Vallance v The Queen

[1961] HCA 42

High Court of Australia|1877-07-21|Before: Windeyer JJ, Green J

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Source facts

Court

High Court of Australia

Decision date

1877-07-21

Before

Windeyer JJ, Green J

Source

Original judgment source is linked above.

Judgment (42 paragraphs)

[1]

The applicant was acquitted of a crime under s. 172 of the Criminal Code, enacted by the Criminal Code Act 1924 of Tasmania, which provides: "Any person who unlawfully wounds or causes grievous bodily harm to any person by any means whatever is guilty of a crime". The conviction was of unlawfully wounding one Pauline Ann Latham, a girl seven years of age. To an extent the facts were undisputed. The applicant, a youth of seventeen years, picked up an air-gun which he knew to be loaded, aimed it in the general direction of the girl, and pulled the trigger with the intention of discharging the gun. A pellet from the gun struck the girl and pierced her flesh. But the applicant, who gave evidence, denied that he fired at the girl, and denied that he had any intention of causing her to be hit. His story was that he aimed at the ground close to her, intending only to frighten her.

[2]

In the charge of the learned trial judge to the jury there were only two directions which need be mentioned here. First, his Honour told the jury that to be guilty of the offence of unlawfully wounding, the applicant must have intended not only to fire the gun but to wound the girl; and this his Honour explained as meaning that he must have foreseen the possibility of the girl's being wounded and desired that she should be, adding that the jury might, if they thought fit, infer the intention from what a reasonable man might expect as a reasonable and probable consequence of the firing of the gun. Secondly, the judge told the jury that no person was criminally responsible for an event occurring by chance; but of this his Honour offered no explanation.

[4]

The first step is to construe the expression "any person who unlawfully wounds". The presence of the word "unlawfully" may be accounted for by the necessity of allowing for cases, such as those of surgical operations the performance of which is lawful as s. 51 of the Code provides, in which the circumstances supply a legal justification for what is done. (The trial judge was in error in telling the jury that the wounding of the girl was unlawful because the firing of a gun in the city was contrary to a provision of the Police Offences Act.) But the expression "unlawfully wounds", read in its setting in a statute defining criminal offences, seems to me to connote a mental element attending the doing of an act which causes a wound. The Oxford English Dictionary reflects this mental element when it defines the verb "wound" as meaning "to injure intentionally in such a way as to cut or tear the flesh". The word "intentionally" is one of variable meaning, and for that reason the dictionary does not solve the problem before us; but the point which the definition brings out is that to "wound" a person is not simply to do an act which causes an injury of a particular kind: it is to do an act which causes such an injury with a state of mind extending to the injury as well as to the act. Such a state of mind must include a foreseeing of the injury as a possible consequence of the act, and it must include an assent to the causing of the injury by means of the act. The notion which the word conveys is not satisfied, I think, by the causing of an injury by mere negligence falling short of recklessness. It requires such an assent that the injury was within the contemplation and choice of the doer of the act. But there is, I think, nothing in the word to confine the notion to the causing of the injury with an actual desire to cause it. To speak of a desire as forming a necessary element in an intention may be accurate enough; for even where the result is regretted it may be desired on a balance of considerations, and so may be intended. But I am not at the moment defining intention. What is in question is the meaning of "unlawfully wounds"; and in that expression, though I do find a limitation relating to the mental attitude of the doer of a causative act, it is not a limitation which requires that the act must be done with an actual desire to cause an injury.

[6]

Then as to the second limb of s. 13 (1), the provision that no person shall be criminally responsible for an event which occurs by chance. Does that provision justify a direction that a person is not guilty of unlawfully wounding unless he not only foresaw that his act might cause hurt to the person who was injured but desired that it should do so? The expression "an event which occurs by chance" no doubt has its difficulties. In the Court of Criminal Appeal the view was expressed by all their Honours that in construing the expression a choice had to be made between a subjective and an objective reference, so that the question (to express it in my own words) was whether, on the one hand, the notion expressed by the words "by chance" excludes only an event which the person charged foresaw as a possible result of what he was about to do, or whether, on the other hand, it excludes only such events as an ordinary person in the like circumstances ought reasonably to have foreseen as such a result; and the choice made by all their Honours was for the subjective reference. I agree that an event which the person charged actually foresaw as a possibility substantial enough to be worthy of attention in deciding whether to do the act or not cannot properly be described as having occurred by chance; but it does not follow that every event which he did not foresee may be so described. In addition to having been unforeseen by him it must, I think, have been one so unlikely to result from the act that no ordinary person similarly circumstanced could fairly have been expected to take it into account. In a provision relating to a consequence of an act voluntarily and intentionally done, and denying criminal responsibility for that consequence if it has occurred by chance, it seems to me that "by chance" is an expression which, Janus-like, faces both inwards and outwards, describing an event as having been both unexpected by the doer of the act and not reasonably to be expected by any ordinary person, so that it was at once a surprise to the doer and in itself a surprising thing. But it is enough for the present case that s. 13 (1) does not deny criminal responsibility for an event which the doer of an act has foreseen and knowingly risked.

[11]

We may commence this examination by postulating that it is not wounding simpliciter which is a crime; it is unlawful wounding and the Code does not purport to specify its ingredients. But some help may be obtained from s. 8 of the Criminal Code Act itself which provides that "all rules and principles of the common law which render any circumstances a justification or excuse for any act or omission, or a defence to a charge upon indictment, shall remain in force and apply to any defence to a charge upon indictment, except in so far as they are altered by, or are inconsistent with, the Code". This provision, it seems to me, makes it very difficult to escape the conclusion that for the purposes of s. 172 a wounding must be taken to be unlawful unless according to the rules and principles of the common law it is justifiable or excusable. This, of course, means that apart from s. 13 (1) an offence against s. 172 could be established in the absence of proof that the wounding itself was "intentional" in the sense that the acts which resulted in the wounding were done with intent to wound; it would be sufficient to show that it was the result of acts performed without actual intent to wound but with reckless or wanton indifference as to their result foreseen as a not unlikely consequence. If this be the nature of the offence which s. 172 purports to create how then does s. 13 (1) operate in relation to it in the circumstances of this case? On the one hand, s. 172 provides that, notwithstanding the absence of intent to wound, a wounding shall be punishable as a crime if it be the result of an act or acts done with reckless or wanton indifference as to their consequences and for which there is no legal justification or excuse. On the other hand, the applicant insists, s. 13 (1) stipulates that no person shall be criminally responsible for an act, unless it is voluntary and intentional and this, it is said, means that an intent to wound must be proved. But in my view the provisions of s. 13 (1) do not produce, and are quite incapable of producing, this result for it is one thing to speak of "voluntary and intentional" acts when defining the general scope of criminal responsibility and another to speak of a specific intent accompanying acts done voluntarily and intentionally. To speak of an act being "voluntary and intentional" is to speak of the essential character of the act itself and, of course, such an act may or may not be accompanied by an intent to commit some specific crime. Indeed, it is reasonably clear that s. 13 itself recognizes this distinction for it conceives that criminal responsibility may attach as the result of either an intentional act (sub-s. (1)) or an intentional omission (sub-s. (2)) and then sub-s. (3) acknowledges that any such act or omission may or may not be accompanied by an intent to commit a specific offence.

[12]

Section 13 (1) is, of course, in very general terms and its application in any particular case must depend upon the nature and ingredients of the crime charged. For instance, in spite of the provisions of the sub-section, a homicide will be culpable where the killing was not intended if the act which caused the death is one "which is commonly known to be likely to cause death or bodily harm" (s. 156 (2) (a)) and a culpable homicide will be murder if the death be caused "by means of any unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person" (s. 157 (1) (c)). No doubt, however, in any such case the act or acts physically performed by the accused and which have resulted in death must be shown to have been voluntary and intentional within the meaning of that expression as used in s. 13 (1). In the present case a not dissimilar situation presents itself. We find that s. 172, upon its true construction, provides, inter alia, that a wounding caused by an act or acts performed with reckless or wanton indifference to their result foreseen as a not unlikely consequence is punishable as a crime. That is to say, the section purports to penalize as a crime an act which results in a wounding if, although there was no specific intent to wound, it be shown that it was performed with such reckless or wanton indifference. Now what has s. 13 (1) to say with respect to such a crime? Clearly enough, I should think, it does not, and was not intended to, exclude acts of this character from the scope of s. 172. To my mind it seems that in the circumstances of this case the only concern of that sub-section was with the character of the acts of the applicant which are said to have constituted the crime charged. That is to say, that it was necessary only to show that the wounding was the result of acts which were voluntary and intentional on the part of the applicant and which were done with reckless and wanton indifference to their result foreseen as a not unlikely consequence.

[17]

Although the accused's evidence was inconsistent with a statement made by him to the police on the day of the wounding when he said he had taken a snap shot at the children it was no doubt open to the jury to accept the account he gave at the trial, the substance of which is indicated by the following extracts from his evidence. "The little girl was just going over the edge of the bank when I snapped the rifle up and fired at her or towards her. I fired towards the ground - I never fired at her (Demonstrates) butt of of rifle did not reach my shoulder. That is what I mean by a snap shot. I did not aim at the girl. I didn't aim it - I just pulled the rifle up and pointed it towards the ground." "As little girl ran down embankment her chest was pretty close to level with the top of it at that stage. Just as I fired she turned round sideways towards me and looked as though she poked her tongue out." "I did not fire at the little girl - I fired towards the ground. It was probably in line with her but never at her. I took snap shot at the ground and never at her at all - it was only to scare her. By snap shot I do not mean a hurried shot in the hope of hitting - not in the circumstances no. It's hard to say if I took snap shot at the ground anywhere near the little girl. I just fired as I got over the top of the fence. The little girl poked her tongue out and she was the closest. The others were too near the tanks and I would just as likely put a hole in them if I fired towards them. The girl looked the oldest out of the four of them and I thought if I scared her and she went, well the others would go with her. I did not fire at her at all. I fired it at the ground close to her in order to frighten her. In a snap shot you don't take aim and you could not tell where the shot was likely to go. I did not fire towards the girl - towards the ground. I just up with the rifle and fired towards the ground in the general direction of the little girl." Putting upon this evidence the complexion most favourable to the accused it showed that although he did not intend to wound the girl he nevertheless deliberately fired the rifle in a manner obviously likely to wound her. His evidence did not deal with the question whether, at the time of firing "in line with" or "close to" or "towards" Pauline he foresaw that she might be hit. What he emphasized was that he did not intend to hit her, but to frighten her.

[18]

It is the obscurity of s. 13 that has given rise to the difference of opinion that is apparent between the learned trial Judge and the Judges of the Court of Criminal Appeal. His Honour directed the jury that "to be guilty of that offence" (i.e. wounding), "he must also have intended to wound Pauline" and added "I tell you that intention is the state of mind of a man who not only foresees but also desires the possible consequences of his conduct." These directions were obviously based upon the view that the application of s. 13 (1) to the circumstances of the case made it necessary that the wounding should be voluntary and intentional i.e. that the "act" there referred to was the act of wounding and not the act of shooting. The Court of Criminal Appeal took the other view and regarding the "act" as the shooting i.e. the aiming and firing of the rifle, considered that the first part of s. 13 (1) did not require the direction that the accused should not be convicted unless he intended to wound Pauline. I agree with the Court of Criminal Appeal. It seems to me that when s. 13 (1) and (3) are read together the wounding is the "event" or the "result" brought about by the "act" of shooting. This is so as a matter of construction of s. 13 itself. There are moreover other considerations to support such a reading of s. 13 (1). It is of general application and the first provision is, unlike the second, unqualified by any words such as "except as hereinafter expressly provided." It would follow therefore that if the provision were to be read as requiring that the consequence of a deliberate act must be itself intended before there could be criminal responsibility for that consequence it would only be an intentional killing that could amount to culpable homicide. The contrary however appears quite clearly from s. 156 (2) II. I consider that so soon as it appears clearly elsewhere in the Code that there may be criminal responsibility for the unintended result of an act it must follow that s. 13 cannot bear the meaning that it is the result of an act that must be intended if there is to be criminal responsibility for that result. Thus to cause the death of a child of tender years by wilfully frightening it is culpable homicide, although the child's death may have been quite unintended. Upon the accused's own story here he fired the rifle to frighten Pauline; had she died of fright he would have been properly convicted of manslaughter notwithstanding the requirement of s. 13 (1) that the "act" should be voluntary and intentional and the fact that the death would not have been either intended or foreseen as the likely result of the shooting. In such a case the "act" would have to be the shooting and I think the same is the case here. I have therefore reached the conclusion that the direction and the only direction that the first part of s. 13 (1) required in this case was that the accused could not be convicted unless the act of shooting was voluntary and intentional and the direction that was given, viz., that the wounding must have been intentional cannot be supported by that provision.

[19]

There is, however, the second part of s. 13 (1) to be considered, viz., that no person shall be criminally responsible for an event which occurs by chance. The "event" here for the purposes of this provision is clearly enough the wounding and the accused was entitled to be acquitted unless the jury were satisfied that it was not a chance wounding. His Honour the learned trial Judge having taken the view that he did of the first part of s. 13 (1) did not find it necessary to deal with the second part as a separate matter although he mentioned it; but upon the view I have taken separate consideration of this problem would have been necessary. Upon the view that the second part of the sub-section is distinct from the first the question which arises here is whether the wounding occurred by chance if it was not intended by the accused but it was obviously a likely result of what he did. It is clear, I think, that "by chance" is not the same as "unintended". If, for instance, the accused had said that although he had not intended to wound Pauline he had nevertheless foreseen the likelihood of that consequence there would have been but a flimsy basis for any suggestion that the wounding occurred by chance. It is not to be thought that the second provision of s. 13 (1) exempts from criminal responsibility a person who deliberately does an act, e.g. shooting, which has as a consequence an event, e.g. wounding, which he foresees as likely but does not actually intend in the sense of desiring that consequence. But before examining further the effect of the evidence if the question whether the wounding occurred by chance is to be determined by reference to the state of mind of the accused, it is necessary to consider the contention of the Crown that the test is not subjective and that the wounding did not occur by chance if a reasonable and prudent man would have foreseen that it was likely to occur. There may be something to be said as a matter of policy in favour of the adoption of an objective rather than a subjective standard to determine whether an event has occurred by chance in cases where that is adopted as the criterion of criminal responsibility. Moreover there is authority for the view that the general theory of criminal liability rests upon objective rather than subjective standards. See, for instance, O. W. Holmes, The Common Law pp. 75 and 76. The problem here, however, is to determine the meaning of words used in a codifying statute, and in this undertaking neither notions of policy nor general theories of criminal responsibility are of much assistance. My interpretation of s. 13 (1) is that the words "by chance" refer to the occurrence of an event that the doer of an act does not foresee as a possible consequence. The section as a whole is clearly enough concerned with the state of mind of the person doing or omitting to do something and is, in a general way, directed towards associating guilt with foreseen consequences. This is apparent from s. 13 (3) where the reference to an "unforeseen result" is clearly enough a reference to a consequence not foreseen by the person who has done an act. Furthermore, the exception in s. 13 (1) points the same way whether it is regarded as a reference to s. 13 (3) or to later provisions such as s. 156 (4) under which a person may be criminally liable for the unforeseen consequences of an act, consequences that could be regarded as occurring by chance. This conclusion, moreover, seems to me in line with what had long ago been decided in relation to the offence of "maliciously wounding" (24 and 25 Vict. c. 100 s. 20) viz., that an intention to do an injury of the kind in fact done is an element essential to liability but that whatever the doer of an act foresees as likely to result from it is within the ambit of his intention - see Kenny's Outline of Criminal Law 17th ed. (1958) pp. 192-194.

[24]

The Act creating the Code is intituled "an Act to declare, consolidate and amend the Criminal Law and to establish a Code of Criminal Law". In some places the Code states common law principles in words that have long been familiar. Other parts of it are a mere assembly of old statute law, re-enacted in its terms. Other parts modify former statute law. Others again deal with matters that were formerly dealt with by the common law, but in words that seem to alter earlier doctrine not simply to declare it. The Code uses many words and phrases that, when it was enacted, had well established meanings: and "in construing Acts of Parliament it is a general rule that words must be taken in their legal sense unless a contrary intention appears" (Commissioners for Special Purposes of Income Tax v. Pemsel [1] ). Lord Macnaghten's statement is as applicable to a criminal code as to any other enactment. Among the crimes with which the Code deals are ancient wrongs, forms of violent wrongdoing, that were among the earliest pleas of the Crown. The words used to describe them are ordinary English words. Murder, burglary, rape and robbery are ordinary words, and they are law words. They have not dictionary meanings different from their legal meanings. They describe conduct always forbidden by law. Law may define the forbidden conduct more fully and more precisely than in common speech is ordinarily necessary; but it does not define it differently. Where the Code states exactly what a particular word means it is not necessary to go outside the Code. But where it does not, legal definition must be sought elsewhere. To take an illustration - the Code defines "steal" (s. 266) and "rob" (s. 240 (3)). It does not define "maim", but that word is used in it. In ordinary speech it means a crippling injury, such as the loss of a limb. The meaning is the same for law, but the specific test by which early law distinguished mayhem from lesser injuries was by asking whether the harm would make a man less able for fighting. The test produced some strange decisions. That is an illustration of the meaning of a word in the Code being fixed by the common law. The Code also, by re-enacting in terms statutes that had introduced new offences into the criminal law, adopts the meanings that had been put upon their words by the courts. And those statutory offences had from the first been intended to take their places "in a coherent general system and to be governed by the established principles of criminal responsibility" - the words are those of Dixon J. in Thomas v. The King [2] .

[36]

The statement that no person shall be criminally responsible for an act, unless it is voluntary and intentional refers, I think, as a mere matter of construction, to an act for which, if done voluntarily and intentionally, a person would be criminally responsible. The definition of criminally responsible in s. 1 seems to confirm this construction. The "act" referred to is thus a deed that, if done wilfully and intentionally (and in cases where a specific intent is an ingredient of the crime, done with that intent), would make the doer criminally responsible. When a crime consists of a particular act done with a specific intent some theoretical difficulties can arise in the relationship of the general intent, necessary in all crime, to the specific intent that is an ingredient of the particular offence. But, so far as the Code is concerned, it need not, I think, occasion difficulty in practice. The general provisions of s. 13 (1) have always to be read in relation to any particular crime charged, and as qualified or affected by any specific intent that in that crime must accompany the doing of the criminal act or of any act that is a specific ingredient of the crime. In this case no difficulty arises. The act is unlawfully wounding. There are no other ingredients in the crime charged. The question is: was this act intentional? It would, I consider, be inconsistent with the scheme of s. 13 (1) to regard the "act" there referred to as something less than the act of wounding; for it, and nothing less, is what would, if done intentionally, give rise to criminal responsibility. It is the corpus delicti, or the actus reus if one likes that inelegant phrase. I am unable to accept the argument that on a charge of unlawfully wounding the act to which s. 13 (1) refers is some action, not of itself criminal, forming a part, as it were, of an act of wounding - some conduct short of wounding, such as pressing the trigger of a firearm. To wound a person by discharging a firearm is, of course, a complex act, involving loading the piece, cocking it, presenting it, pressing the trigger. The act, that if done voluntarily and intentionally would constitute the crime, is the whole deed whereby the bullet was caused to strike and wound. If the wounding were done by stabbing, the act referred to in s. 13 (1) could scarcely be said to be grasping the handle of the knife, raising the arm to strike, or anything less than the stabbing that produced a wound. The relevant question would not be, did the accused intend to grasp the handle or to raise his arm, but did he intend to wound. Whether the wounding was done by a weapon wielded or by a missile projected seems to me immaterial for the application of s. 13 (1) to s. 172. The word "act" is used in different senses in different parts of the Code. But in more than one place it is used, as one would expect it to be used, to describe conduct that, when the required intent be present, constitutes a crime: see e.g., s. 3 (1), s. 7 and cf. s. 2. In s. 13 (3) it appears in the context "any person who with intent to commit any offence does any act". But the word "act" is there used in a different sense from that which it has in the earlier sub-section. It is used for a different purpose. Sub-section (1) exonerates a man from responsibility for an unintentional act that, if it had been done intentionally, would itself be an offence. Sub-section (3) makes doing an act that is not itself an offence, an offence if it be done with intent to commit an offence and if it brings about an unforeseen result. That is how I read the two provisions. The argument that the "act" in s. 13 (1) means, in relation to s. 172, some action or conduct short of wounding would mean, it seems, that a person could be criminally liable if his intentional act resulted in an unintended wounding - as, for example, leaving broken glass where someone later walked and was wounded.

[37]

The contrast between the words "act" and "event" in s. 13 (1) points to a distinction between an act and its consequences. But I do not think this affects the meaning of the first limb of the sub-section. The word "event" is not used in an entirely consistent sense throughout the Code (cf. e.g. s. 2). The statement that a person is not to be responsible for an event occurring by chance, coming immediately after the statement that a person is not to be responsible for an act that he did not intend, seems natural enough. For centuries the law had related the two notions. The common law rule was that a man was not criminally responsible for an occurrence that was a pure chance, but that he was responsible for an accidental death if it arose out of his doing an unlawful act. That idea was at the root of the law concerning what Hale called "homicide per infortunium " in his chapter headed "Concerning Casualty and Misfortune, how far it excuseth in Criminals". The same idea was the basis of the old distinction between pure chance and chance-medley. It was stated by Hale in words that are apposite here: "So it is if he be doing an unlawful act, tho not intending bodily harm of any person, as throwing a stone at another's horse, if it hit a person and kill him; this is felony and homicide, and not per infortunium; for the act was voluntary, tho the event not intended; and therefore the act itself being unlawful, he is criminally guilty of the consequence, that follows": Pleas of the Crown, i, 38. So far as homicide is concerned - and originally the principle apparently related only to homicide - the common law doctrine is very largely retained by ss. 156-159 of the Code. The doctrine that began in connexion with homicide had at an early date been given a wider application in common law. It was embodied by Bacon in the maxim " In criminalibus sufficit generalis malitia intentionis cum facto paris gradus ". Doctor Glanville Williams has called it a doctrine of "transferred malice". Reg. v. Latimer [1] is an instance of its application in a case of wounding. The effect of s. 13 (3) is to retain this concept, in part at all events, in the Code. In this respect the Tasmanian Code appears to differ from the Queensland Code; and the dictum of Philp J., that under that Code the lawfulness or unlawfulness of an original act is not a criterion of criminal responsibility for its ultimate result, is not applicable. The combined effect of the exoneration from the consequences of events occurring by chance under s. 13 (1) and of the provisions of s. 13 (3) is, it seems to me, to render inapplicable in Tasmania such cases as Reg. v. Ward [2] , but to maintain criminal responsibility in circumstances such as Reg. v. Latimer [1] . However, it is not necessary in this case to determine the effect of s. 13 (3); neither is it necessary to consider all the hypothetical cases discussed during the argument. This is not a hypothetical case, and the answer to the question that it raises does not, I think, require a complete exposition of the Code. For this reason it may not really be necessary to determine what is meant by "an event that occurs by chance" in s. 13 (1). But, because of one argument that was advanced, it is as well to deal with it briefly.