Coleman v The Queen

[1991] HCATrans 57

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S67 of 1990

B e t w e e n -

GRAHAM JOHN COLEMAN

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J
DAWSON J

GAUDRON J

Coleman 1 5/3/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 MARCH 1991, AT 10.16 AM

Copyright in the High Court of Australia

MR G.R. JAMES, QC:  May it please the Court, in that matter

I appear for the applicant with my learned friend,

MR S.J. ODGERS. (instructed by Maria F. Lynch)

MR R.N. HOWIE, QC:  I appear with my learned friend,

MR R.A. HERPS, for the respondent Crown.

(instructed by S.E. O'Connor, Solicitor for Public

Prosecutions)

MASON CJ:	Mr James.
MR JAMES:	Your Honours, we have made available our outline

of argument and perhaps I should hand up eight

copies of that outline.

MASON CJ: Yes, thank you.

MR JAMES:  Your Honours, dealing with the first matter, the

meaning of "malice", malice both at common law and

as a statutory concept has received considerable

attention particularly in the United Kingdom. That

attention has not resolved many of the difficulties

associated with that concept, particularly in that
aspect of it which is sometimes referred to as

recklessness.

Probably the best illustration that I could

give to the Court of the lines of thought

concerning that concept in modern times is to be

found in Reg v Spratt, (1990) 1 WLR 1073, in which

the Court of Appeal considered the English position
in relation to recklessness malice in respect of
the offences against the Person Act of 1861. In

that decision the Court of Appeal considered both

Reg v Venna and Reg v Cunningham. It was

Cunningham that has led to the modern tide of

thought concerning the nature of malice.

If I might take the Court, simply using that

case as an illustration, to page 1077G:

It is plain, therefore, that recklessness

in the Cunningham sense means that the accused

has foreseen that harm may be done and yet has gone on to take the risk. Mr Arlidge does not
suggest that in this type of offence

recklessness in the Caldwell sense has any

application.

Their Honours then go on to consider recklessness

under section 47. If I can take Your Honours then

to page 1078B where Their Honours say:

"Recklessness" was there defined in a

manner consistent with that in Reg v

Cunningham -

Coleman 2 5/3/91

that is, advertence to the consequences of the Act,

and there is a reference there to Reg v Venna and

Their Honours set out in that judgment the passage from the summing up in Venna at pages 427 to 428 in the passage cited:

"If he lashes out with his feet, knowing that there are officers about him and knowing that

by lashing out he will probably or is likely

to kick somebody or hurt his hand by banging

his heel down on it, then he is equally guilty

of the offence. Venna can therefore be guilty
of the offence in count 3 of the indictment if

he deliberately brought his foot down on

Police Constable Spencer's hand or if he lashed out simply reckless as to who was

there, not caring an iota as to whether he

kicked somebody or brought his heel down on

his hands."

Giving the judgment of -

on appeal Lord Justice James referred to the

direction and referred to the recklessness

sufficient to support the charge citing Cunningham

in the passage that immediately follows and

thereafter examines Bradshaw considering that

question of recklessness and intent. At page 1078H

His Honour, in the cited passage, says:

We see no reason in logic or in law why a person who recklessly applies physical force

to the person of another should be outside the

criminal law of assault. In many cases the

dividing line between intention and

recklessness is barely distinguishable. This

is such a case. In our judgment the direction

was right in law and this ground of appeal

fails.

Their Honours go on to consider the Caldwell

test which, as is pointed out in this decision is

notoriously difficult to apply in the United

Kingdom. They go on to consider Majeswski and what

Lord Elwyn-Jones the Lord Chancellor had to say about Reg v Venna, at pp 474-475 -

in Majewski, in the passage appearing at page 1079D

to H. At point H, Their Honours point out:

There is no suggestion there

that is in Majewski -

or elsewhere in the speeches in the House of

criticism of the decision in Reg v Venna.

Coleman 3 5/3/91

Their Honours then move on to the decision in

Caldwell, dealing with the Criminal Damage Act,

damage to property. In the passage that appears at

the bottom of page 1079 is set out the relevant

sections of the Criminal Damage Act.

Lord Diplock's speech is cited at page 1080B

and at page 1080D, he refers to the passage from

Professor Kenny which is referred to in Cunningham.

That is, that:

'In any statutory definition of a crime,

malice must be taken ... as requiring either (1)

an actual intention to do the particular kind

of harm that in fact was done; or (2)

recklessness as to whether such harm should

occur or not (i.e. the accused has foreseen

that the particular kind of harm might be done

and yet has gone on to take the risk of it).'

As is pointed out by Mr Justice Hunt in the instant case, the word "might" occurs continuously in the older judgments. Indeed, the passage in Venna, the

summing up of the trial judge, appears to be the

trial judge directing the jury, amongst other

things, as to the significance of the word "might".

Lord Diplock continues in the passage at points E

and onwards:

"My Lords, in this passage

Professor Kenny was engaged in defining for

the benefit of students the meaning of

'malice' as a term of art in criminal law. To

do so he used ordinary English words in their

popular meaning. Among the words he used was
'recklessness', the noun derived from the

adjective 'reckless', of which the popular or

dictionary meaning is: careless, regardless,
or heedless, of the possible harmful

consequences of one's acts. It presupposes

that if thought were given to the matter by

the doer before the act was done, it would	have been apparent to him that there was a
real risk of its having the relevant harmful consequences; but, granted this, recklessness
covers a whole range of states of mind from
failing to give any thought at all to whether
or not there is any risk of those harmful
consequences, to recognising the existence of
the risk and nevertheless deciding to ignore it. Conscious of this imprecision in the popular meaning of recklessness as descriptive of a state of mind, Professor Kenny, in the
passage quoted, was, as it seems to me, at
pains to indicate by the words in brackets the particular species within the genus reckless
states of mind that constituted· (malice' in

Coleman 4 5/3/91

criminal law. This parenthetical restriction

on the natural meaning of recklessness was

necessary to an explanation of the meaning of

the adverb 'maliciously' when used as a term

of art in the description of an offence under
the Malicious Damage Act 1861 (which was the

matter in point in Reg v Cunningham .... . but it

was not directed to an consequently has no

bearing on the meaning of the adjective

'reckless' in section 1 of the Criminal Damage

Act 1971. To use it for that purpose can, in

my view, only be misleading.

Lord Diplock propounded what has become known as the Caldwell test in these terms, at

page 354:

"In my opinion, a person charged with an

offence under section 1(1) of the Criminal

Damage Act 1971 is 'reckless as to whether any

such property would be destroyed or damaged'

if (1) he does an act which in fact creates an

obvious risk that property will be destroyed

or damaged and (2) when he does the act he

either has not given any thought to the

possibility of there being any such risk or

has recognised that there was some risk
involved and has nonetheless gone on to do it.

Your Honours will note that there is reference there to possibility and in Venna the reference was

to probability.

That would be a proper direction to the jury;

cases in the Court of Appeal which held
otherwise should be regarded as overruled.

Lord Diplock then turned to Reg v Venna at page 355:

"The speech of Lord Elwin-Jones L.C. in Reg v Majewski, with which Lord Simon of Glaisdale,

Lord Kilbrandon and I agreed, is authority

that self-induced intoxication is no defence

to a crime in which recklessness is enough to

constitute the necessary mens rea.

And there is thereafter discussion of what was
dealt with by this Court in O'Connor's case arising

from Majewski as to intoxication. But I should draw Your Honours attention to the provision in

section 2.08(2) of the American Model Penal Code,

that is:

'When recklessness establishes an element of

the offence, if the actor, due to self-induced

intoxication, is unaware of a risk of which he

Coleman 5/3/91

would have been aware had he been sober, such

unawareness is immaterial.'

And Their Honours continue after that cited

passage:

It is plain from this passage that Reg

v Venna, far from having been overruled by the

House of Lords in Reg v Majewski or for that

matter in Reg v Caldwell, has been approved by

it.

And Their Honours go on to discuss Lawrence which was a dangerous driving case and Seymour where

there was a plea to occasioning death by reckless
driving, in driving circumstances and the adequacy

of that direction, that is the recognition that

some risk was involved but had nevertheless

proceeded to take that risk, and the cited passage

from Lord Roskill is to be found between letters C

and Don page 1082.

My Lords, I would accept the submission of
Mr Hamilton for the Crown that once it is

shown that the two offences co-exist it would

be quite wrong to give the adjective
'reckless' or the adverb 'recklessly' a

different meaning according to whether the

statutory or the common law offence is

charged. 'Reckless' should today be given the

same meaning in relation to all offences which

involve 'recklessness' as one of the elements

unless Parliament has otherwise ordained.

Their Honours go on to discuss the history

and, in particular, in the context of the Act of

1861 and modern Acts of Parliament and the various

cases and conclude that portion of the discussion

with the words:

However, the history of the

interpretation of the Act of 1861 shows that,

whether or not the word "maliciously" appears

in the section in question, the courts have

consistently held that the mens rea of every

type of offence against the person covers both

actual intent and recklessness, in the sense

of taking the risk of harm ensuing with

foresight that it might happen.

He cites Ward, Bradshaw, Cunningham and Venna.

Hence, according to judicial interpretation of

the Act of 1861, these are all instances where

Parliament "has otherwise ordained".

Coleman 6 5/3/91

Discussing the sentence that appeared above,

Their Honours go on to say it-

seems to us to be obiter. In any event we

cannot believe that by the use of those words

their Lordships intended to cast any doubt

either upon the decision in Reg v Cunningham

or, more importantly for present purposes,

upon the decision in Reg v Venna which was

approved by the House of Lords in Majewski and

Caldwell.

Finally, Mr Arlidge argues that while

Reg v Venna says that Cunningham recklessness

will amount to guilt under section 47, it does

not say that nothing else will do. In other

words, it is now possible to add on failure to

give thought to the possibility of risk as

also qualifying for guilt. We do not accept

that interpretation of the decision in

Reg v Venna. Moreover, we are not attracted

by what would be the consequence of accepting

Mr Arlidge's argument, namely that

responsibility for the offence of assault

occasioning actual bodily harm (in respect of

which Parliament used neither the word

"maliciously" nor "recklessly") would be wider

than for the offence of unlawful wounding (in
respect of which Parliament used the word

"maliciously") .

I should mention in passing, Your Honours, that it

was unlawful wounding which was the offence that

occasioned the bringing of O'Connor to this Court.

Accordingly, we consider ourselves bound by Venna. It follows that the basis upon

which the appellant pleaded guilty does not

amount to an offence in law. His appeal

against conviction on count 2 must, therefore,

be allowed and his conviction quashed.

We should, however, mention Director of

Public Prosecutions v K, in which a boy was

charged with assault occasioning actual bodily

harm, but the magistrates dismissed the

charge. The Divisional Court, applying the

Caldwell test, allowed the appeal and remitted

the case to the magistrates with a direction
to convict. However, the point advanced in

the present case was never taken before the

Divisional Court and they were not referred to

Cunningham or Venna. In consequence, that

case was, in our judgment, wrongly decided.

Your Honours, New South Wales, when it came to

the enactment of the predecessors to the present

Coleman 5/3/91

Crimes Act, relying upon the report of the Royal

Commissioners, provided in section 7 of the

Criminal Law Consolidation Act, which is to be

found at page 7 of the Criminal Law Manual, the

predecessor to the present section 5 of the New

South Wales Crimes Act. That provided that:

Every act done of malice, whether against

an individual or any corporate body or number

of individuals, or done without malice but
with indifference to human life or suffering,
or with intent to injure some person or
persons, or corporate body, in property or
otherwise, and in any such case without lawful

cause or excuse, or done recklessly or

wantonly, shall be taken to have been done

maliciously, within the meaning of this Act,

and of every indictment and charge where

malice is by law an ingredient in the crime.

That provision was enacted at a time at which there was some considerable controversy about the nature of the concept of malice and its utility which led

to Sir Samuel Griffith, when dealing with this

question, to point out in the letter - which can be

found in Carter's Criminal Law of Queensland,

seventh edition, at page 89 in the notes to

section 23 at 23.1 - of 29 October 1987 to

Sir Samuel eschewing:

the use of the terms 'malice' and

'maliciously' -

as he pointed out to the Attorney General -

which have come to acquire a technical

meaning, quite different from that which they

bear in ordinary language, and of which the

use is, I think, as unnecessary as under these

circumstances it is misleading. I will refer

later to the use of the term 'malice' in

connection with homicide.	When used with
respect to injuries to the person or property
the act in question voluntarily (that is, not accidentally) and knowing what he was doing. it means no more than that the offender did set out in section 25 (s 23 of the Code as
enacted) render it unnecessary to express
these elements in the definition of an offence. In the case of injuries to the person, unless an intention to cause a
specific result is expressly made an element
of the offence, actual knowledge of the
probable effect of the act is immaterial.
With regard, however, to property, an act done
not accidentally, but without any intention to

Coleman 8 5/3/91

cause injury, is ordinarily not punishable as

an offence. The existence of the element of

intention to do injury in this case is better

expressed by the word 'wilfully', which has

accordingly been used in that connection for

that purpose, but the use of which elsewhere

in its signification of 'not accidentally' is,
in view of the rules mentioned, superfluous.

In some cases, where the nature of an offence

is such as to involve the element of

deliberation, the word 'advisedly' (used in

the Act 37 Geo 3 c 70, relating to inciting to

mutiny), has been adopted to express that

idea."

BRENNAN J: That is the problem, is it not, when dealing

with these English cases, that they do not really

make the distinction which Sir Samuel Griffith made

between voluntariness in the doing of an act and a

specific intent to cause a result?

MR JAMES: Yes, Your Honour. Indeed, Your Honour, when one

comes to look at Vallance, one is led into a Code

analysis of act, consequence and event in relation

to intention. Indeed, Your Honour in Heh Kaw Teh

did refer to the intentional elements or the mental

elements accompanying various kinds of crime for

the purpose of examining how far the presumption of

a mental element went.

On our list of authorities, we have in Part B

referred to a great many of the English cases

concerning the test of malice in homicide for the

purposes of the Homicide Act 1957, such cases as

Hancock, Maloney, Nedrick, Frankland and so forth.

It can be seen there that in the United Kingdom, at least as far as homicide is concerned, thinking has

advanced to the point where now advertence to the

consequences that would be obvious or that a

reasonable man might apprehend, is a step on the

way - and evidentiary step - towards the reasoning
which allows one to define whether the particular

accused did have the relevant intention.

Now, the problem that is presented, however,

in New South Wales is that given this provision and

given offences which range from minor offences to

some of the most major offences deserving of the

most severe penalties under our Act, and putting

aside murder, perhaps, for the moment, this Court

is reserved in the matter of Royale in which this

question was touched upon in argument, one has a

definition which uses these words "malice" and

"recklessly" and "wantonly".

We do obtain some assistance as to what was

intended thereby from what we would submit is an

Coleman 9 5/3/91

ambiguous passage in the notes by the learned

authors, the Law Reform Commissioner and the

draftsman. That appears at page 7:

The term malice, as interpreted by the Courts,

has two different meanings; one being actual

malice or malice in fact, and the other

implied or constructive malice, which is

"malice in law". In reference to Murder, the

malice must be aforethought - but this also

may be implied. In cases of Defamation, oral

or written, malice is a necessary ingredient;

but, if the slander be without some cause or

excuse recognized by law, malice is implied.

What however is a malicious injury, within the

meaning of the Malicious Injuries statues? Or
what is a malicious wounding, within the

meaning of the statutes relating to Offences

against the Person? As to the latter, Ward's

case -

that is, the Ward's case that was cited in Spratt -

decided that wounding by a merely careless but

unlawful act, without intention to wound, was

malicious. And, as to the former, there is a

provision that malice towards any person need

not be proved. but, with that exception, if

it can be so called, there seems to have been

no legislative declaration as to the sense in

which the word malice, malicious, or

maliciously, occurring in an enactment, is
used therein. Section 7 supplies the

deficiency, with respect to all acts described

as malicious, or as having been done

maliciously, and made offences or subjected to

punishment, by this statute. It uses the word

malice in its proper, and ordinary -

we would emphasize the words "and ordinary" -

and only legitimate acceptation, and then

expands its application for the purposes of

the Act.

Your Honours, our short submission in relation to that section is that thereby the draftsmen were

not seeking to have malicious or maliciously for
the purposes of the Act include unconscious acts,

inadvertent acts, careless acts, heedless acts as

such. They were referring to recklessly in the

sense in which it should be understood as a

definition of malice, that is to say, not simply as

though malice equalsf recklessness but as though

malice equals that aspect of recklessness which

requires advertence to the prescribed degree to the

given consequence. That is, reckless has all these

Coleman 10 5/3/91

shades of meaning but when it is to be considered

in relation to the definition of a word which, both
in common and ordinary parlance, requires

advertence at the least to a consequence, then

reckless is being used in that sense.

BRENNAN J:  What do you say about indifference?

MR JAMES: Indifference certainly requires some advertence

to consequences and the particular consequences are

defined, indifference to human life which has been

interpreted in New South Wales and, I think, in

this Court as meaning a disregard of the

probability of death and human suffering - a

disregard, one would take it, of the probability of

suffering.

Now, recklessly or wantonly, in our

submission, does expand what is there but expands

what is there only so far as to still require

advertence to consequences. Indeed, it may well be

that recklessly and wantonly is really there since

the word "maliciously" is used in relation to

offences against property as well as against the

person particularly to pick up what is referred to

in Spratt as the distinction between offences

against the person and offences against property.

BRENNAN J:  Has indifference been construed to mean a

conscious animate version to the consequence?

MR JAMES: Spratt does, Your Honour, pick that up in that

way. We use Spratt as an illustration of the range

of problems that the simple direction that was

given in this case can well present. And, indeed,

we can go so far as to say in the two places in
which malice is left, in South Australia where

common law malice is left and New South Wales where

reliance is placed upon section 5 as it now is, the

Courts of Criminal Appeal have, on occasions, in

Smith's case in New South Wales and Blevins in

South Australia, indicated to trial judges they

should not leave any branch of the definition based

on recklessly or wantonly because of the risk of

confusion that it will engender within a jury and

the difficulties of explanation.

DAWSON J: Could I just see where you get to the

section 5 - - -

MR JAMES:	I am sorry, Your Honour.
DAWSON J:	- - - apart from the cases, Mr James. Where

malice first occurs in section 5, every act done of

malice, does that include recklessness of any sort?

MR JAMES:  No, Your Honour.

Coleman 11 5/3/91

DAWSON J: For instance, in the Turner sense, that malice

either means intention or recklessness in the sense

that the accused adverted to the possibility that

something might happen and nevertheless went ahead?

MR JAMES:  No, Your Honour, our submission is that every

act done of malice where it first occurs is

explained in this way; it is the use of the word

"malice" in its proper and ordinary and only

legitimate acceptation, that is an intention to

cause the consequence.

DAWSON J:  Professor Kenny says that is not so. Of course,

you do not accept that, that malice includes both

intention and a certain sort, anyway, of

recklessness.

MR JAMES:  No, Your Honour, we do accept Professor Kenny.

If one was dealing with common law malice solely

without this construction based in and around its

concepts - - -

DAWSON J:  I am just trying to find out what you say. Do

you say malice where it first appears in the

section means common law malice?

MR JAMES:  Yes, but common law malice only in the actual

malice sense, not common law malice in an implied,

constructive or building on it by adding in

recklessness.

DAWSON J:  Well, you would have to establish that common

law malice means that because there is authority to

the contrary, will you not?

MR JAMES:  Your Honour, we do not disagree that common law

malice - - -

DAWSON J:  Just let us see where you are getting first of

all. You say that the word "malice" where it first

appears means common law malice, and common law

malice does not extend beyond intention?

MR JAMES:  Your Honour, I should rephrase that. We say

that the word "malice" where it first appears means

that aspect of common law malice defined by the

draftsman as:

malice in its proper, and ordinary and only

legitimate acceptation -

that is to say - - -

DAWSON J:  Where does that appear?

MR JAMES: That is the last three lines of the note to

section 7, in the Criminal Law Manual, and that

Coleman 12 5/3/91

what the draftsman has done, when one looks at the

whole of that note, is to distinguish between

actual malice or malice in fact the way in which

people popularly or ordinarily use the word

"malice", being part of the common law definition

of malice, from all the incrustations - - -

DAWSON J:  All right. So by "malice" is meant nothing more

than intention?

MR JAMES:	Intention, yes, Your Honour.
DAWSON J:	Right. Well, now we know where we are, that

"malice" where it first appears is merely

intention, and then the rest of the section

extrapolates that - adds to it, rather than

extrapolates.

MR JAMES:	It expands on it.
DAWSON J:	And adds recklessness as a concept bringing it

within - - -

MR JAMES:  Yes, but not - Your Honour, we say that what it

sought to do is to start with the seed and add to

that seed a number of other concepts which are to

reflect those acceptable aspects of common law

malice, but that it was not intended to enact such

a far reaching definition as to have the

consequence of maliciously simply meaning, for

instance, carelessly, which it would never have,

either popularly or otherwise, and not so far as to

mean simple advertence to possibilities, and as to

that we, of course, rely on the decision of

this Court in Crabb which, whilst it was concerned
with malice aforethought, was particularly

concerned with what was malice within the

definition of malice aforethought.

BRENNAN J:  That was clearly a case of specific intent.

MR JAMES:  Yes, Your Honour.

BRENNAN J:  How do you apply that to this case?

MR JAMES:  Your Honour, what complicated this case was the question of intoxication. Now, the factual case

was run on the basis that he did not have the

capacity to form whatever intent was necessary to

commit the crime, as is pointed out by the Court of

Criminal Appeal, but that was run -

BRENNAN J:  What do you say that intent was?

MR JAMES: In our written submissions, Your Honour, we say

either that it was an intent to inflict actual

bodily harm and an intent to have sexual

Coleman 13 5/3/91

intercourse; or that with an intent to have sexual

intercourse he realized, he knew that it was

probable that actual bodily harm would be inflicted

by the acts that he was intending to do, and he

went ahead anyway.

BRENNAN J:	So it is a result intent that you predicate?
MR JAMES:	Yes, Your Honour.

BRENNAN J: Well now, is there anything to suggest that that

is the state of mind that is necessary for this?

Why is it not sufficient that there was just a

carelessness about human suffering?

MR JAMES:	Your Honour, carelessness about human suffering was never put at the trial at all, and was indeed
not even adverted to by the Court of Criminal
Appeal.

BRENNAN J: Well, putting it in terms of recklessness that

there was a failure to advert to what was a

manifest risk.

MR JAMES:  Your Honour, in our submission, indifference to

human suffering is a higher test than carelessness

as to human suffering, that that itself requires advertence to the probability of human suffering just as reckless indifference to human life

requires that advertence, in our submission, under

section 18 when dealing with murder in New South

Wales.

Could I take Your Honours to Storey which may

be of some assistance? Storey is a New South Wales

decision involving arson which was traditionally an

offence of malice, and I should point out in
passing that some of the cases involving sexual

offences, particularly those that turn on

advertence to the question of consent, would be of

no assistance to the Court either at common law or

by statute in New South Wales because at common law

rape was not a crime of malice, although it was a

crime which might supply the malice for the

purposes of murder/felony under section 18, at

least in so far the decision of this Court goes in

Mraz.

DAWSON J: Just before you go to that, what was the sexual

intercourse which was alleged to be intended here?

MR JAMES: It apparently was a different sexual intercourse

to that involved in the second count.

DAWSON J: Well, to the extended definition of the use of

the bottle or something?

Coleman 14 5/3/91

MR JAMES:  The use of the bottle to penetrate the anus,

Your Honour.

The story, Your Honours, involved two fires

within a gaol lit by a prisoner who was charged

with the offence of maliciously setting fire to the

building. The question of malice arose because of

whether the fire was set for the purpose of setting

light to a body of material in order to seek to be

seen as heroic in putting out the material and,

thus, possibly obtaining some remission of
sentence, and the second question involved was,

whether there was some intent that the building

itself be set on fire.

The Chief Justice dissented but he examines

the aspect of malice commencing at page 284 in the

report which is to be found at (1985) 19 A Crim R,
and he dealt with the way in which the case had

been put at page 284 and at page 285 says this in

the first paragraph commencing after the citation

from the summing up:

It was suggested in argument that this

direction on malice was inadequate in that

His Honour ought to have developed further the

concept of recklessness and also ought to have

examined further with the jury the element of the appellant's intention. These suggestions

do not appear to have significant weight. The

direction on malice was in itself free of any error and it was accepted by counsel as being

adequate. I reiterate that, as His Honour

noted, no issue regarding malice had in fact

been litigated. This in itself diminished the

extent of the development that it was

necessary or desirable for the trial judge to

embark upon. The complaint, however, as

developed in argument, was that His Honour

omitted to differentiate between the two fires

in relation to the necessary element of

malice.	I see little practical merit in that
complaint in the light of the matters to which

I have already referred.

He goes on to deal with the question of how the matter was put in the passage that appears shortly

below:

What His Honour said in this regard, and I

quote:

"the short question 'Has the Crown proved

beyond reasonable doubt that the hand of the

accused lit either or both of the fires'. If

his hand did light either fire, then you would

have little difficulty, I suggest, in

Coleman 15 5/3/91

concluding beyond reasonable doubt that he

maliciously lit it and that he was guilty."

The passage to which His Honour had been adverting commences at the bottom of page 284 and commences

at the top of page 285 and that passage is:

" ... you might well think that if the accused

did light the fire his action in doing so

would obviously have been malicious and the

contrary has not been put to you. In order to

prove malice on his part at the time when the

fire was lit, assuming that he lit it, the

Crown must prove either that he intentionally

lit it intending to cause injury to the
inhabitants without lawful excuse ... or that he
did so recklessly or wantonly, foreseeing that
to light the material which the Crown says he

did light would lead to probable damage by

fire and that, being indifferent to that

likely consequence, he nonetheless went ahead

and lit it. Well, I repeat that here you will

probably think the relevant requirement for

malice, assuming the accused has been proved

to have lit the fire, is an intention that

injury should be caused to the building,

because obviously in that situation, if he is
proved to have lit it, his actions would be

eloquent of his intention."

The relevant portion of the summing up that

His Honour goes on to deal with, at the bottom of page 285, deals also with this question of

foreseeing the probable damage by fire and

His Honour continues in the discussion through to

page 286 and it appears that His Honour is dealing

with it on the basis of intention to cause the
damage to the building and the requirement of
advertence to the probability for the purposes of

recklessness.

Mr Justice Priestley and Mr Justice Roden were

of the view, when looking at the question of

malice, that His Honour had fallen into error in
relation to the two fire question and at page 289
were dealing with the question of malice.

Mr Justice Priestley deals with the question of

malice in the passage that commences at point 5 on

that page; that is:

the appellant's acting "maliciously" may only
have been so within the meaning of the word in

that section which would be, if filled out by

s 5 of the Crimes Act (for the usefulness of

which section see Mraz and Ryan) an intent,

indifference, recklessness or wantonness

directed to setting fire to the things in the

Coleman 16 5/3/91

room and not to setting fire to the building

itself.

Which is why, in answer to Mr Justice Brennan's

question, I adverted to it being the ultimate

result.

No reference was made to this possibility in the trial judge's summing up. The submission recognised that the passage in the summing up

that I have set out above would have been

sufficient in regard to the library fire; the

part of the directions which dealt most

clearly with this aspect, which for

convenience I again set out:

" ... - or that he did so recklessly or

wantonly, foreseeing that to light the

material which the Crown says he did light

would lead to probable damage by fire -

and the question is, of course, damage to the

building rather than damage to things -

and that, being indifferent to that likely

consequence, he nonetheless went ahead and lit

it, II

would be appropriate when the evidence was

that material was stacked up in the way I

shall subsequently mention. But in regard to

the smaller fire, it was submitted the

direction was insufficient because

recklessness, etc could just as easily lead to

no more than damage of the material (also to

be subsequently mentioned) set fire to as to

damage to the building.

His Honour went on at page 290 to refer to the

degree of intent or recklessness and examined

Pemble in that regard. Since the cases referred to

at 290 to 291 there have been a number of other

examinations of recklessness, particularly in

relation to the crime of murder.

His Honour, at page 293, deals with the

question, he having reached the view there was an

error, as to whether an alternative verdict might

be found and also turns to the necessity for the
precise direction and the jury's function in that

regard at page 294 in the cited passage from

Ross v R, which is, of course, that passage

referring to the necessity for trial by jury rather

than trial by judge.

Their Honours were of the view in that case

that the error was of a sufficiently basic nature

Coleman 17 5/3/91

to warrant the granting of leave under rule 4, that

it was not a case for the application of a proviso

turning on the inevitability test as referred to in

Driscoll and that in those circumstances that

aspect of the appeal should be upheld.

His Honour Mr Justice Roden similarly examined

the problem and refers to both the existing

section 5 and the consequences of the direction at

page 300 where section 5 is set out and His Honour

says this in relation to the proposition that mere

carelessness is sufficient - immediately following

the passage from section 5 set out:

Construed literally, that section appears to

provide that any requirement in the Act that

something be done maliciously, is satisfied if

it is established that that thing is done

"with intent to injure some person ... in

property ... or recklessly ... ", irrespective of

whether the property injury intended or

foreseen bears any relationship to the kind of

harm constituting the relevant offence. This

is contrary to the common law concept of
malice, which requires that the intent or
recklessness be related to the particular kind

of harm that was in fact done and which

constitutes the offence charged.

His Honour refers to Cunningham and the citation of

the passages from Kenny's Outlines of Criminal Law,
the history or the subsequent history of which are
traced by His Honour Mr Justice Hunt in the present

case in the judgment of the Court of Criminal

Appeal.

However section 5 of the Crimes Act be

construed, it seems to me unacceptable for an intention to do unrelated property damage, or recklessness as to the possibility of such

damage, to constitute "malice" for the

purpose, for example, of a charge of malicious

wounding. And I find it difficult to accept

the proposition that the malice necessary to support a charge of maliciously setting fire

to a building, can be found in an intent or

recklessness which does not go beyond fire

damage to some papers or books. If the

position be that, in the light of the
provisions of section 5, the word

"maliciously" in section 199 has to be read so

that foresight as to the possibility of any

property damage is sufficient, then I would

still regard section 199 as being subject to a

common law requirement that mens rea be

established; and such mens rea in my view

would necessarily involve either intention or

Coleman 18 5/3/91

recklessness (involving foresight) as to the

building catching fire.

DAWSON J:  How is that relevant to what we are considering

here?

MR JAMES: It is, Your Honour, because it is necessary for

the purpose of construction of section 5 to look at

what is intended to be meant by "recklessly" or

"wantonly" and this is one aspect of it picking up

not only the Cunningham question but the

relationship between the recklessly and the concept

of malice. Indeed, His Honour even goes on to look

at Mowatt which was an "eloquence" of the own acts

case and the distinction between malice in

the - - -

DAWSON J:  I thought His Honour was there dealing with

whether the property damage which was concerned had

to have some relevance to the eventual crime?

MR JAMES:  And to the intent, Your Honour, specifically to

the intent with which the crime was preferred.

DAWSON J: That has got nothing to do with what we are

dealing with here, has it?

MR JAMES:  And also he was dealing, Your Honour, with - - -

DAWSON J: Are we not concerned with here whether

recklessness involves probability or possibility?

MR JAMES:  We are, but recklessness

DAWSON J: Well, how does that help us in that regard?

MR JAMES:	It does not help directly on that, Your Honour.
DAWSON J:	How does it help indirectly?
MR JAMES:	Because it enables us to try and ascertain the meaning of a section which really has occasioned
great problems in the criminal law in New South
Wales.
DAWSON J:	I have no doubt this is a great problem, but it

is not the problem we have.

MR JAMES:  Your Honour, accepting what Your Honour says, the

section is redolent with problems - - -

DAWSON J:  I accept that point.

MR JAMES: Indeed, Victoria has gone so far as I understand

recently to attempt to avoid the term "maliciously"

when defining offences as much as possible; but

the simple point we make is, once we. have a concept

Coleman 19 5/3/91

of "reckless" in conjunction with an element of

"malicious" then there is no sufficient reason for

saying that that recklessness, unless there be

statutory indication clearly to the contrary,

should not involve the same sort of considerations

that the Court adverted to when dealing with the

common law concept of malice in Crabbe and in those

circumstances recklessness, we would submit, was
properly defined as it was in Venna and properly

defined in injuries to the person, at the very

least, as the Court would define "malice

recklessness" in Crabbe, that is - - -

BRENNAN J:  Mr James, if we apply that approach to this

case, we faced with the fact that the jury found
beyond reasonable doubt that the accused realized

the possibility of injury.

MR JAMES:	Yes, Your Honour.
BRENNAN J:	Now, what was the evidence which could have

supported that? The circumstances of the crime,

one would have thought.

MR JAMES:  No, Your Honour, the whole evidence of what the

accused did came from the victim on both counts,
that is the count on which the accused was
acquitted and the account on which the accused was
convicted. Indeed, the victim gave a most graphic
account of how the applicant performed on him the
acts the subject of the count of which the
applicant was acquitted. In addition, however, on

the first count there was evidence of blunt trauma

to the area of the anus and that was quite capable

of corroborating the evidence of the victim on that

count. However, of course, it being an overall

count exercise, that has a remarkable credibility

boosting aspect for the totality of the victim's

account.

The defence, however, was, in effect, blind

drunk and the defence case, in so far as it tended

to concentrate on evidence of incapacity, sought to

lead that evidence of incapacity on the basis of

negating the elements the Crown had to prove. Now,

the question of the degree of advertence of a
person charged with an offence of malicious injury

to the person, in the light of the circumstances of

great alcohol ingestion is, in our submission,

peculiarly a question for the jury with a proper

direction as to the degree of advertence

appropriate to make out the offence at law and a

proper direction on what effects intoxication may

have on the actual existence of the relevant

intentional state and, in our submission, it is peculiarly a matter where, if there has been an error, that would be within the jury province.

Coleman 5/3/91

If there has been - and this leads on to the

second aspect of the argument - a misdirection

where the evidence indicates there has been the

effects of alcohol to such a degree, then the

difference between possibility and probability is

no slim, thin line for lawyers or the bench, it is

a question properly entrusted to a jury.

BRENNAN J: It is a question of realization of a possibility

as distinct from realization of a probability.

MR JAMES:  Yes, Your Honour.

BRENNAN J: Here the jury finds, in the light of all that

evidence, that the accused realized that by doing

what he did there was a possibility.

MR JAMES:  But· they did so, Your Honour, in the light of a

misdirection as to the effects of alcohol.

BRENNAN J: But that is what they found.

MR JAMES:  Yes, but there is an interrelation between the

two grounds here. If the jury had found that there was a realization of the possibility, unaffected by

any misdirection concerning the difference between

capacity and actual intent, then it may well be we

would not be here. But this case does raise,

because of the vitiating effect of alcohol, in our
submission, the necessity and, we hope, the

opportunity for this Court to examine what are the appropriate intentional states covered by the word

"maliciously'' in New South Wales as appropriate to

injuries against the person when the Crown relies

on a recklessness branch of malice.

We also seek to raise the second question of

whether it is appropriate in the event that there

has been a misdirection as to the effect of

intoxication on the formation of intent for the

Court of Criminal Appeal to apply the proviso when

it appears that, in doing so, it may well have

estimated the weight of the evidence concerning the

effects of the alcohol for itself and sought to

rely on an evidentiary presumption from the nature

of the very acts performed.

The act itself was bizarre on almost any view.

It might well have been intentional and deliberate.

It might well have been with advertence to

probability but its bizarre nature, coupled with the quantity of alcohol involved, and admittedly involved, and the expert evidence on the effects of

the alcohol and Mr Scott's account and the

applicant's account, are such as to propose a real

issue for the jury such as, in our submission, to

make it an error to apply the proviso.

Coleman 21 5/3/91

I must say, of course, that it was not the proviso applied, in effect - it was not the proviso

alone that created the problem because rule 4 of

the Criminal Appeal Rules created the problem that

since the point had not been taken in the court

below and could have been cured by an appropriate

direction then the provision of the application of

the proviso to the facts as they otherwise stood

would be sufficient to support the application of

rule 4.

Your Honours, we would not, for the purposes

of this appeal, dispute the proposition that if the

proviso was, in fact or in law, applicable then

rule 4 could properly be used in that way. But our

submission on the proviso is that when one takes

into account what the majority said in this Court

and the dangers to which Your Honours

Justice Gaudron and Justice Deane adverted in Wilde

concerning the application of the proviso on the

so-called inevitable verdict test, that is the

dangers that one can have questions not appropriate

to be tried by judges in effect being tried by

judges on appeal, those dangers are particularly

applicable where the question of an intentional
state, affected by alcohol, is left for a decision

of fact.

DAWSON J: Well, that might sometimes be so but the jury

must have found that the accused intended to insert

the bottle into the victim's anus?

MR JAMES:  No, Your Honour, with respect. The man may well

have been performing an utterly bizarre and what

one might call a mad act.

DAWSON J:  I thought you told me that was the sexual intercourse which had to be intended?

MR JAMES: That is so, Your Honour.

DAWSON J: Well, if that is so the jury is hardly likely to

have come to the conclusion he did not advert to

the probable or likely possible consequence of

physical harm.

MR JAMES:  If they had properly been directed on

intoxication, Your Honour, they might well not have

come to that conclusion.

DAWSON J: Well, if you can intend that - and the jury must

have then found that intention - it is hard to

conclude that the jury did not form the view that

physical harm was likely or probable, whichever you

use.

Coleman 22 5/3/91

MR JAMES:  I am quite sure the jury did form the view,

Your Honour, that physical harm was likely or

probable.

DAWSON J: Are we talking about the proviso now?

MR JAMES:	No, Your Honour.
DAWSON J:	No, perhaps we will leave it until then.
MR JAMES:	We are talking about what Your Honour raised with

me. Your Honour, we would accept the proposition

that the jury may well have come to the view that

if you try to push a bottle into that area physical

harm is likely or probable but we are not dealing

with an objective test, we are not dealing with "a

reasonable man" test, except as the process in

reasoning that might lead us to whether this person
intended it, and as to that we have the alcohol to

contend with.

DAWSON J: Yes, but - I do not want to labour the point, we

will probably get to it later - if the jury found,

as they must have found, he did what he did with

intent to have sexual intercourse, despite the

alcohol, and the sexual intercourse which was

intended was the pushing of the bottle into the

man's anus, invariably a question of whether or not

actual bodily harm was intended in the sense of

being present to the accused's mind as being a

probable or possible consequence does not assume

must importance, does it?

MR JAMES:  I think, Your Honour, I had said that if we could

set aside the alcohol, I would probably concede,

certainly as far as special leave is concerned, the

line between the two is not sufficient to have

warranted this application. Wwhat I had sought to

say is, putting them together is what brings us

here.

DAWSON J: Yes, I do not want to labour this, but what was

the intent to have sexual intercourse which was

alleged?

MR JAMES:  The alleged penetration of the anus by the

bottle.

DAWSON J: Yes. And the jury found that intent despite the

evidence of intoxication?

MR JAMES:  Yes, Your Honour, with a direction that it went

to capacity, not a direction that it went to the

formation of the intent.

GAUDRON J: But, could there, in this case, have been any

other sensible method of analysis? I· mean, if he

Coleman 23 5/3/91

had the capacity to do it, the facts really spoke

for themselves. He did it. If he did not have the

capacity to do it, then there was no relevant

intent or mens rea. Could there, in this case,

have been any other issue besides capacity?

MR JAMES:  Yes. That is that he attempted to penetrate the

anus without any thought whatsoever to occasion

actual bodily harm. The section itself is part of

a complex of sections which indeed provide for,

firstly, the malicious infliction of actual bodily

harm and contemplates - - -

GAUDRON J: Yes, but the jury's verdict is against you on

that, is it not? That is to say, that they have

found that there was an advertence to the

possibility of harm so we cannot proceed form that

hypothesis.

MR JAMES:  Yes, on that basis, but they found that, as they

found the other, again without a direction
concerning the effects of alcohol except on that

question of capacity and voluntariness.

GAUDRON J: But that is the point, is it not? If he had the

capacity, then there was no issue raised by the way the defence was conducted whether somehow or other,

although he had the capacity, something happened so

that he did not advert to it. That was not the

case - - -

MR JAMES:  No, Your Honour. The defence sought to elicit

evidence in the only way that you can when you have

somebody who is sufficiently drunk for the O'Connor

doctrine to have any relevance. Now, it goes to

the question of capacity to form intent directly.

It goes less directly, but quite precisely, to

whether the intent was formed or not. There is no

presumption that a person who is capable of forming

an intent, particularly under the influence of

intoxicants or hallucinogens, does so. Indeed, we

say, it is a question that is specifically, by its

very nature, a real question for juries - after

all, it cannot be said of jurymen, as it is said of

judges, that in the popular mind at least, judges

are sober. Of jurymen, we rely on their experience

and common sense, but we will also rely on their

wider experience of certain situations.

Now, it does not follow, with respect, that

because he had capacity, he had the intent. The

very nature of alcohol strikes at exactly that

matter and, indeed, the Court of Criminal Appeal

recognized that as a legal proposition in the judgment but failed to take it to its factual

conclusion.

Coleman 5/3/91

Your Honour, even if the verdict was

inevitable, that still does not get over the

problems presented by Wilde because a misdirection

on that matter fails to submit to the jury that very issue which is at the heart of a trial for maliciously inflicting actual bodily harm with

intent, that is, the question of intent and malice.

In that respect, again, on a second basis, we submit that Wilde simply should not have been

applied here and we had made available to the Court

by way of some materials a number of unreported

cases, including ..... and Stokes, in which

Mr Justice Hunt's analysis of malice in its

application to the Georgiani principles concerning

accessories has been followed in the New South

Wales Court of Criminal Appeal and, also, a series

of other decisions which may have assisted the

Court - and I am not planning to take the Court to

them - as to the application of the proviso

particularly in similar circumstances, including

Ford in New South Wales, Dutton and, as an

illustration of an entirely different approach to
the application in such circumstances, the

Victorian decision in Thomasovich.

We point out that O'Connor itself could well

have been the subject of exactly the criticisms

that Your Honour has put to me of the facts in this

case, yet the ~earned Solicitor-General did not

raise the question of the proviso in O'Connor. It

was never a matter for this Court.

Your Honours, the argument is really one, in

our submission, of trying to deal with this
difficult section as to malice, trying to deal with
what the Court of Criminal Appeal has suggested is

the traditional definition in malice of advertence

to a consequence being only to the degree of

possibility when, in our submission, that is not
borne out by an analysis of the cases and, indeed,

is not only not borne out, but there seems to be

approval of both probability and possibility; and

Crabbe, in Australia at least, and the arguments

and reasoning in Crabbe would support the

blameworthiness of what went on as appropriately

based on probability. And then the question of the

application of the proviso.

Your Honours, I have, in effect, put to you what we say by way of submission rather than full

argument, but I should indicate to Your Honours
that both Archbold, in the paragraphs set out in

paragraph 3 of our outline of submissions, and

Professor Fisse in the fifth edition of Howard's

Criminal Law in the passages that we had adverted

to in our outlines - and for convenience sake,

Your Honours, we have provided five copies of the

Coleman 25 5/3/91

relevant extract from Professor Fisse available as working copies - deal with the controversy on this aspect.

Now, it is a controversy with, in our

submission, some point. It has not been a matter

of all these courts and all these authors debating the number of angels that can dance on the head of

a pin to no practical purpose, and it is a case

such as this with the facts such as this which

throws up, in our submission, the need to make the

distinction.

I should indicate to Your Honours that there

is set out in what Professor Fisse says at page 490

the extract of the Model Penal Code on that

question of what degree of risk should be accepted

and what risks are acceptable when defining

"recklessness":

"The risk must be of such a nature and degree

that, considering the nature and purpose of
the actor's conduct and the circumstances
known to him, its disregard involves a gross

deviation from the standard of conduct that a

law-abiding person would observe in the

actor's situation."

That is not meant to be a direction to a jury, but

it is meant to be an attempt to bring together the

rival concepts.

Your Honours, perhaps there is little more

that I can add to what appears in our written

submissions except that this same matter has been

examined by the Commonwealth in the review of the criminal law - Commonwealth Criminal Law, Interim

Report, of July 1990 - and we have provided copies

to the Court. I am not seeking to take

Your Honours to it, but once again in an

examination of recklessness it can be seen that the

learned authors debate exactly these problems and

particularly in relation to what is seen as

different views in the Code to different views of

the common law.

In particular, Your Honours might see at

page 35, paragraph 5.18, there is the debate

concerning recklessness, heedlessness and the

New Zealand position; at 519 and 520 New Zealand

and adoption of negligence, and the draft Canadian

Code and Glanville Williams are all set out; and the various submissions put to that body concerning

what is or should be the test of "recklessness"

appear in the subsequent paragraphs. The review

committee reaches the view that there should be a

fault element and that the fault element should

Coleman 26 5/3/91

require advertence. If I could turn, Your Honours,

to recklessness in terms of the United

Kingdom ..... , and that is:

A person should not be deemed criminally

responsible if he or she is blamelessly

inadvertent, and that is, knowledge or

intention should be required for the external

elements of the offence.

Your Honours, we raise at paragraph 5 of our

outline ways in which the jury might permissibly
have been directed, and in particular, we raise
that in relation to the two different formulations

we set out there, not as expressing propositions

accurate in law, but suggesting propositions that

might follow from the differing lines of authority.

But we submit that the combination of directions

that were given in this case was an error and an

error compounded by the misdirection in relation to

intoxication.

I should indicate to Your Honours that the

role of the Court of Criminal Appeal in the fact

evaluating function that it performs in relation to

the proviso was not, in our submission, finally

decided by Wilde in that it remains a question as

to when that court should act in the way that

Sir Garfield Barwick described in Rattan, taking

its own view of the evidence with a view to

defining the conclusion that it considers a jury

acting properly should reach.

In our submission there is no warrant in Wilde

for the proposition of a Court of Criminal Appeal

to apply the proviso on the basis that it considers

the jury should have reached a particular verdict;

and further, especially is that the case where a

substantial question has been the subject of an

absence of direction such that the jury's verdict

was never obtained on the question appropriately,

that is to say, whether he in the light of the

effect of the alcohol on him, did form the

requisite intent.

Unless there is anything further that I can

put to Your Honours, they are the submissions that

we would make.

BRENNAN J: 

Mr James, just so that I can summarize it in my

own mind, the jury in this case, leaving aside the
misdirection on intoxication, found that the

accused inserted the bottle intending so to do.

MR JAMES:  No, Your Honour. The jury found that in

intending to insert the bottle in the victim's anus

Coleman 27 5/3/91

the accused occasioned in the area of the anus some

blunt trauma to that area.

BRENNAN J: Yes, but he intended to insert the bottle, cause

that result and - - -

MR JAMES:  He intended to cause the result of inserting the

bottle, yes, Your Honour.

BRENNAN J:	- - - and adverted to the possibility of causing such a result?
MR JAMES:	Your Honour, it went further than that, and that

he actually intended to cause the result of
insertion, and he adverted to the possibility of

causing injury.

BRENNAN J: Causing the injury - adverted to the

possibility. Well now, leaving aside again the

misdirection on intoxication, the substance of your

argument is that that does not amount to a finding

that he intended to insert the bottle, cause the

injury and adverted to the probability of causing

the injury.

MR JAMES:	Yes, Your Honour.
BRENNAN J:	And then the misdirection on the intoxication

for your part is that his state of mind was one

which was limited in the jury's consideration to

whether he had the capacity to form those intents.

MR JAMES:  Yes, Your Honour.

BRENNAN J: But the jury found that he did have the capacity

to form those intents. Is it open to you to say
that the jury never considered whether he did form

the intents?

MR JAMES: Certainly, Your Honour, as to the question of the

injury.	Now, Justice Gaudron has raised with
me

BRENNAN J: Well, you do not say intent in relation to the

injury, do you? You say whether he did in fact

advert to the possibility.

MR JAMES:  Yes, Your Honour, precisely.

BRENNAN J: Yes. Well perhaps, in considering that, one

must evaluate the submission in the light of the

particular circumstances of the case.

MR JAMES:  Of course.

DAWSON J: But what you do say is - correct me if I am

wrong - you put it this way, you say, "Well, look,

Coleman 5/3/91

they did find he intended to have sexual

intercourse in this manner but in his drunken state

he might well have intended to have sexual

intercourse and simply not advert to the

possibility or probability of injury. In fact that

is the way we put our case. The jury found that he

had adverted to the possibility but in an

intoxicated state those two things are not

academic, really they become crucial".

MR JAMES: Precisely. Indeed, in the United Kingdom,

probability is put, high risk, substantial risk,

all the formulations that this Court and the
Federal Court have examined since

Tillman's Butcheries onwards, but it goes so far

now with murder to be able to say that the

advertence by him to the risk should only be

considered as relevant to the question of whether

he did actually intend. It is anything but

academic in that context; that is, one way of

looking at it, Your Honour, is conditional intent:

"I am going to have sexual intercourse, I advert to

the probability that it may cause actual harm, and

I do not care, I will go ahead anyway. That is, if

necessary, I will cause actual harm". Now that is

conditional intent and that may be one way of

looking at it, but that really is our argument.

I have not sought to take the Court to the discussion in the Court of Criminal Appeal or to

the appeal book directly as I had assumed the Court

has read the relevant material and extracts, but

unless there is any matter on that on which I can

assist the Court - - -

GAUDRON J: Mr James, perhaps I should ask you this: all of

what you have said seems to me to ignore that some

acts have an obvious risk.

MR JAMES:	Yes.
GAUDRON J:	And what an obvious risk really means is

would have thought, on any view, the act here in	something a bit more than mere possibility and I
question was one involving an obvious risk and that
because it involved an obvious risk the discussion about possible consequences, probable consequences,
was really, to a very large extent, irrelevant.

MR JAMES:  I accept what Your Honour says. If maliciously

is entirely objective then what Your Honour says

is, of course, the case. Additionally, of course,

a jury can well look at what they consider, sitting

in the jury box and in the dispassionate atmosphere

of a court room to be, with hindsight, an obvious

risk and say to themselves, "Well, just how drunk

would he have to be not to appreciate that risk

Coleman 29 5/3/91

because obvious risks are not as obvious to the

drunk?"; but the question is, the submission to

the jury of that question.

GAUDRON J: Yes, but it does frame the issues, does it not?

MR JAMES:  In our submission, Your Honour, we take our stand

on the jury. We take our stand on Ross v R. We

say there was a material misdirection on both of
these matters and that in those circumstances it is

for - what is sometimes referred to as - the

constitutional tribunal to try the issue bearing in

mind that they may well have, on that question, a

view as to obvious risk or, alternatively, they may

have a view that he was so drunk it would not have

been obvious to him and it is him we have got to

look at. Now, unless I can assist - - -

GAUDRON J:	Yes, thank you.
MASON CJ:	The Court will take a short adjournment in order to consider the course it will take in this matter.

AT 11.31 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.44 AM:

MASON CJ:  The Court need not trouble you, Mr Howie.

Special leave to appeal is sought in this case on

two grounds relating to alleged inadequacies in the

trial judge's directions to the jury.	The first
relates to the issue of malice.	The jury was

directed that the applicant must realize that his

act would possibly cause harm comparable to that

which it occasioned to the victim.

that the trial judge should have instructed the The argument is

jury in terms of probability rather than

possibility. The distinction is not important in

this case. In the circumstances of this case there

can be no doubt that the jury must have found

against the applicant in terms of realization of

the probability had they been so instructed. The

jury's verdict entailed a finding that the
applicant intended to insert the head of the bottle

with its twist top into the victim's anus. The

Court of Criminal Appeal was plainly correct in

holding that the jury must have found adversely to

the applicant on the suggested issue.

Coleman 30 5/3/91

The second ground relates to the instruction

on the issue of intoxication. Having regard to the

particular circumstances of this case, the nature

of the expert evidence called by the applicant, and the way in which the case was conducted, we are not

persuaded that in the context of the issues that
were alive at the trial the direction was

erroneous. We would add that no relevant

redirections were sought at the trial. In the
circumstances, this case is not an appropriate one

for the grant of special leave and the application

is refused. The Court will now adjourn.

AT 11.46 AM THE MATTER WAS ADJOURNED SINE DIE

Coleman 31 5/3/91