Ryan v The Queen

[1967] HCA 2

High Court of Australia|1967-03-03|Before: Owen JJ

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Court

High Court of Australia

Decision date

1967-03-03

Before

Owen JJ

Source

Original judgment source is linked above.

Judgment (96 paragraphs)

[1]

The applicant described the killing as an "accident"; and, judging by the terms of the summing up, his counsel so described it to the jury. But such a description is most ambiguous. It could be thought to cover the last three of the views of the material before the jury which I have earlier set out as in my opinion possible. It could certainly embrace the last two of them. If intended to refer to any but the fourth of these views it would, in my opinion, be consistent with an admission, taken from the plea of guilty to manslaughter, that the gun was voluntarily discharged. Also, if it was not intended to refer to the fourth of the possible views of the evidence, the significance of the police "experiments" was merely as to the existence or absence of a specific intent in firing the gun. But it was at least capable of referring only to that fourth view; and if accepted as so intended, it was inconsistent, in my opinion, with an admission that the gun was voluntarily discharged. It appears to me, again judging by the terms of the summing up, that the applicant's counsel consistently with his conduct of the defence must have placed the word "accident" before the jury in a sense covering the third of the possible views I have mentioned and not the fourth: and I think the trial judge intended to do the same by his use of the expression "by accident". Also, I think counsel intended by what he said as to the use to be made of the plea of guilty to manslaughter to commit the applicant to a defence founded on an implicit concession that the gun was voluntarily discharged.

[2]

[8]

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.

[14]

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]

[17]

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.

[53]

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.

[54]

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".

[56]

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.

[60]

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.

[67]

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.

[84]

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.

[86]

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: