Vallance v R
108 CLR 56(Judgment by: Taylor J)
Between: Kevin Leslie Vallance - Applicant
And: Regina - Respondent
Judges:
Dixon CJ
Kitto J
Taylor JMenzies 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:
Taylor J
Chapter IV of the Code of Criminal Law (Tas.) contains several sections dealing in a general way with criminal responsibility. According to its definition in the Code "criminally responsible" means liable to punishment as for an offence and that expression is used in the provision with which we are immediately concerned. That provision is sub-s. (1) of s. 13 and it provides that no person shall be criminally responsible for an act, unless it is voluntary and intentional; nor, except as thereinafter expressly provided, for an event which occurs by chance. These words seem clear enough but in the circumstances of this case they have given rise to arguments which illustrate some of the difficulties which attend the application of the provision to a great many of thespecific provisions which follow in the body of the Code.
In this case the charge with which we are concerned is that of wounding (s. 172) and the contention of the applicant is that the provisions of s. 13 (1) make it incumbent for the Crown, upon an indictment for that offence, to establish the existence of an intent to wound. On the other hand, the Crown contends that the sub-section must be taken to be concerned only with the physical acts of the applicant which, in the end, brought about the wounding. The point of divergence between the two submissions is, perhaps, better expressed by saying that one asserts that it must be shown that the physical acts of the applicant were accompanied by an intent to wound whilst the other asserts that it is sufficient if it be shown that the wounding was the result of physical acts intentionally performed even though unaccompanied by a specific intent to wound.
In endeavouring to solve the problem in the present case it is, I think, necessary to commence with an examination of s. 172 itself and to identify what it is which that section purports to make punishable as a crime. The crime, of course, is that of unlawful wounding and the question is whether that expression is to be taken to comprehend only a wounding which, in the language of s. 13 (1), can be said to have been "voluntary and intentional", or, whether the content of the crime should be ascertained first of all and without regard to the effect, if any, of the provisions of that sub-section. For my part, I think it is necessary to follow the latter course because until we know what "unlawful wounding" means upon the true construction of s. 172 we are unable to identify the character of the act, or crime, with which, in this particular case, s. 13 (1) must be taken to be concerned.
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.
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 meaningof 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.
Two other matters remain to be mentioned. The first is that the fact that the weapon which the applicant used was fired in breach of a provision of the Local Government Act was quite irrelevant since the only question of unlawfulness which arose for the jury's consideration was whether the wounding itself was unlawful. The second is that, although I am of the opinion that there was a misdirection at the trial, I agree entirely with the concluding observations of the Chief Justice.