Vallance v R
108 CLR 56(Judgment by: Kitto J)
Between: Kevin Leslie Vallance - Applicant
And: Regina - Respondent
Judges:
Dixon CJ
Kitto JTaylor 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:
Kitto J
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.
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 meaningthat 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.
The jury returned a verdict of not guilty. On an application by the Attorney-General under s. 401 (2) of the Code, however, the Court of Criminal Appeal ordered a new trial, being of opinion that the first of the directions abovementioned was erroneous in law and was, notwithstanding the second direction, unduly favourable to the applicant. From the order so made, the applicant seeks special leave to appeal to this Court. The question involved depends upon the meaning to be given to certain provisions of the Code, particularly the provision in s. 172 which makes the unlawful wounding of a person a crime, and a provision in s. 13 (1) that
"No person shall be criminally responsible for an act, unless it is voluntary and intentional; nor, except as hereinafter provided, for an event which occurs by chance".
It is a question to be decided with due regard to s. 2 of the Act, enacting the Code as "the law of this State with respect to the several matters therein dealt with". It must be considered as a problem in statutory construction, and not otherwise.
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 astate 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.
Then, is there any other provision of the Code which makes such a desire a sine qua non of the crime of unlawfully wounding? None is to be found unless it be in s. 13 (1), the provision upon which the learned trial judge founded his direction. The sub-section contains two limbs. I would put aside the first, the provision that no person shall be criminally responsible for an act unless it be voluntary and intentional, because I interpret the word "act" as the learned judges of the Court of Criminal Appeal interpreted it. They understood it to refer to the physical action of the person charged, and so not to extend, in its application to s. 172, to all that is comprised in the notion of wounding. In my opinion, s. 13 (1) is framed with a recognition that there is a distinction to be drawn between, on the one hand, a bodily action performed by a person, entailing criminal responsibility either per se or in virtue of some quality of the action, some consequence caused by it (cf. s. 153 (2)), some accompanying intent or state of mind (cf. s. 12), and, on the other hand, something eventuating in consequence of the action and attracting a criminal responsibility which the action otherwise would not have produced.
When s. 13 (1) speaks of an act being voluntary and intentional, before turning to the event and speaking of that as not occurring by chance, it seems to me to be addressing itself only to the question whether a person charged acted of his own free will and by decision, before asking whether that which eventuated from his act was a merely chance result. The first limb of the sub-section I regard, therefore, as having no bearing on thepresent discussion, there being no suggestion on the part of the applicant that he fired the gun either involuntarily or unintentionally. All he sets up, in effect, is that the injury to the girl was no part of that which he wanted to bring about by firing the gun.
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.
Accordingly I am of opinion that the direction given by the learned trial judge was erroneous, and that the jury should have been told that even if not satisfied that the applicant desired to injure the girl, indeed even if satisfied that he did not desire toinjure her, they should nevertheless convict him if satisfied (to the requisite standard) that he foresaw a possibility, not negligible, of the girl's being injured, and chose, in his desire to frighten her, to subject her to the risk.
I have given consideration to the question whether the Court of Criminal Appeal was right in deciding to order a second trial. If a direction to the jury along correct lines would not have been likely to make any difference in the result, a new trial ought not to be had. It may be that at the first trial the jury would not have convicted the applicant, whatever direction they had been given; for they may have thought that what the applicant had already undergone was punishment enough for an act of folly, done in a fit of temper which the girl and her companions had deliberately provoked, and done by a mere youth, with no actual desire to injure the girl, and perhaps even with a considerable confidence that aiming at the ground he would not hit her. But such a view of the case, though it may appeal to the Executive in deciding whether to avail itself of the order for a new trial, was not one which the jury could properly have acted upon; and after reading the evidence which the applicant himself gave at the trial I have a strong impression that the misdirection may very well account for the verdict. After all, the applicant's account of the incident plainly amounted to an admission that although he was aware when he fired the gun that he was doing a dangerous thing he decided to subject the girl to the risk for the sake of the fright it would give her. In my opinion the Court of Criminal Appeal made the proper order in this case, and it should be left to the Executive to proceed or refrain from proceeding with the new trial, as it thinks proper in the circumstances.
Accordingly, I would refuse special leave.