Vallance v R
108 CLR 56(Decision by: Menzies J)
Between: Kevin Leslie Vallance - Applicant
And: Regina - Respondent
Judges:
Dixon CJ
Kitto J
Taylor J
Menzies JWindeyer 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)
Decision by:
Menzies J
A squabble between the accused a youth of seventeen, and four children all under the age of nine, culminated in the accused getting his father's air rifle, loading it with a slug, firing it across the fence dividing his home from the store yard of Charles Davis & Co in which the children were playing, and the hitting and wounding in the breast of Pauline Latham one of the children aged seven. The accused was thereupon charged with wounding with intent to do grievous bodily harm and alternatively with wounding. At the trial the accused gave evidence which if accepted would have warranted the conclusion that when he fired the rifle he did not intend to wound Pauline or any of the children but merely to frighten them. The jury acquitted the accused of both the offences with which he was charged and the Attorney-General by leave of the Court instituted an appeal against the acquittal on the charge of wounding. This was done pursuant to s. 401 of the Tasmanian Criminal Code which authorizes the Crown to appeal upon a question of law.
The Court of Criminal Appeal, considering that the learned trial judge had misdirected the jury by telling them that before the accused could be convicted upon the charge of wounding they would have to find that he had intended to wound the girl, allowed the appeal and directed a new trial. It is from this order that the accused seeks special leave to appeal to this Court. Before referring to the evidence it is desirable to set out not only s. 172 but s. 13 for it is the effect of this latter section that is decisive of the questions which have arisen. They are as follows:
- "172.
- Any person who unlawfully wounds or causes grievous bodily harm to any person by any means whatever is guilty of a crime. Charge: Wounding (or causing grievous bodily harm)."
- "13.(1)
- No person shall be criminally responsible for an act, unless it is voluntary and intentional; nor except as hereinafter expressly provided, for an event which occurs by chance.
- (2)
- Expect as otherwise expressly provided, no person shall be criminally responsible for an omission, unless it is intentional.
- (3)
- Any person who with intent to commit an offence does any act or makes any omission which brings about an unforeseen result which, if he had intended it, would have constituted his act or omission some other offence, shall, except as otherwise provided, incur the same criminal responsibility as if he had effected his original purpose.
- (4)
- Except where it is otherwise expressly provided, the motive by which a person is induced to do any act or make any omission is immaterial."
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 inthe 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.
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 requiringthat 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.
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 thatthe 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.
Returning now to the evidence at the trial, I think that the jury, properly directed, could while accepting the accused's evidence have found nevertheless that the wounding did not occur by chance. As I have already pointed out the evidence given by the accused did not bear directly upon whether he foresaw that in firing as he did Pauline might be hit but I consider that the knowledge commonly held that a person is likely to be hit if a rifle is fired "in line with" or "close to" or "towards" that person would be strong prima facie evidence that the accused did foresee that as a likely consequence of his shooting as he did Pauline might be wounded. There was therefore evidence upon which the jury could have convicted the accused of wounding even if they were prepared to accept the evidence that he gave that he did not intend to do so. Moreover, had the accused's evidence gone to the length that the wounding was fortuitous, the jury might well have disbelieved him.
I consider that the direction required here was that the jury should convict only if they were satisfied that the accused had fired the rifle deliberately either intending to hit Pauline or, foreseeing that as a likely consequence of firing as he did, she might be hit. The direction that was given, viz. that to convict the jury had to be satisfied that the accused fired intending to wound Pauline, was in error and cast a burden upon the Crown beyond that imposed by law.
The acquittal may well have been the result of this misdirection. I consider therefore that the order of the Court of Criminal Appeal was correct and that the application for special leave to appeal should be refused.