Vallance v R

108 CLR 56

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(Judgment by: Windeyer J)

Between: Kevin Leslie Vallance - Applicant
And: Regina - Respondent

Court:

Judges: Dixon CJ
Kitto J
Taylor J
Menzies J

Windeyer J

Subject References:
Criminal Law
Unlawful wounding
Mens rea
Whether event which occurred 'by chance'
Criminal Code (Tas)

Hearing date: 17, 20 February 1961
Judgment date: 31 July 1961

Sydney (heard in Hobart)

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Judgment by:
Windeyer J

The Tasmanian Criminal Code was established by the Criminal Code Act, 1924 as "the law of the State with respect to the several matters therein dealt with". The result of ss. 3, 4, 5 and 6 of the Act is that the criminal law of Tasmania-that is the law concerning offences there punishable on indictment-is now to be found in the Code and not in the common law or in earlier statutes. There is, however, one qualification of this, for s. 7 of the Act adds to the matters of exoneration that are expressed in the Code this:

"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".

The Act creating the Code is intituled "an Act to declare, consolidate and amend the Criminal Law and to establish a Code of Criminal Law". In some places the Code states common law principles in words that have long been familiar. Other parts ofit are a mere assembly of old statute law, re-enacted in its terms. Other parts modify former statute law. Others again deal with matters that were formerly dealt with by the common law, but in words that seem to alter earlier doctrine not simply to declare it. The Code uses many words and phrases that, when it was enacted, had well established meanings: and "in construing Acts of Parliament it is a general rule ... that words must be taken in their legal sense unless a contrary intention appears" (Commissioners for Special Purposes of Income Tax v Pemsel). ^[F2] Lord Macnaghten's statement is as applicable to a criminal code as to any other enactment.

Among the crimes with which the Code deals are ancient wrongs, forms of violent wrongdoing, that were among the earliest pleas of the Crown. The words used to describe them are ordinary English words. Murder, burglary, rape and robbery are ordinary words, and they are law words. They have not dictionary meanings different from their legal meanings. They describe conduct always forbidden by law. Law may define the forbidden conduct more fully and more precisely than in common speech is ordinarily necessary; but it does not define it differently. Where the Code states exactly what a particular word means it is not necessary to go outside the Code. But where it does not, legal definition must be sought elsewhere. To take an illustration-the Code defines "steal" (s. 266) and "rob" (s. 240 (3)). It does not define "maim", but that word is used in it. In ordinary speech it means a crippling injury, such as the loss of a limb. The meaning is the same for law, but the specific test by which early law distinguished mayhem from lesser injuries was by asking whether the harm would make a man less able for fighting. The test produced some strange decisions. That is an illustration of the meaning of a word in the Code being fixed by the common law. The Code also, by re-enacting in terms statutes that had introduced new offences into the criminal law, adopts the meanings that had been put upon their words by the courts. And those statutory offences had from the first been intended to take their places "in a coherent general system and to be governed by the established principles of criminal responsibility"-the words are those of Dixon J. in Thomas v The King. ^[F3]

It comes to this: The Code is to be read without any preconception that any particular provision has or has not altered the law. It is to be read as an enactment of the Tasmanian Parliament. And, interesting though it is to compare it with other codes, such as that of Queensland from which it is derived, or with projectedcodes such as Stephen's Code, they cannot govern its interpretation. But it was enacted when it could be said of the criminal law that it was "governed by established principles of criminal responsibility". And for that reason we cannot interpret its general provisions concerning such basic principles as if they were written on a tabula rasa, with all that used to be there removed and forgotten. Rather is ch. iv of the Code written on a palimpsest, with the old writing still discernible behind. Some parts of that chapter may be a further step towards a full acceptance of the idea that legal guilt should accord with moral blame; that a man should not be punished for something that he did not mean to do. Because of the supreme importance of homicide in early law, the law of homicide provides the most striking illustration of this development. But the tendency is general; and if the Code, properly read, confirms that development or completes it, we should not hesitate to give it its full meaning. On this, I agree with what Philp J. said in R. v Callaghan. ^[F4]

The accused was arraigned on two charges preferred in the indictment. The first count was laid under s. 170 of the Code: the particulars of this charge stated that he "with intent to do grievous bodily harm to Pauline Ann Latham or other persons did actual bodily harm to the said Pauline Ann Latham". The second count was laid under s. 172 of the Code: the particulars stated that he "unlawfully wounded Pauline Ann Latham". The words of each count are taken from the relevant section of the Code. Each section was derived from earlier statute law in force in Tasmania that had its source in English statutes.

At common law wounding was not a crime at all, unless it amounted to maiming. But in England a series of Acts, beginning with the Coventry Act, 22 & 23 Car. II c. 1, and ending, for present purposes, with s. 18 of the Offences against the Person Act, 1861, 24 & 25 Vict. c. 100, created the offence commonly called "felonious wounding". Wounding was felonious if done with intent to do grievous bodily harm, or with some other specified intent. Of this section Sir James Fitzjames Stephen said

"Its language is laborious and condensed in the highest degree, and creates twenty-four separate offences as it forbids every combination of any one of four actions with any one of six intentions": History of the Criminal Law iii, p. 117.

In Tasmania it has lost nothing in condensed complexity. Appearing now in the Code as s. 170, it makes any one of fourteen acts an offence if done with any one of the original six intentions. In the particular offence under s. 170 charged inthis case it is not necessary that the person actually harmed should be the person to whom harm was intended. But s. 170 need not be further considered, for no question now arises as to the first count. The case concerns only the second count, that under s. 172 for unlawfully wounding. I have read with much advantage and interest the very learned judgments given by their Honours in the Supreme Court. I need not go over all the ground they cover.

Section 172 is derived from English legislation that made unlawful wounding a statutory misdemeanour quite distinct from felonious wounding. Section 20 of the Offences against the Person Act, 1861, provided that:

"Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person ... shall be guilty of a misdemeanour ...".

A statute in the same terms was in force in Tasmania immediately before the Code came into operation. The word "maliciously" here means either intending to do harm of the kind in fact done, or, in some cases, acting recklessly of the risk of harm. The definition suggested by Professor Kenny was adopted by the Court of Appeal in Reg. v Cunningham. ^[F5] An acceptance of it does not necessarily mean agreement in the application of it to the facts of that case. But the word "maliciously" has been omitted from s. 172 of the Code. So that we are not to extract from it whatever element of intent or recklessness is necessary to make wounding a criminal offence under the Code. That must be found in the Code itself. It is therefore necessary to consider the effect of s. 13. If that section had not been in the Code the result would, I think, have been the same: for the idea that wholly accidental and unintended harm is not culpable is deeply imbedded in our law. However, the argument turned largely on the meaning and effect of the section. So I go to it: but first, what is meant by "unlawfully wounding"?

The meaning of "wounding" is well settled. Lord Lyndhurst in 1834 said that the "definition of a wound in criminal cases is an injury to the person, by which the skin is broken. If the skin is broken, and there was a bleeding, that is a wound": Moriarty v Brooks. ^[F6] The expression "wounding by any means whatsoever" in s. 172 is, it may be noted, a survival of words introduced into the statutory offence of felonious wounding to overcome decisions that under an earlier Act, 7 Wm. IV & 1 Vict. c. 85, s. 2, wounding had to be with some instrument. The retention of the words in s. 170 does not affect the meaning of s. 172 (Reg. v Bullock). ^[F7]

So much for "wounding". What then is "unlawfully wounding"? Although wounding was not a crime at common law, it was, from very early times, a trespass. An "aggravated species of battery", Blackstone called it: Commentaries, iii, p. 121. But not all batterys were actionable trespasses. Some were always justifiable. Examples of these, commonly given in the old books, are a constable wounding a man resisting arrest, wounding in self-defence, wounding in the course of a game with cudgels (boxing is a modern equivalent), wounding in a surgical operation and so forth: See Comyn's Digest under "Battery": Hawkins' Pleas of the Crown i. pp. 483, 484.

"Unlawful wounding" is thus a term that gets its meaning by reference to law outside the Code. The question is not whether the wounding occurred in the course of some prohibited conduct such as shooting in a town contrary to the Police Offences Act or driving at an excessive speed contrary to the traffic laws. Nor, it seems, is a wounding that occurs merely by negligence, without intent or recklessness, and for which a civil action for negligence would lie, an unlawful wounding. Wounding Pauline Latham could not have been justified as lawful. It was not something reasonably done in self-defence or in defence of property. "But", said the accused, "I did not mean to hit her. I meant only to scare her". Assuming that to be true, was he exonerated? That is the critical question.

Section 13 (1) of the Code reads:

"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".

This occurs among provisions of the Code obviously intended to have general application and to state fundamental principles of criminal responsibility. This one sentence compresses and comprehends the common law doctrine concerning mens rea. It does more than that. It supplants it. So that now, as Griffith C.J. said of a similar provision in the Queensland Code, the aim of which he well understood, "it is never necessary to have recourse to the old doctrine of mens rea": Widgee Shire Council v Bonney. ^[F8]

We may look to old expositions of that doctrine to appreciate properly the significance of the words of the Code that replace it. But, once we have ascertained the significance of those words, we must apply them literally, without any reluctance born of a knowledge of what the law once was. The Code "must be construed in its application to the facts of this case free from any glosses or interpolations derived from any expositions, however authoritative,of the law of England or of Scotland"-the language is that of the Privy Council in Wallace-Johnson v The King. ^[F9]

The first part of s. 13 (1), that dealing with intent, appears, both in its grammatical form and in its substance, as the counterpart of the common law maxim "actus non facit reum nisi mens sit rea". The second part, concerning events that occur by chance, deals with a topic that the old writers usually considered along with mens rea. I shall deal with the two parts separately, for the Code states them as separate reasons for negativing criminal responsibility. I do not overlook that they appear together in the Code-in the same sub-section-and that its language must be construed accordingly. They do, however, deal with different matters: the first with the mind of the doer of an act; the second with the probability of an occurrence.

The statement that no person shall be criminally responsible for an act, unless it is voluntary and intentional refers, I think, as a mere matter of construction, to an act for which, if done voluntarily and intentionally, a person would be criminally responsible. The definition of "criminally responsible" in s. 1 seems to confirm this construction. The "act" referred to is thus a deed that, if done wilfully and intentionally (and in cases where a specific intent is an ingredient of the crime, done with that intent), would make the doer criminally responsible.

When a crime consists of a particular act done with a specific intent some theoretical difficulties can arise in the relationship of the general intent, necessary in all crime, to the specific intent that is an ingredient of the particular offence. But, so far as the Code is concerned, it need not, I think, occasion difficulty in practice. The general provisions of s. 13 (1) have always to be read in relation to any particular crime charged, and as qualified or affected by any specific intent that in that crime must accompany the doing of the criminal act or of any act that is a specific ingredient of the crime. In this case no difficulty arises. The act is unlawfully wounding. There are no other ingredients in the crime charged.

The question is: was this act intentional? It would, I consider, be inconsistent with the scheme of s. 13 (1) to regard the "act" there referred to as something less than the act of wounding; for it, and nothing less, is what would, if done intentionally, give rise to criminal responsibility. It is the corpus delicti, or the actus reus if one likes that inelegant phrase. I am unable to accept the argument that on a charge of unlawfully wounding the act to which s. 13 (1) refers is some action, not of itself criminal, forming a part, as it were, of an act of wounding-some conduct short of wounding, such as pressing the trigger of a firearm. To wound a person by discharging a firearm is, of course, a complex act, involving loading the piece, cocking it, presenting it, pressing the trigger. The act, that if done voluntarily and intentionally would constitute the crime, is the whole deed whereby the bullet was caused to strike and wound. If the wounding were done by stabbing, the act referred to in s. 13 (1) could scarcely be said to be grasping the handle of the knife, raising the arm to strike, or anything less than the stabbing that produced a wound. The relevant question would not be, did the accused intend to grasp the handle or to raise his arm, but did he intend to wound.

Whether the wounding was done by a weapon wielded or by a missile projected seems to me immaterial for the application of s. 13 (1) to s. 172. The word "act" is used in different senses in different parts of the Code. But in more than one place it is used, as one would expect it to be used, to describe conduct that, when the required intent be present, constitutes a crime: see e.g., s. 3 (1), s. 7 and cf. s. 2. In s. 13 (3) it appears in the context "any person who with intent to commit any offence does any act". But the word "act" is there used in a different sense from that which it has in the earlier sub-section. It is used for a different purpose. Sub-section (1) exonerates a man from responsibility for an unintentional act that, if it had been done intentionally, would itself be an offence. Sub-section (3) makes doing an act that is not itself an offence, an offence if it be done with intent to commit an offence and if it brings about an unforeseen result. That is how I read the two provisions. The argument that the "act" in s. 13 (1) means, in relation to s. 172, some action or conduct short of wounding would mean, it seems, that a person could be criminally liable if his intentional act resulted in an unintended wounding-as, for example, leaving broken glass where someone later walked and was wounded.

The contrast between the words "act" and "event" in s. 13 (1) points to a distinction between an act and its consequences. But I do not think this affects the meaning of the first limb of the sub-section. The word "event" is not used in an entirely consistent sense throughout the Code (cf. e.g. s. 2). The statement that a person is not to be responsible for an event occurring by chance, coming immediately after the statement that a person is not to be responsible for an act that he did not intend, seems natural enough.

For centuries the law had related the two notions. The common law rule was that a man was not criminally responsible for an occurrence that was a pure chance, but that he was responsible for an accidental death if it arose out of his doing an unlawful act. That idea was at the root of the law concerning what Hale called "homicide per infortunium" in his chapter headed "Concerning Casualty and Misfortune, how far it excuseth in Criminals". The same idea was the basis of the old distinction between pure chance and chance-medley. It was stated by Hale in words that are apposite here:

"So it is if he be doing an unlawful act, tho not intending bodily harm of any person, as throwing a stone at another's horse, if it hit a person and kill him; this is felony and homicide, and not per infortunium; for the act was voluntary, tho the event not intended; and therefore the act itself being unlawful, he is criminally guilty of the consequence, that follows": Pleas of the Crown, i, 38.

So far as homicide is concerned-and originally the principle apparently related only to homicide-the common law doctrine is very largely retained by ss. 156-159 of the Code. The doctrine that began in connection with homicide had at an early date been given a wider application in common law. It was embodied by Bacon in the maxim "In criminalibus sufficit generalis malitia intentionis cum facto paris gradus". Doctor Glanville Williams has called it a doctrine of "transferred malice". Reg. v Latimer ^[F10] is an instance of its application in a case of wounding. The effect of s. 13 (3) is to retain this concept, in part at all events, in the Code. In this respect the Tasmanian Code appears to differ from the Queensland Code; and the dictum of Philp J., that under that Code the lawfulness or unlawfulness of an original act is not a criterion of criminal responsibility for its ultimate result, is not applicable.

The combined effect of the exoneration from the consequences of events occurring by chance under s. 13 (1) and of the provisions of s. 13 (3) is, it seems to me, to render inapplicable in Tasmania such cases as Reg. v Ward, ^[F11] but to maintain criminal responsibility in circumstances such as Reg. v Latimer. ^[F12] However, it is not necessary in this case to determine the effect of s. 13 (3); neither is it necessary to consider all the hypothetical cases discussed during the argument. This is not a hypothetical case, and the answer to the question that it raises does not, I think, require a complete exposition of the Code. For this reason it may not really be necessary to determine what is meant by "an event that occurs by chance" in s. 13 (1). But, because of one argument that was advanced, it is as well to deal with it briefly.

Section 13 (1) is an exonerating and exculpatory provision. Its purpose is thus the opposite of s. 13 (3), which is, in a sense,a qualification of it. It does not say that a person is responsible for what does not occur by chance: all that it says is that a person is not responsible for what does. This purpose, and past history, combine to show what is meant here by a chance occurrence. It is not merely an improbable or unlikely occurrence; for a man who intended to do a wrong is not to escape the consequences by saying that only by luck did he succeed in his purpose. If, for example, he, being a poor shot with a rifle, were to fire at another person a thousand yards away and hit him, it might be said to be a chance that he did so; but that would not exonerate him. If he had aimed badly, yet the bullet had struck a rock and ricocheted and wounded the intended victim, again it would not avail the shooter that only by that chance had he effected his design. The statutory provision only operates in cases where the event was not foreseen by the actor, and would not have been expected by reasonable men as an outcome of his actions.

The criminal law punishes wicked acts. It regards wickedness as, in general, depending upon the mind of the accused when he did the act charged. What a man does is often the best evidence of the purpose he had in mind. The probability that harm will result from a man's acts may be so great, and so apparent, that it compels an inference that he actually intended to do that harm. Nevertheless, intention is a state of mind. The circumstances and probable consequences of a man's act are no more than evidence of his intention. For this reason this Court has often said that it is misleading to speak of a man being presumed always to intend the natural and probable consequences of his acts. And this, I do not doubt, is so.

Because intent is a state of mind, it becomes necessary to ask what is that state of mind; what for the purposes of the criminal law is comprehended in the idea of an intentional act. Under the law apart from the Code, an accused would be guilty of unlawfully wounding if his actual purpose was to inflict a wound: he would also be guilty if, without any actual purpose to wound anyone, but foreseeing that what he was about to do was likely to cause a wound to someone, he yet went on to do it. The common law treats what was done recklessly, in that way, as if it had been done with actual intent. It says that a man, who actually realizes what must be, or very probably will be, the consequence of what he does, does it intending that consequence. The word "intentional" in the Code carries, I think, these concepts of the common law. I therefore do not read s. 13 as altering these principles. It is, I may add, in my view undesirable to insist upon desire of consequence as an element in intention. There is a risk of introducingan emotional ingredient into an intellectual concept. A man may seek to produce a result while regretting the need to do so.

Before parting with the question of intent and recklessness, I would observe that the expressions "subjective test" and "objective test" that were used in the argument, and which have recently come somewhat into favour, are, I think, unfortunate. A man's own intention is for him a subjective state, just as are his sensations of pleasure or of pain. But the state of another man's mind, or of his digestion, is an objective fact. When it has to be proved, it is to be proved in the same way as other objective facts are proved. A jury must consider the whole of the evidence relevant to it as a fact in issue. If an accused gives evidence of what his intentions were, the jury must weigh his testimony along with whatever inference as to his intentions can be drawn from his conduct or from other relevant facts. References to a "subjective test" could lead to an idea that the evidence of an accused man as to his intent is more credible than his evidence of other matters. It is not: he may or may not be believed by the jury. Whatever he says, they may be able to conclude from the whole of the evidence that beyond doubt he had a guilty mind and a guilty purpose. But always the questions are what did he in fact know, foresee, expect, intend.

With these matters in mind, I have carefully read the summing up of the learned trial judge. I do not think that, considered as a whole, it contains any error so serious as to make it proper to put the applicant on trial again. I would, therefore, have been ready to give leave to appeal and allow the appeal. But I appreciate the reasons that the Chief Justice gives for the course he proposes, and I agree in it.