R v. Willmot (No 2)

[1985] 2 QdR 413

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(Decision by: DM Campbell J)

v

Court:

Judges:
DM Campbell JConnolly J
Moynihan 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)

Hearing date: 3 June 1985
Judgment date: 25 June 1985

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Decision by:
DM Campbell J

It is unfortunate that this trial should have miscarried as the facts spoke largely for themselves and the only issue was intent.

The appellant was convicted after a four-day-trial of the murder of Jennifer Rachel Everson on June 5 last year. He has appealed against his conviction on the ground that the learned trial judge misdirected the jury in relation to intention as an element of murder under s. 302(1) of The Criminal Code.

Subsection (1) provides (so far as material) that -

"a person who unlawfully kills another under any of the following circumstances, that is to say -

(i) If the offender intends to cause the death of the person killed or to do the person killed some grievous bodily harm:

is guilty of murder."

The facts which were not in dispute are as follows.

At about 9.30 a.m. on Wednesday, June 6, Constable Cahill of the Nundah Police Station found the deceased lying face down on a bed in the main bedroom of a unit which she occupied in a block of units at 129 Milton Road.

Both her hands and one leg were tied to the bed supports and she had a gag in her mouth made up of a T-shirt secured by a length of pantyhose. A cord was knotted around her neck. There were abrasions on the bony rim of the pelvis and on the right side of the hip. In addition to injuries to her neck, she had injuries to her forehead and face. The upper part of her body was bare and the lower part was covered by a bedspread.

Constable Cahill had gone to the unit as a result of a phone call from the deceased's sister, Deborah Willmot, who is the wife of the appellant, Bruce Henry Willmot. A post mortem established that the deceased had died from asphyxia caused by the mouth gag and ligature.

Sergeant Burton of Yangan Police Station was called to the scene of an accident on the Cunningham Highway, Gladfield, at 2.20 a.m. on June 6: his wife's sister is married to the appellant's brother. The accident involved a Mitsubishi Colt sedan driven by the appellant and a semi-trailer. It came to Sergeant Burton's knowledge that the car the appellant was driving was owned by Jennifer Rachel Everson. About the time the deceased's body was discovered in her unit, he questioned the appellant at the Warwick Base Hospital as to how it had come about that he was driving her car.

The appellant made admissions implicating himself in his sister-in-law's death in a record of interview taken by Detective Senior Constable Mair at the Warwick Police Station the following day. In the course of questioning he had this to say:

"I went there with the intention of having sex with her. She let me in and we had a cup of coffee and I asked her if her mother had got away all right and she said as far as she knew she had. We talked about how I was going with my car. I asked her if she would like to go to bed with me. She asked, 'Why?', and I said, 'Because I'd like to'. She said, 'No, because I was married to her sister and that she knew that I loved her'. I think she said, 'You'd better go'. We got up and we started to walk down the hall and I thought I'd try one more time. I tried to kiss her and she started to struggle and I just did my block.

She kept struggling and I grabbed her by the throat. We somehow ended up on the floor. She screamed and I just absolutely panicked. I hit her and I hit her head against the floor. She became semi-conscious and I then pulled her into her bedroom. She started to struggle again and tried to cry out and I think I shoved a pair of nickers in her mouth and somehow tied them there.

She was still struggling and I put my hand around her neck and choked her.

She stopped struggling. I tried her down and I was tempted to have her even then but there was no way. She came to again. She tried to get off the bed.

There was some sort of white belt lying on the floor and I grabbed it and choked her with it.

For some reason I cleaned up the blood in the hall, grabbed her car keys from the bedroom, grabbed some money out of her piggy bank and fled. At that stage I don't know whether she was still breathing or not."

His version of the events given in evidence during the trial was not materially different except on one point. That was on the point as to whether he was tempted to have sexual relations with her after he tied her down. The evidence he gave as to that was as follows: -

"Why did you take her into the bedroom? - At that time I still entertained the thought of having sex with her, but after I got her in there and looked at what I had done I just couldn't bring myself to -

Was it at that stage that you completely gave up the idea? - Completely.

And then you put the gag in her mouth? - Yes.

And then you did something with your hands around her there? - Yes.

And then you tied a belt around her neck? - Yes."

He was then asked by his counsel about his intention. The passage reads:

"When you were doing those things what were you trying to do? - I don't know really what I was trying to do.

Were you trying to kill her? - No, I wasn't - consciously, no.

Do you accept that you did cause her death? - I have accepted that."

When cross-examined, he maintained that things just "snowballed" and he baldly asserted that he neither wanted to kill the deceased nor intended to kill her.

Before the addresses began counsel for the accused, relying on a passage in the speech of Lord Hailsham L.C. in Hyam v. Director of Public Prosecutions [1975] A.C. 55 at p. 74, argued that there was a distinction which should be pointed out to the jury in the summing-up between desiring a result and foreseeing it as likely to happen. Counsel submitted that it was only where a person desired the stated result to ensue that he could be held to come within s. 302(1). Having rightly ruled that the end need not be positively desired to bring the subsection into operation, the trial judge intimated that the question he would ask the jury to address themselves to was whether the accused realised that what he was doing was likely to endanger her life or cause permanent injury to her health. The direction he subsequently gave them was to that effect. It appears that the jury discussed the meaning of the word "intent" during their retirement. After being out overnight their foreman asked the judge for clarification of the actual meaning of the word. His Honour is reported as directing them that they were concerned with the existence of a state of mind on the part of the accused "in which he realises that what he is doing 'may' likely lead to death of the person to whom he is doing it or, if not to her death, then to her suffering grievous bodily harm". He is reported as saying next,

"Now, the point on which you must concentrate then is determining as best you can whether or not at the time the accused did these things and, in particular, at the time at which he stuffed the pants down her mouth and tied them into her face, the accused realised that what he was doing 'might' or was likely to endanger her life or cause grievous bodily harm being done to her". The jury retired again and returned in 40 minutes' time with a verdict of guilty of murder.

Even if it were expedient to explain intent for the benefit of the jury as involving an awareness of consequences, the directions given in this case read as a whole were confusing and contradictory. Conceivably, some members of the jury could have acted under the impression that all they had to be satisfied of was that the appellant foresaw the outcome of his conduct as a possibility. In Hyam's case, the direction which Their Lordships considered sufficient was, "If you are satisfied that when the accused set fire to the house she knew that it was highly probable that this would cause death or serious bodily harm then the prosecution will have established the necessary intent". The balance of opinion was in favour of the view that the element of intention in murder was established if the jury were satisfied that the accused apprehended that the risk of the stated consequence occurring was highly probable. The case did not decide, as the headnote in the Law Reports may suggest, that it was enough if the consequence was apprehended to be probable. Lord Hailsham regarded only consequences foreseen as a moral certainly as intended.

Since the present appeal was argued, the report of the decision of the House of Lords in Reg. v. Moloney [1985] 2 W.L.R. 648 has been received.

There the trial judge had given the following direction on intent taken from Archbold Criminal Pleading Evidence & Practice 40th ed. (1979) para. 1441a, p. 948:

"When the law requires that something must be proved to have been done with a particular intent it means this: a man intends the consequence of his voluntary act (a) when he desires it to happen, whether or not he foresees that it will probably happen: and (b) where he foresees that it will probably happen, whether he desires it or not."

On the facts of the case the House decided that a verdict of guilty of murder was unsafe and unsatisfactory, and directed that a verdict of man-slaughter be substituted. However, because of the differences of opinion in Hyam, it was thought desirable to give some guidance to judges when directing juries as to the mental element in the crime of murder. Lord Bridge with whom there was no dissent stated that the definition of intent in the passage quoted from Archbold was potentially misleading, and that the facts of the cases, on which it was based, rather suggested to him that the probability of the consequence taken to have been foreseen must be little short of overwhelming. His Lordship went on, at p. 664:

"The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury's good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding."

More particularly he said:

"Even where the death results indirectly from the act of the accused, I believe the cases that will call for a direction by reference to foresight of consequences will be of extremely rare occurrence."

In Moloney the accused had been committed for trial on a charge of manslaughter: but the indictment preferred against him charged him with murder, and a plea of guilty of manslaughter, which was tendered by the accused, was not accepted by the Crown in discharge of the indictment.

Manslaughter was regarded by the House as a proper plea in the circumstances, and for that reason a verdict of manslaughter was substituted for that of murder. Such a course would be difficult to justify in the present case and, unfortunate as it is, I am of the opinion that the appeal should be allowed and the conviction quashed and a new trial ordered.