Thomas v The Queen

The intention of causing death is under s. 278 of the Criminal Code an ingredient of wilful murder; if the intention is only to cause grievous bodily harm, the accused is under s. 279 sub-s. (1) guilty of murder, and, under s. 280, any unlawful homicide, not wilful murder or murder, is manslaughter. Section 595 of the Code provides that upon an indictment for wilful murder the accused may be convicted of murder or manslaughter, if either of these crimes is established by the evidence.

As Thomas pleaded not guilty, the burden of proving every element of the crime of wilful murder was borne by the prosecution from the beginning until the end of the trial. The prosecution of course could rely upon the admissions of Thomas that he committed the crime with which he was charged to sustain its burden of proof. Nevertheless it was important to direct the jury correctly on the burden of proof.

Thomas raised the defence of insanity. In order to succeed on that defence it was necessary that the evidence should bring him within s. 28 of the Code. There was considerable evidence supporting the defence. The trial judge correctly directed the jury that Thomas carried the burden of proving this defence and the civil standard of proof applied.

Thomas also raised the defence of drunkenness. There was evidence that for some hours before he committed the crime he was drinking alcoholic liquor. Section 28 contains this provision: "When an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional may be regarded for the purpose of ascertaining whether such an intention in fact existed". There was an issue whether Thomas was too drunk to form the intent to take Wedd's life or to cause him grievous bodily harm. This issue was included in the general issue raised by the plea of not guilty. If the jury had a reasonable doubt that Thomas by reason of mental disorder caused by intoxication was capable of forming either intent, it would have been their duty to give him the benefit of the doubt and find him guilty of manslaughter.

In my opinion it was a serious matter if a direction which was wrong and could have misled the jury was given as to the burden of proof borne by the prosecution. It is necessary to cite a long passage which occurs towards the end of the summing up - "And as I say and repeat, in my view, on the evidence, the three verdicts which are reasonably open to you are firstly guilty, secondly guilty of manslaughter if you are satisfied that the accused person was so far intoxicated that he was unable to form an intent to kill, or at least, if not so satisfied you have some reasonable doubt as to whether, by reason of such intoxication he was capable of forming such an intent, and, thirdly, your verdict should be not guilty on the ground of insanity if, although you are satisfied that he had done the act, you are satisfied on the balance of probability that he is insane within the manner which I have described. Now, in considering these various issues Mr. Foreman and Gentlemen, you have got to remember that the general onus in all these things is on the Crown, the onus is on the Crown to satisfy you that the accused is guilty, and the accused is entitled to the benefit of any reasonable doubt which you may have. There is no particular magic about the way you've got to consider it, no special rules, you consider it in an ordinary common sense manner and in the way you would consider the more serious matters which come up for consideration and decision in your lives, and if considering it in that way you come to the conclusion - you come to a feeling of comfortable satisfaction that the accused is guilty, then you should find him so guilty, and that is the standard you should apply with the various verdicts which I have indicated to you, except of course to the extent that so far as insanity is concerned the onus is on the accused to satisfy you as to that on the balance of probability".

The part of the passage which is called into question is the long sentence which begins with the words "There is no particular magic" and ends with the words "the balance of probability". There is no authority for the use of that verbiage to elucidate what is meant by proof beyond any reasonable doubt. The question whether a direction regarding the onus of proof is proper is not a purely verbal one. It is a question whether what the jury is told means that they must be satisfied beyond any reasonable doubt that the accused is guilty. But there is a danger in venturing upon a novel elucidation of this principle of the criminal law. It is dubious advice to tell the jury that no particular magic is required to perform their duty. To assure them that they are not bound by any special rules is calculated to encourage them to believe they are chartered libertines. Surely they are bound to estimate the credit due to each witness and weigh the evidence and to deliberate in a judicial manner. The expression "the more serious matters which come up for consideration" is vague. It would include a wide range of matters of various grades of seriousness. Experience of such matters is invaluable in the jury room but it is not right to tell the jury that they may decide whether the accused is guilty or not guilty in the same sort of fashion as they decide serious matters that arise for their decision out of court. If what is meant is that subtle reasoning and fine distinctions are not necessary to the performance of their duty and that they are expected to use their common sense and exercise due caution, the direction would of course not be wrong. But if that was all that was meant, it seems to me to be quite uncertain that the jury would think so. But I think that the cardinal error was to tell the jury that if they arrived at a feeling of comfortable satisfaction that the accused was guilty, they should find him guilty, and then to add that such was the standard of proof. The words "a feeling of comfortable satisfaction" were used by Rich J. in Briginshaw v. Briginshaw [1] but in relation to an issue which was expressly said not to be criminal. In the Court of Criminal Appeal, the learned judges said that: "The words complained of do not admit of any misconception if they are taken with the passage to which they belong". It seems to me that this statement implies that standing by themselves the words complained of could not be supported as a proper direction. The view which, with respect to the learned judges, I take is that because the words in question do belong to the passage immediately preceding them and are a continuation and explanation of what is meant by that passage, there was a clear misdirection and one that was likely to mislead the jury as to the degree of certainty they ought to feel that Thomas was guilty of wilful murder in order to be justified in finding him guilty of that crime. The direction affected the whole of the general issue raised by the plea of not guilty and especially the question whether the prosecution proved beyond any reasonable doubt that notwithstanding the evidence of drunkenness, Thomas, despite his own brutal admissions, could in fact form the intention requisite to the crime of wilful murder or murder. It is not a case, in my opinion, where a court of criminal appeal can be satisfied that a substantial miscarriage of justice did not actually occur. In my opinion the appeal should be allowed, and the conviction quashed. It is obviously a case in which a new trial should be ordered.

1. (1938) 60 C.L.R. 336, at p. 350. Fullagar J.

The appellant, Robert Jeremiah Thomas, was convicted by a jury in the Supreme Court of Western Australia of the wilful murder of Keith Campbell Mervyn Wedd. An appeal by him to the State Court of Criminal Appeal was dismissed. In December last this Court, having heard full argument on the whole case, granted special leave to appeal from the Court of Criminal Appeal, and reserved judgment. It was desired to consider the case in all its aspects, and, if upon full consideration, a certain view were taken, it would be open to us to rescind the special leave so granted. I have, however, come to the conclusion that it is a proper case for special leave, and that the appeal should be allowed and a new trial ordered.

At the trial the killing of Wedd by the appellant was not disputed, but it was asserted for the defence (1) that the appellant was insane at the time of the killing, or (2) that he was so far intoxicated by alcohol as to be incapable of forming an intent to kill. The nature of the charge and the defences thus raised necessitate a reference to the Criminal Code W.A., the relevant provisions of which alter in some respects the common law.

The Code distinguishes between "wilful murder" and "murder". Section 278, so far as material, provides that "a person who unlawfully kills another intending to cause his death is guilty of wilful murder". Section 279, so far as material, provides that a person who unlawfully kills another intending to do him grievous bodily harm is guilty of murder. By s. 595 a person indicted for wilful murder may be convicted of murder or manslaughter "if either of those crimes is established by the evidence". Insanity and intoxication are dealt with in ss. 26, 27 and 28 of the Code. Section 26 provides: "Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved". Section 27, so far as material, provides: "A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission". Section 28 provides: "The provisions of the last preceding section apply to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor, or by any other means. They do not apply to the case of a person who has intentionally caused himself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not. When an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed". The most notable feature of these provisions is, of course, the departure in s. 27 from the M'Naghten formula [1] , and especially the reference to "capacity to control his actions".

The notice of appeal to the Court of Criminal Appeal was based solely on a short passage near the end of the learned trial judge's charge to the jury, which passage was alleged to constitute a serious misdirection. The argument before this Court was founded on the same passage, but that passage cannot, of course, be viewed in isolation, and it is necessary to refer briefly to the general nature of the case, to some of the evidence, and to the course of his Honour's charge.

In some respects the facts of the case bear a resemblance to those in Stapleton v. The Queen [2] On the night of 22nd June 1959 the appellant, who had undoubtedly consumed a very large quantity of liquor, obtained possession of an automatic pistol and a supply of ammunition, and, in the course of a wild excursion by taxi and on foot in Fremantle and in the vicinity, shot and killed Wedd and a man named O'Hara and his wife, and shot and wounded two police constables, one of them seriously. Wedd was a taxi-driver. While riding in the back of his taxi, the appellant shot him in the back of the neck. O'Hara and his wife were asleep in bed, when the appellant entered their house and shot each of them between the eyes. All these three victims were strangers, or practically strangers, to him, and he had no rational motive for shooting any of them. The constables were shot in the execution of their duty. The appellant may have intended ultimately to kill himself: he seems to have made some (possibly half-hearted) attempt to shoot himself before he was arrested.

At the trial the appellant gave evidence on oath. There were gaps in his recollection of the events of the night, but he clearly remembered all the shootings. He said that he intended to kill all his victims. He wanted to take as many as possible with him. He had made up his mind some time ago that he would end on the gallows. He had wanted to plead guilty, and his counsel was responsible for his pleading not guilty. He had no reason for shooting any of his victims. He "thought he was entitled" to shoot them all. Asked in cross-examination whether he knew that he had no right to kill, he said: "I didn't think about it. I didn't think about whether it was right or wrong. It didn't bother me". He said he knew that what he did was legally wrong, and that he was answerable for it, but he did not care whether it was right or wrong to kill people. He thought he was morally right. He said: "I didn't give a damm: I didn't care". He said that that had been his attitude ever since he had suffered a fractured skull in a motor accident in December 1954. Medical evidence confirmed that he had suffered a depressed fracture of the skull, the outward effect of the injury being apparent on inspection.

Two psychiatrists were called as witnesses - Dr. Thompson for the Crown, and Dr. Derham for the defence. Dr. Thompson said: "I think he had power to control himself. I don't think he was suffering from any mental disease". He said: "In my opinion he knew that what he was doing was legally wrong", but he seems to have been uncertain or non-committal on the question whether he knew that what he was doing was morally wrong. On that question being put to him, he answered: "It depends on what his morals were. Thomas hasn't the normal ideas of the man in the street". The precise words of the Code - "ought not" to do it - do not seem to have been put to Dr. Thompson. In examining him he was looking for symptoms of a psychotic condition, but found none. He could see no sign of schizophrenia or manic depression. He described Thomas as a psychopathic personality, having anti-social trends, but he said that the accepted view was that psychopathy was not a disease or natural infirmity. Dr. Derham agreed that Thomas was a "psychopathic personality", but considered that he was suffering also from a psychosis or mental disease. He thought it likely that the fracture of the skull had affected the frontal lobes of the brain with resultant affection of the powers of reasoning. He said: "The disease from which he is suffering is a paranoid psychosis, which is not foreign to a psychopathic personality In my view this man is suffering from a mental as well as a moral defect". He thought that he had a capacity to understand what he was doing, and that he was aware that killing was legally wrong, but he would express no opinion as to whether he was able to control his actions or as to whether he knew that it was morally wrong to kill. He said: "Almost certainly alcohol was a contributing cause to the loss of control from which he suffered". But he could have formed an intent to kill.

On the evidence thus briefly summarized - and especially in view of his statements in cross-examination - the case for the appellant was perhaps not one likely to appeal to a jury, but two lines of defence were fairly open and were put to the jury by his counsel. They were, I think, rightly treated by the learned judge as independent and alternative lines, though both depended on the appellant's state of mind and, to a large extent, on inferences to be drawn from the same evidence. It was put, in the first place, that at the time of the killing of Wedd the appellant was insane according to the standard laid down by s. 27 of the Code. On this issue the burden of proof - but not of proof beyond reasonable doubt - rested on the appellant, and the proper verdict, if the affirmative were found, would be "not guilty on the ground of insanity". It was put, in the second place, that the effect of excessive drinking on an abnormal mind had been to render the appellant incapable of forming the specific intent which is an essential element in the crime of wilful murder. As to this, the Crown carried the burden of proving the intent beyond reasonable doubt, and the proper verdict, if the Crown failed to establish the intent beyond reasonable doubt, would be "guilty of manslaughter". The Crown had, of course, to begin by proving the killing beyond reasonable doubt, but the fact of the killing of Wedd was not seriously in issue at the time.

Now, it was of course, essential that the jury should be fully directed as to the issues raised by the two lines of defence, and in particular that they should be accurately, unequivocally and consistently directed as to the incidence and nature of the burden of proof relating to those issues. The learned judge did in fact, in the course of a conspicuously fair summing up, accurately direct the jury as to burden of proof. For he did in the course of his charge tell them that the Crown carried the burden of proving beyond reasonable doubt that the appellant killed Wedd and intended to kill him. And he also told them that the appellant carried the burden of proving that he was insane at the time of the killing, but that a lower standard of proof was to be applied on this issue, and they might find insanity established if they were satisfied of it as a matter of balance of probability. Unfortunately, however, at the very end of his charge, his Honour used language which is challenged as departing, with regard to the burden of proof resting on the Crown, from the correct direction which he had not omitted to give. In order that the challenge and the answer made to it may be understood, it is necessary to quote a fairly long passage.

His Honour said: "And as I say and repeat, in my view, on the evidence, the three verdicts which are reasonably open to you are firstly guilty, secondly guilty of manslaughter if you are satisfied that the accused person was so far intoxicated that he was unable to form an intent to kill, or at least, if not so satisfied, you have some reasonable doubt as to whether, by reason of such intoxication he was capable of forming such an intent, and, thirdly, your verdict should be not guilty on the ground of insanity if, although you are satisfied that he had done the act, you are satisfied on the balance of probability that he is insane within the manner which I have described". So far I do not think that any sound objection can be taken to what was said, though it is not, I think, irrelevant in connexion with what follows that his Honour has begun by placing the burden of proof on the wrong shoulders, and has then given the right direction in the form of a correction or qualification. His Honour proceeded: "Now, in considering these various issues, Mr. Foreman and Gentlemen, you have got to remember that the general onus in all these things is on the Crown, the onus is on the Crown to satisfy you that the accused is guilty, and the accused is entitled to the benefit of any reasonable doubt which you may have". Again no objection can be taken to what his Honour has said. But then comes the passage which is directly challenged: "There is no particular magic about the way you've got to consider it, no special rules, you consider it in an ordinary common sense manner and in the way you would consider the more serious matters which come up for consideration and decision in your lives, and if considering it in that way you come to the conclusion - you come to a feeling of comfortable satisfaction that the accused is guilty, then you should find him so guilty, and that is the standard you should apply with the various verdicts which I have indicated to you, except of course to the extent that so far as insanity is concerned the onus is on the accused to satisfy you as to that on the balance of probability". The rest of the charge was merely formal.

I do not think it can be doubted that the last quoted passage contains a misdirection. I think that the first part of it is open to objection. It tends to water down and qualify the plain rule that what is required to justify a conviction is proof beyond reasonable doubt: see generally Brown v. The King [1] . It may be noted that in this case Barton A.C.J. said: " one embarks on a dangerous sea if he attempts to define with precision a term which is in ordinary and common use with relation to this subject matter, and which is usually stated to a jury without embellishment as a well understood expression" [2] Then, "comfortable satisfaction" has perhaps gained a certain currency, but even in civil cases it has little, in my opinion, to recommend it. It was used by Rich J. in Briginshaw v. Briginshaw [3] in relation to the standard of proof in cases where adultery is in issue. But his Honour was careful to distinguish the standard conveyed by that expression from the standard required in criminal cases and conveyed by the words "proof beyond reasonable doubt". In truth, to "come to the feeling" referred to in his Honour's charge is by no means the same thing as being satisfied beyond reasonable doubt.

1. (1913) 17 C.L.R. 570, esp., at pp. 584-586, 594-596. 2. (1913) 17 C.L.R., at p. 584. 3. (1938) 60 C.L.R. 336, at p. 350.

I did not understand it to be seriously contested that the passage in question contained an important misdirection. But it was argued, and the Court of Criminal Appeal accepted the argument, that the jury, who had, in the course of the charge and again just before the passage in question, been rightly directed as to the standard of proof, were not likely to be in any way misled by that passage. I am, with respect, unable to adopt this view. The very fact that the passage follows immediately on a correct direction increases, in my opinion, the danger of the jury being misled. For what is said purports to be an exposition or explanation of what is meant when it is said that the accused is "entitled to the benefit of any reasonable doubt". The jury are told, in effect, that there is "no particular magic" in the formula, and what follows is not expressive of, but derogates from, the true meaning of the orthodox direction. There are, moreover, at least two other passages in the charge which, unfortunately, seem quite likely to have given the jury a wrong impression as to the burden or standard of proof. In one place his Honour refers to the difficulty of "the task of the defence in trying to satisfy you that the accused did not intend to kill the deceased". This is followed almost immediately by a reference to evidence put forward "to justify you in concluding that there was no intention to kill". I should not have thought that these passages alone would warrant an order for a new trial, because they are not directly concerned with burden of proof. But they do, I think, tend to support the contention that the jury may have retired under a misapprehension as to that matter. More important is a passage which comes a little later, in which his Honour says: "If you feel that as a result of the evidence as to intoxication you should come to the conclusion that he - not that you should come to a conclusion, but if you have any reasonable doubt as to whether he was incapable of forming this intent, you should acquit him of wilful murder, and then on the evidence your verdict should be one of manslaughter, but you would have to be satisfied that the evidence justified you in coming to the conclusion that that was not sufficient to give you a feeling of comfortable satisfaction that he had such an intent". This might well, I think, give the jury a wrong impression. There is yet another passage, which need not be set out, in which his Honour, having stated the position wrongly, proceeds to give the right direction, but prefaces the correction with the words " perhaps it goes further than that". These passages also, I think, lend weight to the general contention for the appellant.

One must feel a good deal of reluctance about ordering a new trial in this case. It has seemed to me, however, that the objection taken to the charge is fundamental, that special leave was rightly granted, and that the appeal must be allowed. I would only add that I agree with what my brother Kitto has written with regard to the use of the formula that a person must be taken to intend the natural and probable consequences of his acts.

It is quite clear that the appellant did not have the onus of satisfying the jury affirmatively that he was so much under the influence of drink as to be incapable of forming the intention to cause the death of Wedd. The burden of proving that he had the intention lay throughout upon the Crown. The contrary view would apparently have been maintained at one time in New South Wales: R. v. Simpson [1] and R. v. McDonald [2] but not since the case of Reg. v. Stones [3] . The general principle as to the onus of proof in cases of murder or manslaughter admits of no exceptions, save only in the case of insanity: Chan Kau v. The Queen [4] .

1. (1924) 24 S.R. (N.S.W.) 511. 2. (1945) 63 W.N. (N.S.W.) 65. 3. (1955) 56 S.R. (N.S.W.) 25. 4. (1955) A.C. 206, at p. 211.

It is also clear that the onus was to satisfy the jury beyond a reasonable doubt. Nothing in recent English cases should be taken as impairing this principle. It has been unequivocally stated by the House of Lords, for example in Mancini v. Director of Public Prosecutions [5] ; it has been plainly affirmed by the Privy Council, for example in Bullard v. The Queen [6] ; and it has been uniformly applied by this Court: May v. O'Sullivan [7] . Whether a doubt is reasonable is for the jury to say; and the danger that invests an attempt to explain what "reasonable" means is that the attempt not only may prove unhelpful but may obscure the vital point that the accused must be given the benefit of any doubt which the jury considers reasonable.

1. (1942) A.C. 1, at p. 11. 2. (1957) A.C. 635, at p. 642. 3. (1955) 92 C.L.R. 654.

In Lawrence v. The King [8] Lord Atkin, for the Privy Council, used memorable words. "Speaking generally", he said, "it has to be remembered that it is an essential principle of our criminal law that a criminal charge has to be established by the prosecution beyond reasonable doubt: and it is essential that the tribunal of fact should understand this. Unless the judge makes sure that the jury appreciate their duty in this respect his omission is as grave an error as active misdirection on the elements of the offence, and a verdict of guilty given by a jury who have not taken this fundamental principle into account is given in a case where the essential forms of justice have been disregarded. In such a case, unless it can be predicated that properly directed the jury must have returned the same verdict, a substantial miscarriage of justice appears to be established" [9] .

1. (1933) A.C. 699. 2. (1933) A.C., at p. 707.

This was said in a case where the judge presiding at the trial had not directed the jury at all that the accused was entitled to the benefit of a reasonable doubt. The present is not such a case, for more than once in the course of his charge the learned trial judge stated correctly the nature of the onus of proof which lay upon the Crown. But unfortunately, in the passage which began "There is no particular magic" and contained the words "that is the standard you should apply", his Honour offered an explanation which opened the door to misunderstanding. I need not repeat either the passage itself or the portions of the charge with which it ought to be considered, for they have been stated by my brother Fullagar with whose comments upon them I agree. It is enough to say that in my opinion an attentive jury may very well have understood the passage as placing upon the previous references to proof beyond a reasonable doubt an interpretation or a gloss substantially lessening the severity of the true standard, and that therefore the appellant's conviction was by a jury which had not been instructed in accordance with the strict requirement of the law. Strong though the Crown's case as to intention undoubtedly was, it would be going too far to say that if the jury had been properly directed they must have found the issue against the appellant. During the argument of the appeal this was conceded, in effect, by counsel for the Crown. Accordingly there is no course open but to order a new trial.

The case has seemed to me a proper one for special leave, because of the extreme importance of maintaining the absolute right of an accused person to have his case decided by a jury which has been given certainly to understand that he is to be acquitted if the Crown case has not been proved beyond a reasonable doubt.

There is another feature of the learned judge's charge to the jury which I think I should mention. A verdict of guilty of wilful murder could not properly be given unless the jury found that the appellant at the time of shooting Wedd intended to cause his death. The learned judge told the jury of the provision of the Criminal Code (in the third paragraph of s. 28) that when an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed. But he said in one place that there was "a presumption of the law" that a man intends the natural and probable consequence of his actions; and several times, though not uniformly, he spoke as if the intention to kill must necessarily be inferred from the act of shooting unless the appellant's drunkenness made him incapable of forming that intention. It would have been correct to tell the jury that if they thought that the appellant was capable of forming the intention to kill they might properly infer from the shooting, if they thought it right to do so, that the intention existed. But in my opinion it was not right to tell them that the law supplied a presumption on the point. The responsibility of deciding whether the inference of intention should be drawn lay upon them, and no presumption of law existed to relieve them of it. This Court has disapproved on several occasions of the course of charging a jury in terms of a presumption of intention, pointing out that it conceals the true position: Smyth v. The Queen [1] and other cases there cited. In the present case it appears to me to have done exactly that; for it led the learned judge to put to the jury, as if it were the ultimate question on this part of the case, the question whether the appellant was rendered by intoxication incapable of forming the intention to kill, whereas the question which s. 28 and the law as to onus of proof combined to present was whether the evidence of intoxication caused the jury to have a reasonable doubt as to whether the appellant had in fact the intention to kill. In this connexion reference may be made to what was said by Philp J. in Reg. v. Nicholson [2] and by Stanley J. in Reg. v. Herlihy [3] . See also Dearnley v. The King [4] .

1. (1957) 98 C.L.R. 163. 2. (1956) Q.S.R. 520, at p. 524. 3. (1956) Q.S.R. 18, at pp. 32-36. 4. (1947) Q.S.R. 51.

I would allow the appeal, set aside the conviction, and order a new trial.

This is an appeal by special leave from an order of the Court of Criminal Appeal which dismissed an appeal by the appellant from his conviction upon indictment for the wilful murder of Keith Mervyn Campbell Wedd who was a taxi-cab driver in Perth. It is unnecessary to recapitulate the facts beyond saying that the fact that the appellant caused the death of the deceased was common ground and that the circumstances in which the killing took place - and other evidence given at the trial - provided cogent proof that, if at the relevant time the appellant was a person of sufficient soundness of mind to be criminally responsible for his actions, there was an accompanying intent to kill. In these circumstances it is not surprising to find that the defence of insanity was raised. Reliance was also placed upon evidence which went to show that upon the day of the killing the appellant had been drinking excessively. But there was no suggestion that any disorder of his mind by reason of intoxication was due to "intoxication caused without intention on his part" and, accordingly, the asserted intoxication could form no foundation for the defence of insanity (Criminal Code Act 1913, s. 28). It was, no doubt, open to the jury to find insanity on other evidence in the case. However, the evidence as to drunkenness was of some importance in the case upon the issue whether, at the relevant time, the appellant had an intent to kill. This was explained to the jury by his Honour and no complaint is made concerning his Honour's directions on these points. What is contended is that certain of his Honour's directions regarding the onus of proof which lay upon the Crown were defective and might well have misled the jury in their deliberations. The passage upon which the appellant's argument was mainly focussed occurs towards the end of the charge and the complaint is made that the effect of what his Honour said was to direct the jury that the standard of proof required in the Crown case was proof to the "comfortable satisfaction" of the jury and not proof beyond reasonable doubt.

Before referring to the passage in question, however, it is desirable to make some further observations. The first is that although, strictly, the jury might have returned a verdict of guilty of murder, and not wilful murder, the contest, for all practical purposes, was between a verdict of guilty, a verdict of guilty of manslaughter and a verdict of not guilty on the ground of insanity for a finding that the appellant did not have a specific intention to kill would, in the circumstances of the case, have precluded a finding that he had any specific intention sufficient to make the killing murder. Accordingly, the primary issues in the case were, firstly, whether the appellant was of unsound mind within the meaning of s. 27 of the Criminal Code and, secondly, whether the killing was accompanied by an intent to kill. These matters were carefully and fully explained to the jury and early in the charge his Honour drew a clear distinction between the onus which lay upon the appellant with respect to the first of these issues and that which lay upon the Crown with respect to the second. Thereafter, almost at the end of his charge, the learned judge told the jury that, in considering the various issues, they should remember that the "general onus on all these things is on the Crown". "The onus" he said "is on the Crown to satisfy you that the accused is guilty, and the accused is entitled to the benefit of any reasonable doubt which you may have". Then he proceeded: "There is no particular magic about the way you've got to consider it, no special rules, you consider it in an ordinary common sense manner and in the way you would consider the more serious matters which come up for consideration and decision in your lives, and if considering it in that way you come to the conclusion - you come to a feeling of comfortable satisfaction that the accused is guilty, then you should find him so guilty, and that is the standard you should apply with the various verdicts which I have indicated to you, except of course to the extent that so far as insanity is concerned the onus is on the accused to satisfy you as to that on the balance of probability ".

In the Court of Criminal Appeal it was thought that these words did not admit of any misconception when taken with the passage to which they belong. "They clearly related", it was said, "to the onus of proof beyond reasonable doubt which just previously the trial judge had enunciated, and which on several occasions before, in the course of his summing up, he had emphasized".

There is, at the least, however, considerable doubt whether the passage is not reasonably susceptible of the meaning for which the appellant contends. I do not doubt that the learned trial judge had no intention of departing from the appropriate standard of proof; but the primary question is, of course, whether the words used might reasonably be understood as indicating to the jury that "comfortable satisfaction" is equivalent to satisfaction beyond reasonable doubt. If so the direction was clearly erroneous and, as I understood the argument, the Crown would not in that event wish to support it. It was, however, urged upon us that his Honour had, on a number of occasions previously, instructed the jury that the Crown was obliged to prove its case beyond reasonable doubt and it is asserted that the jury could have been under no misapprehension on the point. Accordingly it is necessary to examine the earlier directions which, according to the argument of the Crown, were such as to make it clear, when the charge is read as a whole, that the contention of the appellant should be rejected.

As we have said the evidence of the appellant's intoxication was not material on the issue of insanity. Therefore, in reaching their conclusion on this issue, the jury was bound to exclude this consideration from their minds. But it was material on the issue whether the appellant had the necessary intent to constitute the killing either wilful murder or murder. So much the learned trial judge told the jury and, after discussing the relevant provisions of the Criminal Code, he said: "If as a result of your consideration of this matter, you are satisfied that the accused was incapable of forming an intent to kill, in law you would - perhaps it goes further than this - if as a result of your consideration of the extent of his intoxication at that time you have some reasonable doubt as to whether the killing was with an intent to kill, and that you have some reasonable doubt whether the accused was capable of forming such an intent, then you would have to consider whether you think that he was not precluded by that state of intoxication from forming an intent to do grievous bodily harm, which would justify a conviction for murder". Obviously his Honour, in this passage, commenced to give what was a misdirection but he interrupted himself and gave a correct direction though it was prefaced by somewhat tentative words. But after reiterating, in effect, that if the jury found itself unable to find a specific intent to murder it was unlikely that they would be prepared to find a specific intent to inflict grievous bodily harm, he went on to say: "If, however, you are satisfied as a result of a review of the evidence regarding intoxication that the accused was not capable of forming either an intent to kill or to do grievous bodily harm, then your proper verdict would be manslaughter which would amount to an unlawful killing without either of such intents because the fact of the killing would amount to assault and would amount to manslaughter if it were a voluntary act irrespective of intent". This direction was clearly wrong. But after discussing the facts, which spoke eloquently of the existence of an intent to kill, he returned to the jury's task in relation to that issue. He said: "Now as against that evidence as to intention and to justify you in concluding that there was no intention to kill the defence sets up the allegation that the accused was so far drunk at the time of this killing that he was unable to form an intent, and the defence either asks you to so to conclude, or else says that the evidence of drunkenness should be sufficient to create some reasonable doubt in your minds as to whether that intent was present. So it is necessary to say something on this question of the evidence of drunkenness". After discussing that evidence the following passage appears: "But at any rate that is the evidence, and of course you've got to weigh that with - with his own knowledge of the events as indicated by what he told the police - his own statements that he intended to kill, and if, on weighing those up you feel that as a result of the evidence as to intoxication you should come to the conclusion that he - not that you should come to a conclusion, but if you have any reasonable doubt as to whether he was incapable of forming this intent, you should acquit him of wilful murder, and then on the evidence your verdict should be one of manslaughter, but you would have to be satisfied that the evidence justified you in coming to the conclusion that that was not sufficient to give you a feeling of comfortable satisfaction that he had such an intent". Here again his Honour made a false beginning but having corrected himself he departed again from the appropriate principle. It was erroneous to suggest as the concluding words of this passage do, that in order to find wilful murder it was sufficient if the jury had "a feeling of comfortable satisfaction" that the appellant had "such an intent", or, that, before reaching a verdict of manslaughter, they "would have to be satisfied" that the evidence justified them in concluding that it was not sufficient to give them that "feeling of comfortable satisfaction". Nothing more appears concerning the onus of proof until we come to the conclusion of the charge. Preceding the passage which is the subject of the primary complaint his Honour said: "And as I say and repeat, in my view, on the evidence, the three verdicts which are reasonably open to you are firstly guilty, secondly guilty of manslaughter if you are satisfied that the accused person was so far intoxicated that he was unable to form an intent to kill, or at least, if not so satisfied you have some reasonable doubt as to whether, by reason of such intoxication he was capable of forming such an intent, and, thirdly, your verdict should be not guilty on the ground of insanity if, although you are satisfied that he had done the act, you are satisfied on the balance of probability that he is insane within the manner which I have described". Then his Honour pointed out to the jury that in considering these various issues they would have to remember that: "the general onus in all these things is on the Crown, the onus is on the Crown to satisfy you that the accused is guilty, and the accused is entitled to the benefit of any reasonable doubt which you may have". Then occurs the passage complained of. Clearly enough his Honour had, immediately before, instructed the jury that the Crown was required to prove its case beyond reasonable doubt. But this in turn had been preceded by directions some of which placed the onus of establishing the necessary intent on the Crown and some of which indicated that it was for the appellant to negative that ingredient. In addition, on the second last occasion when his Honour adverted to the task of the jury in considering the issue of intent he had given some indication that it would be sufficient to justify a conviction if they found themselves "comfortably satisfied". After anxious consideration I have come to the conclusion that when the charge is read as a whole no sufficient reason appears for thinking that the offending passage does not bear, or could not reasonably be understood as having, the meaning suggested by the appellant. There had not, in my view, been such unequivocal consistency in the several directions on the onus of proof in relation to the issue of intent as to invest the final direction with the meaning assigned to it by the Crown. Indeed, on the whole, there are, I think, substantial grounds for thinking that at the conclusion of the charge the jury may well have thought that it was open to them to return a verdict of guilty of wilful murder if they found themselves comfortably satisfied that the killing was accompanied by an intent to kill. There can, of course, be no question that a direction to that effect would constitute a misdirection.

In the circumstances I am of the opinion that there should be a new trial. Indeed on the view which I have taken of the charge the Crown does not really suggest that any other course is open and, since it is impossible to say that there was no substantial miscarriage without usurping the functions of the jury, the conviction should be set aside and a new trial ordered.

The "golden thread that runs throughout the web of English criminal law" is broken by the defence of insanity. It is better to recognize this than to rationalize it. For there is really no logical answer to the rhetorical question of Harlan J., asked in the course of delivering the impressive judgment of the Supreme Court of the United States in Davis v. United States [1] , "How, then, upon principle or consistently with humanity can a verdict of guilty be properly returned if the jury entertain a reasonable doubt as to the existence of a fact which is essential to guilt, namely, the capacity in law of the accused to commit that crime?" [2] . Nevertheless, it is the firmly established rule of our law that when insanity is put forward as a defence to a criminal charge, it is for the defence to show that the accused was, in the relevant sense, insane. The standard of persuasion necessary to discharge that burden is, however, "not higher than the burden which rests upon a plaintiff or a defendant in civil proceedings" (Sodeman v. The King [3] ). That is so at common law. It is so too under s. 26 of the Western Australian Criminal Code; for the words "until the contrary is proved" mean proved according to the civil law standard - that is, established to the satisfaction of the jury by a preponderance of probability (R. v. Carr-Briant [4] ; Reg. v. Dunbar [5] ). This was clearly explained to the jury by the learned judge; and no complaint is made of that part of his summing up. But the appellant stood charged with wilful murder, that is with unlawfully killing another person intending to cause his death. On a trial for wilful murder, murder is a possible alternative verdict if the evidence establishes that the dead man was killed by the accused intending to do him grievous bodily harm. The case was thus one in which an intention to cause a specific result was an element in the offence charged and also in an offence of which the jury might in the alternative find the accused guilty. By s. 28 of the Code drunkenness, whether complete or partial, might be regarded on the question whether such an intent existed. The general law concerning drunkenness in its relation to criminal responsibility has developed and changed somewhat since last century. This is discussed in an interesting and informative article by the Solicitor-General for New South Wales Drunkenness and Criminal Responsibility (1956) 30 A.L.J. 3. Drunkenness so great as to make the accused incapable of forming the specific intent necessary for the commission of a particular offence has some obvious resemblances to insanity as a defence. But the distinction in law between incapacity by drunkenness and insanity, a disease of the mind, remains. The burden of proof is different. When drunkenness is relied upon as defence, the golden thread is unbroken: throughout the trial the onus remains on the Crown of proving beyond reasonable doubt that the accused did the act charged with the particular intent alleged.

1. (1895) 160 U.S. 469 [40 Law. Ed. 499]. 2. (1895) 160 U.S., at p. 488 [40 Law. Ed., at p. 506]. 3. (1936) 55 C.L.R. 192, at p. 233. 4. (1943) 1 K.B. 607. 5. (1958) 1 Q.B. 1.

This distinction between insanity and other defences in regard to the burden of proof is easy enough to preserve in theory. But difficulties arise, when, as here, the jury are asked by the defence to infer either insanity, or an absence of intent because of drunkenness, or both, from the same facts. And, especially having regard to the provisions of s. 27 and the first sentence of s. 28 of the Code, the difficulties are not lessened if the accused be of abnormal or infirm mentality readily affected by drink.

In the present case the appellant had been drinking before he set out on a wild expedition of killing without any rational motive. His utterances afterwards were exulting and remorseless. They indicated an intent to kill and an absence of any purpose in doing so. He seems to have been temperamentally unstable; and he had had a head injury some years before. Medical evidence was given by psychiatrists, both for the Crown and for the defence. The case really turned on the mental state and mental capacity of the accused. But, largely because of the difference in the burden of proof caused by the exceptional and incongruous position of the defence of insanity, the learned judge, of necessity it seems to me, directed the jury on insanity and on drunkenness negativing intent as separate independent defences. His task was complicated by the need to relate these two viewpoints, as he most carefully did, to various alternative verdicts which were possible on the evidence. In the circumstances of this case I think it not unlikely that the jury considered the matter fairly and broadly to decide whether the prisoner's actions were those of a criminal or a lunatic - whether he knew what he was doing. In so considering the case directions given about the burden of proof may not have vitally influenced them in their conclusions. But we cannot speculate on this. The case was a grave one. The very fact that the onus of proving the defence of insanity lay upon the accused made it the more important that the jury should understand that, in all other matters - including the intent to kill in the case of a man whose mental capacity the defence claimed had been impaired by drink - the onus was, without any qualification, upon the Crown to satisfy them beyond all reasonable doubt. I have had the advantage of reading the judgment of my brother Fullagar, and I agree that, for reasons he has given, the passage at the end of the learned judge's charge to the jury which is complained of did amount to a misdirection, or might have been understood by the jury in a way which would constitute a misdirection. It is, I think, possible so to read this passage that, when related to its context, it is not objectionable. But that, I think, is to give it a somewhat forced construction; and the question is what meaning would it have had for an attentive juryman. Might it on a vital matter have conveyed a wrong impression to him? I think it might. We cannot be sure it did not.

But, although the direction conveyed by the words taken as a whole and in relation to the rest of the charge must be said to be erroneous, I would point out that many of his Honour's phrases taken by themselves are not without precedent and approval. The reference to "the more serious matters that come up for consideration and decision in your lives" is, however, somewhat weaker than Chief Baron Pollock's "that degree of certainty with which you decide upon and conclude your own most important transactions in life". And it is not without significance that the editors of Foster & Finlason's Reports wrote in 1867 that that direction "somewhat startled the profession" because it was a departure from "the old, safe, well-established rule" that the jury should be satisfied beyond all reasonable doubt of the prisoner's guilt: see footnote to Reg. v. White [1] Attempts by paraphrase and embellishment to explain to juries what is meant by satisfaction beyond reasonable doubt are not always helpful. And explanation is not always necessary. Wigmore's observations on this point are filled with good sense (Wigmore on Evidence 3rd ed. (1940) vol. IX, s 2497, p. 316). I would add, although it does not arise from any omission by the learned judge in this case, that, in my view, it is not desirable that the time-honoured expression "satisfied beyond reasonable doubt" should be omitted and some substitute adopted. It is said that it was "invented by the common-law judges for the very reason that it was capable of being understood and applied by men in the jury box" (quoted in Wigmore on Evidence 3rd ed. vol. IX, s 2497, p. 323). The expression proof beyond a doubt conveys a meaning without lawyers' elaborations. Othello's meaning was clear enough: " so prove it, that the probation bear no hinge nor loop to hang a doubt on". For generations jurymen have been directed in terms of "reasonable doubt", "moral certainty" and "the benefit of the doubt". Now it has been suggested in England, mainly by Lord Goddard, that these phrases should be abandoned. The third edition of Halsbury's Laws of England vol. 10, p. 424 par. 780 goes so far as to say that the phrase "reasonable doubt" should be avoided (see among other cases Reg. v. Summers [1] ; Reg. v. Onufrejczyk [2] ). With great respect for those whose great experience has led them to this view I think that it would be unfortunate if it were adopted in Australia. The House of Lords said in Mancini v. Director of Public Prosecutions [3] that a direction "as to reasonable doubt" must be "plainly given" [4] The best and plainest way to give it is, I venture to think, to tell the jury that they must be satisfied beyond all reasonable doubt. In the same case it was said that there is "no prescribed formula" - in Bullard v. The Queen [5] it becomes "no magic formula" [6] . But that no particular form of words is prescribed does not mean that an old and well-known expression is to be proscribed. And in Mancini's Case [3] the House of Lords referred to what Finlay J. said in the first trial in Woolmington's Case [7] as "a good example of the proper direction" [8] . The passage, quoted in counsel's argument on the appeal in the second trial, ran: "Consider whether you entertain the slightest doubt that this was a deliberate killing. If you have no doubt, it is your duty to convict. If the result of a dispassionate survey is to leave a reasonable doubt in your minds, then your duty as well as your pleasure is to acquit" [9] .

1. (1865) 4 F. & F. 383 [176 E.R. 611, at p. 612]. 2. (1952) 1 All.E.R. 1059. 3. (1955) 1 Q.B. 388, at 394, 395. 4. (1942) A.C. 1. 5. (1942) A.C., at p. 13. 6. (1957) A.C. 635. 7. (1957) A.C., at p. 645. 8. (1942) A.C. 1. 9. (1935) A.C. 462. 10. (1942) A.C., at p. 12. 11. (1935) A.C., at p. 467.

Of course, if the trial judge thinks that, influenced by advocacy or for some other reason, the jury may conjure up mere chimeras of doubt, he may well emphasize that for a doubt to stand in the way of a conviction of guilt it must be a real doubt and a reasonable doubt - a doubt which after a full and fair consideration of the evidence the jury really on reasonable grounds entertain. The task of the jury in a criminal case is to examine the evidence, bearing in mind that they must be satisfied beyond reasonable doubt - that they cannot be so satisfied if there be still open some reasonable hypothesis compatible with innocence. But it is not their task to analyse their own mental processes. In one sense it may be that a man acting judicially cannot be satisfied at all unless all reasonable doubt has been eliminated from his mind: see per Lord Radcliffe in Vitkovice Horni a Hutni Tezirstvo v. Korner [1] But in the practical working of our legal system the distinction between the civil and criminal standards of proof is very real and important. I agree in deprecating the use in a criminal trial of the phrase "comfortably satisfied", which has come somewhat into vogue in divorce proceedings. It may mean that the mind is at ease because no doubt lingers. And that, I think the context shows, was really the sense in which the learned trial judge meant to use it here. It may, however, mean only a degree of persuasion sufficient for a conclusion in relation to some matter in question, but short of the certainty required to convict a man of a crime. And that was the sense in which the jury may have understood it here.

I too consider that there must be a new trial in this case.