Vallance v R
108 CLR 56(Judgment by: Dixon CJ)
Between: Kevin Leslie Vallance - Applicant
And: Regina - Respondent
Judges:
Dixon CJKitto J
Taylor J
Menzies J
Windeyer J
Subject References:
Criminal Law
Unlawful wounding
Mens rea
Whether event which occurred 'by chance'
Criminal Code (Tas)
Judgment date: 31 July 1961
Sydney (heard in Hobart)
Judgment by:
Dixon CJ
This is an application for special leave to appeal from an order of the Full Court of the Supreme Court of Tasmania sitting as a Court of Criminal Appeal. The order set aside a verdict of acquittal for misdirection or non-direction and directed a new trial upon one count in an indictment. In Tasmania the Attorney-General may appeal on a question of law against an acquittal, if he obtains the leave of the Court of Criminal Appeal to do so or the certificate of the court at the trial that it is a fit case for appeal: s. 401. The condition was fulfilled: for the Court of Criminal Appeal gave leave before allowing the appeal. The point of law concerned the correctness of a direction to the jury as to the place occupied by intention on the part of the accused on a charge of unlawful wounding. The question turns on the provisions of the Tasmanian Criminal Code which appears to yield no ready or clear answer. In a letter written by Sir Frederick Pollock to O. W. Holmes about the time when the archetype of this Code had been brought forward by its author, Sir James Fitzjames Stephen, Pollock says that he admits
"that the consideration of case-law as a pure science tends to make one look on codes as a kind of brutal interference with the natural process of legal reason" (Holmes-Pollock Letters i: p. 7, 21 July 1877).
Surprised as one may be at the use even at that date of the words "pure science" with reference to case-law, an examination of the Code, in an attempt to answer what might have been supposed one of the simplest problems of the criminal law, leaves no doubt that little help can be found in any natural process of legal reason. The difficulty may lie in the use in the introductory part of the Code of wide abstract statements of principle about criminal responsibility framed rather to satisfy the analytical conscience of an Austinian jurist than to tell a judge at a criminal trial what he ought to do. It may lie in that because it is followed by many chapters defining particular crimes more often than not in terms adopted long before as occasion demanded by a legislature introducing a new crime or crimes into a common law system, and prone to the use of definitions of a somewhat practical or earthy kind.
In the Code these abstractions of doctrine are not the generalized deductions from the particular instances that follow: they come ab extra and speak upon the footing that they will restrain the operation of what follows. But whatever be the explanation a not very serious and somewhat commonplace incident has resulted in very learned and full examinations of the Code by the three judges of the Court of Criminal Appeal and an application to this Court for special leave to appeal therefrom which has caused us no little difficulty.
The incident grew out of some childish warfare between three young children and a youth of seventeen years of age. It was a Sunday morning and the scene was a vacant allotment in Campbell Street, Hobart. On the allotment which was used as a scrap yard there were some galvanized iron tanks. Four children from six to eight years of age, two of them boys and two of them girls, were there banging the tanks and making a great deal of noise. The youth, Kevin Leslie Vallance by name, the now applicant, lived in a house next the allotment and happened to be alone inside. He came to the fence and ordered the children to go away. In response they began to throw stones at him. He seems to have replied by throwing stones at them. At length he went inside and returned with an air-gun belonging to his father, a somewhat heavy air-gun. This he fired over the fence into the allotment. A pellet or slug hit one of the girls: it penetrated her breast about half an inch and meeting a rib glanced along it for perhaps two or three inches. The child was taken to hospital but the wound did not prove serious.
For this the youth Vallancewas tried before Green J. on an indictment containing two counts: he was acquitted. The first count was framed under s. 170 which requires an intent to do, among other alternatives, actual bodily harm. The Crown did not seek to impeach his acquittal upon that count. But the second count was under s. 172 which provides that any person who unlawfully wounds or causes grievous bodily harm to any person by any means whatever is guilty of a crime. The offence charged under this section was unlawfully wounding the girl. Upon this count the learned judge directed the jury that they must be satisfied that in firing the rifle the youth's intention was to wound the girl. He reminded them that it was not a crime if the event occurred by chance, a reference to s. 13 (1) of the Code which he had read to the jury. Vallance gave evidence on his own behalf. The general effect of what he said was that he did not fire at the girl or towards her but towards the ground in her general direction; he did it to frighten her. Section 172 is derived from 24 & 25 Vict. c. 100, s. 20, of the United Kingdom which however required that the wounding should be done "unlawfully and maliciously". This meant that there must be an intention, but the intention is not necessarily the wounding of the particular man (Reg. v Latimer): [F1]
"if the harm done be of the kind intended, this is sufficient; even though it is produced in some degree or in some manner or upon some subject that was not intended".
Kenny, Outlines of Criminal Law ch. x:
"... in law it is clear that the word 'intention' like the word 'malice' covers all consequences whatever which the doer of an act foresees as likely to result from it, whether he does the act with an actual desire of producing them or only in recklessness as to whether they ensue or not".
The removal of the word "maliciously" from the provision when it was redrafted for the Code was natural enough. Few words have caused more trouble both at common law and in the interpretation of statutes where it occurs; and its use would be foreign to the technique of a codifier. But is s. 172 to be read in the Code as doing no more by way of defining the crime than stating the external elements necessary to form the crime, that is to say the wounding or the causing of grievous bodily harm, and adding the requirement of unlawfulness relying upon the introductory Part or so much of it as deals with criminal responsibility to define and import the elements which go to intention or other state of mind necessary or sufficient completely to constitute the crime? That seems to be the primary question.
When therefore s. 13 (1) says that no person shall be criminally responsible, that is liable to punishment as for an offence, for an act unless it is voluntary and intentional it appears to me to be saying negatively that there shall be no guilt unless all acts of the accused forming the ingredients of the crime are voluntary and intentional. It is the punishable act or acts to which the words appear to me to refer. In the case of unlawful wounding the punishable act is the wounding. In s. 172 the words "by any means" occur: they have an historical explanation but little present significance.
However, they will serve to make the point. It is not enough to say the "means" used, or perhaps one should saythe use of the means, under s. 13 (1) must be voluntary and intentional and that the wounding need not. The wounding is the crime, the punishable act, and it is the wounding which must be voluntary and intentional. I regret that I find myself unable to avoid this reading of the words of s. 13 (1) because I find that there is such a weight of judicial opinion to the contrary. In its application to s. 172 it means that the wounding must be intentional. But in s. 13 (1) I do not read the word "intentional" as bearing a meaning which requires that the end must be positively desired. I take it in the sense explained by Sir Courtney Kenny, an explanation he gave when he published his book in 1902. He contrasts it with the more ordinary use of the word which excludes a result that a man does not desire but foresees as likely, one the risk of which he runs possibly with regret. The requirement of voluntariness I presume may be ignored: it relates to forms of actual or presumed coercion or duress and is not relevant.
But the view I have expressed means that the direction by Green J. which is complained of was too favourable to Vallance because the jury were not informed that it was enough if in firing the air-gun he fired towards the girl foreseeing or adverting to the likelihood of the pellet wounding her but heedless of such a consequence. Indeed a contrary direction was given. The view I have expressed as to the insufficiency or incorrectness of the direction does not widely differ in result from that taken in the Court of Criminal Appeal although that view was reached there in an entirely different way, namely by means of the later words of s. 13 (1), viz.
"nor ... for an event which occurs by chance."
I think that this somewhat difficult phrase covers events which the person who might otherwise be criminally responsible neither intended nor foresaw as possible results of his conduct: they must too be fortuitous in the sense that no one would reasonably expect them to occur as a consequence of that conduct. I say so much with hesitation because I do not think it wise to go further in expounding the meaning and operation of this very elusive and difficult sub-section when it combines with a specific offence defined in terms which neglect or ignore the possibility of some mental element forming an ingredient in the offence. I have found no light in sub-s. (3) and I have abstained from discussing it. Indeed I think that it is only by specific solutions of particular difficulties raised by the precise facts of given cases that the operation of such provisions as s. 13 can be worked out judicially. This may mean a relapse into the methods of case-law to which Pollock referred and which doubtless Stephen hoped to supersede. If so all that can be said is that Stephen did not draw s. 13 or include such a provisionin his draft.
The question remains what ought to be done about this case? Sitting as a Court of Criminal Appeal I think that I should have let the verdict of acquittal stand on the ground that the departure in the learned judge's direction to the jury from what I considered the true position was not on the whole case a probable explanation of the verdict of the jury. I confess that an appeal under s. 401 by the Crown against an acquittal strikes me as standing on a different footing from an appeal against conviction. It is evident that the policy which guided the legislature was rather concern in the operation of the criminal law than of correcting verdicts of acquittal to which the Crown objected. It seems inappropriate that Vallance should now be tried again.
I notice that the grounds of appeal assigned by the Crown do not cover the exact direction which in the Full Court was considered to have been required. However to grant special leave to appeal only because we think it would have been better to refuse a new trial on discretionary grounds is hardly in accordance with the principles by which this Court is guided in exercising its jurisdiction to intervene in special cases. After all the Crown is under no duty to proceed any further in this case, having regard particularly to the view the jury seem to have taken of the conduct of Vallance. It follows that the order of this Court should be simply application for special leave to appeal dismissed.