Griffiths v The Queen

[1994] HCA 55

HIGH COURT OF AUSTRALIA

BRENNAN, DEANE, DAWSON, TOOHEY AND GAUDRON JJ

SHANE PAUL GRIFFITHS v. THE QUEEN

(1994) 125 ALR 545

8 December 1994

Headnote

Hearing

CANBERRA, 11 November 1994
#DATE 8:12:1994

Counsel for the Appellant: S.E. Herbert QC and A.J. Glynn


Solicitors for the Appellant: J.A. Hodgins, Director, Legal Aid
Office (Queensland)


Counsel for the Respondent: M.J. Byrne QC and D.J. Callaghan

Solicitors for the Respondent: D. Field, Solicitor to the
Director of Prosecutions
(Queensland)

Orders

Appeal allowed.
Set aside the order of the Court of Appeal of Queensland and in lieu thereof order that the appeal to that Court be allowed, the verdict set aside, the conviction quashed and a judgment and verdict of acquittal entered.

Decisions

BRENNAN, DAWSON AND GAUDRON JJ. John Apps, then aged 16, had been
living with his father in a caravan park at Caboolture when he went
missing on or about 28 November 1989. In November 1990 his remains
were found in the Glasshouse Mountains area, not very far away from
his home. There was a bullet hole in the back of his skull just to
the right of the midline down near the junction with his neck. The
bullet, in a deteriorated state, was still within the skull. It was
probably of .22 calibre but rifling marks could not be detected. It is
possible that it was fired from his father's .22 rifle which
disappeared at about the time when John went missing. No rifle was
located. John's bicycle and a backpack were found in the vicinity of
the body. The evidence showed that John had died at some time before
February 1990.



2. The appellant was a boy of the same age as John. They were in
the same class at the Caboolture High School. They had been best
friends. The appellant was charged with and convicted of the
manslaughter of John Apps. The case against him rested chiefly on the
evidence of two girls, Jodie Parker and Leeanne Clack. Jodie Parker
gave evidence that, at some time after John Apps' body had been found,
the appellant said to her:

"I know whose body is up in the mountains. I know whose it is and I
was the one that killed him. If you tell anybody I'll do the same to
you."

The second statement was made to Leeanne Clack with whom the appellant
had been friendly. In the course of the conversation he said:

"I shot (or I killed) John. It was an accident. I didn't mean to do
it."

Under cross-examination, she thought that he had said "killed" rather
than "shot" and she affirmed that he had used the word "accident".



3. The appellant, who did not give evidence at his trial, was
interviewed by the police to whom he gave differing versions of when
he had last seen John Apps and of what John had said to him. He told
the police at one stage that John used to go shooting with someone from
the Caboolture school but that he, the appellant, did not know who it
was. According to the evidence of two other school-mates, Janelle
Bingham and Shandelle Smerdon, the appellant told them that he had
heard from John Apps who was in New South Wales and that Apps was going
to send his address up to the appellant.



4. The trial judge put the case to the jury on the simple basis
that they should convict or acquit according to whether they found
beyond reasonable doubt that the appellant had made the admissions
deposed to by Jodie Parker and Leeanne Clack and had been telling the
truth when he did so. He gave the jury this direction as to criminal
responsibility for the killing:

"The Crown does not contend that the accused killed the deceased for
any particular reason or with any particular intention or whatever.
It does not have to do that and it does not do that and you should be
very clear about that. Any killing of the deceased could, for
argument's sake, have arisen through the careless handling of a rifle.
You might think that if the accused did kill the deceased, then that is
the most likely explanation, but you need not and really should not
wonder about those things, because it involves entering into a field
of speculation." (Emphasis added.)

Later in the summing up his Honour said:

"The Crown must establish, in addition, that any such killing was
unlawful. That is, not authorised, justified or excused by law. I
direct you that the evidence raises no issue of such authorisation,
justification or excuse. If, therefore, you are satisfied, beyond
reasonable doubt, that the accused killed the deceased at or about the
date and place alleged in the charge, then you will conclude that the
killing was unlawful and you will find the accused guilty of the
charge."

His Honour thus effectively withdrew from the jury any issue arising
under the provisions of ss.23 and 289 of The Criminal Code (Q.).



5. Section 23(1) (a key provision in Ch.V - Criminal
Responsibility) provides, inter alia:

" Subject to the express provisions of this Code relating to negligent
acts and omissions, a person is not criminally responsible for an act
or omission which occurs independently of the exercise of his will, or
for an event which occurs by accident."

The onus of negating the application of s.23 rests on the Crown (1 See
s.36 and R. v. Mullen (1938) 59 CLR 124) .



6. The express provisions of the Code relating to negligent acts
and omission include s.289:

" It is the duty of every person who has in his charge or under his
control anything, whether living or inanimate, and whether moving or
stationary, of such a nature that, in the absence of care or
precaution in its use or management, the life, safety, or health, of
any person may be endangered, to use reasonable care and take
reasonable precautions to avoid such danger, and he is held to have
caused any consequences which result to the life or health of any
person by reason of any omission to perform that duty."

In order to establish criminal responsibility for causing a death
under s.289, the Crown must prove that an accused was guilty of that
degree of negligence which is punishable as manslaughter under the
common law: Callaghan v. The Queen (2 (1952) 87 CLR 115 at 124) ; R.
v. Scarth (3 (1945) St R Qd 38) .



7. If the appellant in fact fired the bullet which entered the body
of John Apps and thereby caused his death, the appellant's criminal
responsibility for manslaughter depended on proof that - (i) the act
of firing the bullet was willed or voluntary, that is, the act was not
done independently of the exercise of the appellant's will (4 Timbu
Kolian v. The Queen (1968) 119 CLR 47 at 53, 62-63; Reg. v. Falconer
(1990) 171 CLR 30 at 40) (s.23, first limb) and the death of the
deceased did not occur by accident, that is, it was a foreseen or
foreseeable result of that act (5 Vallance v. The Queen (1961) 108 CLR
56) (s.23, second limb) or, alternatively, (ii) that the death of John
Apps was caused by criminal negligence (s.289). These were elements of
the offence charged. The crime of manslaughter can be committed either
by a voluntary act which causes death in circumstances which do not
amount to murder (6 s.303) or by criminal negligence. Although the
trial judge thought that careless handling of the rifle was the most
likely explanation of the appellant's killing of John Apps, the
alternative bases for conviction of manslaughter were issues for the
jury. No particulars were asked for or given which confined the issues
for the jury's determination to one basis or the other.



8. A plea of not guilty puts all elements of the offence charged in
issue and a trial judge is wrong to withdraw any element in issue from
the jury, no matter how cogent a Crown case may be. That is not to
say that a particular direction must be given as to each element of an
offence in a case where no contest as to a particular element is
raised in the conduct of the trial and where the evidence does not
itself raise an issue as to the existence of that element. It is one
thing not to give a direction on an issue; it is another to withdraw an
issue from the jury's consideration. In this case, the trial judge
erroneously withdrew from the jury critical issues, the burden of
proof of which lay on the Crown.



9. Moreover, his Honour expressed an opinion to the jury that -

"it is totally unproductive for you to be turning your minds to
question of motive. Really, all we know about the relationship
between the accused and the deceased is that it was a favourable,
friendly one. I think the Crown would be quite prepared to accept that
there is no apparent reason here why the accused would be in the least
interested in bringing about the death of John Apps. That's not the
Crown case. He's charged only with causing the death. Any question of
motivation or reason is, frankly, to my mind, anyway, irrelevant. It
may have some bearing on your assessment of the facts, I don't know,
but in terms of proof of the case, that's not an area into which the
Crown need or does go." (Emphasis added.)



10. In so far as the evidence failed to disclose a motive for the
appellant to kill John Apps, it was right to say that the Crown did
not have to prove the existence of a motive to kill or to do grievous
bodily harm (7 s.23(3)) . However, in this case the evidence pointed
to an absence of a motive. That was a factor which was relevant to the
jury's determination of the appellant's guilt of manslaughter: see
Reg. v. Sharmpal Singh (8 (1962) AC 188 at 197) . But no objection
was taken to the summing up on this point. Nor was the point raised on
appeal.



11. The Court of Appeal by majority (Pincus and Davies JJ.A.,
Fitzgerald P dissenting) dismissed the appellant's appeal. The chief
point argued on appeal was whether the evidence was sufficient to
establish that the accused had killed John Apps. It was on this point
that that Court divided. It seems that on appeal the relevance of
s.23 was raised as a subsidiary point. Fitzgerald P did not have to
discuss it as he would have quashed the conviction on the ground that
it was not open to a reasonable jury to find that the appellant had
killed John Apps. The majority, being of the contrary opinion,
addressed the issue of accident. Their Honours said:

" There was evidence before the jury on which it could be concluded
that the appellant shot Apps without meaning to do so. ... The jury
was satisfied that Apps was killed by the appellant and may well have
thought that he did not mean to do so; but there was no possible path,
logically, to a positive conclusion either that the circumstances were
such as to exonerate the appellant, on the basis of accident or that
they were not of that character.



12. The question is whether a bald statement that a death by
shooting was an accident is enough to throw on the Crown the burden of
excluding s.23. ... In our opinion, the mere assertion does not go
far enough to require the defence to be put to the jury."

With respect, the ultimate onus of proving all elements of the
offence, including either the voluntary or criminally negligent firing
of the fatal bullet, rested upon the Crown and, if the evidence
available to the Crown did not discharge the onus, the appellant was
entitled to be acquitted. That is the principle clearly laid down in
Woolmington v. The Director of Public Prosecutions (9 (1935) AC 462,
applied to the element of accident under The Criminal Code (Q.) in R.
v. Mullen) . In Woolmington, a case of homicide by shooting, the
appellant had given a version of the confrontation between himself and
his wife, the deceased. He said the firing of the gun was an accident
in that whilst he was getting the gun from under his shoulder and was
drawing it across his breast it accidentally went off (10 (1935) AC at
472) . It was in reference to this evidence that the well-known
statement was made about the golden thread of English criminal law and
Viscount Sankey L.C. said (11 ibid. at 482) :
"When dealing with a murder case the Crown must prove (a) death as the
result of a voluntary act of the accused and (b) malice of the
accused."

His Lordship went on to explain:

"If the jury are either satisfied with (the accused person's)
explanation or, upon a review of all the evidence, are left in
reasonable doubt whether, even if his explanation be not accepted, the
act was unintentional or provoked, the prisoner is entitled to be
acquitted." (Emphasis added.)

In this passage the common law term "unintentional" means
"involuntary" or "unwilled" and those were the terms preferred by
Barwick C.J. in Ryan v. The Queen (12 (1967) 121 CLR 205 at 213) . In
that case, his Honour said:
"by whatever adjective or adjectival phrase it is described, the deed
which was not the result of the accused's will to act cannot, in my
opinion, be made the source of criminal responsibility in him."

It is impossible to suppose that the majority in the Court of Appeal
did not appreciate where the ultimate onus lay in this case. Their
Honours must have had in mind the common situation where the evidence
simply reveals that the alleged offender, being presumably of sound
mind, consciously did the act which is an element in the offence
charged. Commonly, evidence of that kind is sufficient to discharge
the Crown's ultimate onus of proof (13 Bratty v. Attorney-General for
Northern Ireland (1963) AC 386 at 407, 413; Reg. v. Falconer (1990) 171
CLR at 40-41, 43, 61, 68, 83) unless the alleged offender adduces or
is able to point to some evidence which suggests that the doing of the
act was involuntary. In the absence of any such evidence, it is
frequently unnecessary and inappropriate for the trial judge to give a
specific direction about voluntariness. That is the position when, in
the circumstances revealed by the evidence, human experience would
regard the act done as having been done under the conscious control of
the doer.



13. However, some acts done by a sane person while conscious may be
involuntary, as Woolmington itself illustrates. In Ryan, Barwick C.J.
dealt with this situation in canvassing what he called "the fourth
view" of the evidence in that case. The "fourth view" was that the
firing of the fatal shot by the accused was a "reflex or convulsive,
unwilled movement" of a part of the body or its muscles (14 (1967) 121
CLR at 209) . In reference to this view of the evidence, his Honour
said (15 ibid. at 216-217) :
"it is consonant with principle, that an accused is not guilty of a
crime if the deed which would constitute it was not done in exercise
of his will to act. The lack of that exercise which precludes
culpability is not, in my opinion, limited to occasions when the will
is overborne by that of another, or by physical force, or the capacity
to exercise it is withdrawn by some condition of the body or of the
mind of the accused. An occasion such as the fourth view of the
evidence in the instant case ... would, in my opinion, be an instance
of a deed not the result of a culpable exercise of the will to act.
... If voluntariness is not conceded and the material to be submitted
to the jury wheresoever derived provides a substantial basis for
doubting whether the deed in question was a voluntary or willed act of
the accused, the jury's attention must be specifically drawn to the
necessity of deciding beyond all reasonable doubt that the deed
charged as a crime was the voluntary or willed act of the accused. If
it was not then for that reason, there being no defence of insanity,
the accused must be acquitted."



14. In the present case, on the view of the evidence adopted by the
majority, two schoolboys, best friends without any evidence of
hostility between them, were out in the mountains together with a gun;
the gun went off and killed one boy and the other went away and tried
to lay a false trail about the incident but, when acknowledging that
he shot or killed the other, said it was an accident. On that
evidence, the possibility that the death was due to "accident" -
stumbling when the gun was cocked and loaded or some other kind of
accident - was clearly raised. Evidence that the appellant gave false
or different stories about his contacts with John Apps did not disprove
that John's death was caused by "accident". Indeed, it is arguable
that that evidence did not tend to disprove accident (16 See the
discussion in Edwards v. The Queen (1993) 178 CLR 193) . The burden of
disproof that rested on the Crown was substantial, not merely formal.
To establish that the appellant was the person who had the gun when
the fatal shot was fired, the Crown relied, inter alia, on the
admission he made to Leeanne Clack. The Crown had to take that
statement as a whole so that the version of facts that it contained at
once implicated and tended to exculpate the appellant (17 See Jack v.
Smail (1905) 2 CLR 684 at 695) . That evidence clearly raised the
issues to which s.23(1) relates.



15. The alternative basis on which the accused might have been held
criminally responsible for the fatal act is criminal negligence in the
handling or firing of the gun so as to attract the operation of s.289
of the Code. Again the jury was given no direction as to the
character of the act which had to be established beyond reasonable
doubt before they could convict of manslaughter on the basis of
criminal negligence. And the evidence on which the Crown relied to
prove that the appellant was the person who shot John Apps presented a
substantial obstacle to the discharge by the Crown of the burden of
proving criminal negligence just as it presented a substantial
difficulty in the way of proving that the fatal shot was fired
voluntarily.



16. For these reasons it appears that the trial miscarried. The
trial judge and the majority of the Court of Appeal failed to
acknowledge the existence of the live issues, the burden of proving
which lay on the Crown. The appeal must therefore be allowed. We do
not have before us the whole of the evidence in the case and we are
thus disadvantaged in attempting to determine whether the evidence as
a whole was sufficient to support a conviction for manslaughter. But,
as it turns out, the absence of a full record does not matter. The
Crown does not seek an order for a retrial if the conviction is
quashed. The important factors in that approach are the age of the
appellant and the period that he has already served in actual custody.
And we note that, in reference to the Crown's onus of excluding the
application of s.23, the majority of the Court of Appeal said:

"Since there was no possible means of telling how the bullet came to
be discharged, it is impossible to see how the Crown could have
discharged such an onus and, if the jury took a direction placing the
onus as to accident on the Crown seriously, the result must have been
an acquittal."

In these circumstances, the appropriate order, following the view of
the facts adopted by the Court of Appeal, is that a judgment of
acquittal be entered.



17. Accordingly, the appeal should be allowed, the order of the
Court of Appeal set aside and in lieu thereof the appeal to that Court
should be allowed, the verdict set aside, the conviction quashed and a
judgment and verdict of acquittal entered.


DEANE AND TOOHEY JJ. The detailed facts and the provisions of ss.23
and 289 of the Queensland Criminal Code ("the Code") are set out in
the judgment of Brennan, Dawson and Gaudron JJ. We agree with their
Honours that the directions of the learned trial judge were inadequate
and that the appellant's conviction of manslaughter cannot stand.
However, while agreeing in many respects with their Honours' reasons,
we take a somewhat different approach in reaching that conclusion.



2. The learned trial judge directed the jury that the Crown did not
contend that the appellant had shot the deceased boy "for any
particular reason or with any particular intention". His Honour
indicated that it was consistent with the Crown case that the killing
of the deceased could have arisen "through the careless handling of a
rifle". As we followed the argument, it is common ground that the
Crown's case at the trial was based on s.289 of the Code and was that
the appellant had been so careless in the use or management of the
rifle with which he killed the deceased that he was in breach of the
duty imposed by that section. If the killing involved such a breach of
s.289, the introductory words of s.23 ("Subject to the express
provisions of this Code relating to negligent acts and omissions")

precluded the applicability of the exculpatory provisions of that
sectiona (18 See, e.g., Callaghan v. The Queen (1952) 87 CLR 115 at
119) . If the killing did not result from such a breach, those
exculpatory provisions were obviously applicable. In those
circumstances, the directions which the learned trial judge gave should
have been focused upon the ingredients of manslaughter pursuant to
s.289. Examination of his Honour's directions discloses that his
Honour failed to give any express directions at all about the
requirements of that section.



3. The jury's verdict makes plain that they accepted, as they were
entitled to do, the uncontradicted evidence led by the Crown to the
effect that, on two separate occasions, the appellant had admitted, or
rather asserted, that he had "killed" or "shot" the deceased. In the
absence of any contrary or qualifying evidence, it was open to the
jury to find that, in making that admission or assertion, the appellant
had been telling the truth. Clearly, the jury made that finding. On
the basis of it, the essential facts proved against the appellant were
as follows. The appellant shot the deceased boy in the back of the
head. The shooting took place in a deserted part of the Glasshouse
Mountains area of Queensland. After the shooting, the appellant left
the deceased either dead or dying. There was nothing at all in the
evidence to suggest that the appellant took any step, either openly or
anonymously, to procure aid or attention for the victim or for his
corpse. To the contrary, the appellant subsequently fabricated an
account of a phone conversation with the deceased which would, if
accepted, be calculated to conceal his death. After the deceased's
body was finally discovered, the appellant untruthfully denied any
involvement in the deceased's death when questioned by the police.
Subject to one qualification, the appellant has never proffered any
explanation of how he had come to shoot the deceased in the back of
the head. That sole qualification is that, in one of the two
conversations in which the appellant asserted that he had "killed" or
"shot or killed" the deceased, he claimed that it was "an accident" and
that he "didn't mean to do it". On the other hand, in the other
conversation, he threatened the person to whom the assertion that he
had "killed" the deceased was made that he would "do the same to" her
if she told "anybody". In all the circumstances, it was plainly open
to the jury to conclude that, notwithstanding the age of the appellanta
(19 Fifteen at the time of the deceased's death, sixteen at the time
of the alleged admissions and nineteen at the time of trial) , the
appellant's callous and dishonest actions after he had shot his "best
friend" in the back of the head gave rise to the inference that the
shooting had, at the very least, been the result of carelessness of the
kind which constituted a breach of s.289 of the Code. Indeed, the
directions of the learned trial judge and the absence of any request on
behalf of the appellant for further or different directions would seem
to indicate that it was common ground at the trial that the issue
between the Crown and the appellant was whether the appellant had in
fact killed the deceased. Nonetheless, it was necessary for the
learned trial judge to direct the jury about the essential ingredients
of manslaughter pursuant to s.289a (20 See, e.g., Callaghan v. The
Queen (1952) 87 CLR at 121 as to the applicability of the distinction
between criminal and civil negligence to s.289) .



4. Ordinarily, the appropriate order in a case such as the present
would be that the appellant's conviction be quashed and that there be
a new trial. The appellant has, however, served most of the period in
actual custody which he would have been required to serve pursuant to
the original sentence and the Crown has informed the Court that it
does not seek an order for a new trial. In these circumstances, we
concur in the orders proposed by Brennan, Dawson and Gaudron JJ.