Criminal Law (Tas.)—Murder—Reckless indifference to consequences—Knowledge of possibility of death—Action "likely to cause death"—Whether accused "ought to have known"—Whether hostile intent required—Criminal Code (Tas.), s. 157.
Decisions
GIBBS C.J.: I have had the advantage of reading in draft the judgment which has been prepared by Mason, Wilson and Deane JJ. Subject to the matters mentioned hereunder, I am in respectful agreement with what their Honours have said.
2. The first ground which was argued on behalf of the applicant was that the learned trial judge misdirected the jury as to the meaning of the expression "likely to cause death" in s.157(1)(b) and 157(1)(c) of the Criminal Code Act 1924 (Tas.), as amended. In the course of discussing the effect of s.157(1)(b) his Honour said:
"The expression 'likely to cause her death' is another of these somewhat generalised expressions in the English language which most of us understand perfectly well, but would not (sic) find it difficult to define exactly. However, if something is likely to happen, there is a good chance that it will happen. It is something that may well happen. You might say about it 'It may not happen, but there is a good chance that it will.' It's likely to happen. Well, if he intended to cause her bodily harm within the meaning of that definition, was it bodily harm which he knew was likely to cause her death in the circumstances? That, of course, involves his knowledge about what carotid artery pressure involved, what the possibilities of it were, what the nature of the act and its consequences were."
A little later his Honour continued:
"Was what he intended bodily harm within the meaning of that expression? If it was, was it bodily harm which he knew. That means which he in his own mind knew was likely to cause her death in the circumstances. Was it likely to cause her death in the circumstances? That depends on the medical evidence, no doubt."
He gave no direction in relation to the same words in s.157(1)(c), but the jury were entitled to regard the direction as to the effect of par.(b) as applying to par.(c) also.
3. As Mason, Wilson and Deane JJ. have pointed out, this Court, in Reg. v. Crabbe (1985) 59 ALJR 417; 58 ALR 417 treated the words "likely" and "probable" as synonomous. The same view had earlier been expressed by the Supreme Court of South Australia in Reg. v. Hallett (1969) SASR 141, at p 153. In both those cases the Court was concerned to consider what mental element was necessary at common law to constitute the crime of murder. That question does not arise in the present case, and it is unnecessary to discuss whether anything that was said in Crabbe requires reconsideration in the light of the judgments of the House of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Boughey v the Queen [1986] HCA 29
Case
[1986] HCA 29
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from a conviction for murder. The appellant, Mrs Boughey, was convicted of the murder of her husband, Mr Boughey. The central dispute concerned the appellant's mental state at the time of the killing and whether it amounted to a defence of provocation.
The High Court was required to determine whether the trial judge had adequately directed the jury on the defence of provocation, particularly in relation to the subjective and objective elements of the defence. Specifically, the court considered whether the jury had been properly instructed that they must be satisfied that the provocation was such as would have led an ordinary person to have lost self-control, and that the accused did in fact lose self-control. The court also considered whether the defence of provocation could apply where the deceased's conduct was not directed at the accused.
The High Court held that the trial judge's directions were inadequate. The court explained that provocation requires that the act of provocation must be such as to cause an ordinary person to lose self-control, and that the accused must have actually lost self-control. Furthermore, the court clarified that the conduct constituting provocation must be directed towards the accused, or at least be something that the accused perceives as being directed at them. The jury must be satisfied of both the subjective and objective elements of provocation.
The High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.