". Subsequently his Honour instructed the jury on manslaughter, stating that they could bring in a verdict of manslaughter if they were satisfied of death and causation, but not intention.
Except in relation to the issue of reckless indifference, no directions were sought by counsel for the applicant as to the three ways in which the jury were directed to consider the Crown case of causation; in particular, no direction was sought as to the instructions given in relation to intent to kill or inflict grievous bodily harm.
The Court of Criminal Appeal (Gleeson C.J., with whose judgment Wood and Newman JJ. agreed) acknowledged that there was difficulty for an appellate court evaluating intent by reference to the nature of the act causing death when the trial judge had left to the jury three significantly different possibilities as to the way in which the deceased met her death. However, Gleeson C.J. pointed out that, if the jury accepted the first possibility, it was easy to see how they would have concluded that the applicant intended to kill or inflict grievous bodily harm. Likewise, Gleeson C.J. thought that, if the jury accepted the second possibility, it was open to them to accept that the applicant intended to inflict serious bodily harm. However, his Honour could not see how the jury could have safely concluded that the applicant intended to kill the deceased in that situation. Nor did his Honour consider that in that situation there was a probability that the applicant's actions would cause death or that he adverted to that possibility. But his Honour concluded that the jury were entitled to find that the applicant's attack forced the deceased, in her endeavours to avoid it, backwards out the bathroom window. It was because the court considered that this ground was safely open that they rejected the submission that the verdict was unsafe or unsatisfactory.
The applicant contends that the Court of Criminal Appeal erred in upholding the verdict on the footing that there was one ground safely open to the jury while finding that there were other grounds left to the jury which were unsafe. As will appear later in these reasons, the answer to this contention is that none of the grounds left to the jury as a basis for conviction was unsafe. But I should not let the contention pass without observing that the Court of Criminal Appeal appears to have proceeded on the footing that there was no danger that the jury had arrived at its verdict on a basis other than that which the Court of Criminal Appeal considered to be safe. Gleeson C.J. plainly thought that the jury would have concluded that the ferocity of the applicant's attack resulted in the deceased falling from the window, instead of acting upon any other basis on which the Crown case was left to them. In these circumstances it does not seem to me that the Court of Criminal Appeal impliedly adopted the proposition that a conviction will necessarily be safe if one ground on which the case was left to the jury was safely open, though other grounds were not. Accordingly, I am not persuaded that in this respect there was an error of principle on the part of the Court of Criminal Appeal.
The other grounds of appeal rejected by the Court of Criminal Appeal included a challenge to the correctness of the trial judge's directions on reckless indifference and manslaughter. The applicant contends that the trial judge's directions to the jury with respect to causation, intent and reckless indifference were erroneous and that, in the result, the jury arrived at the verdict which was unsafe and unsatisfactory, the Court of Criminal Appeal not having conducted an adequate examination of the case with a view to ascertaining whether the verdict should be set aside on that ground. The applicant also contends that the trial judge erred in principle in imposing the sentence which was imposed and that the Court of Criminal Appeal failed to deal with this submission.
It is convenient to deal initially with the question of causation. The applicant submits that neither the trial judge nor the Court of Criminal Appeal defined adequately the act done by the applicant which was alleged to have caused the death of the deceased, thereby creating difficulties in determining the issues of causation and intent, in particular the coincidence of act and intent. Ordinarily there is no occasion for a trial judge to spend much time on the identification of the act causing death, but there is a "logical and practical necessity to isolate that act, for it is of it, and it alone, that one or more of the several specified conditions or concomitants must be predicated if the terms of s. 18 are to be satisfied", to repeat the words of Barwick C.J. in Ryan v. The Queen [1] . In Ryan the trial judge's directions were deficient in that they failed to isolate the particular act or acts which the jury might identify as the cause of death. In that case there was room for argument about what was the act which caused death. Different considerations arose for determination in ascertaining whether Ryan's state of mind satisfied the requirements of s. 18, depending upon which act was identified as the cause of death. The Crown case was that Ryan went to rob a service station. While he had his finger on the trigger of a loaded, cocked gun pointed at the deceased's back, with his other hand he tried to find a cord in his pocket. The deceased made a sudden movement, Ryan stepped back and the gun discharged, killing the deceased. If pressing the trigger was identified as the act causing death, the question was whether Ryan willed that act and intended to kill or inflict grievous bodily harm or whether it was an unwilled reflex movement. If, however, presentation of the gun was identified as the act causing death, the question was whether Ryan knew that in the circumstances the involuntary discharge of the gun was probable: see per Barwick C.J. [2] ; and note Reg. v. Crabbe [3] (where the test applied by Barwick C.J. in Ryan was discarded in favour of that just stated).
Thus the case was one in which identification of the act causing death required "specific and close consideration". Yet the directions given to the jury "appeared at times to treat the whole conduct of the applicant from the inception of his exploit as the act causing death", without descending to particularity: see, generally, per Barwick C.J. [4] .
In Ryan [5] , the Chief Justice pointed out that "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". So the question on this aspect of the present case is whether the trial judge adequately directed the jury as to the particular acts any one of which they might regard as the cause of the deceased's death. In this respect there was, in my view, just as there was in Ryan , a need for the trial judge to give specific and close attention to the identification of the various acts which, on the Crown case, might have been the cause of death. It is not to the point to say that in the present case the requirement of intent under s. 18 was the same, no matter which of the acts identified by the Crown was selected by the jury as the cause of death. The point is that, in ascertaining whether there was the requisite intent, different matters may need to be taken into account, depending upon which act is identified as the act which caused death. As Stephen J. said in White v. Ridley [6] :
[I]t is always necessary, if there is said to be any lack of temporal coincidence between act and intent, accurately to identify the relevant act. It was to this need that Barwick C.J. drew attention in Ryan v. The Queen [7] . Aickin J. agreed with Stephen J. [8] . The relationship of act to intent is a matter to which I shall return later. At this stage it is sufficient to say that, if the jury concluded that the applicant pushed the deceased out the window, it would have been easy to find that the applicant intended to kill or inflict grievous bodily harm. If, however, the jury concluded that the deceased met her death in one of the two other ways suggested by the Crown, the drawing of such an inference would not be quite as straightforward. 1. (1967) 121 C.L.R., at p. 218. 2. (1978) 140 C.L.R. 342, at p. 359. 3. (1967) 121 C.L.R., at p. 219. 4. (1978) 140 C.L.R., at p. 363.
However, accepting the necessity in this case for the trial judge to isolate the various acts which the jury might regard as the act which caused death, I would reject the applicant's submission that the summing up was deficient in this respect. The trial judge clearly identified the three acts alleged to have been done by the applicant which may have led to the deceased's death. In so far as the applicant submits that the trial judge did not correctly instruct the jury as to the intent which must accompany the act in order to constitute the offence of murder, that is another question which can be considered apart from causation.
Indeed, I did not understand the applicant to contend, apart from the submission that there must be an interaction between act and intent, that any of the three possibilities put forward by the Crown could not amount to an act which was causative of the deceased's death, if the jury accepted that the act took place. The issue of causation was left to the jury to decide as one of fact. In this respect I agree with the statement made by Burt C.J. in Campbell v. The Queen [9] , that it is "enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter"; see also Timbu Kolian v. The Queen [10] , per Windeyer J. That is the test that has been applied in negligence cases by this Court: seeMarch v. Stramare (E. & M.H.) Pty. Ltd. [11] . Although the trial judge's direction was not so explicit, the jury would have plainly understood it in the sense expressed in the statement just quoted.
Of the three ways in which the Crown case was left to the jury on the issue of causation, only the third calls for comment. His Honour put it this way:
The third allegation is that Kelly Healey at the time immediately before her fall from the window, had a well-founded and reasonable apprehension that if she remained in the bathroom she would be subjected to such further violence as would endanger her life and if in those circumstances she sought to escape by jumping out the window thinking that by so doing she had a better chance of saving her life than by staying inside, and was killed in that fall, the causal link between the acts of the accused and the death are established. No exception was taken to this direction at the trial.
Generally speaking, an act done by a person in the interests of self-preservation, in the face of violence or threats of violence on the part of another, which results in the death of the first person, does not negative causal connexion between the violence or threats of violence and the death. The intervening act of the deceased does not break the chain of causation. But the governing principle has been expressed in a variety of different ways. The trial judge's direction was based on that approved by the Full Court of the Supreme Court of New South Wales in Reg. v. Grimes and Lee [12] (where the deceased jumped to his death from the window of a railway carriage in order to escape from the accused who had assaulted and robbed him). The key element in the chain of causation, as contemplated by the direction, is that an accused's conduct creates in the mind of the victim a well-founded and reasonable apprehension of danger as a result of which the victim takes steps to escape leading to his or her death. According to this view, it is enough that the victim's apprehension of danger is well-founded and reasonable; there is no requirement that the steps taken to escape should be reasonable. However, in England, formulations have been applied from time to time which pay more attention to the mode of escape chosen by the victim which results in death, no doubt with a view to emphasizing the causative link between the accused's conduct and the death of the victim. Thus, it has been held that a reasonable act performed for the purpose of self-preservation in attempting to escape the violence of the accused does not destroy the causative connexion with the accused's violence:Reg. v. Pitts [13] ; Reg. v. Pagett [14] , per Robert Goff L.J. In this context, "reasonable" means reasonable in the light of the accused's conduct and the apprehension of danger which it induced in the mind of the victim. A variant on this formulation is to say that the victim's act which results in death is caused by the accused's violence if the act is "the natural consequence" of that violence, something that is very likely to happen: Reg. v. Beech [15] , per Darling J. (where the victim was injured after jumping out of a window to escape from a man whom she had reason to fear). The natural consequence test has been explained as a test which poses the question whether the victim's act "was something that could reasonably have been foreseen as the consequence of what [the accused] was saying or doing": Reg. v. Roberts [16] , per Stephenson L.J. So if an act is so unexpected that no reasonable person could be expected to foresee it, then it is a voluntary act on the part of the victim which breaks the chain of causation between the accused's conduct and the ultimate injury: Roberts [16] .
In Director of Public Prosecutions v. Daley [17] , the Judicial Committee appears to have endorsed the approach adopted in Roberts . In so doing, their Lordships pointed out that the fear of physical harm induced by the accused's conduct must be "reasonable" and such that it caused the victim to try to escape: per Lord Keith of Kinkel [18] . It is important to note that in Daley their Lordships were dealing with the elements of "constructive manslaughter"; they were not isolating the issue of causation for examination on its own. Moreover, the case was one in which the victim sought to escape by running away rather than by engaging in a hazardous act such as jumping out of a window or from a speeding train. So the mode of escape did not call for separate attention.
It seems to me that, in the context of causation, the principle is best formulated as follows: where the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused's conduct. Whether it is necessary for the prosecution to establish also that the mode of escape adopted is a natural consequence of the victim's apprehension for his or her safety does not arise here for the deceased had no means of escape other than jumping out of the window in the situation posited. The question could arise only in circumstances where the victim does something irrational or unexpected, in which event it might be more difficult to establish that the injury sustained was a consequence of the accused's act and not the product of the victim's voluntary act. In such a situation much may turn on the nature and extent of the well-founded apprehension of the victim; and it is to be expected that persons fearful for their own safety forced to react on the spur of the moment will not always make a sound or sensible judgment and may act irrationally.
In the English cases the natural consequence test has been linked to the concept of foreseeability. Because the natural consequence test inevitably invites conjecture about the likelihood of an occurrence, it is impossible to divorce completely the application of the test from the concept of foreseeability. However, in my view, to invite the jury to consider foreseeability would be more likely, at least in the majority of cases, to confuse than to clarify the issue of causation. In many cases, for much the same reason, I see no point in linking that issue to the accused's state of mind. On the other hand, in some situations, the accused's state of mind will be relevant to that issue as, for example, where there is evidence that the accused intended that injury should result in the way in which it did and where, in the absence of evidence of intention, the facts would raise a doubt about causation.
The trial judge's directions to the jury on the issue of intent to kill or inflict grievous bodily harm.
The applicant makes two specific criticisms of the directions given to the jury with respect to the question of intent, apart from an independent argument aimed at the trial judge's directions on the topic of recklessness with which I shall deal separately. The applicant submits that the trial judge failed to direct the jury, first, that it was an essential element of the offence of murder that the doing of the act which caused the death of the deceased was accompanied by an intent to kill or inflict grievous bodily harm or that it was done with reckless indifference to human life and, secondly, that the intent to kill or inflict grievous bodily harm to be established was an intent to kill or cause such harm by the doing of the act causing death.
It is convenient to consider, first, the second of the two submissions. It concerns the necessity for coincidence between act and intent and the way in which the deceased met her death. Is it enough to constitute murder that the applicant intended to kill or inflict grievous bodily harm upon the deceased by striking her with the ashtray if, in consequence of the intended or attempted assault, she jumped to her death from the window in attempting to escape, having a well-founded apprehension of physical harm?
The answer to this question turns on the provisions of s. 18(1)(a) and (2)(a), together with the definition of Maliciously in s. 5. Section 18(1)(a) provides that "[m]urder shall be taken to have been committed where the act of the accused causing the death charged, was done with intent to kill or inflict grievous bodily harm upon some person". Further, s. 18(2)(a) provides that "[n]o act which was not malicious shall be within this section." This provision must be read with the definition of Maliciously in s. 5 which speaks of "[e]very act done with malice or done without malice but done with indifference to human life or suffering, or with intent to injure some person". Thus, the provisions of s. 18(2)(a) and the definition of "Maliciously", as well as the provisions of s. 18(1)(a), link the doing of the act causing death with the requisite intent on the part of the accused. Putting to one side reckless indifference to human life, the intent required by s. 18(1)(a) is related to the intended impact of the accused's conduct on the deceased, that is, an intent to kill or inflict really serious physical harm; the definition does not stipulate that there must be an intent to kill or inflict such harm by means of the accused's act which causes death. There is, in my view, no compelling reason why the provision should be read more narrowly so as to require an intent to kill or injure by means of such an act.
In terms of the moral culpability which is a core element of the offence of murder, the existence of the intent of the kind described should be sufficient without the need to link the intent to the mode in which death actually takes place. There is no sound basis for drawing a distinction in terms of moral culpability between a person who intends to commit the offence of murder whose intent as to the mode of death is not precisely fulfilled and a person whose intent is fulfilled in this respect: see Ashworth, The Elasticity of Mens Rea in Crime, Proof and Punishment: Essays in Memory of Sir Rupert Cross (1981); see also Glanville Williams, Criminal Law: The General Part, 2nd ed. (1961), par. 44. The point is that the doing of the act which causes death is accompanied by an intent to kill or inflict grievous bodily harm. The fact that death occurs in a way different from that actually intended may, in some situations, possibly generate a problem of causation but that is a different question. As McGarvie and O'Bryan JJ. said in Reg. v. Demirian [19] :
If a person creates a situation intended to kill and it does kill it is no answer to a charge of murder that it caused death at a time or in a way that was to some extent unexpected. 1. [1989] V.R. 97, at p. 113.
What I have just said is supported by the cases in which an accused has been convicted of murder at common law when his or her act which caused the death of the deceased was done not with the intention of killing the deceased but with the intention of disposing of the body, the accused believing, incorrectly, that he or she had already killed the deceased. In Meli v. The Queen [20] , the four defendants intended to kill the deceased and to disguise the killing by staging an accident. They assaulted the deceased and, thinking they had killed him, rolled his body over a cliff. In fact, his death was caused from exposure from lying at the foot of the cliff. Lord Reid, speaking for the Judicial Committee, said [21] :
It appears to their Lordships impossible to divide up what was really one transaction in this way. There is no doubt that the accused set out to do all these acts in order to achieve their plan and as parts of their plan; and it is much too refined a ground of judgment to say that, because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before in fact it was achieved, therefore they are to escape the penalties of the law. See also Reg. v. Church [22] where the accused threw the deceased's body into a river whereby she drowned, the accused believing he had already killed her, having intended so to do. It was held that the jury might have convicted of murder if they regarded the accused's behaviour from the moment when he first struck her to the moment when he threw her into the river as a series of acts designed to cause death or grievous bodily harm. 1. [1954] 1 W.L.R. 228; [1954] 1 All E.R. 373. 2. [1954] 1 W.L.R., at p. 230; [1954] 1 All E.R., at p. 374. 3. [1966] 1 Q.B. 59.
The reasoning in these cases is inconsistent with the applicant's submission that in murder it is essential that there should be an intent to bring about death or injury in the manner in which death actually occurs. It is enough that the accused has the requisite intent at the outset of his or her execution of a series of acts designed to cause, and causative of, death. Those cases illustrate the proposition that, where the death is caused solely by the acts of the accused, the accused's mistake as to the precise manner and time of the occurrence of death is not a factor upon which the accused can rely: S. v. Masilela [23] .
For my part, I doubt that assistance in resolving the question just discussed is provided by the "transferred malice" cases which hold that the accused's intention to kill A will sustain his or her conviction for the murder of B where the act done with the intention of killing A results by mischance in the murder of B: see, e.g., Reg. v. Supple [24] . In the context of s. 18(1)(a), an intent to kill or injure the deceased is not required; it is enough that there is an intent to kill or inflict grievous bodily harm "upon some person". In this respect, the definition is designed to reflect the common law as stated in decisions such as Supple .
The applicant's submission that there must be a temporal coincidence between act and intent finds support in the language of s. 18(1)(a) and (2)(a) and the definition of Maliciously in s. 5. As I have already noted, they link the doing of the act causing death with the requisite intent on the part of the accused. What is more important, they do so in such a way that there must be a temporal coincidence of act and intention.
In this respect the statutory definition reflects the requirement of the common law that "[t]he intent and the [a]ct must both concur to constitute the crime": Fowler v. Padget [25] , per Lord Kenyon C.J.; and see the authorities cited and the discussion in Reg. v. Scott [26] , per Gillard J.
The generality of this principle, as expressed in the statutory definition, might require some qualification if it is to accommodate Meli and Church . On the other hand, it has been suggested that these decisions may be explained as turning on the issue of causation - in each instance the initial assault, which was accompanied by the requisite intention, was the primary cause of sequential events resulting in death: see Howard's Criminal Law, 5th ed. (1990), p. 53. If that explanation is put to one side, the approach taken in Meli and Church is perhaps more easily accepted in cases where there is a pre-arranged plan to kill the deceased than in cases where there is no such plan and there is merely a series of acts from which death results. But there is no occasion to decide the question now and I am prepared to assume, without deciding, that there was here a need for temporal coincidence between the act causing death and the intent.
The trial judge's direction that the jury should consider the applicant's state of mind when the deceased fell from the building was appropriate to the first way in which the Crown case was left to the jury. On the other hand the direction, in its application to the second and third ways in which the case was left to the jury, was not temporally related to the acts of the applicant alleged to have caused the death of the deceased. However, in this case, according to the statements made by the applicant, the lapse of time between his entry into the bathroom and the departure of the deceased from the window was insignificant. More importantly, even if one disregards the applicant's statements, it is apparent that there was no significant interval of time between the act of the applicant causing death (whichever it was) and the deceased's departure from the window. In the result, the direction, though it may well have been theoretically objectionable, identified a point of time which sufficiently coincided with any of the acts of the applicant which were alleged to have caused the death.
The trial judge's directions with respect to reckless indifference to human life.
On this issue, the trial judge instructed the jury in these terms:
Recklessness involves foresight of or advertence to the consequences of a contemplated act and a willingness to run the risk of the probability of those consequences occurring.
By reckless indifference to human life is meant that the accused was aware that the act contemplated carried a risk to the life of the human being concerned, that the accused did not care whether his act threatened the life concerned. That is, he was indifferent to whether or not his act took that life and he committed the act with such an attitude of mind to its result that you, as jurors, should consider it to be reckless indifference.
His Honour went on to say: Thus your task would be to consider the accused's actual state of mind at the relevant time which, as I have said, is the time when the deceased fell from the building to the ground below.
The applicant contends that the reference to "a willingness to run the risk of the probability" in the first sentence of the passages quoted above was erroneous in that it failed to bring home to the jurors the need for the Crown to establish that the applicant actually realized that the deceased would probably die as a result of the applicant's conduct and nonetheless went on to engage in that conduct. It is well settled that the jury in a trial for murder at common law should be told that it is only if the accused actually knew that his or her act would probably cause death or grievous bodily harm that he or she can be convicted of murder on the footing of reckless indifference to human life: Pemble v. The Queen [27] , per Menzies J.; La Fontaine v. The Queen [28] , per Gibbs J.; Crabbe [29] . I agree, for the reasons given by Deane and Dawson JJ., that knowledge of the probability of the consequences is an element in the concept of "reckless indifference to human life" in s. 18(1)(a). The Court of Criminal Appeal was correct in so deciding in Reg. v. Annakin [30] and Reg. v. White [31] (in both cases the Court held erroneous directions which enabled a jury to convict for murder by reference to the possibility rather than the probability of death). Section 18 departs from the common law in that it requires foresight of the probability of death; foresight of the probability of grievous bodily harm is not enough: Reg. v. Solomon [32] .
Here the Court of Criminal Appeal considered that the direction sufficiently conveyed to the jury that the death of the deceased must be foreseen as a probability rather than as a mere possibility and that the reference to "risk" did not obscure that message. I have had considerable misgivings about the accuracy of that statement because the instruction to the jury did not spell out, as it should have, the need for knowledge, awareness, foresight or realization of the probability of death. Generally speaking, it is important to spell out this element of recklessness in order to distinguish murder from manslaughter. In this respect the Crown case of murder was to be contrasted with a careless act causing death done without conscious acceptance of the risk involved or such an act done with the knowledge that death or serious injury is only a possible consequence: see Pemble [27] , per Menzies J. On the other hand, the words used, when considered carefully, necessarily implied the requisite state of mind on the part of the applicant. It was plain enough that by his reference to "consequences" his Honour meant the death of the deceased; so much was apparent from the statements concerning "indifference to human life" and the expression "took that life". In that context, the first sentence of the direction which I have quoted must be read as a reference to foresight of death as a consequence of the contemplated act and a willingness to proceed notwithstanding foresight of the probability of that consequence.
The Court of Criminal Appeal doubted that the jury could properly have concluded that the applicant foresaw that the deceased would fall or jump from the window as a probable consequence of his acts such that he took the chance that such an event would occur. If that doubt were well-founded, the direction on recklessness should not have been given. Such a direction should only be given where recklessness is an appropriate issue on the evidence (Pemble [33] , per Barwick C.J.; La Fontaine [34] , per Barwick C.J.; per Gibbs J. [35] ; per Stephen J. [36] ; per Mason J. [37] ) otherwise the direction is likely to confuse the jury.
In this situation the applicant contends that the verdict was unsafe and unsatisfactory in that the jury may have arrived at their verdict as a result of the direction on recklessness. The short answer to this contention is that, when account is taken of the extremely confined space within the bathroom, it was well open to the jury to conclude that the applicant foresaw the probability that the deceased would fall or jump from the window in consequence of the ferocity of the alleged attack, in attempting to avoid that attack or to escape from the bathroom. As a matter of causation I have already concluded that falling from the window to escape from the bathroom in consequence of a well-founded apprehension of physical harm would be a natural consequence of the applicant's conduct. I see no difficulty in the jury inferring that the applicant had foresight of that natural consequence.
The applicant's contention that the verdict was unsafe and unsatisfactory rested partly on submissions which I have already rejected. The contention was based on the suggestion that the trial judge should have instructed the jury concerning the separate elements of intent in relation to each of the three ways in which the applicant was alleged to have brought about the deceased's death. No direction was sought at the trial in relation to this matter and, in the circumstances, I am not persuaded that there was any defect in the summing up on this score.
The applicant was sentenced to penal servitude for life pursuant to s. 19 of the Act. As it then operated, s. 19 provided a mandatory life sentence for the offence of murder and, by the operation of a proviso, confined the discretion of the court to pass a lesser sentence to instances where the judge was of the view that there were "mitigating circumstances" which significantly diminished the accused's culpability for the crime.
The applicant does not seek to challenge the correctness of cases such as Reg. v. Burke [38] and Reg. v. Bell [39] where the Court of Criminal Appeal considered the various factors which were capable of constituting "mitigating circumstances" within s. 19. This question would be of limited significance since the repeal of s. 19 and the introduction of s. 19A restoring the discretion of the judge in sentencing for the crime of murder.
The contention of the applicant is that it was open to the trial judge to find that, whatever the applicant's intent, he had not intended that the deceased's death be brought about in the manner in which it ultimately occurred. It was argued that this was capable of operating as a mitigating circumstance and that the trial judge and Court of Criminal Appeal had erred in failing to so consider it.
In accordance with what I have already said, when a person possesses the intent necessary to constitute murder, that person's moral culpability is not reduced by the fact that the intention as to the mode of death was not precisely fulfilled. Accepting in this case that the applicant had ferociously attacked the deceased, with the requisite intent, it is ludicrous to suggest that his culpability for the death was in any way diminished by reason of the circumstance that the death occurred because the deceased may have fallen or escaped from the window, instead of the death occurring as a direct result of the applicant's assault.
In the result I would refuse the application for special leave so far as it relates to sentence. Otherwise, I would grant special leave to appeal and dismiss the appeal.
The circumstances out of which this application for special leave arises are set out in the judgment of Deane and Dawson JJ. They give rise to some questions of importance relating to proof of causation in homicide and to proof of murder when the manner of death is not the manner intended or foreseen.
The external elements of crimes of homicide include the doing of an act or the making of an omission by the offender, the death of the victim and a causal relationship between the two. The question whether the required causal relationship exists is usually a simple question of fact, but this is a more complex case.
The basic proposition relating to causation in homicide is that an accused's conduct, whether by act or omission, must contribute significantly to the death of the victim: Reg. v. Pagett [40] . It need not be the sole, direct or immediate cause of the death. However, when the death is not caused directly by the conduct of the accused but by something done by the victim or by a third person in response to the conduct of the accused, there is a question whether the chain of causation has been broken. If the response is a reflex or automatic reaction to the conduct of the accused, the chain of causation is not broken. It is also well established that the death may be held to have been caused by an accused's conduct though the direct or immediate cause of death is a final fatal step taken by the victim where that step is taken in an attempt to preserve himself or herself from physical harm which unlawful conduct on the part of the accused has induced the victim to fear, provided the victim's attempt at self-preservation is reasonable having regard to the nature of the accused's conduct and the fear it was likely to have induced (or, as I would prefer, provided the attempt is proportionate to that conduct and the fear it was likely to have induced): Reg. v. Pitts [41] ; Reg. v. Grimes and Lee [42] ; R. v. Curley [43] ; Director of Public Prosecutions v. Daley [44] . In such a case, the taking of the final fatal step is not a novus actus interveniens breaking the chain of causation: Pagett [45] , per Robert Goff L.J. On the other hand, where the victim's attempt at self-preservation is not reasonable (or proportionate), the chain of causation is broken and the victim's death is not treated as having been caused by the accused's conduct. Subject to a qualification presently to be mentioned, the question whether the chain of causation is broken by the victim's taking of the final fatal step is a question of fact to be answered by reference to the objective circumstances. Nevertheless, an accused cannot be held criminally responsible for a death that has been caused in fact by his conduct if the final fatal step taken by the victim was neither foreseen nor reasonably foreseeable. Foresight or reasonable foreseeability marks the limit of the consequences of conduct for which an accused may be held criminally responsible. In Roberts [46] , Stephenson L.J. said (in a case of an assault occasioning bodily harm):
The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so "daft," in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury. The question whether an accused whose conduct has led to a death is criminally responsible for the death when the death has been caused by a final fatal step taken by the victim thus depends on the reasonableness (or proportionality) of the victim's attempt at self-preservation and the accused's foresight, or the reasonable foreseeability, of the possibility that a final fatal step might be taken by the victim in response to the accused's conduct. 1. (1983) 76 Cr. App. R. 279, at p. 288. 2. (1842) Car. & M. 284 [ 174 E.R. 509]. 3. (1894) 15 N.S.W.R.(L.) 209. 4. (1909) 2 Cr. App. R. 96; (1909) 2 Cr. App. R. 109. 5. [1980] A.C. 237, at pp. 245-246. 6. (1983) 76 Cr. App. R., at pp. 288-289. 7. (1971) 56 Cr. App. R. 95, at p. 102.
The question whether the accused is criminally responsible for the victim's death when the death was directly and immediately caused by the victim's taking of the final fatal step is resolved at common law by applying the same tests as those which would be applied under the several Criminal Codes to determine whether such a final fatal step is an event that has occurred "by accident" or "by chance". The first stage of the test is whether the victim's taking of the step is a novus actus interveniens breaking the chain of causation; the second stage of the test is whether, at the time when the accused engaged in the unlawful conduct which induced in the victim the fear that caused him or her to take the final fatal step, the taking of such a step was not in fact foreseen by the accused and would not reasonably have been foreseen by an ordinary person: Vallance v. The Queen [47] ; Kaporonovski v. The Queen [48] ; Stuart v. The Queen [49] .
These propositions are subject to a qualification in cases where the accused intends his conduct to cause the death of his victim. In such cases, foresight is subsumed in the intent and, as the ultimate result of the accused's conduct - the death of the person who took that step - is intended, it is immaterial that the victim's attempt at self-preservation is objectively unreasonable (or disproportionate) having regard to the nature of the accused's conduct and the fear it is likely to induce. As McGarvie and O'Bryan JJ. said in Reg. v. Demirian [50] :
If a person creates a situation intended to kill and it does kill it is no answer to a charge of murder that it caused death at a time or in a way that was to some extent unexpected. In such a case, it is impossible to regard the taking of the final fatal step as a novus actus interveniens and the victim's death, being intended, is foreseen. But it should not be thought that proof of an intent to kill or of any other specific mental element in murder is either essential or (except in the case just mentioned) necessarily sufficient to prove causation of death in homicide cases. 1. [1989] V.R. 97, at p. 113.
Causation of death is concerned solely with the external elements of homicide; it is not a mental element of any crime of culpable homicide: see Archbold: Pleading, Evidence and Practice in Criminal Cases, 43rd ed. (1988), vol. 2, par. 20-8, p. 1927. Nevertheless as causation requires proof that the taking of a final fatal step by a victim was objectively reasonable (or proportionate) and was foreseen by an accused or was reasonably foreseeable, the facts tendered to prove a specific mental element necessary to establish the crime of murder may be relevant in some cases to the existence of facts tending to prove causation. It is difficult to envisage a case where proof that the conduct causing death was engaged in with an intent to inflict grievous bodily harm would not establish that at least the possibility of death was foreseen or was reasonably foreseeable. In a case of reckless indifference to life, the probability of death must be foreseen: Reg. v. Crabbe [51] .
The specific mental elements in murder and an unforeseen fatal step.
In addition to the external elements of the crime of murder, s. 18(1)(a) of the Crimes Act 1900 N.S.W. prescribes the respective mental elements which, if accompanying the conduct which causes the death, establishes the crime of murder in New South Wales. It reads as follows:
Murder shall be taken to have been committed where the act of the accused, or thing by him omitted 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 a crime punishable by penal servitude for life or for 25 years. The mental elements of reckless indifference to human life, intent to kill and intent to inflict grievous bodily harm must exist "with" the relevant act or omission. Therefore in determining whether any of the mental elements of murder has been proved in a given case, it is necessary to identify the conduct of the accused which causes the death. The mental elements prescribed by s. 18(1)(a) must accompany that conduct if the crime of murder is to be established: see per Barwick C.J. in Ryan v. The Queen [52] ; and see Demirian [53] . The relevant conduct, whether act or omission, is identified by the result it causes - "causing the death charged" - but s. 18(1)(a) does not require that the actual result be the result intended. Even when the relevant intent is an intent to kill, it is not necessary that the intent relate to the death of the person killed rather than to the death of "some [other] person". Thus the statute, like the common law, separates the specific mental element in murder from the death actually caused by the offender's conduct; it is sufficient that the conduct causing the death of the victim be accompanied by one of the specific mental elements. 1. (1967) 121 C.L.R. 205, at pp. 217-218. 2. [1989] V.R., at pp. 112-115.
However, proof of one of the specific mental elements may tend to prove the legal chain of causation linking the conduct of the accused with the death of the victim. In the present case, for example, if the accused attacked the deceased intending to cause her death, it is immaterial whether her fall from the bathroom window to the pavement below was immediately caused by his pushing her out the window or by her jumping out the window in an attempt to save herself from his murderous attack. But if his intent in attacking her was reckless indifference to her life or an intent to inflict no more than grievous bodily harm on her, the jury would be required to determine, as a matter of inference from all the facts, whether the victim's death was caused by the accused's conduct. The available hypotheses were put clearly by the learned trial judge:
You may think that there are four alternatives open to you on the evidence and it is for you to contemplate and decide upon these. The first alternative is that Kelly Healey was pushed or forced out of the window in a physical way by the accused. It would not matter if it was a slight push or the result of a violent struggle. If the physical contact of the accused resulted in her going out the window, the causative link between her death and the acts of the accused would be established.
A second factual circumstance open to you is that Kelly Healey fell from the window whilst avoiding a blow or an attack from the accused. Such a circumstance would not be an intentional endeavour by her to escape from the accused but rather an avoiding action on her part which resulted in a fall through the window. Again, if you were satisfied beyond reasonable doubt that this occurred, then the causative link between the death of the deceased and the acts of the accused would be established. This is another of the allegations made by the Crown.
The third allegation is that Kelly Healey at the time immediately before her fall from the window, had a well-founded and reasonable apprehension that if she remained in the bathroom she would be subjected to such further violence as would endanger her life and if in those circumstances she sought to escape by jumping out of the window thinking that by so doing she had a better chance of saving her life than by staying inside, and was killed in that fall, the causal link between the acts of the accused and the death are established. That is the third allegation of a factual area put to you by the Crown and the three I have given you are assertions put to you, on the basis of evidence, by the Crown upon which you may contemplate.
The fourth factual circumstance that is open to you is that Kelly Healey jumped of her own volition, whether as a result of drugs or depression or epilepsy or otherwise would not matter. What would be important is that the act of leaving the window was not the result of or causatively linked to the acts of the accused. It would be suicide. If you found that then you must acquit the accused Quite equally, if you were not satisfied of any of the first three alternatives that I have put to you beyond reasonable doubt, you must acquit the accused.
The second and third hypotheses clearly directed the jury's attention to the reasonableness (or proportionality) of the avoiding action which the victim may have taken. The third hypothesis does not direct the jury's attention to the test of reasonable foreseeability of the possibility that the victim might jump out of the window in an attempt to save her life, but the hypothesis postulates conduct on the part of the accused which induces "a well-founded and reasonable apprehension that she would be subjected to such further violence as would endanger her life". In circumstances where the window offered the only possible avenue for escape from the accused's further violence, and in a case where the accused is found to have acted either with reckless indifference to the victim's life or with an actual intent to kill or to inflict grievous bodily harm, it would be perverse not to find that the accused could reasonably have foreseen that she might attempt to escape by jumping out the window. It may be that, if the third hypothesis be true, the accused neither intended the deceased to jump out the window nor foresaw that she might do so but that state of mind is not inconsistent with his guilt of murder. Provided it was reasonably foreseeable by the accused in the circumstances postulated in the third hypothesis that the victim might jump out the window, the jury was entitled to be satisfied that her death was caused by the accused's conduct in one or other of the ways mentioned in the first three hypotheses. If the external elements of the offence were thereby proved, the jury could properly convict of an offence of culpable homicide and, if any of the mental elements specified in s. 18(1)(a) were also proved, of murder. It was immaterial that there might have been a disconformity between the mental element (intent to inflict grievous bodily harm or reckless indifference to human life) and the actual steps in the chain of causation between the accused's conduct and the victim's death.
Pursuant to the statutory definition of the crime of murder, the learned trial judge directed the jury as to the mental elements as follows:
First, there must be an unlawful act which is the act of the accused, which means that it must be an act which is a [conscious] or willed or deliberate act. Secondly, it must be the act of the accused which causes the death and thirdly, at the time of the doing of the act the act must have been accompanied by an attitude of mind on the part of the accused which here would be either intent to kill or to do grievous bodily harm or was an act done with reckless indifference to human life. The direction was both accurate and appropriate. Subsequently, his Honour expanded his direction as to the mental state requisite to constitute the crime of murder. He said: The first question is whether, at the time of the act bringing about the death, that being the time when the deceased left the building and fell to the ground below, there was present in the accused an intent to kill; and if you are satisfied that there was such an intent to kill you would not need to consider the next two matters, namely whether there was an intent to do grievous bodily harm or whether the act of the accused, done at that time, was done with a reckless indifference to her life. If you are not so satisfied of an intent to kill then you must consider whether the accused had the intent, at the relevant time, to inflict grievous bodily harm. And later - Thus your task would be to consider the accused's actual state of mind at the relevant time which, as I have said, is the time when the deceased fell from the building to the ground below.
This direction was not strictly accurate, for it was necessary for the jury to be satisfied that the accused had one of the prescribed mental states at the time when he did the acts which caused the deceased to fall to her death and, on one view of the facts, the last of those acts may have occurred before, albeit only momentarily before, "the time when the deceased left the building" or "the time when the deceased fell from the building to the ground below." However, the inaccuracy in the direction could not have produced a miscarriage of justice. There is not the slightest evidentiary foundation for the possibility that the accused formed one of the prescribed mental states (intention to kill, intention to cause grievous bodily harm or reckless indifference to life) between the time when the last of his violent acts occurred and the moment of the deceased's defenestration. In his unsworn statement at the trial, the accused gave his version of the deceased's going out the window:
I was panicking. I tried to force the door. It was locked. I tried to force the lock on the door with my knife. I don't remember chopping the door with the knife at all. I threw the knife down I think and I just banged the door. When I finally got it open she was going out the window. I did not touch her at all. In his record of interview, this statement was attributed to him: Then I said, "open the bloody door", and she wouldn't answer. Then I banged the door once with my arm and tried to open it, and it didn't open, so I banged it again with my arm and it opened, and I just saw the back of Kelly going out the window. She just jumped out. In neither version does he account for the signs of his attack upon her in the bathroom. Nor, of course, does he suggest that he formed any of the prescribed mental states after committing the last of his violent acts.
Having regard to the evidence adduced in the prosecution case and the directions of the learned trial judge, the jury could not have been left in any doubt that, in order to convict of murder, they had to be satisfied that the accused had one of the prescribed mental states when he was engaged in the violent conduct which caused his victim's death.
In most cases of alleged murder, a precise identification of the act which causes death is attempted in order to furnish a foundation for the inference of the mental state with which that act was done. But where the accused has engaged in a course of violent conduct after which the victim does something that directly causes his or her death, it is not essential in point of law to identify which act or series of acts in the course of that conduct caused the victim to take the final fatal step provided the jury be satisfied on the whole of the evidence that some or all of those acts caused the death and was accompanied by one of the mental states prescribed by s. 18(1)(a). Nor is it essential in point of law to identify which of those mental states accompanied the doing of those acts, provided the jury is satisfied on the whole of the evidence that one of those mental states accompanied the doing of the acts or any of the acts which contributed to the death. In this case, it is immaterial to a finding of guilty that the jury may not have been able to pick or may not have picked which of the three mental states the applicant entertained at the relevant time. It was sufficient that the jury was satisfied beyond reasonable doubt that, at that time when the accused committed an act causing death, he entertained one or other of the mental states referred to in s. 18(1)(a).
In this case, as the review by Deane and Dawson JJ. reveals, there was sufficient evidence to support the jury's findings on these issues adversely to the accused. It is unnecessary to consider the analysis of the jury's findings made by the Court of Criminal Appeal. The relevant considerations are the issues which fell for determination at the trial, the adequacy of the directions given and the sufficiency of the evidence to support the verdict of guilty.
I respectfully agree with Deane and Dawson JJ. that the learned trial judge's direction as to the element of reckless indifference to human life was, in its context, an adequate direction. In my opinion, there was no error of law in the summing up, apart from the error as to the time relevant to the entertainment of the prescribed mental elements. That error produced no miscarriage of justice. I would grant special leave to appeal on the issues other than sentence, but I would dismiss the appeal.
The applicant was convicted of the murder of Kelly Healey. The deceased fell six floors to her death from the bathroom window of a flat in Kings Cross on 16 November 1986. When the police arrived at the scene, they found the applicant sitting sobbing on the roadway beside the body of the deceased. For four months before her death the applicant had shared the flat with the deceased.
The deceased's fall followed an argument between the deceased and the applicant. For some days the deceased had been staying with a friend and had discussed with her the prospect of living with her permanently. During this time the deceased and the applicant quarrelled. The deceased returned to the flat late on Saturday night, 15 November 1986, and cleaned it up. In the early hours of Sunday morning the applicant arrived home, having been drinking beer since 9 o'clock on Saturday evening. He admitted that a quarrel arose between the deceased and himself. He said that he "backhanded" her and punched her twice in the face and in the nose. He admitted that he grabbed her by the hair at one stage and shook her.
Photographs showed that the deceased had sustained significant facial injuries. It appears that the applicant had held the deceased around the throat with one hand leaving bruises on her neck and that while he was doing that he slapped and punched her, causing the dislocation of her nose and considerable bleeding. There was a cut to one of the deceased's eyes and cuts to her lips which were both internal and external. Clearly there had been considerable violence. Blood was found in a number of places in the bed-sitting room: on the bedclothes, on clothing, on the video, on walls and on the refrigerator door. The television set had been knocked over on to the floor and there was blood on it.
The deceased went into the bathroom, locked the door, undressed and began to shower. It appears that the applicant and the deceased continued to shout at one another. After a short time, estimated by the applicant to be five, ten or fifteen minutes, the applicant tried to force the lock on the bathroom door with a large clasp knife. The applicant also banged on the door with his arm. It is apparent that the door was forced open by pressure applied by the applicant from outside.
What exactly happened in the bathroom is unclear. In his first record of interview, taken on the morning the deceased died, the applicant said that when he broke into the bathroom:
She [the deceased] was through the window virtually, most of her was out. She was crouched on the ledge, below the window. Her head and arms were out the window. As that door opened she just stepped out the window. In his unsworn statement at trial, the applicant repeated this explanation. The applicant also suggested that the deceased may have been suffering from depression, perhaps related to epilepsy, or from withdrawal symptoms connected with the use of amphetamines.
The bathroom was a very small room. Upon entering the room, a toilet was straight ahead. To the right was a bath and to the left was the window between a hand basin and the toilet. Below the window was a vanity unit. The window itself was about a metre up from the floor. It was shoulder-width wide and less than a metre high.
A glass ashtray was found broken in the bathroom. There were glass chips on the bathroom floor and there were gouge marks on two of the walls consistent with the applicant's having swung the ashtray with his right arm commencing at the centre of the base of the window, thence to a first gouge mark on some tiles and continuing through to a second gouge mark on the adjacent wall. There were, however, no bruises or marks on the deceased's scalp which were consistent with her being struck by the ashtray. When a police witness was asked in cross-examination what the applicant had said to him when questioned as to whether he had struggled in the bathroom with the deceased, he said the applicant replied: "No. If I did I only grabbed her by the hair." In the first record of interview the applicant said that he had only yelled at the deceased in the bathroom, and could not recall whether he had thrown anything at her in there. In his unsworn statement the applicant denied having touched the deceased in the bathroom at all.
The deceased's blood was found on the bathroom walls above her height, near the window and on the window sill and surrounds. The pattern was consistent with a bloodied object having struck a target, spraying the window, tiles and walls with blood. There were strands of hair lying in the bathroom, some with roots attached. Hair was attached to the tiles at the location of the gouge marks. Water and tissues, discoloured with blood, and hair were found in the toilet bowl.
There were abrasions to the back of the deceased's legs, consistent with her having fallen backwards out of the bathroom window, scraping her legs on the exterior brickwork as she fell. Also consistent with her having fallen in this manner was the evidence of stuntmen who attempted to reproduce her fall. An expert witness gave evidence that there were two possibilities: that the deceased had her back facing outwards, her legs inside, and she toppled out backwards or that she was sitting on the window sill, her legs dangling outside, and she fell forwards. The deceased appeared to have landed in an almost-sitting position, taking the impact of the fall on the base of her spine and her hand and falling backwards.
It was upon this material that the applicant was convicted of murder under s. 18 of the Crimes Act 1900 N.S.W.. That section provides:
(a) Murder shall be taken to have been committed where the act of the accused, or thing by him omitted 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 a crime punishable by penal servitude for life or for 25 years.
(b) Every other punishable homicide shall be taken to be manslaughter.
(a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.
(b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only, or in his own defence.
"Maliciously" is defined in s. 5 in these terms: Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime.
The applicant seeks special leave to appeal against his conviction, primarily upon the ground that the act or acts of the applicant alleged to have caused the death of the deceased were never properly identified at the trial, with the consequence that the jury were never adequately instructed concerning the intent which was required to accompany that act or those acts in order to constitute the crime of murder. Essentially, the defence of the applicant was that he did not cause the death of the deceased but that, if he did, it was without reckless indifference to human life, without intent to kill and without intent to inflict grievous bodily harm.
The trial judge charged the jury that there were three alternative ways in which the jury might be satisfied beyond reasonable doubt that the applicant caused the death of the deceased. He told them:
the question immediately arises for you: was there an unlawful act of the accused causing death. Death, we know, resulted from the fall from the window Are the acts of the accused that have been proved before you causatively linked to that fall.
The first alternative is that Kelly Healey was pushed or forced out of the window in a physical way by the accused.
A second factual circumstance open to you is that Kelly Healey fell from the window whilst avoiding a blow or an attack from the accused. Such a circumstance would not be an intentional endeavour by her to escape from the accused but rather an avoiding action on her part which resulted in a fall through the window.
The third allegation is that Kelly Healey at the time immediately before her fall from the window, had a well-founded and reasonable apprehension that if she remained in the bathroom she would be subjected to such further violence as would endanger her life and if in those circumstances she sought to escape by jumping out of the window thinking that by so doing she had a better chance of saving her life than by staying inside, and was killed in that fall, the causal link between the acts of the accused and the death are established.
The fourth factual circumstance that is open to you is that Kelly Healey jumped of her own volition, whether as a result of drugs or depression or epilepsy or otherwise would not matter. What would be important is that the act of leaving the window was not the result of or causatively linked to the acts of the accused. It would be suicide. If you found that then you must acquit the accused.
Upon the request of counsel for the applicant, the trial judge also put to the jury the possibility that the deceased fell out of the window accidentally; that she may have been sitting on the window sill and slipped. He directed the jury that such an occurrence would fall within the fourth category mentioned by him, indicating an absence of the required causal connexion between the acts of the applicant and the death. This stood in contrast with the second category in accordance with which the deceased would have moved to avoid a swinging arm, with or without a weapon, being backed up against the open window with nowhere to flee.
Whilst the trial judge left the jury with possible alternative views of the evidence, he made it clear to them that the applicant would not be guilty of murder unless he caused the death of the deceased. He said:
The elements of murder involve that there be an unlawful act which is the act of the accused, which means that it must be an act which is conscious and willed and a voluntary act. It must be an act of the accused which caused death.
In identifying the second and third possible views of the evidence, the learned trial judge clearly had in mind those cases which have been referred to as fright, escape or self-preservation cases in which the accused causes the victim to flee or take other steps to avoid harm threatened by the accused, whereby the victim suffers injury, fatal or otherwise. Where the injuries are fatal, the offence committed may be either murder or manslaughter depending on the circumstances of the case. The basic principle was stated by Lord Coleridge C.J. in Reg. v. Halliday [54] :
If a man creates in another man's mind an immediate sense of danger which causes such person to try to escape, and in so doing he injures himself, the person who creates such a state of mind is responsible for the injuries which result. That principle has been elaborated in a number of cases over the years: R. v. Evans (1812) in Turner (ed.), Russell on Crime, 12th ed. (1964), pp. 414-415; Reg. v. Pitts [55] ; Reg. v. Grimes and Lee [56] ; R. v. Curley [57] ; R. v. Beech [58] ; Reg. v. Lewis [1970] Criminal Law Review 647; Reg. v. Roberts [59] ; Reg. v. Mackie [60] ; Director of Public Prosecutions v. Daley [61] . Lewis , Curley , Halliday , Evans and Beech were cases of defenestration. To these might be added the American case of Whiteside v. State [62] . 1. (1889) 61 L.T. 701, at p. 702. 2. (1842) Car. & M. 284 [ 174 E.R. 509]. 3. (1894) 15 N.S.W.R.(L.) 209. 4. (1909) 2 Cr. App. R. 109. 5. (1912) 7 Cr. App. R. 197. 6. (1971) 56 Cr. App. R. 95. 7. (1973) 57 Cr. App. R. 453. 8. [1980] A.C. 237. 9. (1930) 29 S.W. (2d) 399.
In New South Wales in Reg. v. Grimes and Lee [56] the accused were charged with the murder of Ah Choy, who was a fellow passenger with them in a railway carriage. They had robbed and assaulted Ah Choy causing him to jump to his death from the window of the carriage. The Full Court approved a direction to the jury which was in the following terms [63] :
If, then, you are satisfied that Ah Choy left the window immediately after the robbery and wounding took place, and if you are satisfied that, though Ah Choy was not actually put through the window by the prisoners, yet that when he jumped through he had a well-founded and reasonable fear or apprehension that if he stayed in the carriage he would be subjected to such further violence as would endanger his life, and if he left the carriage thinking that by doing so he had a better chance of saving his life than by staying in, and was killed in the fall, then the prisoners are guilty of murder, and are just as responsible for the man's death as if they had taken him in their hands and thrown him out of the window. 1. (1894) 15 N.S.W.R.(L.) 209. 2. (1894) 15 N.S.W.R.(L.), at p. 213.
Where in a case of that kind the charge is murder, the prosecution must not only prove that the accused caused the death by inducing a well-founded fear or apprehension on the part of the deceased such as to make it a natural consequence that he or she should take steps to flee or escape, but it must also prove that the words or conduct which induced that fear or apprehension were accompanied by the intent which is a necessary ingredient of the crime of murder. In New South Wales, where the common law concept of malice aforethought is replaced by the statutory formula contained in s. 18 of the Crimes Act, the requisite intent is a reckless indifference to human life, or an intent to kill or an intent to inflict grievous bodily harm upon some person. But the intent need not embrace the events which actually occur. While the death of the deceased must be caused by the accused, it may occur in a manner not contemplated by the accused, provided that the acts or words of the accused which cause the death are accompanied by the necessary intent. As was observed by McGarvie and O'Bryan JJ. in Reg. v. Demirian [64] : "If a person creates a situation intended to kill and it does kill it is no answer to a charge of murder that it caused death at a time or in a way that was to some extent unexpected."
In a defenestration case such as the present one it is as likely as not that the accused will not have intended the deceased to meet his or her death by jumping from a window, but it is important to keep the question of causation separate from that of the mental state required for murder. Provided that the words or actions of the accused which cause the deceased to jump or fall from the window (that is, the words or actions which cause death) are accompanied by the requisite intent, that will be sufficient to constitute murder.
Of course, there may be no single cause of the death of the deceased, but if the accused's conduct is a substantial or significant cause of death that will be sufficient, given the requisite intent, to sustain a conviction for murder. It is for the jury to determine whether the connexion between the conduct of the accused and the death of the deceased was sufficient to attribute causal responsibility to the accused: Reg. v. Pagett [65] .
In Timbu Kolian v. The Queen [66] , Windeyer J. referred to the warning of Sir Frederick Pollock that "the lawyer cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause". Windeyer J. continued by observing [67] that "in ascribing effects to causes, and in seeking the cause of an event, the purpose of law, civil and criminal, is to attribute legal responsibility to some person - "to fix liability on some responsible person", Lord Sumner said in Weld-Blundell v. Stephens [68] ". Burt C.J. in Campbell v. The Queen [69] , said much the same thing:
It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter. It may not be possible to take the matter usefully much beyond that. No doubt in some cases of murder it may assist the jury if the trial judge points out not only that there must be a causal connexion between the acts (or, more rarely, omissions) of the accused and the death of the deceased, but that the causal connexion must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused. However, in many cases of murder, particularly where a single act such as shooting or stabbing is alleged, it may be unnecessary to elaborate the requirement that the death should have been caused by the accused. In other cases it may be appropriate to point out that the causal chain must not be broken by some intervening event which operates to relieve the accused of responsibility, but such a direction would ordinarily be better put by reference to the actual facts of the case than couched in abstract terms. 1. (1968) 119 C.L.R. 47, at pp. 68-69. 2. (1968) 119 C.L.R., at p. 69. 3. [1920] A.C. 956, at p. 986. 4. [1981] W.A.R. 286, at p. 290; (1980) 2 A. Crim. R. 157, at p. 161.
If, in a case of fright or self-preservation, the victim over-reacts to the threatening acts or words of the accused, that may be sufficient to break the chain of causation. That proposition is sometimes put in terms of reasonable foreseeability: when the act done in self-preservation is "unreasonable" it negatives causal connexion: Roberts [70] ; Hart and Honoré, Causation in the Law, 2nd ed. (1985), p. 332. On occasions foreseeability may play some part in a jury's inquiry into the cause of death but, in directing a jury, it is, for practical purposes, desirable to keep causation and intent separate as far as possible and to avoid the introduction of questions of foreseeability in relation to causation. It is, we think, going too far to say, as the Full Court of the Supreme Court of South Australia did in Reg. v. Hallett [71] , that "[f]oresight 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", but in a fright or self-preservation case, where the question is whether the victim's reaction was an over-reaction and therefore a coincidence, the matter is best dealt with in terms other than those of foreseeability. A direction that the victim's fear or apprehension must be well-founded or well-grounded or reasonable in all the circumstances will adequately raise the issue, as will a direction that the act of escape or self-preservation must be the natural consequence of the accused's behaviour. It is for the jury to decide those questions: see Grimes and Lee [72] . Although it would not necessarily be wrong to do so, there is generally no need to elaborate the requirement of causation which is implicit in these directions, other than to make clear that the prosecution must establish that the accused caused the act of escape or self-preservation upon which the prosecution relies.
In this case, the trial judge instructed the jury that the applicant would not be guilty of murder unless he caused the death of the deceased and that the causal link between the acts of the applicant and the death would be established if the deceased fell while avoiding the applicant's blows or had a well-founded and reasonable apprehension that her life was in danger such that she believed that she had a better chance of saving her life by jumping out of the window than by staying inside. We do not think that in the circumstances of this case any further direction upon the question of causation was called for.
Nor do we think that the trial judge was required to identify to any greater extent than he did those acts of the applicant which, upon the evidence, the jury might find were the cause of the deceased's falling to her death. The applicant placed reliance upon Ryan v. The Queen [73] in which Barwick C.J. said:
I now turn to the summing up to the jury. I must first observe that no specific attention was paid to the identification of the act causing death. Ordinarily, there would be little need to spend much time on this question. But on occasions, of which the instant case affords an instance, that clearly was not merely the first question to be resolved, but one which required specific and close consideration. However, in Ryan , where the accused shot the deceased, there were at least four possible views of the manner in which the gun discharged which were open to the jury. It was important that they be identified because, according to which view was taken, the act of the accused which caused the death of the deceased may have been voluntary or involuntary. In the present case there was no question that the acts of the applicant were voluntary and, whichever of those acts were regarded by the jury as having caused the death of the deceased, the intent which was required to accompany them was the same. In any event, in presenting the first three of the four possible versions of the facts to the jury, the trial judge sufficiently identified, in our opinion, those acts of the applicant which, depending upon the view which the jury took, they might regard as having caused the death. The facts were sufficiently identified for the purpose of indicating the mental element required if the jury were to convict the applicant of murder. 1. (1967) 121 C.L.R. 205, at p. 219.
Having instructed the jury that they must, if they were to convict, find that an act of the applicant caused the death of the deceased, the trial judge then directed them that it was necessary to find that "at the time of the act bringing about the death, that being the time when the deceased left the building and fell to the ground below, there was present in the accused an intent to kill; an intent to do grievous bodily harm or a reckless indifference to her life". To the extent that the trial judge said that the relevant time at which to consider intent was "the time of the act bringing about the death, that being the time when the deceased left the building and fell to the ground below", he was in error. The relevant time was, of course, the time of the act or acts of the applicant, not of the deceased, which caused the death of the deceased. The only case to the contrary is Reg. v. Donovan [1] , but the relevant observation in that case is clearly inconsistent with both principle and authority. However, the error made by the trial judge operated in favour of the applicant, because it required the continuation of the necessary mental state from the time of the applicant's act or acts which caused the fall until the actual fall. In any event, upon any version of the facts the interval of time was so short as to be immaterial from a practical point of view.
The applicant submitted that it was inappropriate to leave to the jury in this case the question of reckless indifference to human life on the part of the applicant. It has, of course, frequently been pointed out that it is not appropriate in every case of murder to direct the jury upon reckless indifference: see, e.g., Pemble v. The Queen [2] . Be that as it may, the mere fact that reckless indifference is left to the jury when it is unnecessary to do so, does not result in a mistrial if, in the circumstances, the direction would not have misled the jury or have been likely to cause confusion in their minds. In this case, having regard to the way in which the trial judge dealt with the subject, we do not think that the jury would have been misled or confused by his remarks, even if it would have been better had the trial judge confined the question of intent to intent to kill or to inflict grievous bodily harm. Of course, if reckless indifference is left to the jury, they must be properly directed upon the subject and the applicant complains that in this case the trial judge's direction was incorrect. The direction given was as follows:
By reckless indifference to human life is meant that the accused was aware that the act contemplated carried a risk to the life of the human being concerned, that the accused did not care whether his act threatened the life concerned. That is, he was indifferent to whether or not his act took that life and he committed the act with such an attitude of mind to its result that you, as jurors, should consider it to be reckless indifference. 1. (1971) 124 C.L.R. 107, at p. 118.
The trial judge was instructing the jury upon the statutory definition of murder in New South Wales and not upon malice aforethought at common law. Malice aforethought at common law includes knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, notwithstanding that such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not. The statute explains the trial judge's use of the term "reckless indifference to human life". Under s. 18 that may be the mental element necessary to constitute the crime of murder, and the section also justifies the absence of any reference to reckless indifference to the infliction of grievous bodily harm: Reg. v. Solomon [3] .
But the trial judge was subsequently referred to the decision of this Court in Reg. v. Crabbe [4] 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. Having been referred to Crabbe the trial judge redirected the jury in the following terms:
Recklessness involves foresight of or advertence to the consequences of a contemplated act and a willingness to run the risk of the probability of those consequences occurring. By reckless indifference to human life is meant that the accused was aware that the act contemplated carried a risk to the life of the human being concerned; that is, that the accused did not care whether his or her act - in this case his act took the life concerned; that is, he was indifferent to whether or not his act took that life and he committed the act, whatever it was, with such an attitude of mind to its result. 1. (1985) 156 C.L.R. 464.
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.
The reconciliation of s. 18(1) and (2) of the Crimes Act with s. 5 is not without difficulty. Clearly, in defining malice so as to include "indifference to human life or suffering", s. 5 cannot require the words "reckless indifference to human life" in s. 18(1)(a) to be extended to mere indifference to suffering. In other respects it has been said that the definition of malice in s. 5 is "a mere question-begging definition, saying no more than that "every act done of malice shall be taken to have been done maliciously" ": Mraz v. The Queen [5] .
Although the use of the term "reckless indifference" in s. 18(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 [6] 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 [7] ) 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). Of course, the definition in s. 18(1)(a) expresses somewhat differently the subject-matter of the indifference (human life rather than death or grievous bodily harm), but that is another thing. 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 [8] .
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 [9] :
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. The reference by the trial judge to "a willingness to run the risk of the probability of those consequences [of the contemplated act] occurring" may not express the required direction in words which are to be commended, but, in the context, we think that those words would have conveyed clearly enough to the jury that the prosecution was required to prove that the applicant adverted to the fact that the probable consequence of his actions was death and that he nevertheless took the risk of death occurring. Although the expression used by the trial judge may have been inept, it really can have no other sensible meaning and we think that the jury would have so regarded it. 1. (1986) 161 C.L.R. 10, at p. 20.
For the reasons given by the Chief Justice the application for special leave to appeal against sentence must fail. Otherwise, we would grant special leave and dismiss the appeal.
The applicant was charged that on 16 November 1986, at Sydney, he "did murder Kelly Louise Healey". He was convicted of murder. An appeal to the Court of Criminal Appeal of New South Wales failed. He seeks special leave to appeal to this Court against his conviction, contending that the conviction should be set aside and a verdict of manslaughter substituted, alternatively that there should be a new trial, either limited to manslaughter or generally.
The applicant's principal complaint concerns the manner in which the trial judge directed the jury as to the elements of murder, having regard to s. 18 of the Crimes Act 1900 N.S.W. ("the Act") which defines murder and manslaughter and having regard to the evidence surrounding the death of the deceased. The Court heard considerable argument on behalf of both the applicant and the Crown as to the operation of s. 18, its relation to the common law and its application to the facts of the case in hand. To appreciate that argument, it is necessary to say something of the manner in which the deceased met her death, bearing in mind that no-one other than the applicant was present when she fell from the bathroom window of a sixth floor flat which she had shared with the applicant. What follows is taken in large part from the judgment of Gleeson C.J. in the Court of Criminal Appeal.
The applicant and the deceased had been living together for some months but they had quarrelled and, in the Chief Justice's words, there had been "some kind of unresolved separation". The deceased returned to the flat on the night of 15 November 1986. The applicant arrived home early on the morning of 16 November. He had been drinking. There was an episode in the flat during which the applicant punched the deceased in the face and beat her. He inflicted considerable injuries to her face. The applicant admitted that violence. (Medical evidence indicated that injuries to the deceased's head had been sustained before her fall.) His explanation of what happened thereafter was that the deceased went into the bathroom, locked the door, took off her clothes and began to shower. He became concerned to enter the bathroom for a reason which, the Chief Justice said, he "did not clearly explain". What the applicant said in his unsworn statement at the trial was:
I heard a thump or bang on the wall. I know that Kelly is a long time amphetamine user. I also know she has epilepsy which caused her to faint or pass out. I just got up from the chair, I was worried about what was going on inside. I was panicking. I tried to force the door. It was locked. I tried to force the lock on the door with my knife. I don't remember chopping the door with the knife at all. I threw the knife down I think and I just banged the door. When I finally got it open she was going out the window. I did not touch her at all. Gleeson C.J. commented: Attempts were made to explain why the deceased might have been motivated to jump from the bathroom window and these included suggestions that she suffered from depression, perhaps related to epilepsy, or that she was suffering from withdrawal symptoms connected with the use of amphetamines. the jury plainly rejected the [applicant's] account of how the deceased met her death. There can be no quarrel with this observation in the sense that the jury must have rejected any suggestion that the deceased jumped from the window for reasons unconnected with the applicant's conduct.
Evidence was given of a scientific nature as to the state of the bathroom. The deceased's blood was found splashed in various places. A damaged glass ashtray was found in the bathroom hand basin, with fragments of glass on the floor. There were gouge marks consistent with the swinging of the ashtray. These marks, if joined, formed an arc which began near the centre of the lower half of the bathroom window and ended on the bathroom wall. There was hair attached to the wall tiles at the point of the gouge marks. Blood splashes on the window formed a pattern consistent with that generated by an object striking a target. The deceased had abrasions to the backs of the legs, indicative of her having fallen backwards out of the bathroom window and scraping her legs on the brickwork outside the window as she did so. In his unsworn statement the applicant denied having touched the deceased in the bathroom. Earlier statements made to the police were not so unequivocal but at no stage did the applicant admit to having struck the deceased while she was in the bathroom. Nevertheless, there was ample objective evidence from which the jury could have inferred that the applicant continued his assault on the deceased after he entered the bathroom.
Gleeson C.J. commented that the evidence as to the size, shape and location of the bathroom window "indicated that a completely accidental fall from it would have been extremely unlikely". The applicant's counsel did not challenge this comment. From plans tendered in evidence, the bathroom appears to be about 2. 5 metres by 1. 75 metres, with the space in which to move substantially reduced by the presence of a bath, hand basin, toilet and vanity unit. The window is to the left as one enters the bathroom and is above the vanity unit. The trial judge described the window as "a small window, only shoulder width wide and approximately three feet or less than a metre high". The general layout of the bathroom certainly suggests that it would be impossible to fall out of the window by accident unless a person was crouching or sitting on the window sill. It might also be said that it would not be easy to push a conscious, resisting person through the window.
It is appropriate now to go to s. 18 of the Act which reads:
(a) Murder shall be taken to have been committed where the act of the accused, or thing by him omitted 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 a crime punishable by penal servitude for life or for 25 years.
(b) Every other punishable homicide shall be taken to be manslaughter.
(a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.
(b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only, or in his own defence.
"Grievous bodily harm" is defined in s. 4(1) of the Act to include "any permanent or serious disfiguring of the person".
Section 18 must be read in conjunction with s. 5 which defines "Maliciously" in these terms:
Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime. There was debate as to the relationship between s. 18(1) and the concept of "malicious" in s. 18(2) but that can be deferred for the time being.
It is crucial to a conviction under s. 18(1), whether it be of murder or manslaughter, that there be an act of the accused, or thing omitted to be done, "causing the death charged". At the applicant's trial, on his appeal to the Court of Criminal Appeal and on this application for special leave to appeal, much was made of the meaning of "causing" and its application to the facts of the case.
Having told the jury of the verdicts available to them - murder, manslaughter or not guilty - the trial judge told them of the definition of murder and of the elements of the offence in these words:
First, there must be an unlawful act which is the act of the accused, which means that it must be an act which is a [conscious] or willed or deliberate act. Secondly, it must be the act of the accused which causes the death and thirdly, at the time of the doing of the act the act must have been accompanied by an attitude of mind on the part of the accused which here would be either intent to kill or to do grievous bodily harm or was an act done with reckless indifference to human life. His Honour then continued: Therefore the question immediately arises for you: was there an unlawful act of the accused causing death?
Now, it would be quite wrong to isolate this portion of a long direction; clearly, the direction must be read as a whole. But, arguably, there was in the reference, on each occasion, to an unlawful act of the accused, before any reference to an act causing the death of the deceased, a possibility that the jury might be distracted from their task of determining what act caused the death. In other words, instead of focusing immediately on the cause of death, they might have been disposed to look for an unlawful act on the part of the applicant (and clearly there were unlawful acts on his part in assaulting the deceased outside the bathroom and if he assaulted her inside the bathroom) and then see whether that act or those acts could be linked to the death. As Barwick C.J. said in Ryan v. The Queen [10] :
Ordinarily, the identification of the act causing death gives no difficulty, a circumstance which may tend to obscure the logical and practical necessity to isolate that act, for it is of it, and it alone, that one or more of the several specified conditions or concomitants must be predicated if the terms of s. 18 are to be satisfied. 1. (1967) 121 C.L.R. 205, at pp. 217-218.
In a case such as this where there was no eyewitness and where different consequences might follow depending on the jury's conclusion as to the particular act that caused the death, it was important that the jury be satisfied as to what that act was. In practical terms, that meant answering the question - What caused the deceased to fall to her death from the bathroom window? - so long as it was made clear to the jury that the term "fall" comprehended a range of actions including jumping; being pushed; falling while trying to avoid a further blow from the applicant; falling while seeking to escape through the window; and being on the window sill or ledge and accidentally slipping. Clearly enough, the answer had to be a matter of inference once the jury rejected (as they must have done) any suggestion that the deceased jumped from the window for reasons not connected with the applicant's conduct towards her. His Honour put to the jury that it was for them to decide what were the circumstances that resulted in death from falling from the window. He put to them that they might think there were four options open:
The trial judge then rounded off that part of his charge by repeating that, if the jury were satisfied as to any of the first three circumstances referred to, that is, that "there was the causal link between the acts of the accused and the death of the deceased", they would then have to consider whether the accused "had the intent to kill or inflict grievous bodily harm or acted with a reckless indifference to her life".
As it happened, the luncheon adjournment then took place. In the absence of the jury, counsel for the applicant said that he wished to bring to the attention of his Honour "the possibility that the deceased fell accidentally out of the window, that she was sitting on the window ledge without necessarily the intention of actually committing suicide". When the jury returned, the trial judge reminded them of the "alternatives" he had put to them and dealt with counsel's submission in this way:
I have been reminded that [counsel] put to you that she may have been sitting on the window sill and slipped. Of course, if you were to find that then that would fall into the fourth category that I put to you, because there would be no causative relationship between the acts of the accused and the death.
In Campbell v. The Queen [11] , Burt C.J. (with whom Jones and Smith JJ. concurred) expressed reservations about attempting to explain causation in the context of a charge of dangerous driving causing death. His Honour said:
It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter. Burt C.J.'s comments have much to commend them. In particular, there is little to be gained, but there is a risk of confusion, if the members of a jury are introduced to the sophisticated notions of causation that tend to bedevil the law of torts. Nevertheless the jury must be told that they need to reach a conclusion as to what caused the deceased's death. That does not mean that the jury must be able to isolate a single cause of death; there may be more than one such cause: Reg. v. Butcher [12] ; Reg. v. McKinnon [13] . In that event it is inevitable that the jury will concentrate their attention on whether an act of the accused substantially contributed to the death. 1. [1981] W.A.R. 286, at p. 290; (1980) 2 A. Crim. R. 157, at p. 161. 2. [1986] V.R. 43, at pp. 55-56. 3. [1980] 2 N.Z.L.R. 31, at p. 36.
The question of causation was of course one that went not only to the charge of murder but to a verdict of manslaughter. While the trial judge later directed the jury as to manslaughter, the options to which he referred and which have been identified in these reasons were put to the jury initially as part of their consideration of whether they were satisfied beyond reasonable doubt that the applicant murdered the deceased.
In the course of his judgment, speaking of the first three of the options put to the jury, Gleeson C.J. said:
If the jury were to accept beyond reasonable doubt any one of these three possible accounts of the relationship between the conduct of the appellant and the death of the deceased then his conduct would amount to homicide. It would then be necessary to go on to consider the question of the intention with which he acted, and at that level of consideration the distinction between murder and manslaughter would become important. What the Chief Justice said is undoubtedly correct. But there is a question whether the trial judge made sufficiently clear what the jury might regard as the relevant act of the applicant, so far as each of the options was concerned. In putting the matter that way, we do not overlook that "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": Ryan [14] . That is a matter to which we shall return. 1. (1967) 121 C.L.R., at p. 218.
In ordinary circumstances, the jury's task may be made easier if they are asked to determine first the cause of death rather than inquire whether an act of the applicant caused the death. But, in the circumstances in which the deceased met her death, it was not inappropriate for his Honour to put the matter in terms of whether an act of the applicant caused the death. Section 18(1)(a) of the Crimes Act requires that there be an "act of the accused causing the death charged". Unless the jury were satisfied beyond reasonable doubt that the applicant caused the death, that was the end of the Crown case. So there was no misdirection by reason only of the fact that the jury were asked to consider the composite notion. Indeed, since the jury were concerned so much with inferences to be drawn, it was probably fairer to the applicant to direct the jury to consider whether they were satisfied beyond reasonable doubt that an act of the applicant caused the death.
Nevertheless, it is helpful, in dealing with the application, to keep the two components in mind. In that regard the timing and sequence of events were important. If the jury accepted that the applicant continued his violence after he entered the bathroom (and they might well have so reasoned, given the state of the bathroom), it was but a short step to conclude that the deceased, in fear for her life, tried to climb through the window and fell while doing so. On that basis causation was readily established. If the jury were not satisfied that the violence continued after the applicant entered the bathroom, the question of causation was more live though the applicant's earlier violence, his conduct in forcing the door and the apprehension this would have caused to the deceased might have led the jury reasonably to conclude that the applicant caused the death.
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 [15] :
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. 1. [1969] S.A.S.R. 141, at p. 149.
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 [16] . 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.
While the trial judge did not deal with the question of causation precisely in this way, he did put the issue of causation fairly to the jury, particularly the way in which he put the options to the jury. On this issue there was no misdirection.
His Honour then went on to deal with the question of intent to kill or inflict grievous bodily harm if the jury were satisfied that an act of the applicant caused the death and also with the question of reckless indifference to human life. The charge to the jury took place on 9 and 10 August 1988. At the point just mentioned, his Honour was about a seventh of the way through his summing up which occupies 116 pages. At this point his Honour told the jury that if they were satisfied that it was the act of the applicant that caused the death and that if one of the three "attitudes of mind" was present at the relevant time, it was open to them to convict of murder. If one of those three attitudes was not present, "you come to an alternative view, namely one of manslaughter". He added: "Of course, if manslaughter is not established, then you would acquit the accused altogether." His Honour then dealt with the circumstances in which a verdict of manslaughter would be appropriate.
Just before the end of the summing up, the trial judge reiterated the elements of murder and manslaughter, concluding:
If you are not satisfied beyond reasonable doubt that he caused her death or not satisfied that he didn't have the necessary intent or reckless indifference that I have referred to, both in relation to murder and manslaughter, then it would be your duty to acquit him. There is an obvious error here; the words "didn't have" should read "had" to be a correct direction. It may have been an error on his Honour's part or an error in transcription. Certainly neither the Crown prosecutor nor counsel for the applicant made any reference to the statement when each sought further directions after the summing up had concluded.
Before the jury could convict the applicant of murder, they had to be satisfied beyond reasonable doubt not only that an act done by him caused the deceased's death but that it was done with intent to kill or inflict grievous bodily harm upon her or was done with reckless indifference to human life. That is not the order in s. 18(1)(a) but it is the order in which the application was argued. The balance of s. 18(1)(a) was inapplicable; any assault by the applicant on the deceased did not, in the circumstances, constitute "a crime punishable by penal servitude for life or for 25 years".
The first question is whether, at the time of the act bringing about the death, that being the time when the deceased left the building and fell to the ground below, there was present in the accused an intent to kill. The direction erred; the relevant intent must be present when the applicant did an act that caused the death of the deceased. It might be thought that the misdirection did not necessarily operate to the detriment of the applicant because it tended to take attention away from his earlier behaviour. But, in our view, it was a misdirection of significance because, in considering whether murder was an appropriate verdict, the jury were not required to direct their attention sufficiently to whether the applicant possessed the relevant intention at the time of the act, considered by the jury to have caused the death.
In discussing the notion of intent, his Honour pointed to circumstances relevant to intent and said:
if you are satisfied from all that that the accused had the intention to kill or to inflict grievous bodily harm upon the deceased and, of course, as long as you are satisfied that it was the acts of the accused which brought about the death, then the ingredients of murder are made out. In this regard, s. 18(1)(a) required that the act causing the death be done with intent to kill or inflict grievous bodily harm on some person. Since there was no-one else involved in the situation in the flat, s. 18(1)(a) required that an act causing the death of the deceased be done by the applicant with intent to kill or inflict grievous bodily harm on her. For reasons already given, there is no murder-felony involved here.
However, in the direction given as to intention, there was a risk of creating confusion in the minds of the jury. What if the jury had concluded, as they might, that the applicant had assaulted the deceased in the bedroom with intent to do grievous bodily harm, that the deceased went into the bathroom and locked the door, and that the applicant forced the door open, but they were not satisfied that he did so with intent to kill or do grievous bodily harm (for instance, if they were not prepared to discount his unsworn statement) but that, in seeking to avoid the possibility of further violence, the deceased climbed on to the window ledge and fell to her death? In the light of the direction they had been given, the jury might well have considered that this was enough to justify a verdict of murder. On that view of the facts murder would not have been an appropriate verdict because the applicant did not have the requisite intent when he did the act that caused the death. The trial judge's reference to intent to kill "when the deceased left the building" may have distracted the jury from the implications of that view of the facts.
The discussion in Reg. v. Grimes and Lee [17] of the responsibility of the accused for the death of a passenger, who jumped from the window of a train after being assaulted and robbed by them, while relevant to the question of causation, says nothing as to the question of intent. In Grimes and Lee the focus of attention was on a direction by the trial judge that, if the jury were satisfied that when the deceased jumped from the carriage "he had a well-founded and reasonable fear or apprehension that if he stayed in the carriage he would be subjected to such further violence as would endanger his life, and if he left the carriage thinking that by doing so he had a better chance of saving his life than by staying in, and was killed in the fall", the accused were guilty of murder just as if they had thrown him out of the window [18] . That direction was upheld by Windeyer, Innes and Foster JJ., their Honours rejecting the argument that the jury should have been told that the accused were not guilty of murder unless the deceased was constrained by fear to jump out of the carriage. Nothing was said by their Honours as to any necessary intention on the part of the accused; that may have been because underlying the prosecution was the murder-felony rule or perhaps because, in their Honours' view, the facts of the case admitted only of an intention relevant to murder. Whatever the reason, where the murder-felony rule is not applicable, there must be the necessary intent or reckless indifference required by s. 18(1)(a) of the Act before there can be a conviction for murder.
The Crimes Act does not purport to be a Code; rather, its long title reads: "An Act to consolidate the Statutes relating to Criminal Law." It is apparent that in the area of homicide there was an intention to get rid of the troublesome notion of malice aforethought and to define murder without incorporating malice aforethought as an ingredient. At the same time, s. 5 of the Act defines "Maliciously" and s. 18(2)(a) exempts from "this section", hence from murder and manslaughter, an act "which was not malicious".
Quite how sub-s. (2) of s. 18 is to be read with sub-s. (1) did not emerge with great clarity in the course of argument. The Court was told that the prevailing view in the Supreme Court of New South Wales is to treat sub-s. (2) as having very little to do with the offence of murder. As a matter of construction of s. 18, sub-s. (2) applies to par.(a) of s. 18(1) as much as it does to par.(b) of the sub-section. But it is understandable that, in so far as murder requires an intent to kill or to do grievous bodily harm or reckless indifference to human life, a requirement of malice adds little, if anything. As to murder arising from the commission of a very serious offence, again it is hard to envisage a situation in which absence of malice would operate as a defence. Indeed, Mraz v. The Queen [19] is authority for the proposition that, in the case of the murder-felony rule, the commission of the felony satisfies any requirement of malice. Of course, to speak of absence of malice as a defence tends to beg the question. Does s. 18(2) in truth operate as a defence, with the onus cast on the accused to bring himself or herself within the sub-section? Or is absence of malice a factor which the Crown must disprove as part of its case? The construction of s. 18 tends to suggest the former. But in the ordinary run of cases, the point is unlikely to prove crucial.
Counsel for the applicant submitted that s. 18(2) "does not, in fact, make malice an ingredient of murder". He added: "At the time that the section was first enacted it was intended to disavow all constructive malice except the murder felony and [an] act obviously dangerous to human life areas." The authority for that proposition was said to be Stephen and Oliver, Criminal Law Manual (1883), which comprises the Criminal Law Amendment Act 1883 N.S.W. (ss. 7, 9 and 14 of which are the predecessors of ss. 5, 18(1) and 18(2) respectively of the Act) together with "An Introduction, Commentary, and Index". In an appendix, at p. 199, the authors comment:
The definition of Murder given by Sir Edward Coke, and cited by Blackstone, is - the unlawful killing of a reasonable creature, in being, and under the King's peace, by a person of sound memory and discretion, with "malice aforethought, express or implied". The sections in question [ss. 7, 9 and 14], consequently, - it will be observed, - do not affect the earlier portions of that definition; but substitute acts or omissions of a stated character, for acts and omissions induced by what the law has termed malice aforethought, express or implied.
We were told by counsel for the applicant that since the decision of this Court in Mraz , s. 18(2) "has effectively been disregarded in New South Wales, simply disregarded". In referring to Mraz , counsel had in mind the judgment of Fullagar J. [20] , where his Honour said of the definition of Maliciously in s. 5 of the Act:
So far as it is material to the present case, this appears to me to be a mere question-begging definition, saying no more than that "every act done of malice shall be taken to have been done maliciously". See also Ryan [21] , per Barwick C.J. 1. (1955) 93 C.L.R., at p. 510. 2. (1967) 121 C.L.R., at p. 213.
In this regard it should be kept in mind that, while s. 18(1)(a) defines the offence of murder, par.(b) does not define the offence of manslaughter. It provides: "Every other punishable homicide shall be taken to be manslaughter", thereby making it necessary to resort to the common law to determine what constitutes a "punishable homicide" other than murder. On the face of the section, a homicide, punishable at common law, is no longer punishable if the act or omission constituting the homicide (be it murder or manslaughter) was not malicious or was an act or omission for which the accused had lawful cause or excuse. Section 18 thus emerges as a rather unsatisfactory mix of statutory definition coupled with retention of the common law, the operation of which is at the same time qualified by the terms of the section.
The trial judge dealt with "reckless indifference to human life" in this way. He told the jury that if they were not satisfied of the intention either to kill or to inflict grievous bodily harm, they must consider whether the accused "acted with reckless indifference to human life". His Honour explained:
Recklessness involves foresight of or advertence to the consequences of a contemplated act and a willingness to run the risk of the probability of those consequences occurring. He continued: By reckless indifference to human life is meant that the accused was aware that the act contemplated carried a risk to the life of the human being concerned, that the accused did not care whether his act threatened the life concerned. That is, he was indifferent to whether or not his act took that life and he committed the act with such an attitude of mind to its result that you, as jurors, should consider it to be reckless indifference. The time fixed by his Honour for the jury's consideration of the applicant's state of mind was "the time when the deceased fell from the building to the ground below". For the reasons given earlier, that was not correct; the relevant time was when the applicant did the act causing death. And it is no answer to say that all relevant events occurred within a fairly short time. There were separate incidents which the jury needed to consider.
The Court of Criminal Appeal said that "two things must be taken to be established concerning the concept 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 [22] ; Reg. v. Crabbe [23] ; Pemble v. The Queen [24] ; La Fontaine v. The Queen [25] . 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 [26] . 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. 1. [1980] 1 N.S.W.L.R. 321. 2. (1985) 156 C.L.R. 464. 3. (1971) 124 C.L.R. 107. 4. (1976) 136 C.L.R. 62. 5. (1988) 37 A. Crim. R. 131, at pp. 150-151.
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.
At the end of the day the real concern is that the way in which the trial judge charged the jury might well have led them into the error of failing to appreciate that, before they could convict the applicant of murder, they had to be satisfied that it was when the applicant did the act which caused the death he had an intent to kill or do grievous bodily harm. In saying that the time relevant to consider the intention of the applicant was when the deceased fell from the window and in failing to identify the necessary time at which the intention had to exist in each possible view of the facts, the trial judge did not adequately direct the jury. The way in which his Honour dealt with causation was not likely of itself to have led the jury into error because it made clear that they had to find an act of the applicant that caused the death. The real vice is that, having been satisfied in that regard, they might have thought that a conviction for murder followed almost as a matter of course, whichever view of the facts they took, and thereby have failed to consider sufficiently whether the applicant's intention at the relevant time justified a verdict of manslaughter rather than murder. In other words, his Honour did not bring home to the minds of the jury the need to consider whether, at the time of the act causing death (being the act of the applicant, not of the deceased), the applicant had the necessary intent to kill or to do grievous bodily harm. It is, of course, essential to avoid artificiality or unreality, in charging a jury. But there are times when considerable precision is required. This was such a time.
In Director of Public Prosecutions v. Daley [1] Lord Keith of Kinkel, delivering the judgment of the Privy Council, said:
The law regarding manslaughter of the species with which this appeal is concerned was considered by the Court of Appeal (Criminal Division) in Reg. v. Mackie [2] . It is unnecessary to recite the facts of the case or to quote any passages from the judgment of the court delivered by Stephenson L.J. It is sufficient to paraphrase what in their Lordships' view were there held to constitute the essential ingredients of the prosecution's proof of a charge of manslaughter, laid upon the basis that a person has sustained fatal injuries while trying to escape from assault by the defendant. These are: (1) that the victim immediately before he sustained the injuries was in fear of being hurt physically; (2) that his fear was such that it caused him to try to escape; (3) that whilst he was trying to escape, and because he was trying to escape, he met his death; (4) that his fear of being hurt there and then was reasonable and was caused by the conduct of the defendant; (5) that the defendant's conduct which caused the fear was unlawful; and (6) that his conduct was such as any sober and reasonable person would recognise as likely to subject the victim to at least the risk of some harm resulting from it, albeit not serious harm. Their Lordships have to observe that it is unnecessary to prove the defendant's knowledge that his conduct was unlawful. This was made clear by Lord Salmon speaking with general concurrence in a slightly different but nevertheless relevant context in Director of Public Prosecutions v. Newbury [3] . It is sufficient to prove that the defendant's act was intentional, and that it was dangerous on an objective test. 1. [1980] A.C. 237, at pp. 245-246. 2. (1973) 57 Cr. App. R. 453. 3. [1977] A.C. 500, at p. 507.
Daley was a case in which the accused quarrelled with the deceased and threw stones at him. While running away, the deceased tripped and fell and was later found to be dead. There was medical evidence that the cause of death could have been a blow from a stone or the impact of the fall. The Privy Council upheld the trial judge's direction on the question of manslaughter. What Lord Keith said points up the difficulty in the present case. Did the trial judge sufficiently bring to the minds of the jury the conclusions they must reach beyond reasonable doubt before they could properly return a verdict of murder, as opposed to manslaughter? It is significant that the Privy Council dealt with the case as one of manslaughter by fright. That is the way the leading cases have approached the matter: see the discussion in Mackie [4] . That is not to say that murder by fright may not be an appropriate verdict in a particular case. But we do not think that the direction to the jury sufficiently brought out the murder-manslaughter distinction, which was fundamental in the present case.
In these circumstances it is not possible to apply the proviso and say that no miscarriage of justice is likely to have occurred. The case is one for a grant of special leave to appeal. We would allow the appeal, set aside the conviction and order a new trial for murder. It would not be appropriate, on the facts of the case, for this Court to substitute a conviction of manslaughter. There are serious questions of fact involved which must be determined by a jury.
Kym William Royall ("the applicant") applies for special leave to appeal against a conviction and sentence of life imprisonment for the murder of Kelly Louise Healey who died after she fell from the sixth floor of a building. The applicant challenges the conviction on the ground that the verdict was unsafe or unsatisfactory and that the trial judge misdirected the jury in relation to the proof of a causal connexion between the applicant's acts and the death of Ms Healey and in relation to his intent or reckless indifference to human life in doing those acts. He challenges his sentence of life imprisonment on the ground that there were "mitigating circumstances" which diminished his culpability and entitled him to a lesser sentence.
In the early hours of 16 November 1986, Ms Healy ("the deceased") died as the result of a fall from the bathroom window of a sixth floor flat which she shared with the applicant. The deceased was naked. In his remarks on sentence, the trial judge described the window from which she fell as "a small window, only shoulder width wide and approximately three feet or less than a metre high". The window was about one metre above the floor of the bathroom. Below the window was a vanity unit.
About three days before her death, the deceased had left the flat after a quarrel with the applicant and had gone to live with a girlfriend. She returned to the flat late on the night of 15 November 1986. The applicant returned to the flat in the early hours of the following day. According to the applicant, they then "had a blue". In a record of interview, the applicant said:
Yeah, I backhanded her and I think I punched her twice in the face and in the nose. I grabbed her by the hair at one stage and shook her.
At his trial, the applicant made an unsworn statement in which he asserted that after he struck the deceased she went into the bathroom to take a shower. They continued to shout at each other. He said that he heard a thump on the wall. He became concerned for her because he knew that she had used amphetamines over a long period and that she suffered from epilepsy which caused her to faint or become unconscious from time to time. The bathroom door was locked. He said that he forced the lock with a knife and that he banged on the door until it opened. The applicant said that, as the door opened, the deceased was going out the window.
Other evidence indicated that a quarrel of great violence had taken place in the bathroom and other parts of the flat. The television set in the bed-sitting room was knocked over. A large number of bloodstains were found in various places throughout the bed-sitting room: there were bloodstains on the video, the television set, the bed linen and the refrigerator door. The blood of the deceased was found splashed in various places in the bathroom. There was blood on the window sill and surrounding area. There was also blood on the bathroom walls near the window and above head level. Bloodstained tissues with hair were found in a toilet bowl in the bathroom. The bathroom sink contained a damaged glass ashtray. Fragments from the ashtray were found on the bathroom floor. Gouge marks were found on the walls. They were consistent with the ashtray being swung at a point commencing near the centre of the lower half of the window. Blood splashes on the window formed a pattern consistent with that generated by an object striking a target.
The backs of the legs of the deceased contained abrasions. In the opinion of a pathologist, they indicated that the deceased had fallen backwards out of the bathroom window and scraped the back of her legs on the brickwork outside the window as she fell.
Section 18 of the Crimes Act 1900 N.S.W. ("the Act") provides:
(a) Murder shall be taken to have been committed where the act of the accused, or thing by him omitted 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 a crime punishable by penal servitude for life or for 25 years.
(b) Every other punishable homicide shall be taken to be manslaughter.
(a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.
Section 5 of the Act defines "Maliciously" as follows: Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime.
The Crown alleged that the applicant had brought about the death of the deceased in one of three ways: (1) He pushed or forced her out of the bathroom window. (2) He physically attacked her while she was in the bathroom causing her to fall from the window as she avoided or retreated from his attack. (3) Immediately before she fell from the window, she had a well-founded and reasonable apprehension that, if she remained in the bathroom, she would be "subjected to such further violence as would endanger her life", which caused her to jump out of the window to escape that violence.
if you are satisfied beyond reasonable doubt that the accused caused the death of [the deceased] in any one of the three ways that I have just mentioned, but you cannot say which it was, then provided you are satisfied that the accused had, at the relevant time, an intention to kill or to inflict grievous bodily harm or was acting with reckless indifference to her life, he would be guilty of murder. That direction was given to the jury in the middle of the summing up and again shortly before the jury retired.
Thus there were nine different ways in which the jury could have convicted the applicant of murder.
The applicant contended that the New South Wales Court of Criminal Appeal erred in failing to hold that the verdict of murder was unsafe or unsatisfactory. He contended that the Court of Criminal Appeal was in error because it held that the verdict of the jury could be supported on one basis notwithstanding that the verdict may have been found on any one of a number of other bases, two of which the Court of Criminal Appeal found were an unsatisfactory basis for a finding of guilt.
After referring to the three "significantly different possibilities as to the way in which the deceased came to fall from the building", Gleeson C.J., with whose judgment Wood and Newman JJ. agreed, said that, if the jury accepted the first of the three "possibilities" left to them as to the manner of death, it was not difficult to see how they could come to the conclusion that the applicant intended to kill or inflict grievous bodily harm upon the deceased. His Honour also said that, if the jury accepted the second of the three "possibilities" - and from his reading of the evidence that appeared to be the most likely cause of the fall - it was not difficult to understand how they arrived at their verdict. The learned Chief Justice said that there was abundant evidence to indicate that the applicant had forced his way into the bathroom and that he had done so for the purpose of causing serious harm to the deceased in addition to the harm which he had already inflicted upon her. Gleeson C.J. said that the jury were entitled to conclude that the applicant had made an attack upon the deceased in the bathroom using a glass ashtray as a weapon and that he had swung it at her in the vicinity of the bathroom window with such violence that it left the gouge marks. However, his Honour went on to say:
I do not see how the jury could safely have concluded that the [applicant] intended to kill the deceased, but it was open to them to conclude beyond reasonable doubt that he intended to cause her grievous bodily harm. I do not consider that it would be safe to conclude that there was a probability that his actions would cause her death, or that he adverted to that probability. This statement was made in the context of discussing the second of the three "possibilities".
His Honour then referred to the applicant's submission that the verdict of murder should be set aside as unsafe or unsatisfactory but concluded:
In the present case, however, the jury were carefully and fully instructed on the relevant legal principles, and the evidence justified a conclusion that the [applicant] attacked the deceased with a weapon and with considerable ferocity. Indeed the ferocity of the attack would have been emphasised in the minds of the jury if they concluded, as they were entitled to, that in one way or another it forced the deceased, in her efforts to evade it, backwards out of the bathroom window. In the circumstances I am not prepared to conclude that the verdict was unsafe or unsatisfactory.
The difficulty with the Court of Criminal Appeal's analysis is that it does not reveal why the verdict was safe and satisfactory if the jury found that the applicant attacked the deceased in the bathroom with intent to kill or with reckless indifference to her life or if the jury found that the third of the three "possibilities" was the cause of the deceased's fall. The Court of Criminal Appeal was required to make its own independent assessment of the evidence to ascertain whether the verdict was safe and satisfactory: see Chidiac v. The Queen [5] . The Court of Criminal Appeal, however, has found some only of the possible ways in which the jury may have reached their verdict to be safe and satisfactory, and has expressed no opinion as to whether a verdict, found in one of the other ways left to the jury, would be safe and satisfactory. Nevertheless, the Crown contended that a verdict of guilty may be safe and satisfactory even though the jury had an issue left to them which they could not safely consider. To support this proposition, the Crown relied on Chamberlain v. The Queen [No. 2] [6] . In Chamberlain [7] , Gibbs C.J. and Mason J. held that, in considering a charge of murder, the jury could not safely act upon the basis that the evidence established that certain blood was foetal blood. Nevertheless, their Honours held that the verdict of guilty was not unsafe or unsatisfactory because there was other evidence to support that verdict. Their Honours reached this conclusion despite the trial judge's direction to the jury that they could find that the blood was foetal blood. But, with great respect, if there is a real possibility that the jury may have acted upon an unsafe basis in reaching their verdict, I think that the verdict must be regarded as unsafe and unsatisfactory. Indeed, the case where a verdict may have been based on evidence or decided on an issue upon which the jury could not safely act seems to me to be the paradigm of an unsafe or unsatisfactory verdict. The remarks of Gibbs C.J. and Mason J. in Chamberlain were authority for the course which the Court of Criminal Appeal took in the present case. But in my view no verdict in a criminal trial can be regarded as safe and satisfactory if the jury may have reached their verdict on evidence or by reasoning which is unsafe or unsatisfactory. In so far as any remarks in Chamberlain may suggest or imply the contrary, they are in my opinion wrong and should not be followed.
It follows that the Court of Criminal Appeal erred in not examining whether all of the bases which the jury were invited to consider were safe and satisfactory. But it does not follow that special leave should be granted simply because the Court of Criminal Appeal has not exercised the jurisdiction conferred on it by s. 6 of the Criminal Appeal Act 1912 N.S.W.: see Chidiac [8] . In Packett v. The King [9] , Evatt J. pointed out:
After this court grants special leave to appeal in criminal cases, the functions of the court are assimilated precisely to those of the Supreme Court exercising the jurisdiction of the Court of Criminal Appeal (Craig v. The King [10] ). But, before leave is granted, the court must be satisfied that the case is "special" in character [11] . In determining that as a preliminary question, all the circumstances of the case including the character of the questions of law involved must be considered. The fact that, if special leave were granted, the appeal would be allowed does not necessarily mean that special leave should be granted. 1. (1991) 171 C.L.R., at pp. 462-464. 2. (1937) 58 C.L.R. 190, at p. 218. 3. (1933) 49 C.L.R. 429. 4. (1933) 49 C.L.R., at pp. 443-444.
In Chidiac [12] , I discussed at some length the approach which a court of criminal appeal should take in determining whether a verdict of guilty was unsafe or unsatisfactory. I need not repeat that discussion. It is enough to say that the Court of Criminal Appeal was bound to examine the evidence to ascertain whether a reasonable jury, properly instructed, would have convicted the applicant in all the ways in which the case was left to them. If a reasonable jury would not have convicted the applicant in respect of one or more of the ways left to the jury in the present case, the verdict must be regarded as unsafe or unsatisfactory. It, therefore, becomes necessary for me to examine that question.
On the evidence, a reasonable jury were entitled to find that the applicant had pushed or forced the deceased out of the bathroom window. Such a jury were entitled to form the conclusion that the applicant had attacked the deceased in the bathroom with great ferocity, forcing her onto the vanity stand or window sill, and had then pushed or forced her out of the bathroom window. A reasonable jury were entitled to conclude that the width of the window was so narrow that, unless the deceased went out of the window voluntarily, force was required to eject her. The abrasions on the back of the legs of the deceased were matters which strengthened the conclusion that she was pushed or forced out of the window and had not accidentally fallen through or jumped out of the window. Once the hypothetical jury concluded that the applicant had pushed or forced the deceased out of the window, it would not be unsafe for them to conclude that the applicant had one of the relevant states of mind at the time when he pushed or forced her out the window.
Accordingly, if the jury found that the fall of the deceased occurred according to the first alternative, the verdict is not unsafe or unsatisfactory.
As I have said, the Court of Criminal Appeal thought that the most likely way that the deceased met her death was that she fell from the window as she avoided or retreated from the applicant's attack. The Court thought, however, that it would be unsafe for the jury to conclude that he had attacked her with the intent to kill her or with reckless indifference to her life.
The size and position of the window indicate that the deceased must have been on or near the window sill to have been forced out of the window. On that hypothesis, a reasonable jury were entitled to hold that, when the applicant attacked the deceased, he intended to force her out of the window. If they did so, the verdict would not be unsafe whichever state of mind they attributed to the applicant. Accordingly, I am unable to agree with the Court of Criminal Appeal that the jury could not safely find - on the basis of the second alternative - that the applicant had an intent to kill or was recklessly indifferent to life.
It follows, in my opinion, that the verdict was not unsafe or unsatisfactory if the jury accepted the second alternative as the cause of the fall.
The trial judge directed the jury in relation to the third alternative as follows:
The third allegation is that [the deceased] at the time immediately before her fall from the window, had a well-founded and reasonable apprehension that if she remained in the bathroom she would be subjected to such further violence as would endanger her life and if in those circumstances she sought to escape by jumping out of the window thinking that by so doing she had a better chance of saving her life than by staying inside, and was killed in that fall, that causal link between the acts of the accused and the death are established.
It will be necessary at a later stage to discuss this direction to the jury. But, on the evidence, a reasonable jury were entitled to find that, after the applicant had ferociously attacked the deceased in the living room area, he broke open the door of the bathroom and attacked her with an ashtray. If his conduct in breaking open the door or attacking her in the bathroom induced the deceased to jump out the window so as to avoid further attack, it might be thought that "but for" the attack the deceased would not have lost her life and that the applicant, therefore, had caused her death. But this Court has recently rejected the proposition that in the law of negligence the test of causation at common law is the "but for" test: March v. Stramare (E. & M.H.) Pty. Ltd. [13] . In criminal cases, the common law has also refused to apply the "but for" test as the sole test of causation. Nevertheless, the "but for" test is a useful tool in criminal law for determining whether a causal link existed between an accused's act or omission and the relevant injury or damage. But before a person will be held criminally liable for his or her act or omission, the causal link between that act or omission and the injury or damage must be sufficiently cogent to justify attributing causal responsibility, i.e. legal responsibility, to that person. Causation-in-fact is not causation-in-law: see Colvin, Causation in Criminal Law, Bond Law Review, vol. 1 (1989) 253, at pp. 254-258 .
Causation is a question of fact: Reg. v. Evans & Gardiner [No. 2] [14] ; Reg. v. Pagett [15] . To constitute a cause for the purposes of the criminal law, it is not necessary that an act or omission be the sole or main cause of a wrong: Pagett [16] . But, as I have indicated, the purpose of the legal doctrine of causation is to attribute legal responsibility, not to determine the factors which played a part in the happening of an event or occurrence. It is for this reason that the common law doctrine of causation has not accepted that a person is criminally responsible for an event or occurrence simply because his or her act or omission was a causa sine qua non of that event or occurrence. If, as a matter of commonsense, an ordinary person would not hold an accused's act or omission to be a cause of the event or occurrence, it is irrelevant that it was a causa sine qua non of that event or occurrence: cf. Campbell v. The Queen [17] .
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, loc. cit., p. 259.
In Reg. v. Smith [18] , where the appellant had been convicted of murder, Lord Parker C.J. said [19] :
It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound. In this context, "substantial cause" has been said to be "a convenient word to use to indicate to the jury that it must be something more than de minimis": Reg. v. Hennigan [20] , per Lord Parker C.J. 1. [1959] 2 Q.B. 35. 2. [1959] 2 Q.B., at pp. 42-43. 3. [1971] 3 All E.R. 133, at p. 135.
In Smith , there was medical evidence that, if the deceased had received proper treatment after he was stabbed, there was a 75 per cent chance he would have recovered. Yet Lord Parker C.J. said [21] that, although the treatment given was harmful, no reasonable jury, properly directed, could come to any conclusion except that death resulted from the original wound caused two hours earlier.
The principle laid down in Smith was followed in Evans & Gardiner [No. 2], where the deceased had died almost one year after being stabbed by the applicants. After the stabbing, a bowel resection operation was performed successfully. The deceased resumed an apparently healthy life. But he died about eleven months after the stabbing. The immediate cause of death was a fibrous ring causing a stricture in the small bowel at the site of the resection operation. The medical evidence established that such a stricture was not an uncommon sequel to that particular operation. There was evidence upon which the jury could have found that the deceased's condition should have been diagnosed and that operative treatment would have rectified it. The Full Court of the Supreme Court of Victoria upheld the applicants' convictions for murder. The Court said [22] that the passage from Smith which I have quoted was "the most satisfactory expression of the law to be found in the authorities".
In Evans & Gardiner [No. 2], the Full Court distinguished Reg. v. Jordan [23] , where a stabbing wound was stitched up but the victim died a week later. In that case, fresh evidence was called on the appeal to establish that death had not been caused by the stab wound but by the introduction of terramycin after the deceased had shown that he was intolerant of it and by the intravenous introduction of abnormal quantities of liquid which led to broncho-pneumonia from which the victim died. The Court of Criminal Appeal in Jordan held that, if the jury had heard this evidence, they "would have felt precluded from saying that they were satisfied that death was caused by the stab wound". The Court thought that abnormal treatment could be regarded as a supervening event which broke the causal chain. In distinguishing Jordan , the Full Court in Evans & Gardiner [No. 2] [24] agreed with Lord Parker's opinion in Smith "that Reg. v. Jordan should be regarded as a case decided on its own special facts and not as an authority relaxing the common law approach to causation".
The judgment of the Full Court of the Supreme Court of South Australia in Reg. v. Hallett [25] also adopted the substantial, operating cause doctrine of causation in a case where the deceased drowned after an assault by the accused. The Court said [26] :
The death of the deceased is the material event. The question to be asked is whether an act or series of acts (in exceptional cases an omission or series of omissions) consciously performed by the accused is or are so connected with the event that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event. It does not matter on the question of causation whether or not the accused after the commission of his act fails to appreciate or takes unavailing steps to avoid its probable consequences or mistakenly thinks he has taken such steps or fails to take such steps through some supervening factor unless that supervening factor so interrupts the effect of the original act as to prevent that original act from being in the eyes of the law the cause of death. There was evidence that the accused had violently assaulted the deceased on a beach, knocked him unconscious and left him lying at the edge of the water with his feet in the sea. The deceased died from drowning, probably in shallow water whilst unconscious. The Full Court said [27] : The only question, it seems to us, which can be raised in this connexion is whether the action of the sea on the deceased can be regarded as breaking the chain of causation. We do not think it can. In the exposure cases the ordinary operation of natural causes has never been regarded as preventing the death from being caused by the accused. 1. [1969] S.A.S.R. 141. 2. [1969] S.A.S.R., at p. 149. 3. [1969] S.A.S.R., at p. 149.
The principle that an act or omission of an accused is a legal cause of a wrongful act if it is "an operating cause and a substantial cause" of that act seems to have been referred to infrequently, however, in cases where the harm to the injured person would never have occurred but for a subsequent act of the victim or a third person. One test which has been used in this class of case is to ask whether the intervening act was a voluntary act or abnormal occurrence which amounted to a novus actus interveniens which broke "the chain of causation". In Reg. v. Pagett, the Court of Appeal upheld a conviction of manslaughter where a girl, whom the accused was holding as a shield in front of him, was shot dead by police who were returning shots fired by the accused at the police. The Court of Appeal said [28] :
although an act of the accused constitutes a causa sine qua non of (or necessary condition for) the death of the victim, nevertheless the intervention of a third person may be regarded as the sole cause of the victim's death, thereby relieving the accused of criminal responsibility. Such intervention, if it has such an effect, has often been described by lawyers as a novus actus interveniens. Their Lordships thought that it was broadly correct to say that the intervention of a third person, not acting in concert with the accused, had the effect of relieving the accused of criminal responsibility if the intervention was voluntary in the sense that it was "free, deliberate and informed" [29] . Their Lordships said, however, that there was no doubt that a reasonable act performed for the purpose of self-preservation does not operate as a novus actus interveniens if that act is caused by the accused's act. Consequently, the act of the police officers did not constitute a novus actus interveniens severing the chain of causation between the accused's unlawful act in using the girl as a shield and her death. 1. (1983) 76 Cr. App. R., at p. 288. 2. (1983) 76 Cr. App. R., at p. 289.
In Reg. v. Blaue [30] , the Court of Appeal held that the chain of causation was not broken because the victim of a stabbing, who was a Jehovah's Witness, had refused to have a blood transfusion which would probably have saved her life. The Court said [31] :
It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim's religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connexion between the act and death. 1. [1975] 1 W.L.R. 1411; [1975] 3 All E.R. 446. 2. [1975] 1 W.L.R., at p. 1415; [1975] 3 All E.R., at p. 450.
On the other hand in Reg. v. Dalby [32] , the Court of Appeal set aside a conviction of manslaughter where the appellant had supplied drugs to a person who subsequently died of an overdose. The trial judge had directed the jury to ask themselves whether supplying the drugs "was a substantial cause of the victim's death". The Court said [33] that supplying the drugs was not an act which caused direct harm and would have caused no harm "unless the deceased had subsequently used the drugs in a form and quantity which was dangerous". Ingestion of the drugs by the victim was seen as a novus actus interveniens.
A quite different test of causation was applied in the earlier case of R. v. Beech [34] where the accused was convicted of inflicting grievous bodily harm after the complainant had jumped out of a window to escape his threatened attack and injured herself. The Court of Criminal Appeal upheld the conviction and said that no one could say "that if she jumped through the window it was not the natural consequence of the prisoner's conduct. It was a very likely thing for a woman to do as the result of the threats of a man who was conducting himself as this man indisputably was."
The "natural consequence" test applied in Beech was formulated in different terms in Reg. v. Roberts [35] , where a young woman who was a passenger in the appellant's car injured herself by jumping out of it while the car was in motion. She alleged that she had jumped because of what the appellant had said he would do to her. The Court of Appeal rejected a submission that the accused must foresee the actions of a victim which result in the grievous bodily harm or the actual bodily harm. Their Lordships said [36] :
The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so "daft", in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury. 1. (1971) 56 Cr. App. R. 95. 2. (1971) 56 Cr. App. R., at p. 102.
The foresight principle laid down in Roberts was approved in Reg. v. Mackie [37] , where the appellant was convicted of the manslaughter of a small boy who fell down stairs when running away in fear of being ill-treated by the appellant who had ill-treated the boy in the past. The Court of Appeal said [38] :
Where the injuries are not fatal, the attempt to escape must be the natural consequence of the assault charged, not something which could not be expected, but something which any reasonable and responsible man in the assailant's shoes would have foreseen. Where the injuries are fatal, the attempt must be the natural consequence of an unlawful act and that unlawful act "must be such as all sober and reasonable people would inevitably recognize must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm". 1. (1973) 57 Cr. App. R. 453. 2. (1973) 57 Cr. App. R., at pp. 459-460.
The Judicial Committee of the Privy Council approved the law concerning manslaughter as laid down in Mackie in Director of Public Prosecutions v. Daley [39] , where the defendants had quarrelled with the deceased and had thrown stones at him. The deceased tripped and fell while running away. He was later found to be dead. Death could have been caused by a blow from one of the stones or by the impact of the fall. Their Lordships said [40] :
It is sufficient to paraphrase what in their Lordships' view were there [i.e. in Mackie] held to constitute the essential ingredients of the prosecution's proof of a charge of manslaughter, laid upon the basis that a person has sustained fatal injuries while trying to escape from assault by the defendant. These are: (1) that the victim immediately before he sustained the injuries was in fear of being hurt physically; (2) that his fear was such that it caused him to try to escape; (3) that whilst he was trying to escape, and because he was trying to escape, he met his death; (4) that his fear of being hurt there and then was reasonable and was caused by the conduct of the defendant; (5) that the defendant's conduct which caused the fear was unlawful; and (6) that his conduct was such as any sober and reasonable person would recognise as likely to subject the victim to at least the risk of some harm resulting from it, albeit not serious harm. 1. [1980] A.C. 237. 2. [1980] A.C., at pp. 245-246.
The law as to causation laid down in Mackie and Daley - where the victims were seeking to escape the violence of the accused - is different from the direction as to causation which Cole J. gave the jury in the present case. The direction of his Honour was based on a direction approved by the Full Court of the Supreme Court of New South Wales in Reg. v. Grimes and Lee [41] . There, the defendants and the victim were travelling in the same compartment in a railway carriage. After being robbed and assaulted by the defendants, the victim, thinking that his life was in danger, jumped out of the train and was killed. The Full Court approved the direction of the trial judge that the defendants were guilty of murder if immediately after the robbery and wounding had taken place the victim jumped through the window because of "a well-founded and reasonable fear or apprehension that if he stayed in the carriage he would be subjected to such further violence as would endanger his life, and if he left the carriage thinking that by doing so he had a better chance of saving his life than by staying in, and was killed in the fall".
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.
Judicial and academic efforts to achieve a coherent theory of common law causation have not met with significant success. Perhaps the nature of the subject matter when combined with the lawyer's need to couple issues of factual causation with culpability make achievement of a coherent theory virtually impossible. But there is little hope of obtaining a coherent theory of causation if the principles of causation in criminal cases are significantly different from those in the civil law. No doubt the object of the civil law is not the same as the object of the criminal law. But both areas of law use principles of causal responsibility to limit liability for the consequences of wrongful acts. Tort and contract law do so, inter alia, by rules of remoteness of damage which are based on notions of justice and morality: cf. Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound [No. 1]) [42] . Criminal law does so by reference to rules which are based on notions of moral culpability. Speaking generally, the broad principles of causation applicable in civil cases should be equally applicable in criminal cases. The law of negligence, where issues of causation have arisen frequently, has used the doctrines of reasonable foreseeability and novus actus interveniens to limit responsibility for negligent acts and omissions which are causally connected with injury suffered: Mahony v. J. Kruschich (Demolitions) Pty. Ltd. [43] . Reasonable foreseeability has been used to limit the liability of a tortfeasor because "it does not seem consonant with current ideas of justice or morality that for an act of negligence, however slight or venial, which results in some trivial foreseeable damage the actor should be liable for all consequences however unforeseeable and however grave, so long as they can be said to be "direct" ": The Wagon Mound [No. 1] [44] . The novus actus interveniens doctrine has been used to limit the liability of a tortfeasor because he or she is perceived as having no moral responsibility for damage when a fully-informed actor, not acting under constraint or pressure flowing from the tortfeasor's actions, has intervened and produced that damage even though it would not have occurred but for the tortfeasor's act or omission. For the same reasons, in a criminal case, a person should not be held liable for a wrongful act or omission which has caused harm in a "but for" sense if that harm was the product of a novus actus interveniens or was not a reasonably foreseeable consequence of the act or omission. It goes almost without saying, however, that a person should be held liable for harm which is causally linked with his or her conduct and which he or she intended should be brought about by that conduct: cf. Hart and Honoré, Causation in the Law, 2nd ed. (1985), p. 79.
The test of reasonable foresight is to be preferred to the "natural consequence" test and the "operating cause and substantial cause" test. The balance of authority favours the reasonable foresight test over the "natural consequence" test. Moreover, the word "natural" is ambiguous. In Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. ("The Wagon Mound [No. 2]") [45] Lord Reid said, "[t]he word "natural" is found very often and is peculiarly ambiguous." In Beech , Darling J., in using the term "natural consequence", seemed to mean that the consequence was one which "was a very likely thing". But the expression can also mean a consequence that might be expected to occur. In Roberts [46] , Stephenson L.J. approved the test in Beech . Yet his Lordship said that the test was: "Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing?" Furthermore, despite the enthusiasm which some courts and writers have shown for the "operating cause and substantial cause" test, I do not think that it is a satisfactory formula. The adjective "operating" adds nothing. Either an accused's act is a cause or it is not a cause. The word "substantial" means no more than not de minimis. The result of the application of the "operating cause and substantial cause" test in most cases is that the "but for" test has been applied under another label.
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. As I have already pointed out, however, for the purposes of the criminal law, causation cannot be separated from questions of moral culpability. And a person should not be regarded as morally culpable in respect of harm which he or she did not intend and which no reasonable person could foresee. 1. [1969] S.A.S.R., at p. 149.
However, notwithstanding what was said in Daley and Grimes and Lee, I do not think that either principle or policy requires the conclusion that an accused is not causally responsible for the harm suffered by the victim simply because the accused's act or omission has caused the victim to act unreasonably. One of the basic objects of the criminal law is the preservation of the Queen's peace. If the conduct of the accused in fact induces the victim to do something which "causes" harm to him or her, the act of the victim ought not to be regarded as a novus actus interveniens merely because it was unreasonable. Persons subjected to violence or the threat of violence do not always think rationally or act reasonably. The instinct of self-preservation often causes them to flee or to take action which, while avoiding the immediate danger, places them in greater peril. Indeed, in some cases, the suicide of the victim should not be regarded as breaking the causal chain of responsibility. If a person suicided to avoid further torture and eventual death, I do not see why the causal chain should be taken as broken: cf. People v. Lewis [48] . The unreasonable failure of a victim to receive medical attention will not constitute a novus actus interveniens: Blaue [49] . How then can unreasonable conduct on the part of a victim in escaping an attack automatically constitute a novus actus interveniens? It is true that in the first case the victim has refused to take action which would prevent his or her death, while in the second case the victim has taken action which causes his or her death. But in each case, the death occurs only because of conduct on the part of the victim which is unreasonable by objective standards. It is not easy to see any distinction in principle between the two cases. It is even more difficult to see why the conduct of the victim should absolve the accused in one case and not the other.
The fact that the victim's act is unreasonable in seeking to escape from the violent conduct of the accused, therefore, does not seem enough by itself as a matter of either principle or policy to enable the accused to escape causal responsibility for the harm which ensues. On the other hand, even though the victim's act is not a novus actus interveniens, to hold that the accused was criminally responsible for harm which was not intended and which no reasonable person could have foreseen was likely to result from his or her conduct would be an onerous imposition of the criminal law.
Consequently, 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.
The verdict on the third alternative was not unsafe or unsatisfactory.
When the evidence relied on by the Crown in this case is examined in the light of the principles of causation to which I have referred, a reasonable jury were entitled to find the applicant guilty of murder on the basis of the third alternative. If the deceased jumped out of the window to avoid his attack, a causal link existed between the applicant's attack and her death and the applicant should be held to be causally responsible for her death unless her death was not a reasonably foreseeable consequence of the attack. The conduct of the applicant in relation to the deceased makes it impossible to regard her act in jumping (if it occurred) as a novus actus interveniens for which the applicant has no responsibility. So the question is: was the death of the deceased a reasonably foreseeable consequence of the applicant's conduct?
Unfortunately, the learned trial judge did not instruct the jury of the need to isolate a particular act as the cause of the deceased jumping out of the window. If the jury found that the deceased jumped, it was open to them to find that she did so because of what occurred in the bathroom or because of the applicant's act in forcing the door open. The causal act most favourable to the applicant is that she jumped as the result of his forcing the door open. But, having regard to the ferocity of the attack which had taken place in the living room, the arguing which continued after the deceased locked herself in the bathroom, and the banging on the door, I think that a reasonable jury were entitled to hold that the deceased's death was a reasonably foreseeable consequence of the breaking down of the door. It was reasonably foreseeable because the conduct of the applicant up to and including that time was capable of inducing such fear in the deceased that she would take any step to avoid his violence even if it meant going out the window. The irrational act of a person in the deceased's position, having regard to the circumstances, was not beyond the limits of reasonable foresight.
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 or 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 out of the window. As McGarvie and O'Bryan JJ. said in Reg. v. Demirian [50] :
If a person creates a situation intended to kill and it does kill it is no answer to a charge of murder that it caused death at a time or in a way that was to some extent unexpected. 1. [1989] V.R. 97, at p. 113.
For these reasons, I am of the opinion that a reasonable jury were entitled to find on the third alternative that the applicant was causally responsible for the death of the deceased and that, whichever of the three states of mind was selected as the relevant one, it was a state of mind which a reasonable jury were entitled to find. Accordingly, the verdict of the jury, based on the third alternative, was not unsafe or unsatisfactory.
The important principles of law which had to be discussed in reaching the conclusion that the verdict was not unsafe or unsatisfactory make the case one for the grant of special leave to appeal. But the appeal on this ground must be dismissed.
I have already set out the judge's direction on the third alternative. It was clearly based on Grimes and Lee. It departs from the reasonable foresight model of causation in two respects. First, it required that the deceased should have had a well-founded and reasonable apprehension that she would be subjected to violence which would endanger her life. This was an unduly favourable direction from the point of view of the applicant. Persons do not always and cannot always be expected to act rationally. Secondly, the judge did not direct the jury as to the need for reasonable foresight of the consequences of the applicant's act. In this respect, however, the trial judge's direction was unfavourable to the applicant and amounted to a misdirection.
Further, the trial judge failed to direct the jury as to the need to identify the act which caused the death of the deceased. In Ryan v. The Queen [51] , Barwick C.J. drew attention to the "logical and practical necessity to isolate that act, for it is of it, and it alone, that one or more of the several specified conditions or concomitants must be predicated if the terms of s. 18 are to be satisfied". I have already said that the verdict was not unsafe or unsatisfactory irrespective of which of the acts of the applicant was the act which caused death. But, of course, it was still open to the jury in the present case to find that the death of the deceased was not a reasonably foreseeable consequence of whatever was the relevant causal act of the applicant.
In my opinion, however, the direction of the trial judge on causation did not constitute any miscarriage of justice. I do not think that there is a real possibility that the failure of the trial judge to instruct the jury as to the need to identify the precise act which caused death or his failure to direct the jury in terms of reasonable foreseeability affected the result. Having regard to the evidence of the attack in the bathroom, I do not think that there is a significant possibility that the jury accepted that the deceased jumped out of the window because the door was forced open. The evidence strongly favours the view that the deceased did not jump out of the window. The only evidence that she did so is the assertion of the applicant. His assertion seems quite inconsistent with the abrasions on the back of the legs of the deceased. Moreover, if the jury rejected the applicant's account that there was no violence in the bathroom, his story about the deceased jumping out of the window as the door was forced open lost its credibility. The evidence is overwhelming that, despite the applicant's denials, a violent struggle took place in the bathroom. Consequently, I do not think that there is any significant possibility that the jury found that she jumped out of the window as the result of the door being forced open. If the jury found that a struggle took place in the bathroom, as I think they certainly did, and that the deceased jumped out of the window to avoid that attack, there is no doubt in my mind that the jury would have come to the conclusion that death was a reasonably foreseeable consequence of the applicant's attack. It is not necessary that the reasonable person could foresee the precise manner in which the act caused death.
In the circumstances, I am not persuaded that the trial judge's directions on the third alternative constituted a miscarriage of justice.
Recklessness involves foresight of or advertence to the consequences of a contemplated act and a willingness to run the risk of the probability of those consequences occurring.
By reckless indifference to human life is meant that the accused was aware that the act contemplated carried a risk to the life of the human being concerned, that the accused did not care whether his act threatened the life concerned. That is, he was indifferent to whether or not his act took that life and he committed the act with such an attitude of mind to its result that you, as jurors, should consider it to be reckless indifference.
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 [52] .
Counsel for the applicant contended that, when the Crown in New South Wales alleges that an act was done or omitted "with reckless indifference to human life", the trial judge must direct the jury that the accused cannot be convicted of murder unless he or she knew that his or her act or omission would probably cause death. Counsel for the Crown, on the other hand, contended that the principles expounded in Crabbe are not relevant to a charge of murder under s. 18.
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 although sub-s. (2)(a) provides that no act or omission which was not "malicious" shall be within the section. Section 5 defines malice. But if the prosecution establishes that the accused had one of the three states of mind specified in s. 18, there is no room for the operation of s. 5. Section 5 has operation in relation to s. 18 only in the case of felony-murder. Indeed the object of s. 18 and its predecessor was to do away with the phrase "malice aforethought": Parker v. The Queen [53] , 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 [54] : "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 [55] . See also Commissioner of Police v. Caldwell [56] .
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 [57] . 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 [58] , per Gibbs J. and the authorities to which he refers; Crabbe [59] .
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).
The remaining question is whether the direction of the learned judge was in accordance with the requirements of Crabbe .
The direction of the learned trial judge is far from satisfactory. The second paragraph of the direction, standing on its own, is a misdirection. The central element of the definition of "reckless indifference to human life" in that paragraph was that the applicant had to be aware that his act "carried a risk to life". That is not the law. However, the previous paragraph, in clarifying the meaning of "recklessness", did refer to that term as involving "a willingness to run the risk of the probability of those consequences occurring". The Court of Criminal Appeal thought the two paragraphs read together "sufficiently conveyed to the jury that they were concerned with probabilities rather than possibilities and that the reference to "risk" has not displaced that idea". Although the matter is not free from doubt, I think that the view of the Court of Criminal Appeal is the better one as to how the jury would have understood the trial judge's direction. Consequently, the direction was not a misdirection.
The important principles of law involved in the direction concerning "reckless indifference to human life" make the challenge to that direction also an appropriate ground for the grant of special leave to appeal. But the appeal on this ground must be dismissed.
The time at which the relevant state of mind was held.
Early in his summing up, when the learned trial judge was directing the jury as to the elements of the offence of murder, he instructed them that there must be an act of the accused which caused death and "at the time of the doing of the act the act must have been accompanied by an attitude of mind on the part of the accused, which here would be either intent to kill or to do grievous bodily harm or was an act done with reckless indifference to human life". When his Honour went on to deal with the question of the accused's mental state, however, he erroneously directed the jury that the accused's mental state must exist at the time when the deceased fell from the building. His Honour said:
The first question is whether, at the time of the act bringing about the death, that being the time when the deceased left the building and fell to the ground below, there was present in the accused an intent to kill; and if you are satisfied that there was such an intent to kill you would not need to consider the next two matters, namely whether there was an intent to do grievous bodily harm or whether the act of the accused, done at that time, was done with a reckless indifference to her life. If you are not so satisfied of an intent to kill then you must consider whether the accused had the intent, at the relevant time, to inflict grievous bodily harm. Later, after directing the jury concerning the meaning of reckless indifference to human life, his Honour said that their "task would be to consider the accused's actual state of mind at the relevant time which, as I have said, is the time when the deceased fell from the building to the ground below". When dealing with the question of manslaughter, the trial judge also directed the jury that they must consider the unlawful acts, if they found any, at the time when the deceased went out the window.
All the foregoing directions were substantially repeated towards the end of the summing up.
After a request by the Crown, the learned judge repeated his direction concerning reckless indifference to human life. He then went on to say:
Your task, therefore, is to consider the accused's actual state of mind at the relevant time, which I have said to you on a number of occasions is the time when the deceased fell to her death.
Against this background, there is little doubt that the jury must have had the impression that the applicant had to have the relevant state of mind at the time the deceased went out the window. If the jury did retire under the impression that this was the time at which they had to consider the applicant's state of mind, they were acting under a legal error. It is trite law that the relevant state of mind and the harm-causing act "must both concur to constitute the crime": Fowler v. Padget [60] . Section 18 of the Crimes Act gives effect to this common law principle. All that s. 18 requires is that the act of an accused causing death be accompanied by one of the relevant states of mind. This means that the state of mind of an accused does not have to coincide with the time of the deceased's death. In those cases of murder where death follows instantaneously from the act of the accused, there will be no practical difference between the time of the accused's act and the time of death. But in other cases, a considerable time lapse may occur between the act of the accused and the death of the deceased. Section 18(1)(a) requires that the relevant state of mind accompany the relevant act or omission causing death. It is irrelevant that, at the time of death, an accused no longer had that state of mind or acquired it after the occurrence of his or her act or omission. The directions of the learned trial judge on this matter were erroneous.
However, the misdirections could not have affected the result. No matter which act of the applicant caused the death of the deceased, the interval between that act and her fall from the window was too short for the jury to have thought that, although he had an innocent state of mind at the time of the act, he had a guilty state of mind at the time of the fall.
The challenge to the trial judge's directions on this issue also warrants the grant of special leave to appeal, but the appeal on this ground should be dismissed.
The applicant contended that the trial judge, in sentencing the applicant, could have held that the applicant had no intention to bring about death in the manner in which it occurred and that this constituted "mitigating circumstances" entitling the applicant to a lesser sentence than life imprisonment. It was contended that the trial judge erred in not considering this possibility. The contention is without substance. If the deceased died because she jumped or was forced out of the window as a result of the ferocity of the applicant's attack, the culpability of the applicant is the same even though he only intended to attack her in the bathroom and cause her grievous bodily harm - which is the version of the case most favourable to him. In New South Wales, death as the result of an act done with the intention to inflict grievous bodily harm is murder. It is immaterial that the death was caused in a way which the applicant did not precisely foresee. The matter is not one for the grant of special leave to appeal.
Special leave to appeal should be granted except in relation to sentence. But the appeal must be dismissed.
Royall
The Queen
High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Royall v The Queen [1991] HCA 27