Ryan v The Queen

(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 an act obviously dangerous to life, or of a crime punishable by death or penal servitude for life.

(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.

There is in s. 5 of the Crimes Act a definition of malice, but I respectfully agree with Fullagar J. that in relation to such a case as this, it is no more than "a question-begging definition": see Mraz v. The Queen [1] . I think it has no significance in the present matter, except in connexion with the construction of s. 98, a matter to which I will later refer.

The most important aspect of the definition in s. 18 for present purposes, in my opinion, is its opening words - "Murder shall be taken to be committed where the act of the accused causing the death charged." That a crime cannot be committed except by an act or omission of or by the accused is axiomatic. It is basic, in my opinion, that the "act" of the accused, of which one or more of the various elements of the crime of murder as defined must be predicated must be a "willed", a voluntary act which has caused the death charged. It is the act which must be willed, though its consequences may not be intended. In the ordinary run of cases the voluntary quality of the deed physically related to the accused is not in question. The presumption to which their Lordships refer in Bratty v. Attorney-General for Northern Ireland [2] operates sub silentio. Mostly the contest will concentrate upon the question of the intent with which the accused acted. Consequently, there has not been any frequent need to express with technically expressed precision the difference between that element of mens rea which relates the will to act to the deed in question and that element which relates to it the general intent with which that will was exercised. Often, when absence of the requisite intent as distinct from the will to act is sought to be stressed, there is said to be an "accident", or that the physical act which the evidence relates to the accused was "accidental". But, as I have pointed out, such language is ambiguous for it may equally cover an unwilled act and is often so used. Cf. Woolmington v. Director of Public Prosecutions [1] . In that case, [2] the description "unintentional" appears to be used to cover an act which was involuntary or unwilled, descriptions of it which for my part I would prefer. However, by whatever adjective or adjectival phrase it is described, the deed which was not the result of the accused's will to act cannot, in my opinion, be made the source of criminal responsibility in him.

1. [1963] A.C. 386. 2. [1935] A.C. 462, at p. 472. 3. [1935] A.C., at p. 482.

I have carefully searched and read the reported cases and the little that has been written by commentators on this aspect of responsibility for crime. But in the end it seems to me that reference need only be made to two decisions of the House of Lords: first, Woolmington v. Director of Public Prosecutions [1] and, second, Bratty v. Attorney-General for Northern Ireland [2] . Brief quotation of familiar passages is I think in order: "No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused. It may prove malice either expressly or by implication. For malice may be implied where death occurs as the result of a voluntary act of the accused which is (i) intentional and (ii) unprovoked. When evidence of death and malice has been given (this is a question for the jury) the accused is entitled to show, by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted" per Viscount Sankey L.C. [1] .

1. [1935] A.C. 462. 2. [1963] A.C. 386. 3. [1935] A.C., at pp. 481, 482.

Before taking any passages from the report of the second of these cases, I should like to make some observations upon it. The involuntary quality which was claimed for the deed in that case was said to be due to psychomotor epilepsy and was described as automatism. But it is important, I think, in citing from their Lordships' judgments not to regard this description as of the essence of the discussion, however convenient an expression automatism may be to comprehend involuntary deeds where the lack of concomitant or controlling will to act is due to diverse causes. It is that lack which is the relevant determinant. Lord Denning [2] indicates some of the various states of mind or of memory which need to be distinguished from this lack of accompanying or controlling will. It is of course the absence of the will to act or, perhaps, more precisely of its exercise rather than lack of knowledge or consciousness which, in my respectful opinion, decides criminal liability. It is quite clear that his Lordship's emphasis in his speech in Bratty v. Attorney-General for Northern Ireland [1] is really upon the lack of the exercise of will, for he includes amongst the deeds which automatism may cover, a deed the result of a spasm, of a reflex action or of a convulsion. And with this treatment of the matter I would respectfully agree.

1. [1963] A.C., at pp. 409, 410. 2. [1963] A.C. 386.

I would then observe that a distinction must be maintained between an unwilled act and a willed act the product of a diseased mind which knows not the nature or quality of the willed act. To express it with what may well be technical inexactitude, it may be said that in the latter case the act is willed by a diseased will in contradistinction to the act which is not willed at all. That to my mind is the core of Bratty v. Attorney-General for Northern Ireland [1] , and the essence of the distinction between the case of a sane and an insane accused. Whether or not the distinction was fully maintained in that case in applying its basic principles to its particular facts need not be presently considered, for in the instant case no question of any condition of the applicant's body or mind as the cause of the lack of the will to act is raised. Nor is there any need to discuss the validity of Lord Denning's reasons for separating lack of will due to a disease from other acts involuntary for other causes. With these observations in mind, I would take the following passages from Bratty v. Attorney-General for Northern Ireland [1] . The first I take from the Lord Chancellor's speech: "Nevertheless, one must not lose sight of the over-riding principle, laid down by this House in Woolmington's Case [2] , that it is for the prosecution to prove every element of the offence charged. One of these elements is the accused's state of mind; normally the presumption of mental capacity is sufficient to prove that he acted consciously and voluntarily, and the prosecution need go no further. But if, after considering evidence properly left to them by the judge, the jury are left in real doubt whether or not the accused acted in a state of automatism, it seems to me that on principle they should acquit because the necessary mens rea - if indeed the actus reus - has not been proved beyond reasonable doubt." [1] The second quotation is from the speech of Lord Denning: "What, then, is a proper foundation? The presumption of mental capacity of which I have spoken is a provisional presumption only. It does not put the legal burden on the defence in the same way as the presumption of sanity does. It leaves the legal burden on the prosecution, but nevertheless, until it is displaced, it enables the prosecution to discharge the ultimate burden of proving that the act was voluntary. Not because the presumption is evidence itself, but because it takes the place of evidence. In order to displace the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act was involuntary." [1] And having stressed the need for a proper evidentiary foundation before it becomes necessary to consider as a specific issue whether or not the act was voluntary, and having emphasized the caution with which such a case must be approached, expressions with which I would respectfully agree, his Lordship concluded: "Once a proper foundation is thus laid for automatism, the matter becomes at large and must be left to the jury. As the case proceeds, the evidence may weigh first to one side and then to the other: and so the burden may appear to shift to and fro. But at the end of the day the legal burden comes into play and requires that the jury should be satisfied beyond reasonable doubt that the act was a voluntary act." [2]

1. [1963] A.C. 386. 2. [1963] A.C. 386. 3. [1935] A.C. 462. 4. [1963] A.C., at p. 407. 5. [1963] A.C., at p. 413. 6. [1963] A.C., at p. 414.

Lord Morris, in his speech, said of the reliance of the accused upon a defence of automatism: "This raises the question whether a person who by legal tests and standards is sane and who is charged with a criminal offence could be held to be non-accountable for his actions so as to be not guilty of the offence charged against him on the basis that his actions had been unconscious ones and in that sense involuntary. My Lords, I can conceive that this could be so, though the cases where such a situation could arise must be very rare. Each set of facts must require a careful investigation of its own circumstances but if, by way of taking an illustration, it were considered possible for a person to walk in his sleep and to commit a violent act while genuinely unconscious, then such a person would not be criminally liable for that act. Apart altogether from any question whether some particular criminal charge requires proof of some particular intent, in the possible case that I have postulated there would be immunity from any conviction for the reason that the act in question could not really be considered to be the act of the person concerned at all." [1] .

In my opinion, the authorities establish, and it is consonant with principle, that an accused is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act. The lack of that exercise which precludes culpability is not, in my opinion, limited to occasions when the will is overborne by that of another, or by physical force, or the capacity to exercise it is withdrawn by some condition of the body or of the mind of the accused. An occasion such as the fourth view of the evidence in the instant case (ante) would, in my opinion, be an instance of a deed not the result of a culpable exercise of the will to act. But such an occasion is in sharp contrast to the third view of those facts from which it needs carefully to be distinguished. If voluntariness is not conceded and the material to be submitted to the jury wheresoever derived provides a substantial basis for doubting whether the deed in question was a voluntary or willed act of the accused, the jury's attention must be specifically drawn to the necessity of deciding beyond all reasonable doubt that the deed charged as a crime was the voluntary or willed act of the accused. If it was not then for that reason, there being no defence of insanity, the accused must be acquitted. No doubt care will be taken by the presiding judge that the available material warrants the raising of this specific issue. In doing so, he will of course have in mind that the question for him is whether upon that material a jury would be entitled to entertain a reasonable doubt as to the voluntary quality of the act attributed to the accused. Also, the presiding judge where the circumstances of the case are like those of the instant case will explain the difference between the third and fourth views (ante) so that the jury are given to understand the precise question to which they have relevantly to address themselves. Although a claim of involuntariness is no doubt easily raised, and may involve nice distinctions, the accused, if the material adduced warrants that course, is entitled to have the issue properly put to the jury.

In outlining the facts of this case, I have indicated that the material provided by the statement made by the accused by virtue of the right given him by s. 496 of the Crimes Act, and the evidence of the police officers would have been sufficient to call for consideration whether the act causing death, if it was the discharge of the gun, was the act of the applicant and to entitle the jury at least to remain in doubt whether that discharge was willed by the applicant and voluntary.

I have said that these consequences followed, if the jury thought the discharge of the gun was the cause of death. That means that it would have been necessary, in my opinion, for the jury to have determined to their satisfaction what was the act which caused the death charged. 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.

Whilst, of course, all the happenings of the evening antecedent to the discharge of the gun might be regarded for the purpose of deciding whether some act of the applicant which caused the death of the deceased qualified under one or more of the conditions of culpability for murder which are set out in s. 18, they could not, in my opinion, be regarded in the aggregate as the act of the accused causing death. Such a course, in my opinion, not merely lacks the requisite precision but fails to provide a subject of which one or more of the said conditions or concomitants could be predicated. The earliest act of the applicant which, in my opinion, could have been selected by the jury as the act causing death was the presentation of the gun towards the back of the deceased after, at the applicant's bidding, he had turned around to enable his hands to be tied behind him. Thus at the most, the jury could choose the presentation of the gun in the circumstances or its subsequent discharge as the act causing death. For my part, I would think the latter might well have been the obvious choice when the difficulties which would arise in connexion with the former, if the jury accepted the fourth view of the facts to which I earlier referred, are considered.

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

In my opinion, therefore, leaving for separate treatment the question of "felony murder", the situation in this case at the close of the evidence, apart from the limiting effect of the applicant's line of defence, was that the jury could decide that the act causing death was the discharge of the gun and that it was discharged voluntarily by the applicant with intent to kill the deceased or to inflict grievous bodily harm upon him, or that it was done during the commission of an act obviously dangerous to human life. Those findings would warrant a verdict of guilty of murder. Or the jury might decide that the act causing death was the discharge of the gun but that it was not the voluntary act of the accused, in which event, in my opinion, quite apart from and not to any extent dependent upon any of the provisions of s. 18 (2) of the Crimes Act but solely because on that view the act causing death was not the act of the applicant, the verdict should be one of acquittal.

On the other hand, the jury, having concluded that the discharge of the gun was involuntary could have concluded that the act causing death was the presentation of the cocked, loaded gun with a safety catch unapplied and that its involuntary discharge was a likelihood which ought to have been in the contemplation of the applicant when presenting the gun in the circumstances. In that event, their verdict should have been guilty of murder. Except in point of compassion under the common law, I would see no ground for a verdict of manslaughter, unless perchance the jury thought that the facts I have recited did not rise above an assault by the applicant in circumstances no more than negligent and not to an act obviously dangerous to human life. It is because of that view that I have had the difficulty I have already mentioned in connexion with the use made in this case of the plea of guilty to manslaughter.

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. The Crown insistence in this case upon "felony murder", where an element of the felony was a wounding by the accused, considerably underscored this necessity.

The trial judge took the course of explaining to the jury the elements of those conditions which would qualify the act of the accused causing death to be murder. In doing so, he appeared at times to treat the whole conduct of the applicant from the inception of his exploit as the act causing death. As I have already said, in my opinion, this was plainly an error. Generally, it can be said of the summing up that the trial judge took time to traverse the elements of the predicate, according to the terms of s. 18 (1) without at any stage assisting the jury to identify the subject to which the predicate should be related. It goes without saying, in my opinion, that such a summing up would have been radically inadequate if the conduct of the defence had left the questions of voluntary or involuntary discharge of the gun and its relation to the death of the deceased as live issues for the jury.

But the course of the trial judge's summing up was dictated, I think, by the conduct of the defence and of the use made and permitted of the plea of guilty to manslaughter. Issues as to what was the act causing death, and as to whether or not that act was the willed act of the applicant were not merely not raised, but assumptions were made and allowed to be made which diverted attention away from these questions. I think responsibility for the discharge of the gun was in reality conceded on the part of the applicant. I have already indicated by quotation from the trial judge's summing up the limits within which the defence was confined. The sole question sought to be raised was whether or not the Crown had satisfed the jury beyond reasonable doubt of what was described as "that degree of malice and of intent which has to be found to justify a verdict of murder". The applicant's defence was deliberately framed and of it he has had such advantages as were sought to be gained by it. Also, as I shall later point out, I think that, having regard to the trial judge's summing up as to manslaughter, I should conclude that the jury did not believe the applicant's account as to the discharge of the gun, even if it be treated as supporting no more than the third possible view of the facts (ante).

Consequently, if the case rested only on the considerations so far discussed, I would have no difficulty in refusing special leave.

But this case does not rest there. The Crown, as I think quite unnecessarily, pressed against the applicant a case of "felony murder". Whilst for brevity of expression I refer to the case sought to be made as one of felony murder, in truth in New South Wales, what at common law came to be known as felony murder is covered in statutory expression by s. 18 (1) of the Crimes Act in a modified form. In that State the question is merely one of statutory construction and the application of the statute so construed to the facts of the case.

As I see the present matter, we are not here concerned with the common law doctrine as to felony murder or as to its development. I do not find in the language of s. 18 of the Crimes Act any such ambiguity as might call for an examination of that doctrine or of its history as an aid to interpretation nor do I think that in any case they throw any light upon the meaning of the section. If the act of the accused causing the death charged was done by him before, during or immediately after the commission of a felony punishable under the Crimes Act by penal servitude for life, that act is murder according to the statute. As I have already indicated, the question whether the act was so done in relation to the commission of such a felony calls for no more than the application to the facts of one or more of those sections of the statute properly construed which provide a penalty of penal servitude for life.

I would notice in passing an argument advanced on behalf of the applicant that as s. 98 was not included in that part of the Crimes Act which deals with offences against the person, the offence it created was not within the purview of s. 18. In my opinion, there is no substance in this submission. What I have said as to this matter being relevantly regulated in New South Wales by statute provides a direct answer to it.

The felony in the course of or at the conclusion of which the Crown alleged the death charged to have been caused was that for which s. 98 of the Crimes Act provides. It is briefly described in the sidenote to that section as "Robbery with Arms and Wounding". I set out the full text of the section:

98. Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person so armed, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to penal servitude for life.

The applicant's principal ground of complaint before this Court was as to the trial judge's summing up on this topic, and the question on this aspect of the application turns on the interpretation of that part of s. 98 which says, "Whosoever wounds such person".

The jury, in my opinion, were entitled upon the evidence to conclude that the applicant being armed with an offensive weapon robbed the deceased, and no question arises as to the adequacy of the summing up in respect to the elements to be considered in arriving at that conclusion. But objection is taken to what the trial judge told the jury as to that part of s. 98 that refers to the wounding of the person robbed. It is necessary for a proper understanding of the points that arise in this connexion to quote verbatim the relevant parts of the summing up:

The fourth alternative arising under the statute - and this was the one mentioned in the course of argument yesterday - is if the act causing the death charged was done during or immediately after the commission by the accused of an act of crime punishable by death or penal servitude for life. Now, as far as this particular alternative is concerned the question of intent specifically does not come into it because there is a section of the Crimes Act that provides that whosoever, being armed with an offensive weapon, robs, or assaults with intent to rob, any person and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds or inflicts grievous bodily harm shall be liable to penal servitude for life. That involves an examination of these ingredients. Was he armed with an offensive weapon? Whether, when this is loaded without the safety catch, is an offensive weapon is a pure question of fact for you. You have to determine the question whether if a man arms himself with this, puts a bullet in it, closes it, cocks it, does not put the safety catch on, whether he is in fact armed with an offensive weapon. That is a question of fact for you to determine. All I rule as a matter of law is that that is capable of being an offensive weapon. He was armed with it because it is common ground here. Did he rob or assault with intent to rob ? To take money is to rob a person. To present a firearm is an assault, to fire it is an assault, and obviously in this particular case the wounding or the infliction of grievous bodily harm was antecedent to the death. So that, if he falls factually - and you have to determine the facts - within the various ingredients of that section which I have just read to you, then in those circumstances you so find he is guilty of murder under the fourth alternative.

On the other hand Mr. Isaacs has pressed on you that what happened was that he went there not with the intention of killing but merely with the intention of frightening. So far as that particular section is concerned you will have to give due regard to it and ask yourselves whether the various factual elements involved in that section have been made out to your satisfaction beyond reasonable doubt.

It has been pressed on you by Mr. Isaacs that you will find a verdict of manslaughter. To kill a person while doing an unlawful act even if one kills him by inadvertence or by accident, is manslaughter. To present a loaded firearm, point a loaded rifle at the back of a person and if it goes off by accident when you have the loaded firearm at the back of the other person, is manslaughter. Mr. Isaacs has pressed on you that the whole of the evidence here will lead you to that conclusion.

It is to my mind quite clear from discussion with counsel which took place during the taking of evidence and after the summing up, that the trial judge intended to tell the jury that murder by reason of a combination of ss. 18 and 98 could be made out without the accused having had any intent to wound the deceased. Also, I am of the opinion that what the trial judge said did convey to the jury that they did not need to find any intent to wound. Three questions then remain: was this a misdirection and, if it was, was it cured by the subsequent passage in the summing up relating to manslaughter which I have already quoted; and lastly, if it was not so cured, is the case one for special leave to appeal.

I turn first to the construction of s. 98. There can be no doubt, in my opinion, that the wounding must be by the voluntary act of the accused: "whosoever wounds" is not satisfied by the mere fact that before, during or immediately after a robbery with arms the victim is in fact wounded. But will any act of the accused which causes the wounding suffice, or must there be a specific intent on the part of the accused by that act to wound the victim of the robbery. It is at the outset noticeable that the word "maliciously", found in s. 32, is absent from s. 98. I would take this omission to be deliberate and significant. In s. 32 nothing but the presence of that word would introduce the elements recited in the definition of malice in s. 5. In the case of s. 98, the earlier acts of robbery with arms introduces the element of unlawfulness, and makes unnecessary the use of the word "maliciously" merely to confine the wounding to some occasion of criminal behaviour. I do not think that s. 98 should be construed as if the word "maliciously" were inserted before the word "wounds".

Further, s. 98 bears somewhat the same relation to s. 97 as s. 96 bears to s. 95. In each bracket, it is the wounding that enlarges the punishment from penal servitude for fourteen years to penal servitude for life. I think it is instructive to observe that in the case of s. 96 it is the wounding thereby, i.e., by the commission of the crime under s. 95 which constitutes the aggravated offence. That crime may be committed by a robbing preceded, accompanied or followed by a striking of a person or the use of violence to a person, in either case not necessarily the victim of the robbery. Clearly, it is the element of striking or use of violence by which the wounding will most likely be effected so as to satisfy s. 96. But according to the precise language of s. 96 the person wounded need not be the same person as the person struck or towards whom violence was used, who in turn, as I have observed, need not be the person robbed. It seems to me that under s. 96 whilst the striking or the use of violence must be voluntary, there need be no intention to wound and particularly no intention to wound the person who is in fact wounded. It seems to me that an accused may be guilty of the offence under s. 96, when he has robbed A, struck B and wounded C by the blow which he aimed at B, having towards C no intent even of the most general kind. Therefore, "whosoever wounds" in s. 96 does not, in my opinion, import any intention to wound. But whilst there need be no intent to wound, the wounding must be by the accused. Therefore, the striking or the use of violence must be of such a nature or with such a weapon or implement as to be capable of wounding some person. But this does not mean that it must be found that the accused ought to have realized that his act would wound.

Section 97 does not contain the element of striking or the use of violence but it does require the carrying of an offensive weapon or instrument. Section 98 requires the wounding to be of the victim of the robbery and not merely of any person. It is by the use of the offensive weapon or instrument that the wounding would ordinarily be effected: and, it seems to me, the section contemplates this. Though there are the differences between ss. 96 and 98 which I have mentioned, the sections are so comparable that I think that the construction of the one greatly assists the construction of the other. Thus, apart from the absence of the word "maliciously" before the word wounds in s. 98, I am of opinion that a voluntary use of an offensive weapon which wounds the victim of the robbery is sufficient to satisfy the terms of the section without any intent by that use to wound him.

In the instant case, in my opinion, no difficulty in fact occurs once it is conceded or decided that the discharge of the gun was voluntary. Its use clearly was capable of wounding.

The passages which I have quoted from the summing up may have lacked clarity but I do not think the trial judge conveyed to the jury the impression that the applicant could be found guilty of murder by reason of s. 98 if the deceased was in fact wounded though not by the voluntary act of the applicant. What he said to the jury must be understood and I think would have been understood against the background of the implicit concession to which I have already referred that the discharge of the gun was by the voluntary act of the applicant. I am of opinion that the summing up conveyed no more to the jury than that no specific intent to wound the deceased was necessary in order to commit the offence under s. 98. In so instructing the jury the trial judge, in my opinion, was not in error.

The direction that if the death was by accident a verdict of manslaughter was appropriate was not, in my opinion, addressed to the same matter as the direction as to the elements of the offence created by s. 98. It does not appear to me to have been intended to override the latter direction. The jury were told in substance and, in my opinion, somewhat too favourably to the accused, that if the death was accidental, in the sense of unintended, or the result of an unintended as distinct from an involuntary act, they might return a verdict of manslaughter. This, in my opinion, was in line with and not in contradiction of a direction that no specific intent to wound was necessary for the purposes of s. 98. Consequently, if a specific intent to wound was required by s. 98 and the earlier direction in consequence erroneous, the instruction as to manslaughter did not correct it: rather, in my opinion, if anything it confirmed it.

But even in that case, I would not grant special leave because, in my opinion, having been given this direction as to manslaughter, the jury consistently with it, could only have returned a verdict of murder if they disbelieved the applicant's story. As I have pointed out, the reference to accident, or accidental, by counsel and judge was not a reference to involuntariness but to lack of intention to achieve by the discharge what was done by it. They could not have believed that the discharge of the gun, though voluntary, was merely done in panic and without any intent on the part of the accused.

Before parting with the matter, I would like to make some observation as to the relationship of ss. 18 and 98 and to the difficulty said to be involved in the case because the death was instantaneous. I have come to accept the view that there may be a wounding followed by death, though the death be instant upon the entry of the bullet into the body. The fraction of time elapsing between the breaking of the skin and death, though immeasurable, is significant. But, even so, there is the problem of accommodating the two sections. Section 18 relevantly requires an act causing death to precede, accompany, or follow immediately upon the commission of an offence under s. 98. That offence is complete only when the victim of the robbery is wounded. Therefore, whether in the instant case the presentation of the gun after the robbery or its discharge is regarded as the act causing death, the offence under s. 98 could not at the time that act was done have been complete. The case could not therefore be made out as one of an act causing death done immediately after the commission of the offence under s. 98. Was it done during the commission of that offence? Can it properly be said that either the presentation of the gun or its discharge was done during the commission of the robbery and wounding? Upon the facts the robbery with arms was complete before either the presentation or the discharge of the gun so that the only part of the offence under s. 98 during which either of these acts could have been done was the wounding. But was the gun presented or discharged during the wounding? It seems to me that it was not.

However, it could properly be said, in my opinion, that the presentation or the discharge of the gun was done before the commission of the offence of robbery with arms and wounding. Or it might possibly be said, because of the compound nature of the offence under s. 98, that either of these acts was done during the commission of the entire offence of robbery with arms and wounding. Although to my mind somewhat artificial, either of these two views, the former of which I would personally prefer, would support a conviction of murder in this case, given the voluntary nature of the discharge of the gun.

I have already pointed out that the question upon this aspect of this case does not in any wise turn upon the common law conceptions of felony murder, but rather upon the construction and application of the New South Wales statute. Consequently, I find no need to discuss in any detail the decision of the Court of Criminal Appeal in R. v. Jarmain [1] . That case, in my opinion, with due respect to those who might think otherwise, has no value, either in point of precedent or in point of persuasion in connexion with the relevant question of statutory interpretation and its application to the instant facts. But I may observe two things about it. First, the description of the pressing of the trigger in that case as "inadvertent", in my opinion, was ambiguous. It could describe a view of the incident akin to either the third or the fourth possible views of the material in this case (ante). If it comprehended only the third, then the result of the case can, in my respectful opinion, be accepted as consistent with the principles of the common law. But if it was intended to refer to the fourth of those views, again in my respectful opinion, it could not. Secondly, if the word "inadvertently" is used in the passage of the judgment at the bottom of p. 80 of the report in the sense of involuntary, with the utmost respect, I could not accept what is there said as a correct general statement of the common law. But as I have said, whether or not I am correct in these views of that case, in my opinion, it does not bear upon the resolution of the present matter.

Therefore, because of the narrow limits within which the applicant confined his defence, because I do not think the trial judge misdirected the jury as to the elements of s. 98 and because, in any case, having regard to the terms of the summing up as to manslaughter and their verdict, the jury could not have believed the applicant's version of the events of the evening, I would refuse special leave.

The applicant was convicted of the murder of a man named Taylor. He appealed without success to the Court of Criminal Appeal and now seeks special leave to appeal to this Court.

The facts are that the applicant, armed with a cut-down rifle, set out one night with a companion to rob a service station. They rode to the station on a motor cycle which he owned and, according to the account which he gave to the police on the following day, the events which then occurred were these: He left his companion outside the station sitting on the cycle with its engine running, loaded and cocked the rifle, leaving off the safety catch, and went into the building where he found Taylor who was employed there. He pointed the rifle at Taylor and demanded money. Taylor took some money - about £36 - from the till and put it on the counter. The applicant told him to turn round and put his hands behind his back so that he might tie him up. Taylor did as he was told and the applicant took a piece of cord from his pocket with one hand, holding the rifle still pointing at Taylor with the other hand. As he began to tie Taylor's hands, the latter made a sudden movement. "The gun went off", the bullet struck the back of Taylor's head and killed him. The applicant seized the money from the counter and fled. He said that he thought that he had his finger on the trigger when the rifle was discharged and this must have been the fact. In a statement from the dock made at the trial he repeated the substance of what he had earlier told the police and added, "I did not mean to kill him; it was an accident".

On his indictment for murder, the applicant who was defended by very experienced senior counsel pleaded not guilty but offered a plea of guilty of manslaughter which the Crown refused to accept and the trial on the indictment for murder proceeded. It is plain that the only issue fought was whether there should be a conviction for murder or for the lesser offence of manslaughter. Counsel for the defence, in reliance upon his client's statement that the firing of the shot was accidental, urged upon the jury that they should return a verdict of guilty of manslaughter and no suggestion was made at any stage that a verdict of acquittal of both offences should be returned.

In the course of his charge to the jury the learned trial judge told them of the definition of murder in s. 18 (1) (a) of the Crimes Act, which is 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 of an act obviously dangerous to life, or of a crime punishable by death or penal servitude for life." He said that each of these alternatives arose for consideration and no objection to this was taken. In dealing with that part of s. 18 (1) (a) which defines "murder" as having been committed where the act of the accused causing the death charged was done during or immediately after the commission by the accused of a crime punishable by death or penal servitude for life, his Honour read to the jury s. 98 of the Crimes Act, which provides that - "Whosoever, being armed with an offensive weapon, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to penal servitude for life" and went on to say that, so far as this alternative was concerned, "the question of intent specifically does not come into it". From what occurred later after the jury had retired to consider their verdict, it seems that his Honour intended to convey that s. 98 did not require the existence of an intent to wound or inflict grievous bodily harm. Whether or not this was his intention, it is plain that the jury may have taken that to be the meaning of what was said. After the jury had retired, counsel for the applicant took an objection to that part of the charge. He submitted that an intent to wound or inflict grievous bodily harm was an essential ingredient of s. 98 and that an accidental wounding during or immediately after the commission of an armed robbery would not be within the section. His Honour disagreed with this contention and refused to give any further direction on the point. Some other objections to the summing up were made by counsel for the defence but they were of a minor character in no way capable of justifying the intervention of this Court and need not be mentioned.

In the Court of Criminal Appeal, Clancy A.C.J. thought it unnecessary to decide whether an intent to wound in the course of committing an armed robbery was a necessary element of the offence created by s. 98. He took this view because in his charge to the jury the learned trial judge, after discussing the application of s. 98 to the case, had said: "On the other hand Mr. Isaacs has pressed on you that what happened was that he went there not with the intention of killing but merely with the intention of frightening. So far as that particular section is concerned you will have to give due regard to it and ask yourselves whether the various factual elements involved in that section have been made out to your satisfaction beyond reasonable doubt. It has been pressed on you by Mr. Isaacs that you will find a verdict of manslaughter. To kill a person while doing an unlawful act even if one kills him by inadvertence or by accident, is manslaughter. To present a loaded firearm, point a loaded rifle at the back of a person and if it goes off by accident when you have the loaded firearm at the back of the other person, is manslaughter. Mr. Isaacs has pressed on you that the whole of the evidence here will lead you to that conclusion." This, Clancy A.C.J. considered, really amounted to a direction such as was later sought by counsel for the defence and for that reason he was of opinion that the appeal should be dismissed. Brereton J. expressed some doubt whether an offence against s. 98 where the wounding has resulted in death can be regarded as "a crime punishable by penal servitude for life" for the purposes of s. 18 (1) (a). But whether that was so or not, his Honour was of opinion that the passages which I have quoted above from the charge to the jury had cured whatever earlier defects there may have been. With all respect, we have found it difficult to follow this conclusion and we think that if s. 98 could not have been relied upon in support of the indictment, the summing up was seriously defective. We assume, however, that his Honour considered that, having regard to the course which the trial had taken, the vital issue of fact left to the jury was whether or not the rifle had been accidentally discharged and that, having been told that if the discharge was accidental there should be an acquittal on the charge of murder and a finding that the applicant was guilty of manslaughter, there had been no miscarriage of justice. The other member of the Court, Manning J., was of opinion that, on the assumption that s. 98 was relevant to be considered, it was unnecessary to prove that the applicant had "a guilty intention deliberately and consciously to pull the trigger and thus cause wounding".

Before us three points were argued which seem to be worthy of consideration on this application. First, whether, in a case of armed robbery in the course of which the accused wounds the person robbed and the latter dies as the result of the wounding, s. 98 can have any application where the indictment is for murder. If, however, s. 98 can be applied in such a case, the next question that arises is whether the section requires proof of an intent to wound. If such an intent is not a necessary ingredient of s. 98 but the person wounded in the course of the armed robbery is wounded as the result of some "involuntary" act on the part of the robber, the final question that arises is whether the latter has committed an offence against that section. From what we have said it will be seen that neither the first nor the third of these contentions was raised at the trial.

As to the first of these matters we find no difficulty. An offence against s. 98 is punishable by penal servitude for life and we can see no good reason for excluding its application on a charge of murder in a case in which the wounded person has died as a result of the wound inflicted upon him, whether the death follows immediately upon the wounding or after the lapse of hours, days or weeks. Nor do we feel difficulty about the second question, whether an intent to wound or inflict grievous bodily harm is a necessary ingredient of an offence against s. 98. In our opinion it is not. It is sufficient to prove that the person alleged to have offended against the section did in fact wound. What was said by Wrottesley J., speaking for the Court of Criminal Appeal, in R. v. Jarmain [1] is, we think, applicable in considering the purpose and meaning of s. 98 and we agree with his Lordship's remarks. In that case the accused, armed with a loaded pistol, had set out to rob a garage. In the course of committing the robbery, he pointed the pistol at the custodian of the money in order, he said, to frighten her, but she refused to be frightened. This, the accused said, took him aback and he was "thinking what to do, when the gun went off" and killed the woman. He said that he had no intention of pressing the trigger. The charge was one of murder based upon the fact that the killing had taken place in the course of the commission of a felony with violence and at common law this would constitute the crime of murder. His Lordship said: "We think that the object and scope of this branch of the law is at least this, that he who uses violent measures in the commission of a felony involving personal violence does so at his own risk, and is guilty of murder if those violent measures result even inadvertently in the death of the victim. For this purpose the use of a loaded firearm, in order to frighten the person victimized into submission is a violent measure." There remains the question whether a person can be found guilty of murder where the act causing the death charged was an involuntary one, and by "involuntary" we mean an act which was quite independent of the will of the accused. An armed robber who does not intend to wound the person robbed may nevertheless consciously do an act which, however little he intends to injure that person, does in fact wound him. In such a case he would, in our opinion, be guilty of the offence for which s. 98 provides. Where, however, the act which causes the wounding is not, in any relevant sense, the act of the accused, a charge based upon s. 98 would fail because in such circumstances it would not be the act of the accused that caused the wounding. It would follow, it seems to us, that in such a case and where the wounding resulted in death, the person accused would not be guilty either of murder or of manslaughter for the simple reason that it was not his act that caused the death.

But it remains to apply these considerations to the present case. It was argued before us that the act which caused the wounding and almost instantaneous death of Taylor was the pressure of the applicant's finger on the trigger of the loaded and cocked rifle; that it was open to the jury to conclude that that act was an involuntary one, unwilled by the applicant, because it was what counsel before us described as a "reflex action" resulting from a sudden movement by Taylor; and that the jury should have been directed to acquit of both murder and of manslaughter if they found that to have been the fact or had a reasonable doubt about the matter. But the fact is that the wounding and death were caused by a combination of acts done in pursuance of the design to commit the robbery. They included the loading and cocking of the rifle, the failure to apply the safety catch, the presentation of the rifle at Taylor with the finger of the applicant on the trigger in circumstances in which an attempt at resistance might well have been expected. No suggestion was or could be made that these acts were involuntary. They were done deliberately and were as much part of the act causing death as was the pressure of the trigger which fired the rifle. It is impossible to isolate the act of pressing the trigger from the other circumstances and argue that it, alone, caused the wounding and death. In these circumstances we doubt very much whether a jury could reasonably conclude that Taylor's death was not caused by any act of the applicant or entertain a reasonable doubt about the matter. But, however that may be, it is plain that no such issue was raised at the trial nor was the point raised before the Court of Criminal Appeal. The ultimate issue before the jury was whether the verdict should be one of murder or of manslaughter and in these circumstances we are of opinion that special leave to appeal should not be granted.

In dealing with this application for special leave to appeal from the judgment of the Court of Criminal Appeal of New South Wales dismissing the applicant's appeal from his conviction for the murder of a man named Taylor, it is, I think, necessary to consider (1) what, as the case stood at the trial, was the direction which the learned judge was required by law to give to the jury; (2) whether the direction actually given at the trial departed materially from the direction required by law; and (3) if so, whether the departure was such as to warrant this Court granting special leave to appeal from the decision of the Court of Criminal Appeal.

The first matter to be determined is what was the real issue between the Crown and the accused, for the adequacy of a direction is not to be determined in vacuo.

At the trial, the accused admitted the criminality of the killing. A plea of guilty of manslaughter was formally proffered. The case for the accused was simply that the killing was accidental in the sense that he had not intended to discharge the sawn-off rifle which he had loaded and with which, with the safety catch off and his finger on the trigger, he was threatening Taylor in the course of robbing him. On the basis that the killing was accidental, counsel for the defence invited the jury to convict the accused of manslaughter but to acquit him of murder. As to this main issue, the learned judge said: "It has been pressed on you by Mr. Isaacs that you will find a verdict of manslaughter. To kill a person while doing an unlawful act even if one kills him by inadvertence or by accident, is manslaughter. To present a loaded firearm, point a loaded rifle at the back of a person and if it goes off by accident when you have the loaded firearm at the back of the other person, is manslaughter. Mr. Isaacs has pressed on you that the whole of the evidence here will lead you to that conclusion." This direction may have been too favourable to the accused if the "unlawful act" referred to were armed robbery and if it were to be found that the accused killed Taylor while committing a crime punishable under s. 98 of the Crimes Act or if the act causing the death was done during, or immediately after, an act of the accused obviously dangerous to human life; but these particular problems I put on one side for the present, for my immediate aim is simply to ascertain what was the real issue at the trial, as a step towards determining what direction to the jury was necessary to enable them to perform their task. The part of the direction which I have quoted makes it quite clear that there never was an issue whether Taylor had died by an act of the accused; the primary issue was whether the accused had killed Taylor accidentally and, of course, to establish its case of murder the onus was upon the Crown to prove something more than accidental homicide. This the Crown sought to do by inviting the jury to find that Taylor died by an act of the accused done (1) with intent to kill or inflict grievous bodily harm; or (2) with reckless indifference to human life; or (3) during, or immediately after, the commission by the accused of an act obviously dangerous to human life; or (4) during, or immediately after, the commission by the accused of a crime constituted by s. 98 of the Crimes Act. Had there been any issue between the Crown and the accused as to whether Taylor died by an act of the accused, it would probably have been necessary for the learned trial judge to have assisted the jury with some particular direction about what could in all the circumstances be regarded as the act of the accused causing Taylor's death but, as matters stood when his Honour came to charge the jury, it was not, in my opinion, incumbent upon him to do so with any greater particularity than was necessary to apply s. 18 of the Crimes Act in the circumstances of the case. This, I think, was done and I would say that I do not accept the contention of counsel for the applicant that the act causing Taylor's death ought, for the purposes of s. 18 (1) of the Crimes Act, to have been regarded as the mere pressing of the trigger to discharge the rifle. In these circumstances, I think it was not necessary for the trial judge to tell the jury - as it was contended he should have said - that, if merely pressing the trigger were the particular act of the accused which they found was the cause of Taylor's death, then the evidence might well cause them to doubt whether that very act was done either with intent to kill or inflict grievous bodily harm or with reckless indifference to human life. Indeed, I would have regarded such a direction as involving a misdirection. The jury were, of course, told that, before the applicant could be convicted of murder, the Crown had to prove beyond reasonable doubt that the act of the accused causing the death of Taylor was done with intent to kill or inflict grievous bodily harm or with reckless indifference to human life or during, or after, the doing of an act obviously dangerous to human life or a crime punishable under s. 98 of the Crimes Act, and the attention of the jury was directed to the applicant's case that the killing was accidental.

At this point it is, I think, convenient to set out ss. 18 and 98 of the Crimes Act. These sections are as follows:

(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 an act abviously dangerous to life, or of a crime punishable by death or penal servitude for life.

(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.

78. Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person so armed, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to penal servitude for life.

To understand s. 18 (2) it is also necessary to refer to the definition of maliciously in s. 5 of the Act. This is 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." These sections present difficulties that it is not necessary to solve for the purpose of disposing of this case. One such difficulty is whether s. 18 (2) makes "malice" in the defined sense a necessary element in the crime of manslaughter. It is necessary, however, to decide what, in the circumstances of the case, was a correct direction about the combined effect of ss. 18 (1) and 98. In my opinion, the effect of these sections, so far as here relevant, is that if Taylor's death was caused by a bullet fired by the accused, albeit accidentally, while he was robbing Taylor, the accused was guilty of murder. Implicit in this statement is my opinion (1) that there is a wounding or inflicting of grievous bodily harm involved in a fatal shooting whenever death follows the entry of a bullet into the victim - the length of time the bullet takes to cause death cannot determine the application of ss. 18 and 98 together unless these and other like sections are to be accorded a most capricious operation; and (2) provided that the shooting was the act of the accused, it matters not that it was unintentional or accidental - a person who commits robbery under arms does so at the peril of committing murder if, by his act, he happens through wounding to kill the person robbed either during or immediately after the robbery. It was so decided in R. v. Jarmain [1] and I agree with that decision and the reasoning which led to it. I have found no reason for thinking that s. 98 is to be regarded as producing a different result.

I am now in a position to indicate what I consider was the direction required by law as the case had developed at the trial. A bare-bones direction would have instructed the jury to find the accused guilty of murder only if satisfied beyond reasonable doubt that it was the accused's act which caused Taylor's death, and the fatal act was done by the accused (1) intending to kill or inflict grievous bodily harm upon Taylor; or (2) with reckless indifference to human life; or (3) during, or immediately after, the accused's doing of an act obviously dangerous to human life; or (4) during, or immediately after, a robbery under arms committed by the accused against Taylor. Of course, a direction covering these matters would require some elaboration and it may be that part of the elaboration which was at least desirable would have dealt with what could be regarded as the act causing death and the various ways in which the evidence relating to an accidental shooting could be related to that act. As the case stood at the trial, however, there was no need for the learned trial judge to enter upon the kind of refinement that might be necessary when the defence is that the so-called act of the accused was not really his act because he was subject to duress, or was sleep-walking, or was suffering from a "black-out". The issue was not whether the act of the accused was voluntary, but whether it was accidental. This was so notwithstanding that upon one view of the effect of ss. 18 (1) (a) and 98 - and the one which it will be seen I adopt - an accidental killing would nevertheless have constituted murder. It is this consideration, no doubt, that led the Crown to put the case of felony-homicide against the accused.

Turning now to the direction actually given, I find it did substantially cover what I regard as necessary as a matter at law. It is true that there are passages in the charge which fail to identify what is described as an act done "with reckless indifference to human life" with the act of the accused "causing the death charged", and other passages which fail to link up "an act obviously dangerous to life" and the act of the accused "causing the death charged". In other ways, too, the use which the jury might make of the evidence that the shooting was accidental could, with advantage to the jury, have been indicated with greater particularity. These and some other like matters were the subject of criticism by counsel for the applicant but they are not in themselves matters which seem to me to warrant special leave to appeal. The main questions are whether the charge did clearly bring home to the jury (1) the matters which had to be found against the accused before he could be convicted of murder; and (2) the substance of the case for the defence that the killing was merely accidental. I think it did. Furthermore, the direction did not give the jury any false basis in law for finding the verdict which was returned. Had it done so, as, for instance, by a mis-statement of the effect of s. 98 of the Crimes Act to the disadvantage of the accused, I do not think the conviction could be allowed to stand, notwithstanding that there may have been other grounds which could justify it.

For these reasons, I would refuse the application for special leave to appeal.

This is an application for special leave to appeal by a prisoner who is serving a sentence of penal servitude for life. On 15th September 1964 the applicant was convicted of murder, and thereupon was sentenced to penal servitude for life, as the law of New South Wales requires. An appeal to the New South Wales Court of Criminal Appeal in November 1964 was dismissed. At his trial the prisoner had pleaded not guilty to murder, but guilty of manslaughter. On this application for special leave the question which it was desired to raise if leave were granted was fully argued before us.

The prisoner was twenty years old at the time of the crime. Up till then he had apparently been well behaved, certainly not given to violence except in his own imaginings. He had, if what he said of himself was true, indulged his mind in fantasies in which he cast himself in the role of an adventurous robber, imaginings shaped, he said, in imitation of a character in a book. On the night in question he had set out on a motor bicycle with a companion for the purpose of committing a robbery under arms. They had first drunk some beer, but it is not suggested that he was affected by drink. His only motive seems to have been bravado and a desire for excitement and self-aggrandizement by performing in reality an exploit such as in his imagination he had performed. He seems to have been an impressionable youth, temperamentally insecure; but it is not said that he was not sane.

On arrival at the garage where he intended the drama to occur he left his companion outside and went in armed with his cut-down rifle, loaded and cocked. He demanded money from the garage attendant, threatening him with the weapon. The attendant produced some money. The prisoner then told him to put his hands behind his back, and went to tie them together with a piece of cord he had brought with him for the purpose. That is what he told the police. A statement, written out by himself, states: "I obtained the money from him and then told him to turn around and place his hands behind his back. I then walked over to him and was about to bind the cord around his wrists when he made an effort to do something but I am not very sure just what but somehow the weapon discharged and the man fell to the floor. In panic I left the garage."

At his trial he said from the dock: "I did not mean to kill him; it was an accident." This he amplified as follows: "We arrived at the petrol station, the mate staying on the bike. I went inside. I demanded money from the attendant and he opened the till and took out a sum of money which he placed on the counter. I put that money into my pocket and then told him to turn around and place his hands behind his back as I intended to tie him up. He did this. As I stepped over behind him with the gun in one hand, I put my left hand into my pocket to withdraw a piece of cord I had taken along with me. While I was doing this, he started - he crouched down and swung around. I was surprised and stepped back. It was then that the gun discharged. The man fell to the floor and I left the place panicked." It was not really disputed that the prisoner's finger was on the trigger when the shot was fired and that it was fired because of his pressing the trigger. But it was said that because of the matters detailed above his act was "accidental" - a word which in the circumstances was, to say the least of it, ambiguous, but which because of its imprecision might attract the jury to find manslaughter.

Sir Owen Dixon, in a paper, written in 1935, said of the development of the law of homicide that "for eight centuries the course of its very gradual evolution has been from an almost exclusive concern with the external act which occasioned death to a primary concern with the mind of the man who did the act" (Australian Law Journal, vol. 9, supp. p. 64). It may be that this process of common law development is as yet unfinished. But the law of homicide is codified for New South Wales in s. 18 of the Crimes Act 1900, and it is by the provisions of that section, not by the common law, that this case must be decided. The section, a re-enactment of a provision of the Criminal Law Amendment Act of 1883 NSW is as follows:

(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 an act obviously dangerous to life, or of a crime punishable by death or penal servitude for life.

(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.

This case turns wholly on the definition of murder in sub-s. (1). Whatever be understood by the use at the trial of the word "accidental" as descriptive of the occurrence, the case cannot be brought within sub-s. (2) as being a homicide "by misfortune only". Sub-section (2) is a re-enactment of part of s. 14 of the Act of 1883, derived from the Act 24 & 25 Vic. c. 100 (U.K.), s. 7, which was in turn derived from 9 Geo. IV c. 31, which in 1828 had abolished the need for a pardon (by then a formality) in cases of excusable homicide. I sketched in outline the history of this in Mamote-Kulang v. The Queen [1] . The word "misfortune" is used with the meaning, well established in 1883, which it had for the old writers on the criminal law: see Hale's Pleas of the Crown , Ch. 5, "Concerning casualty and misfortune", and passages in Ch. 39 concerning killing per infortunium; and in Foster, Discourse of Homicide , Ch. 1 , "This species of homicide is where a man doing a lawful act without intention of bodily harm to any person, and using proper caution to prevent danger, unfortunately happeneth to kill".

Turning then to s. 18 (1). Murder is here defined by reference to the quality or accompaniments of "the act of the accused, or thing by him omitted to be done causing the death charged". This, in my view, makes it unnecessary for us to enter into the discussion among textbook writers of what for the purposes of the maxim actus non facit reum nisi mens sit rea is the "act". The statute speaks expressly of the act which caused the death. In this case that act was shooting, more precisely it was the discharging of a loaded firearm when it was pointed towards the man who was killed. The only question is, Was that act "the act of the accused"?, Was it "done" by him? in the sense in which the statute uses those expressions.

Some criticism was made of what his Honour said to the jury, as over-elaborate. It was however necessary that he make clear to them that in law murder does not mean only an intentional killing of a man, as some people not unnaturally think. If a man be killed by an act done with reckless indifference to life, or done in the course of an act obviously dangerous to life or of a serious crime as described in the statute, that too is murder. The Crown had contended that the conduct of the prisoner could be described in different ways, each of which would amount to murder. It was said, and in my view properly said, that if the jury did not think the accused had intentionally fired at the deceased, they could still find the accused guilty of murder as the shot was fired when the accused was doing "an act obviously dangerous to human life". To point a loaded firearm at a man is a potentially dangerous thing to do. It is one of the first things that anyone who is being instructed in the use of firearms is told never to do. To go further and attempt to tie the hands of a man against his wish, while at the same time keeping a finger on the trigger of a loaded and cocked rifle pointed towards him, could hardly be said not to be obviously dangerous to life, although whether it was so or not was for the jury to decide, as his Honour told them. I do not think that his Honour misdirected the jury in any way on this aspect.

The Crown as a further alternative relied upon the concluding words of s. 18 (1) - "felony-murder" - in its statutory form. This it seems to me added an unnecessary and debatable issue for the jury's consideration, which led to considerable discussion in the New South Wales Court of Criminal Appeal and before us. I may say that I do not think that we can take the decision of the English Court of Criminal Appeal in R. v. Jarmain [1] , as decisive of the question for us. It is an illustration of events regarded in 1946 as being within the principle of felony-murder in a jurisdiction where the common law prevails. We are concerned with a jurisdiction in which the matter is governed by statute.

There was a time when a man was guilty of murder, and punished accordingly, if while doing any unlawful act he happened to kill another man, however unexpectedly and unintentionally. This harsh rule became gradually mitigated. By the eighteenth century, although a man who in the course of committing a crime unintentionally killed another might still for that reason be guilty of murder, this was only when the crime was a felony. By the middle of the nineteenth century doubts had begun to be expressed about this doctrine. For example, in the early editions of Roscoe on Criminal Evidence it was contrasted with the Scots law, which the author said made an unintended homicide murder only when it took place in the commission or attempt to commit a capital crime or one obviously dangerous to life. The author remarked that "Perhaps the rule with regard to implied malice has been carried, in the English practice, to at least the full length which reason and justice warrant". Soon judges thought that it went further than reason and justice warranted, and questioned its validity. Stephen J. did so, notably in Reg. v. Serné [2] . If he had had his way, the common-law rule would have been abolished and "a definite enumeration of the states of mind intended to be taken as constituent elements of murder" substituted for the phrase "malice aforethought", "a phrase which is never used except to mislead or to be explained away": History of the Criminal Law, vol. 3, p. 83. But Stephen's proposed code was not enacted. England retained the common law. However judicial development brought it into substantial conformity with the rule which Stephen J. had suggested in Reg. v. Serné [2] . Thus it was that Lowe J., delivering the judgment of the Supreme Court of Victoria in R. v. Brown and Brian [1] could say: "For fifty years past the view prevailing in England seems consistently to have been that death unintentionally brought about in the commission or furtherance of a felony is only murder in the actor, if the felony is one which is dangerous to life and likely in itself to cause death. The language used has varied with different judges, but has been substantially to the same effect as just set out". Some variety of language continues to be used, and there has been much learned academic discussion and criticism of some of the language that has been used. The generally accepted rule of the common law today is, however, that an unintended killing in the course of or in connexion with a felony is murder if, but only if, the felonious conduct involved violence or danger to some person. That I take to be now the general law in places where the question is governed by common-law rules.

1. (1887) 16 Cox C.C. 311. 2. (1887) 16 Cox C.C. 311. 3. [1949] V.L.R. 177, at p. 181.

In New South Wales, however, the modification of the common law of felony-murder did not await the gradual, and for a time questionable, results of judicial decisions. A notable change was made by statute. Sir Alfred Stephen, when Chief Justice of New South Wales, was Chairman of the Royal Commission for the revision of the law which made its first report in 1871. He was aware of the views his cousin Stephen J. was expressing in England. The Criminal Law Amendment Act of 1883 was the result of the Commission's labours and of the consideration which, in England and in New South Wales, the matter had had in the intervening twelve years. As I have said above, it was that Act which gave the law of New South Wales the succinct, and what has proved to be generally satisfactory, definition of murder which is now s. 18 of the Crimes Act. Sir Alfred Stephen and Alexander Oliver, Parliamentary Draftsmen, said in their commentary on the Act, and were it would seem right in saying, that the effect of the New South Wales definition was to banish the expression "malice aforethought", but not otherwise to alter the common law, except in one respect. "In one particular", they said, "there is an important difference. The accidental taking of life, by a person committing (or about to commit) a felony of any kind, is by the common law murder. Under the ninth section it will not amount to that crime unless the felony was a capital one or punishable by penal servitude for life": Criminal Law Manual (1883), p. vii. The question on this aspect of the case is therefore: Could the act of the applicant, assuming it to have been in a relevant sense his voluntary act, be said to have been "done during or immediately after the commission of a crime punishable by death or penal servitude for life"? The prosecution relied upon s. 98 of the Crimes Act. This section (which re-enacts s. 92 of the Act of 1883, which was derived from ss. 2 and 3 of the United Kingdom statute 7 Wm. IV & 1 Vic. c. 87, adopted in New South Wales by 2 Vic. No. 10) is as follows:

78. Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person so armed, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to penal servitude for life.

To use this to convict the prisoner of murder it had to be proved that the deceased man was killed by the prisoner during or immediately after the commission by the prisoner of an offence under s. 98. Two objections were made to this.

It was said that the man who was killed was not killed during a wounding of him or an inflicting of grievous bodily harm upon him. There are, I agree, verbal difficulties which make reliance upon s. 98 read with, or into, s. 18 artificial. Nevertheless I do not doubt that a crime under s. 98 is one of those comprehended by the phrase in s. 18 "a crime punishable by penal servitude for life". And I see no reason to doubt that a man who is killed at once by a bullet is wounded, grievously harmed in body, and killed uno ictu. It could not rationally be supposed that the combined effect of s. 18 and s. 98 is that the prisoner's act would have been murder if the man had not died immediately but was not because he did. What happened is that he died at once of the wound inflicted on him.

The defence sought to exclude s. 98 on another ground also. The trial judge, after telling the jury of the matters which make a homicide murder under the earlier parts of s. 18, came finally to the case where the act is murderous because of the felonious setting in which it was done. This led his Honour to observe: "As far as this particular alternative is concerned the question of intent specifically does not come into it." That was said by way of contrast with the preceding matter, an act done with intent to kill or inflict grievous bodily harm. His Honour went on to explain what facts had to be proved to constitute an offence under s. 98. After the jury had retired his Honour was asked to recall them and re-direct them, because it was said that his words "the question of intent specifically does not come into it" could lead them into thinking that an offence under s. 98 could be committed if the wounding which accompanied the robbery under arms and assault, which the prisoner admittedly was committing, was done wholly without any criminal intent. His Honour declined to recall the jury.

For myself I do not doubt that on an indictment under s. 98 it would not suffice to prove an intent to rob and that the victim was in fact wounded. The felony created by s. 98 is, it has been more than once said, constituted by a combination of two offences: They are armed robbery (or armed assault with intent to rob) and wounding (or inflicting grievous bodily harm). To convict an accused of this compound felony both offences must be proved, and in my view an element of mens rea is required in each. The statute speaks of an armed robber or assailant who wounds his victim. It postulates an act of the accused which actually wounds. This does not I think mean that an intent to wound is an element in the offence, but it does I think mean that the act which caused the wounding must be the act of the accused voluntarily done. Moreover if a sane man voluntarily presses the trigger of a loaded and cocked rifle when it is pointed at another man close by, the conclusion that he intended to wound him is inescapable. I do not read his Honour's passing reference to the absence in a case of felony-murder of the need for a specific intent as meaning that he thought that a general guilty intent, mens rea, was not an element in the crime of robbery under arms and wounding constituted by s. 98. For these reasons I consider that the decision of the Court of Criminal Appeal on the matter as there argued was correct.

However, before us the case was presented in a different way. What was urged is that the defence was really that the applicant did not voluntarily press the trigger: and it is said that this aspect was not presented to the jury. The event, it is now said, should be analysed as follows: The prisoner had the firearm pointing towards the man; his finger was on the trigger; the man suddenly moved; the prisoner was startled; he involuntarily pressed the trigger. I have no doubt that the words "accidental", "accident", "unintentional", "unforeseen" and others by which apparently the defence to the charge of murder was variously expressed by counsel to the jury, and which were used by the learned judge when putting the defence to them, were intended to cover, and would be taken by the jury as covering, any view of the facts which might exculpate the accused from a charge of murder and induce them to find a verdict of manslaughter. The jury must be taken by the verdict to have rejected the defence that the homicide was accidental in any sense which would allow them to find it was manslaughter and not murder. It was not, as I read the record, suggested that the act which caused the death was an involuntary act for the consequences of which the accused was not responsible at all. Naturally, as the defence did not raise such an issue, no direction was explicitly given to the jury upon it; and the question was not argued in the Court of Criminal Appeal. Nevertheless an earnest argument was addressed to us, and I therefore pass to consider what is involved in the proposition that the act of the prisoner was involuntary.

In Woolmington v. Director of Public Prosecutions [1] , Lord Sankey said: "When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused. It may prove malice either expressly or by implication." This is the law of New South Wales just as it is of England. The only difference is that in New South Wales the statute defines the circumstances in which "malice", as the common law understands it, is taken to exist. The essential that the act be a voluntary act is just the same. That requirement, voluntariness, is generally spoken of as a necessary quality of a criminal act; but it is perhaps more accurately regarded as a mental quality or attribute of the actor: see the article, Automatism and Involuntary Conduct in [1958] Criminal Law Review at p. 364.

That an act is only punishable as a crime when it is the voluntary act of the accused is a statement satisfying in its simplicity. But what does it mean? What is a voluntary act? The answer is far from simple, partly because of ambiguities in the word "voluntary" and its supposed synonyms, partly because of imprecise, but inveterate, distinctions which have long dominated men's ideas concerning the working of the human mind. These distinctions, between will and intellect, between voluntary and involuntary action, may be unscientific and too simple for philosophy and psychology today. However that may be, the difficulty of expressing them in language is obvious and may be illustrated. The word "involuntary" is sometimes used as meaning an act done seemingly without the conscious exercise of the will, an "unwilled" act: sometimes as meaning an act done "unwillingly", that is by the conscious exercise of the will, but reluctantly or under duress so that it was not a "wilful" act. Words and phrases such as involuntary, unintentional, inadvertent, accidental, unmeditated, unthinking, not deliberate, unwilled and so forth are used by different writers. Their connotations often depend upon their context, and they are used in discussions which seem to drift easily off into psychological questions of consciousness, sanity and insanity and philosophical doctrines of free-will and of events uncontrolled by will. There is a discussion of some aspects of this subject in the American work, Reflex Action, a Study in the History of Physiological Psychology. I mention it, not because I profess any knowledge in this field, but because of the readiness with which the phrase "reflex action" was used in the course of the argument as a presumably exculpatory description of the act of the applicant when he pressed the trigger of the firearm.

The conduct which caused the death was of course a complex of acts all done by the applicant - loading the rifle, cocking it, presenting it, pressing the trigger. But it was the final act, pressing the trigger of the loaded and levelled rifle, which made the conduct lethal. When this was said to be a reflex action, the word "reflex" was not used strictly in the sense it ordinarily has in neurology as denoting a specific muscular reaction to a particular stimulus of a physical character. The phrase was, as I understood the argument, used to denote rather the probable but unpredictable reaction of a man when startled. He starts. In doing so he may drop something which he is holding, or grasp it more firmly. Doctor Johnson in his Dictionary - and his definition has been in substance repeated by others - said that "to start" means "to feel a sudden and involuntary twitch or motion of the animal frame on the apprehension of danger". The Oxford Dictionary speaks of a start as "a sudden involuntary movement of the body occasioned by surprise, terror, joy or grief ". But assume that the applicant's act was involuntary, in the sense in which the lexicographers use the word, would that, as a matter of law, absolve him from criminal responsibility for its consequences? I do not think so. I do not think that, for present purposes, such an act bears any true analogy to one done under duress, which, although done by an exercise of the will, is said to be involuntary because it was compelled. Neither does it, I think, bear any true analogy to an act done in convulsions or an epileptic seizure, which is said to be involuntary because by no exercise of the will could the actor refrain from doing it. Neither does it, I think, bear any true analogy to an act done by a sleep-walker or a person for some other reason rendered unconscious whose action is said to be involuntary because he knew not what he was doing.

Such phrases as "reflex action" and "automatic reaction" can, if used imprecisely and unscientifically, be, like "blackout", mere excuses. They seem to me to have no real application to the case of a fully conscious man who has put himself in a situation in which he has his finger on the trigger of a loaded rifle levelled at another man. If he then presses the trigger in immediate response to a sudden threat or apprehension of danger, as is said to have occurred in this case, his doing so is, it seems to me, a consequence probable and foreseeable of a conscious apprehension of danger, and in that sense a voluntary act. The latent time is no doubt barely appreciable, and what was done might not have been done had the actor had time to think. But is an act to be called involuntary merely because the mind worked quickly and impulsively? I have misgivings in using any language descriptive of psychological processes and phenomena, especially as I doubt whether all those skilled in this field employ their descriptive terms uniformly. Guided however by what has been said in other cases and by writers on criminal law whose works I have read, and especially by the judgments in the House of Lords in Bratty v. Attorney-General for Northern Ireland [1] , I have come to the conclusion that if the applicant, being conscious of the situation in which he had put himself, pressed the trigger as a result, however spontaneous, of the man whom he was threatening making some sudden movement, it could not be said that his action was involuntary so as to make the homicide guiltless. The act which caused the death was, it seems to me, using the language of s. 18 of the statute, an act of the accused. The question for the jury was whether it was an act done by him in such a way as to make the resulting homicide murder. This was the issue submitted to the jury. The application for special leave to appeal must I consider be refused.