R v. Willmot (No 2)
[1985] 2 QdR 413(Decision by: Connolly J)
v
Judges:
DM Campbell J
Connolly JMoynihan J
Subject References:
Criminal law
Murder
Intention to cause death or grievous bodily harm
Meaning of 'intention'
Legislative References:
The Criminal Code - section 302(1)
Judgment date: 25 June 1985
Decision by:
Connolly J
I agree in the order proposed by my brother D. M. Campbell and in his Honour's reasons which I have had the advantage of reading.
It may be that problem which has arisen in this case derives from an assumption that s. 302 of The Criminal Code was intended as no more than a restatement of the common law. It cannot be too strongly emphasized that where the construction of the Code is involved the point of departure must be the Code itself. The proposition cannot be better stated than in the language of Gibbs J., as he then was, in Stuart v. The Queen (1974) 134 C.L.R. 426 at p. 437:
"The correct approach to the interpretation of a section of the Code is that stated by Dixon and Evatt JJ. in Brennan v. The King (1936) 55 C.L.R. 253 , at p. 263, as follows:
'. . . it forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law.
It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered.'
This passage does not mean that it is never necessary to resort to the common law for the purpose of aiding in the construction of the Code - it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground: see Robinson v. Canadian Pacific Railway Co. [1892] A.C. 481 , at p. 487, cited in R. v. Scarth [1945] St.R.Qd. 38, at p. 44. If the Code is to be thought of as 'written on a palimpsest, with the old writing still discernible behind' (to use the expressive metaphor of Windeyer J. in Vallance v. The Queen (1961) 108 C.L.R. 56 , at p. 76), it should be remembered that the first duty of the interpreter of its provisions is to look at the current text rather than at the old writing which has been erased: if the former is clear, the latter is of no relevance."
The mental element which must be proved when a case of murder goes to the jury under s. 302(1) is intention to cause death or to do grievous bodily harm. The ordinary and natural meaning of the word "intends" is to mean, to have in mind. Relevant definitions in The Shorter Oxford English Dictionary show that what is involved is the directing of the mind, having a purpose or design. The notion of desire is not involved as the learned judge rightly held. A person may do something, fully intending to do it, although he does not in the least desire to do it.
Now there is, in my judgment, no ambiguity about the expression as used in s. 302(1) and it is not only unnecessary but undesirable, in charging a jury, to set about explaining an ordinary and well understood word in the English language. It is a truism that it is the Code itself which speaks and that it is, with respect, wrong in principle to gloss it.
It must be accepted that there is a difference in the formulation of murder at common law and in s. 302(1) although there may be little difference in substance. The common law formulation will be found, for Australia, in The Queen v. Crabbe (1985) 59 A.L.J.R. 417. It is unlawful homicide with malice aforethought: and malice aforethought means intention to cause death or grievous bodily harm or knowledge that it is probable that death or grievous bodily harm will result. Knowledge of the probability of death or grievous bodily harm is not an element of s. 302(1), although, if established, it leads almost inevitably to the conclusion that death or grievous bodily harm was intended. In Crabbe at p. 419, the former state of mind was described as comparable with the relevant intention. It was doubtless this consideration which led certain of the law lords in Hyam v.
Director of Public Prosecutions [1975] A.C. 55 to the view that the two states of mind are the same. In Queensland the mental element is intention to cause death or grievous bodily harm. It is what the High Court in Crabbe at p. 419, after stating Stephen's formulation, referred to as "actual intent".
In charging the jury elaboration or paraphrase of what is meant by intent should be avoided: Reg. v. Moloney [1985] 2 W.L.R. 648 at p. 664. The jury should of course be told in appropriate cases that intention is not the same as motive or desire. They should also be told that they are to decide whether the intention is established on the whole of the evidence. Thus, in this case, the appellant denied having formed any intention to kill. But it was clearly open to the jury to conclude that the cruel death which this young woman suffered must have been and in fact was intended by him.
Should there be direct evidence of the accused's awareness that death or grievous bodily harm was a probable result of his act, they may properly be directed that if they accept that evidence, it is open to them to infer from it that he intended to kill or do grievous bodily harm as the case may be.
I should mention that the summing up was supported by reference to R. v. Lockwood: ex parte Attorney-General [1981] Qd.R. 209. The court was there concerned with the offence of wilfully destroying or damaging property which is the subject of s. 469 of the Code. The meaning given to the word "wilfully" was not dissimilar from that which the learned trial judge here gave to the word "intends" in s. 302(1). The decision in Lockwood is obviously not a binding authority on the construction of s. 302(1) but much of the reasoning is based on the common law on the one hand and on the decision of the High Court in Vallance v. The Queen (1961) 108 C.L.R. 56 on the other. Resort to the common law was justifiable on the view that the word "wilfully" should be considered a word of doubtful import. As for Vallance, its application in Queensland has always been regarded as difficult. It must be remembered that the High Court was concerned with s. 13(1) of the Tasmanian Criminal Code which provides that no person shall be criminally responsible for an act unless it is voluntary and intentional. It is obvious that unless an extended meaning be given to the word "intentional" in that provision, criminal responsibility would be severely limited. There is in my opinion no warrant for extrapolating the reasoning in Lockwood beyond the problem which the court was there facing, namely the meaning to be attributed to the word "wilfully" in the Code. In particular it does not accord with principle to seek to extend it to provisions in which the word "intent" or its derivatives are to be found.