Ladd v The Queen

Ladd v The Queen [2009] NTCCA 6
PARTIES:LADD, Godwin

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA8 of 2008 (20720322)
DELIVERED:  20 May 2009
HEARING DATES:  6 and 9 March 2009
JUDGMENT OF:  MARTIN (BR) CJ, ANGEL AND MILDREN JJ
APPEAL FROM:  RILEY J
CATCHWORDS:
CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – ADMISSIBILITY OF EVIDENCE OF SUBSEQUENT EVENTS
Admissibility of events subsequent to charged incident – prejudicial versus probative value – appeal dismissed.
CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – DIRECTIONS ON INTENTION
Whether trial Judge erred in leaving intention to kill open as a fault element – whether the trial Judge erred in failing to distinguish the intention to engage in the conduct causing death and the intention to cause death – whether direction required in terms of s 43AI(2) of the Criminal Code – examination of trial Judges’ use of the word “accident” – s 43AM of Criminal Code – whether the trial Judge should have directed the jury as to recklessness – appeal dismissed.
CRIMINAL LAW – APPEAL – DIRECTIONS ON INTOXICATION
Intoxication – directions as to burden of proof – directions as to capacity to form intention to kill or seriously harm and whether intent existed – appeal dismissed.
CRIMINAL LAW – APPEAL – DIRECTIONS ON THE STANDARD OF PROOF
Directions as to proof beyond reasonable doubt – question by jury as to meaning – attempt to explain “beyond reasonable doubt” – direction that the Crown is not required to prove its case “beyond all doubt” – appeal dismissed.
Criminal Code (NT) Pts II, IIA, IIAA; Sch 1; ss 1, 31, 43AA, 43AB, 43AC, 43ACA, 43AD, 43AE, 43AF, 43AG, 43AH, 43AI, 43AJ, 43AK, 43AL, 43AM, 43AN, 43AO, 43AS, 43BF, 43BS, 154, 156, 160, 162, 163 and 302; Criminal Code (Tas) ss 13 and 172; Criminal Code Amendment (Hit and Run and Other Endangerment Offences) Act 2008 (NT); Criminal Law Consolidation Act (SA).

Charlie v The Queen (2000) 199 CLR 387; Doney v The Queen (1990) 171 CLR 207; Green v The Queen (1971) 126 CLR 28; La Fontaine v The Queen (1976) 136 CLR 62; Murray v The Queen (2002) 211 CLR 193; Parker v The Queen (Unreported, Western Australian Court of Criminal Appeal, Malcolm CJ, Ipp and Steytler JJ, 26 May 1995); R v Chatzidimitriou [2000] 1 VR 491; R v Floyd [1972] 1 NSWLR 373; R v Graham (2000) 116 A Crim R 108; R v Gonclaves (1997) 99 A Crim R 193; R v Hayes (1986) 128 LSJS 460; R v Ho (2002) 130 A Crim R 545; R v Neilan [1992] 1 VR 57; R v Nguyen (Unreported, New South Wales Court of Criminal Appeal, Spigelman CJ, Sully and Hidden JJ, 1 October 1988); R v Pahuja [1988] 15 Leg Reg SL 4; R v Pahuja (1988) 49 SASR 191; R v Reeves (1992) 29 NSWLR 109; R v Stirling [1996] QCA 342; R v Wilson, Tchorz and Young (1986) 42 SASR 203; Spencer v The Queen (2003) 137 A Crim R 444; Thomas v The Queen (1960) 102 CLR 584; Vallance v The Queen (1961) 108 CLR 56; Viro v The Queen (1978) 141 CLR 88, discussed.
Alford v Magee (1952) 85 CLR 437; Darkan v The Queen (2005) 227 CLR 373; R v Barlow (1997) 188 CLR 1; R v Crabbe (1985) 156 CLR 464; R v Floyd (1973) 47 ALJR 420; R v Krosel (1986) 41 NTR 34; R v O’Connor (1980) 146 CLR 64; R v O’Leary (1946) 73 CLR 566; Shepherd v The Queen (1990) 170 CLR 573, referred.

REPRESENTATION:
Counsel:
Appellant:M Croucher
Respondent:  N Rogers
Solicitors:
Appellant:Central Australian Aboriginal Legal Aid
Respondent:  Director of Public Prosecutions
Judgment category classification:      A
Judgment ID Number:  Mar0907
Number of pages:  131

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Ladd v The Queen [2009] NTCCA 6

No. CA8 of 2008 (20720322)
BETWEEN:

GODWIN LADD

Appellant

AND:

THE QUEEN

Respondent

CORAM: MARTIN (BR) CJ, ANGEL AND MILDREN JJ
REASONS FOR JUDGMENT
(Delivered 20 May 2009)
Martin (BR) CJ:
Introduction

This is an application for leave to appeal against a conviction for murder. The grounds of the application complain of the wrongful admission of evidence and errors in the directions to the jury concerning intention, intoxication and the standard of proof.
Leave to appeal is not opposed. I will refer to the applicant as the appellant. For the reasons that follow, I would grant leave in respect of each ground but dismiss the appeal.
Facts
The essential facts were not in dispute. During the afternoon of 26 July 2007 the appellant, deceased and others were in a backyard of residential premises at Tennant Creek drinking alcohol. Two witnesses, Ms Sally Carr and Mr Darius Chungaloo, saw the appellant stab the deceased in the chest. The learned trial Judge summarised the evidence of those witnesses in his directions to the jury in the following terms:
“[Sally Carr] was out in the back yard with the accused and the deceased, they were drinking beer. She said that at one point she went to the toilet and when she came out the deceased and the accused were standing together and she said he, that is Mr Ladd [the accused], got a knife from out of nowhere.
She then tried to grab his wrist and he punched her in the chest so that she fell backwards. He then stuck the knife into the deceased. The deceased stood there for a little while then fell to the ground. She told you that Mr Ladd then took off with the knife in his hand and he went out through the back gate.
… She told you that she was not aware of any argument between Mr Ladd and Ms Bob [the deceased]. She was not aware of any reason and there was nothing obvious to her as to why the stabbing occurred. She did not hear either of them say anything immediately before the stabbing occurred.
There was nothing that gave her a reason for what did occur. She told you that the accused man held the knife in his right hand and she demonstrated the stabbing motion to you. You will recall that. … She said that the victim and the accused were intending to make a fire. She said that the accused was not really drunk. That was the first evidence she gave; he was not really drunk.
Then she was taken to her police statement and she agreed that he was full-drunk. …
…
[Darius Chungaloo] is 18 years old and he was the nephew. He had been to the house that day and he had been drinking moselle himself. … He said that he saw the accused, that is Mr Ladd, and he described him as being blind drunk. …
… He told you he was sitting by himself. He saw the accused get up and stab his aunty in the chest. He saw the knife and he drew a picture of that; you have that picture. He described a forward thrust with the knife, so slightly different to what Sally Carr described. He said his aunty did not say anything and nor did the accused. She fell back and he saw blood on her chest. The accused then took off.
Although the appellant did not give evidence, the act of stabbing was not in dispute. Nor was it disputed that the stabbing caused the death of the deceased. The trial was conducted on the basis that the critical issue was whether the Crown had proved an intention to cause death or serious harm. As counsel for the appellant put it to the jury in his closing address:
“Now, as I said to you at the beginning of this trial, the principal issue for your consideration is the state of mind of the accused man, Godwin Ladd at the relevant time, which is when he stabbed Ms Bob. There’s been no issue as to the identity of the offender, no issue as to the cause of death. The issue is, did he have the requisite intent, the requisite murderous intent.”
It was also common ground that prior to stabbing the deceased the appellant had been consuming alcohol. The issue of the appellant’s state of intoxication was of importance in relation to the question of intention. Counsel for the appellant put to the jury that by reason of the appellant’s intoxication, they should have a doubt about his state of mind and specifically put to the jury that guilty of manslaughter was the “proper verdict”.
Ground 1 – Second Incident
The learned trial Judge erred as a matter of law and/or in the exercise of his discretion in admitting the evidence of the events – and in particular, the assault by the applicant – that occurred at the Emporium Shop in Tennant Creek; and in particular, he erred in failing to give any or sufficient weight to the risk of prejudice to the applicant by reason of impermissible use of that evidence or to the risk that any such prejudice would not be cured by judicial directions.
Ground 1 concerns the admission of evidence as to a second incident on the day in question in which the appellant attempted to stab his former partner with the knife used to stab the deceased. The appellant contended that the evidence was inadmissible or, in the alternative, that the evidence should have been excluded by the trial Judge in the exercise of his discretion.
The timing of the two incidents was relevant to an assessment of the probative value of the second incident. Two times were established with certainty. First, the call to the ambulance after the stabbing was received at 4.30pm. Secondly, at 4.40pm a police officer spoke to the victim of the second incident, Ms Wendy Kitson, at the locality of that incident. The critical time was the time at which the stabbing of the deceased occurred and that time could not be established with precision.
The times to which I have referred were given in evidence before the jury. When objection was taken to the admission of the evidence prior to the empanelment of the jury, the time of the stabbing was a matter of debate, but the trial Judge proceeded on the basis that the second incident took place within 15 to 30 minutes of the fatal stabbing.
The initial ruling of the trial Judge given immediately at the conclusion of the submissions was as follows:
“HIS HONOUR: And it seems to me that it does have probative value, excepting [sic], as I do, for the moment, that the incident at the house took place within 15 to 30 minutes of the incident at the shop. It is evidence, it seems to me, that the jury could consider has some impact upon the true state of mind of the accused man on the earlier occasion given that he has been shown to be able to formulate an argument [sic] to attack a person know [sic] has been specifically selected as a person to whom he wishes – with whom he wishes to remonstrate and who bears a relationship to him, not just someone who happens to be present while he’s in this state.
I will deliver reasons at a later time, but it seems to me that it’s probative value does outweigh it’s prejudicial value and that the jury can be directed in a manner which would prevent them from following a false path of reasoning as suggested by Mr Georgiou.”
The following day his Honour delivered additional reasons in the following terms:
“Prior to Mr Ladd being arraigned, there was some legal argument in this matter, in which the Crown raised the issue of evidence it proposed to lead regarding events that occurred shortly after the deceased was stabbed on 26 July 2007. One of the identified issues in this case, is whether the Crown can establish the necessary intent on the part of the accused, to cause death or to cause serious harm to the deceased. It has been foreshadowed in the course of argument, that the evidence will show that the accused was intoxicated to a significant extent at the relevant time.
The issue will be whether his intoxication was such, that the Crown cannot establish that he was capable of forming the necessary intent or that he in fact, did form the necessary intent. In order to meet this concern, the Crown wishes to lead evidence to the effect, that shortly after the deceased was stabbed, the accused left the scene and soon thereafter, entered a shop in Tennant Creek. He there confronted his former female partner, Ms Kitson. He spoke to her in an aggressive manner, seeking money from her and criticising her for spending money on her family.
There is evidence from various witnesses, to the effect that he spoke with her in that manner and he then endeavoured to stab her. The evidence will be, as I understand it at this stage, the knife used on each occasion, was the same knife. If it [sic] the submission of the Crown, that this evidence is relevant to the state of mind of the accused at the time of the alleged offence, which was less than half an hour before the incident at the shop.
The evidence of what was discussed and what was said by the accused on the later occasion, indicates that he was aggressive, but also may show that he was capable of speaking with Ms Kitson, criticising her and making demands of her. This evidence, which if accepted, may be found by the jury to display a degree of mental capacity, at a time relevant to the issue to be decided by them. His aggressive state was not random, nor directed towards whoever came into his path, but rather was directed to a particular relevant individual known to him, regarding a particular issue which he was able to articulate at the time. It may show that he knew what he was doing. In his evidence, which may assist the jury to assess his capacity to form an intention on the occasion of the stabbing which occurred a short time earlier.
Counsel for the accused opposed the receipt of the evidence, firstly arguing that the disputed evidence does not show that the accused was not so inebriated as to be incapable of forming the necessary intent. In my view, the evidence is capable of assisting the jury and does have probative value. It will of course, be a matter for the jury as to what they make of it. Counsel then requested that the evidence be excluded in the exercise of my discretion. It was argued that the prejudicial effect of the evidence outweighed the probative value of the evidence. Such evidence, it was said, may be used by the jury to conclude that the accused person is a person of bad character with a propensity for violence and the jury may impermissibly use such evidence as being probative of a murderous intent on the occasion of the first stabbing.
I do not accept that to be so. The violence of the accused in relation to the stabbing of the deceased is not in dispute. The issue is, whether he had the necessary intent. In my view, the evidence is capable of assisting the jury in determining that issue. Insofar as there maybe [sic] some potential for prejudice to the accused, which I must say is doubtful at this stage, it may be met by an appropriate direction against impermissible reasoning.” (my emphasis)
Second Incident - Admissibility
In support of his contention that the evidence was inadmissible because it lacked any probative weight, counsel for the appellant on the appeal submitted there was “too much doubt about the lapse of time” between the two incidents and, in addition, contended that the appellant “may well have sobered up” after the stabbing.
As to the time at which the fatal stabbing occurred, Mr Chungaloo said that after the stabbing, he ran out to the front of the premises looking for help. He ran from 19 Ford Crescent to 31 Ford Crescent, spoke to a Mr Joseph Mick, and then returned to 19 Ford Crescent. After attempting to talk to the deceased who was lying on the ground being held by Ms Sally Carr, Mr Chungaloo found a weapon at the rear of the premises and went looking for the appellant.
In the meantime, Joseph Mick had approached a police officer, Constable Sanderson, who happened to be outside 11 Ford Crescent and informed her that police were needed. Constable Sanderson spoke with the Tennant Creek police station via police radio and then drove around Ford Crescent to number 19.
Immediately after arriving at 19 Ford Crescent, Constable Sanderson spoke to a male person. She recorded the time of the conversation as 4.30pm. She then moved to the rear of the premises and looked at the deceased’s injuries, after which she went to the rear of the premises as she had been informed that the offender had left the area in that direction. While at the rear of the premises she saw Mr Chungaloo carrying a piece of metal piping and disarmed him.
It was open to the jury to infer that Mr Chungaloo had approached Mr Mick within a few minutes of the stabbing and that, within a further few minutes, Mr Mick approached Constable Sanderson. As Constable Sanderson recorded the time at which she first spoke to a person at the premises of the stabbing as 4.30pm, being the same time as the ambulance received a call, it was open to the jury to infer that the call to the ambulance at 4.30pm was made within about ten to 15 minutes of the stabbing.
As to the second incident, in my view it was open to the jury to conclude that the appellant was at the scene by about 4.40pm. The second incident was of short duration and a witness, Ms Efsta Noble, telephoned police during the incident. Police were at the scene by 4.50pm.
It is unnecessary to refer to other evidence concerning the times. Various estimates were made and it was open to the jury to either accept or reject those estimates. Depending on the route taken, the distance from the scene of the fatal stabbing to the second incident was between 1.04 kilometres and 1.19 kilometres. It was open to the jury to infer that the second incident occurred about half an hour or less after the fatal stabbing.
While the time that elapsed between the stabbing and the second incident is relevant to an assessment of the probative value of the evidence, it is not the single determinative factor. Regard must also be had to the behaviour of the appellant during that incident.
In summary, the appellant sought out his former partner, Ms Kitson, who was inside a retail store with her children. While Ms Kitson was standing at a counter paying for a purchase, the appellant entered the store and walked toward her speaking in language. He said “I stabbed the woman already and I want the money. Where’s the kid’s money?” The appellant also spoke in English saying “You’re spending all your money on your family”. The appellant was angry and, according to the evidence of two store attendants, kept saying in English that she was spending all her money on her family.
The witnesses varied in their recollections of the altercation between the appellant and Ms Kitson and its immediate aftermath. It is clear, however, that a young male person and an older lady intervened and attempted to keep the appellant away from Ms Kitson. During the altercation the appellant dropped the knife. Although the appellant’s daughter said that she saw the appellant stumbling outside the shop on his way into the premises, there was no suggestion from any witness that the appellant displayed any lack of coordination inside the store.
It was open to the jury to conclude that the appellant did not choose someone at random to attack. Rather, the appellant entered the shop with a purpose in mind and attempted to carry out that purpose by stabbing his former partner. It was open to the jury to find that the appellant selected his former partner and expressed a specific grievance. Some of the appellant’s complaints were in English and were understood by witnesses in the premises. The appellant disclosed a memory of what he had just done when he spoke of having stabbed the woman.
The witnesses to the second incident gave significantly different opinions as to the extent to which the appellant was affected by alcohol but, independently of those opinions, the memory and degree of physical and mental coordination demonstrated by the appellant was of probative value in assisting the jury to assess the degree of his intoxication and his mental capacities at that time and earlier. Further, when police spoke to the appellant soon after the second incident from about 4.50pm to 5.00pm, notwithstanding that the appellant was sufficiently intoxicated to lead the interviewing officer to defer formal questioning, the appellant disclosed a significant degree of comprehension. The appellant answered all questions in a responsive manner. He gave his date of birth and said he had been living at his father-in-law’s house because there was too much mess at 19 Ford Crescent. Given a caution, the appellant said he did not want to say anymore. Asked who might listen to the tape, he replied “the judge”. The appellant gave the name of his former partner, her address and the name of another person to be contacted. He said he wanted to see his lawyer.

In my opinion, the evidence of the appellant’s behaviour during the second incident possessed significant probative value as to the appellant’s capacity to think and act rationally and with a purpose in mind at the time of the stabbing. It also possessed significant probative value as to the degree to which the appellant was affected by alcohol at the time of the stabbing. In turn, the extent of the intoxication bore directly upon the critical question of whether the appellant formed an intention to cause death or serious harm. In addition, the physical actions of the appellant during the second incident were directly relevant to the defence case that by reason of intoxication, the appellant may have lacked coordination and may have struck out not intending to stab the deceased in the chest.
The Crown submitted that the evidence was also admissible because the appellant’s conduct “formed an integral part of a transaction consisting of connected events, the attack on the deceased at 19 Ford Crescent and the attack on Wendy Kitson at the Emporium”. This submission was based upon the principle enunciated in R v O’Leary.[1]On this line of reasoning, the Crown contended that the evidence of the second incident was capable of tending to support a conclusion as to the appellant’s state of mind at the time of the stabbing.
This argument has some force as the evidence of the second incident tended to demonstrate that the appellant was in an aggressive state of mind. It was capable of tending to rebut the defence case that, in the absence of any evidence of aggression at the time of the stabbing, the jury should have a doubt about the appellant’s intention. However, as the evidence was not left to the jury on this basis, it is unnecessary to finally decide this question. For the other reasons I have discussed, the evidence possessed probative force and was admissible.
As to an assessment of the probative value, counsel for the appellant submitted that the trial Judge erred in his approach to this question. The written submissions advanced the proposition that the trial Judge erred in determining that the evidence “bore on the question whether the applicant was ‘not so inebriated as to be incapable of forming the necessary intent’”. This submission misstates his Honour’s approach. The issue identified by his Honour went beyond the question of capability of forming the necessary intention and included the critical question whether, in fact, the appellant formed the necessary intention.
Second Incident – Discretionary Exclusion
As to the exclusion of the evidence in the exercise of the discretion, the trial Judge considered the question of potential prejudice and determined that such prejudice could be avoided with appropriate directions. His Honour rejected the suggestion that the jury might “impermissibly use such evidence as being probative of a murderous intent on the occasion of the first stabbing”. In the reasons earlier cited, his Honour observed that the accused’s violence in stabbing the deceased was not in dispute and, in these circumstances, his Honour was “doubtful” that there was potential for prejudice. He concluded that to the extent such potential existed, it could be met with an appropriate direction.
I am unable to discern any error in the approach of the trial Judge. His Honour correctly addressed himself to the relevant principles. I agree with his Honour’s assessment as to the potential for prejudice. This was not a case in which an accused denied committing an act of violence and evidence was led demonstrating a propensity for violence on the day in question. As the trial Judge observed, the act of violence was not in dispute. The risk of an impermissible line of reasoning with respect to the issue of intention was minimal.
In the context of the prejudicial effect of the evidence, as an alternative to his primary submission, counsel for the appellant contended that evidence of the appellant’s level of intoxication at the time of the second incident could have been led without reference to the appellant’s conduct in attempting to stab his former partner. In my view, however, not only would this approach have distorted the evidence, it would have omitted evidence of the appellant’s words and conduct that were highly probative of his physical and mental state.
The evidence being admissible, the ultimate question for this Court is whether by reason of the prejudicial effect of the evidence a miscarriage of justice has occurred. This requires consideration of the potential prejudicial effect of the evidence about which I have already indicated my view. Regard must also be had to the directions given to the jury.
After the first witness had given evidence concerning the incident at the store, the trial Judge gave the following directions to the jury:
“HIS HONOUR: Ladies and gentlemen I want to say something, just about that evidence that you heard a moment ago, and it seems there’s going to be some more evidence about a second incident that took place at a different location.
We have the stabbing of the deceased which took place in Ford Street or Ford Crescent. And then, we have another incident that took place in the Sports Store, which is a different location, some distance from where the first incident took place.
It hasn’t as yet been established that the gentleman at the second place, was Mr Ladd, and the Crown will have to establish that. For the purposes of what I’m saying to you now, I want you to assume that they’re going to establish that. If they don’t, then that evidence is totally irrelevant and has got nothing at all to do with it.
But if they establish that the evidence that Ms Noble just gave, concerned Mr Ladd, and that he was the man there with the knife, then what I have to say to you now is very, very important for you to understand. And it is a matter of law, which means that you must accept what I say about this. Matters of fact are for you remember, and matters of law for me.
What you have then, is a separate incident from the one that we are primarily concerned with. The incident we are primarily concerned with, happened in 19 Ford Street. This is an incident that happened somewhere else, on a much later – or on a later occasion, just how long, we don’t know as yet.
Normally, evidence of what happens on a different occasion, would not be received in court, because it’s got no relevance to what we have to decide – indeed, not what we have to decide, but what you have to decide. It is a separate incident and has no relevance to the events that we are concerned with.
However, I have allowed the prosecution to lead this evidence, that is evidence of what happened at the store, for one reason and for one reason only. You know from the start of the trial, from what was said to you by Mr Shaw and what was said to you by Mr Georgiou, that an issue in this case is the level of intoxication of Mr Ladd and more importantly, whether the Crown can establish that he was capable of forming an intent to either cause the death of the deceased or to cause her serious harm.
So there’s a real issue about whether he – Mr Ladd, was capable of forming an intent because of his level of intoxication. And you have already heard some evidence that he was quite drunk. I think the last witness, the young man, who’s name was Darius Chungaloo, told you that he was blind drunk.
Now the Crown has to establish, beyond reasonable doubt that he could form the intention to cause the death of the deceased or cause her serious harm, and that he in fact did so. And it is for the Crown to satisfy you about that. So the Crown must prove beyond reasonable doubt that he had the relevant intention.
I have allowed this evidence to go in, of something that happened afterwards at a different location, because it may, and I emphasise may, it will be a decision for you. But it may assist you in determining just how affected by alcohol, Mr Ladd was, at the time of the stabbing of the deceased.
The evidence that has been led from Ms Noble, relates to a time after that stabbing, but you may think it will help you to determine what he was like at the time of the stabbing. It may assist you in determining just how affected he was.
Now, we don’t have much evidence in relation to the time of the stabbing as yet, and we don’t have much evidence as to the time of the incident at the store, and we don’t know yet, how close they were together. That is something, in relation to which I assume there will be some more evidence, and you ultimately will have to make a decision as to how close they were. Whether that was half an hour, an hour, or two hours or less than half an hour apart.
If you think that the evidence shows that what happened at the shop was sufficiently close in time, to what happened at 19 Ford Street, then you may think that that may help you to work out how intoxicated he was at Ford Street. Now you have some evidence that he was blind drunk at Ford Street, but you need to consider all the evidence in that regard.
You now have some more evidence at some time afterwards, which will – from which you might be able to determine that he was either heavily intoxicated, or not as intoxicated as you might otherwise have thought or not intoxicated at all. That will be a matter for you as to how you view the evidence of what happened at the shop.
But if you determine, for example, that he was heavily intoxicated at the shop, blind drunk, then you might think that lends some force to what has been said about his condition at 19 Ford Street. If, on the other hand, you think that he was more sober at the shop, then you may think perhaps he wasn’t quite as drunk as may have been suggested back at Ford Street. You can see the link, and of course the longer the time between the two, the less powerful will be the evidence, because he would have had time to sober up.
So you can use that evidence in that way alone. That is to help you work out whether the Crown has established beyond reasonable doubt, that he formed the intention to kill the deceased or to cause her serious harm at 19 Ford Street. And that is the only reason, you are receiving this evidence. If it wasn’t for that, it would not have been introduced because it simply is irrelevant, apart from that.
So I direct you, and I do this as a matter of law, that you can only use that evidence for the limited purpose that I have described and no other purpose.
I want to say this to you. It would be quite wrong for you to use the information for any other purpose. It would be illogical, and it would be wrong for you to reason that because he produced a knife on the second occasion, therefore he is a violent man and must have intended to cause the death of the deceased or serious harm to her on the earlier occasion. That would be an illogical conclusion. It would be, what we call, impermissible reasoning. It just doesn’t follow.
The use of the knife at the shop, does not and can not, tell you anything about what his state of mind was, back in 19 Ford Street. It doesn’t help you to determine whether he intended to kill the lady at 19 Ford Street, or whether he intended to do her some serious harm, and whether the Crown has been able to establish those matters beyond reasonable doubt.
So I say to you again, the evidence as to what he said at the shop, so not so much what he did, but what he said at the shop, and how he said it, may help you to determine what his condition was on that occasion; that is at the shop, and if you are so inclined, you may then use that evidence to refer back to the earlier stabbing of the deceased and determine what his condition may or must have been on the earlier occasion. So it may assist you, in your consideration of whether the Crown has established beyond reasonable doubt, if he was capable of forming the necessary intention, that is the intention to kill or do serious harm at the time the deceased was stabbed.
I’ve taken a long time to explain that to you, and I’ve probably said it two or three times in different ways, but it is an important matter, and I repeat, you are only to use the evidence in the manner that I have described, and not in the matter [sic] that I told you was impermissible reasoning.
There will be further evidence about these matters, and I gather that’s going to be tomorrow. I will remind you, very briefly then, that these comments that I’ve made to you today are to be borne in mind by you and I’ll remind you at the end of the trial as well.”
After other witnesses had completed their evidence concerning the second incident, the first witness was recalled to give evidence as to her opinion of the appellant’s level of intoxication, a topic which had apparently been overlooked when she first gave evidence. As that witness was the last witness to give evidence concerning the second incident, the trial Judge took the opportunity of repeating his directions to the jury about the proper use of the evidence:
“Ladies and gentlemen, this is just really a repeat of what I have already said to you regarding this evidence about what took place at the – at the Emporium, the shop in Tennant Creek. That really is a separate – as I told you before, that really is a separate incident from the one that we are concerned with and the only reason we are looking at that incident, is to see if it gives you some assistance in determining what the state of mind of this man may have been at the time of the original stabbing; that is, back in Ford Street. It is for no other purpose. I remind you of that and I remind you that it would be quite wrong for you to look at what he did on the second occasion and think well; therefore he must have meant to either kill her or cause her grievous harm on the earlier occasion.
We talked about that before and it would be quite illogical and I’m pleased to see you nodding your heads as I put this to you again. The evidence comes only for that one purpose and can only be used for that one purpose, that is if you think it’s sufficiently close in time to the earlier incident to be of help to you and if you think that he was either drunk or sober on the second occasion, that may help you to determine whether he was capable of forming the necessary intention on the earlier occasion; that is whether he was capable of forming the intention to kill the victim or alternatively to cause her harm and of course, whether he did in fact form that intention. The onus in that regard rests upon the Crown to prove it beyond reasonable doubt. This is an item of evidence, which if you accept it, may be used to assist you in working out whether the Crown has established its case or not.
Okay, I thought I should repeat that because it’s most important that it not be – the evidence not be used for any inappropriate purpose.”
In his final directions to the jury, the trial Judge again warned the jury against misusing the evidence and gave an appropriate direction as to the proper use of the evidence:
“Now, I am going to take you then to the evidence of the people at the shop. I just want to remind you – I expect you are probably a bit sick of hearing this, but that evidence is to be used for only the limited purpose of determining the condition of Mr Ladd as at the time of the stabbing. If you think that the incident at the time in the shop was sufficiently close to the time of the stabbing to enable you to gain assistance from that evidence, then you may use it as such. If you think it’s not or if you think what took place at the shop doesn’t help you in any event, then you can put it to one side. But that is the sole purpose that that evidence is led for.
And I emphasise that is all you can use it for. And you can’t use it to somehow suggest – and I don’t think you would do this in any event, that because he stabbed the deceased at 19 Ford Crescent and because he then endeavoured to stab his ex-wife at the shop, somehow he has an intention to murder her or cause serious harm on the first occasion, it is just illogical. And I tell you that you are not able to use that thought process, that line of reasoning. It would be not only illogical but improper and you should not do it.”
In my opinion, the evidence was rightly admitted and the repeated firm directions dispelled any possibility that the jury would misuse the evidence. No miscarriage of justice has occurred. Ground 1 fails.
Ground 2 – Directions as to Intention
Ground 2(a) - The learned trial Judge erred in leaving intention to kill as a fault element when it was not open on the evidence to be satisfied beyond reasonable doubt of such an intention.
In essence, this ground asserts that the evidence was incapable in law of supporting a conclusion beyond reasonable doubt that the appellant possessed an intention to cause death at the time of the act of stabbing. Counsel contended that in the absence of any evidence of motive or ill feeling leading to the incident, and in light of the appellant’s state of intoxication, the single act of stabbing was not capable of supporting an inference beyond reasonable doubt that the appellant intended to kill the deceased.
It is sufficient to refer to the evidence of the two eye witnesses. Ms Carr was the cousin-sister of the deceased. She was in the rear yard of the premises drinking with the accused and the deceased. As to the stabbing, Ms Carr gave the following evidence:
“Q. And can you tell us please, what happened?
A.We was standing there and then I went into the toilet, then I came out, and they both were standing outside, at the back and then, when I came out, he just got the knife from out of nowhere. And I trying to grab his wrist, so he punched on my chest, and I fell backwards.
Q.Yes?
A.And then he just stick the knife into her.
Q.Into your cousin’s sister. And what happened, what did she do?
A.She just stand there for a little while, and then she just fell down to the ground and then he took off with the knife in his hand, out through the back gate, and then I was calling out for help.”
During cross-examination, Ms Carr said she did not see or hear any reason to explain why the accused had the knife and did not see him take possession of it. She admitted telling police that after she went to the ground, the deceased “moved a bit towards him and he just put the knife into her”. Ms Carr agreed that before the stabbing they were all in a happy mood, but she was not in a position to see or hear what occurred between the deceased and the appellant while she was in the toilet.
Darius Chungaloo was drinking moselle by himself a short distance from the deceased and appellant. Asked to describe what he saw, Mr Chungaloo said the accused “just get up and stab him in the chest”. The reference to “him” was a reference to the deceased. He demonstrated the blow using his right arm with the hand at shoulder level holding the knife with the thumb on top and the fingers below the handle. Mr Chungaloo demonstrated the blow by thrusting forward from the shoulder. He said the knife bent in the blow.
The wound was a two centimetre long wound in the centre of the body over the upper part of the sternum and it extended to a depth of 14 centimetres. The blade of the knife was approximately 13 centimetres in length. The track of the wound contained a downward component and the pathologist explained that the angle at which the knife was thrust would depend upon the position of the deceased and whether she was upright and vertical or leaning forward.
The blade of the knife penetrated bone about a centimetre thick which was described as fairly porous and not solid with a covering of fibrous tissue. The pathologist said that it required “a fair bit of force to get through it”. Having examined the knife, and particularly the tip which was quite sharp, the pathologist described the degree of force to penetrate as being “moderate to severe”. As to whether his opinion concerning the degree of force would be affected if the deceased was moving toward the appellant at the time of the stabbing, the pathologist responded that if the deceased was “merely walking or walking briskly”, such movement would not add a great deal to the amount of force and would not modify his opinion as to “the amount of force required to actually put that knife through the manubrium”. Not only did the appellant stab the deceased in the centre of her body, he did so with sufficient force to penetrate bone and he thrust the knife into the body to almost the full length of the 14 centimetre blade.

As to the appellant’s state of intoxication, varying views were expressed and it is unnecessary to refer to that evidence. The jury may well have reached the view that it was reasonably possible that the appellant was severely intoxicated, but it was also open to the jury to be satisfied that notwithstanding his intoxication, the appellant did not lack coordination and was well aware of what he was doing. There was no evidence that the appellant was swaying or stumbled or was unsteady on his feet at about the time he wielded the knife. There was no evidence suggesting a lack of coordination. There was nothing in the evidence to suggest that the appellant attempted to stab the deceased in some part of her body other than the chest.
In assessing whether the evidence was capable of supporting an inference that the appellant intended to cause the death of the deceased, the conduct of the appellant in resisting Ms Carr’s attempt to disarm him should not be overlooked. Ms Carr attempted to grab the appellant’s wrist, but the appellant punched her with sufficient force to cause her to fall over. The appellant then stabbed the deceased without delay. It was open to the jury to conclude that the appellant’s conduct demonstrated a determination to overcome resistance and to proceed with the act of stabbing. In this way, the appellant demonstrated the existence of purpose and intention.
In my opinion, the evidence was capable in law of supporting a conclusion beyond reasonable doubt that the appellant intended to cause the death of the deceased. Counsel at trial did not suggest otherwise. There was no suggestion in the evidence that the act of stabbing was other than a deliberate and forceful act on the part of the appellant. The absence of ill-will or an argument is not definitive. The appellant did not inflict a shallow stab wound to flesh only with tragic consequences. Having repelled efforts to disarm him, the appellant forcefully stabbed the deceased to the centre of the chest penetrating almost to the hilt. The jury was entitled to infer from the combination of all these facts that the appellant intended to cause the death of the deceased.
Ground 2(b) - The learned trial Judge erred in failing to direct that there must be an intention to engage in the conduct causing death and in failing to distinguish that intention and the intention required in relation to the result, having regard to ss 43AD-43AF, 43AH-43AI and 156 of the Code.
Ground 2(c) - The learned trial Judge erred in failing to direct, in accordance with s 43AI(2) of the Code, that a person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.
These grounds, and grounds 2(d) and (e), arise out of the operation of Pt IIAA of the Criminal Code (“the Code”) which came into operation on 20 December 2006. Part IIAA is based upon ch 2 of the Model Criminal Code and applies only to a limited number of offences specified in Sch 1 to the Code. Those offences include homicide and other serious offences against the person. In the Second Reading Speech when introducing the amendment, the Attorney-General described the amendments as proposing “reform of the Criminal Code that goes to the heart of fault theory in criminal law by enacting new general principles upon which persons may be held criminally responsible for their conduct”. The Attorney-General expressed an intention that the new principles of criminal responsibility set out in Pt IIAA would be progressively applied to all offences.
The crime of Dangerous Act under s 154 of the Code was repealed. A new manslaughter provision was inserted. Section 162, which defined the crime of murder, was repealed and replaced by a new provision, now s 156. It is helpful to compare s 162 with s 156.
Under s 162, leaving aside special situations involving death during the commission of an offence, murder was defined as an unlawful killing accompanied by the following circumstance:
“If the offender intends to cause the death of the person killed or of some other person or if the offender intends to do to the person killed or to some other person grievous harm. …”
Section 156 now defines murder in the following terms:
“(1)   A person is guilty of the crime of murder if:
(a)     the person engages in conduct; and
(b)     that conduct causes the death of another person; and
(c)the person intends to cause the death of, or serious harm to, that or any other person by that conduct.
(2)     Section 43BF does not apply to the crime of murder.”
Read in isolation from the remaining provisions of Pt IIAA, s 156 does not appear to alter the essence of the crime of murder. Section 156 requires proof of conduct that causes the death of another person. Under s 162, an unlawful killing was usually founded upon proof that the offender engaged in conduct which caused the death of another.
The mental element specified in s 162 was an intention to cause death or grievous harm. Section 156 requires that the conduct causing death be accompanied by an intention to cause death or serious harm. The concept of “serious harm” replaces “grievous harm” and, for practical purposes, there is little difference between the concepts. “Serious harm” is, and “grievous harm” was, defined as follows:
“serious harm means any harm (including the cumulative effect of more than one harm):
(a) that endangers, or is likely to endanger, a person’s life; or
(b) that is or is likely to be significant and longstanding.”
“‘grievous harm’ means any physical or mental injury of such a nature as to endanger or be likely to endanger life or to cause or be likely to cause permanent injury to health. …”
Speaking generally, under the old provisions it was necessary to have regard to the provisions in Pt II of the Code which was headed “Criminal Responsibility”. Part II contained provisions dealing with authorisation or justification of otherwise unlawful conduct, claim of right, mistake of fact and sudden and extraordinary emergency. In addition, the concept of voluntariness and accident were dealt with by s 31 which was in the following terms:
“31    Unwilled act, &c., and accident
(1)     A person is excused from criminal responsibility for an act, omission or event unless it was intended or foreseen by him as a possible consequence of his conduct.
(2)     A person who does not intend a particular act, omission or event, but foresees it as a possible consequence of his conduct, and that particular act, omission or event occurs, is excused from criminal responsibility for it if, in all the circumstances, including the chance of it occurring and its nature, an ordinary person similarly circumstanced and having such foresight would have proceeded with that conduct.
…”
Section 31(1) did not apply to the crime of murder.[2] Section 162 was a self contained provision. Murder was committed if the act causing death was done intentionally and with an intention to cause death or grievous harm. Foresight of death was not required.
For the purposes of the law of homicide, Pt II of the Code no longer applies. It has been replaced by Pt IIAA. Of particular relevance to the grounds of appeal under consideration are those provisions in Pt IIAA that have introduced physical and fault elements and which define intent, recklessness and negligence. The relevant provisions are as follows:
“43AB       Elements
(1)     An offence consists of physical elements and fault elements.
(2)     However, the law that creates the offence may provide that there is no fault element for one or more physical elements.
(3)     The law that creates the offence may provide different fault elements for different physical elements.
43AC Establishing guilt of offences
A person must not be found guilty of committing an offence unless the following is proved:
(a)the existence of the physical elements of the offence that are, under the law creating the offence, relevant to establishing guilt;
(b)for each of the physical elements for which a fault element is required, one of the fault elements for the physical element.
43ACA     Law including separate statement about fault elements[3]
(1)     This section applies to a provision of a law that:
(a)     creates an offence; and
(b)     includes a separate statement:
(i)     specifying the fault elements of the offence; or
(ii)classifying the offence as one of strict liability or absolute liability (and thus excluding fault elements).
Example
See the statement under the heading "Fault elements" in section 174FA(1).
(2)Part IIAA applies to the offence.
Note
Part IIAA states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences (for example, see the extended meaning given to the concept of recklessness in section 43AK(4)).
(3)     If the statement identifies certain elements as the fault elements of the offence:
(a)the fault elements so identified are the only fault elements of the offence; and
(b)the statement operates to the exclusion of fault elements that might otherwise be implied under provisions of this Code.
Note
Accordingly fault elements that might otherwise be implied under section 43AM are excluded by the statement.
(4)     If the statement classifies the offence as one of strict liability, section 43AN(1) applies to the offence.
(5)     If the statement classifies the offence as one of absolute liability, section 43AO(1) applies to the offence.
Subdivision 2 - Physical elements
43AD          Conduct and engaging in conduct
(1)     Conduct is an act, an omission to perform an act or a state of affairs.
(2)     Engage in conduct is to:
(a)     perform an act; or
(b)     omit to perform an act.
43AE          Physical elements
A physical element of an offence may be:
(a)     conduct; or
(b)     a result of conduct; or
(c)a circumstance in which conduct, or a result of conduct, happens.
43AF          Voluntariness
(1)     Conduct can only be a physical element if it is voluntary.
(2)     Conduct is only voluntary if it is a product of the will of the person whose conduct it is.
Examples of conduct that is not voluntary
1.     A spasm, convulsion or other unwilled bodily movement.
2.     An act performed during sleep or unconsciousness.
3.     An act performed during impaired consciousness depriving the person of the will to act.
(3)     An omission to perform an act is only voluntary if the act omitted is an act the person can perform.
(4)     If the conduct constituting an offence consists only of a state of affairs, the state of affairs is only voluntary if it is one over which the person is capable of exercising control.
(5)     Evidence of self-induced intoxication cannot be considered in determining whether conduct is voluntary.
43AG          Omissions
(1)     An omission to perform an act can only be a physical element if the law creating the offence:
(a)     makes it a physical element; or
(b)impliedly provides that the offence is committed by an omission to perform an act that, by law, there is a duty to perform.
(2)     However, an omission to perform an act can be a physical element of an offence against a Schedule 1 provision if it is a person's omission to perform any of the duties referred to in Part VI, Division 1.
(3)     The fault element for an omission to perform an act referred to in subsection (2) that causes, or that gives rise to danger of, death or harm is, if not otherwise specified in the Schedule 1 provision, the same as the fault element for the result of the omission.
Note for section 43AG(3)
In the absence of subsection (3), the fault element for the conduct consisting of an omission to perform an act would be intention under the default provision in section 43AM(1). Generally in relation to Schedule 1 offences, the fault element for acts that cause etc. death or harm is not specified but the fault element for the result concerned is specified as either intention, recklessness or negligence.
Subdivision 3 Fault elements
43AH          Fault elements
(1)     A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.
(2)     Subsection (1) does not prevent the law that creates an offence from specifying other fault elements for a physical element of the offence.
43AI          Intention
(1)     A person has intention in relation to conduct if the person means to engage in that conduct.
(2)     A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.
(3)     A person has intention in relation to a circumstance if the person believes that it exists or will exist.
43AJ          Knowledge
A person has knowledge of a result or circumstance if the person is aware that it exists or will exist in the ordinary course of events.
43AK          Recklessness
(1)     A person is reckless in relation to a result if:
(a)the person is aware of a substantial risk that the result will happen; and
(b)having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(2)     A person is reckless in relation to a circumstance if:
(a)the person is aware of a substantial risk that the circumstance exists or will exist; and
(b)having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(3)      The question whether taking a risk is unjustifiable is one of fact.
(4)      If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.
43AL          Negligence
A person is negligent in relation to a physical element of an offence if the person's conduct involves:
(a)such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
(b)such a high risk that the physical element exists or will exist,
that the conduct merits criminal punishment for the offence.
43AM        Offences that do not provide fault elements
(1)     If a law that creates an offence does not provide a fault element for a physical element that consists only of conduct, intention is the fault element for the physical element.
(2)     If a law that creates an offence does not provide a fault element for a physical element that consists of a result or circumstance, recklessness is the fault element for the physical element.
Note for subsection (2)
Under section 43AK(4), recklessness can be established by proving intention, knowledge or recklessness.
Subdivision 4 Cases where fault elements are not required
43AN          Strict liability
(1)     If a law that creates an offence provides that an offence is an offence of strict liability:
(a)there are no fault elements for any of the physical elements of the offence; and
(b)the defence of mistake of fact under section 43AX is available.
(2)     If a law that creates an offence provides that strict liability applies to a particular physical element of an offence:
(a)there are no fault elements for that physical element; and
(b)the defence of mistake of fact under section 43AX is available in relation to that physical element.
(3)     The existence of strict liability does not make any other defence unavailable.
43AO          Absolute liability
(1)     If a law that creates an offence provides that an offence is an offence of absolute liability:
(a)there are no fault elements for any of the physical elements of the offence; and
(b)the defence of mistake of fact under section 43AX is unavailable.
(2)     If a law that creates an offence provides that absolute liability applies to a particular physical element of an offence:
(a)there are no fault elements for that physical element; and
(b)the defence of mistake of fact under section 43AX is unavailable in relation to that physical element.
(3)     The existence of absolute liability does not make any other defence unavailable.”
Leaving aside the operation of s 43ACA and speaking generally, for present purposes the relevant features of the new legislative scheme may be summarised as follows:
·     Every offence consists of physical and fault elements unless the provision creating the offence specifies otherwise: s 43AB.
·     Physical elements may be comprised of conduct[4] or a result of conduct or a circumstance in which conduct, or a result of conduct, happens: s 43AE.
·     In order to amount to a physical element, conduct must be voluntary in the sense of being a product of the will of the person performing the conduct: s 43AF.
·     Self induced intoxication cannot be considered in determining whether conduct is voluntary: s 43AF(5).
·     A fault element for a physical element may be intention, knowledge, recklessness or negligence:[5] s 43AH.
· If the law creating an offence does not provide a fault element for a physical element that consists only of conduct, intention is the fault element: s 43AM(1).
· If the law creating an offence does not provide a fault element for a physical element that consists of a result or circumstance, recklessness is the fault element: s 43AM(2).
·     If recklessness is the fault element, proof of intention, knowledge or recklessness satisfies the fault element: s 43AK(4)
·     Self induced intoxication cannot be considered in determining whether a fault element of “basic intent” existed: s 43AS(1). “Basic intent” means a fault element of intention for a physical element of conduct: s 1.
·     Offences of strict and absolute liability do not involve fault elements: ss 43AN and 43AO.
In the context of the new legislative scheme, grounds 2(b) and (c) concern directions required with respect to the physical elements of the crime of murder. Section 156 specifies two physical elements. First, engaging in the relevant conduct being the act of the appellant in stabbing the deceased. Secondly, the result of the conduct, namely, the death of the deceased.
At trial, there was no dispute that the appellant engaged in the act of stabbing. In other words, there was no dispute that the first physical element under s 156 was made out. Nevertheless, notwithstanding the absence of dispute or any request by counsel for the appellant at trial to give a direction concerning voluntariness, counsel for the appellant on the appeal submitted that the directions were inadequate because they did not “instruct that the prosecution must prove that the conduct causing death was both voluntary and intentional, or explain the difference between voluntariness and intention in this connexion”.
The act of stabbing the deceased could amount to the first physical element under s 156 only if that act was voluntary: s 43AF(1). Pursuant to s 43AF(2), the act of stabbing was voluntary only if it was “a product of the will” of the appellant.
The requirement that the conduct causing death be voluntary is not new. Murder under the repealed s 162, or at common law, required that the conduct causing death be voluntary, but it has never been the law that in the absence of evidence raising the possibility that the relevant conduct was voluntary, a trial Judge is obliged to give a direction that the Crown is required to prove that the conduct was voluntary.
Counsel for the appellant did not suggest that there was any evidence to raise the issue of voluntariness. Not only was there no suggestion of involuntariness, there was no suggestion that the act of stabbing was anything other than intentional.
Further, if the trial Judge had given a direction that the jury was required to determine whether the act of stabbing was voluntary, his Honour would also have been required to direct the jury that the appellant’s intoxication had to be ignored in determining whether the act of stabbing was voluntary. Section 43AF(5) specifically states that evidence of self-induced intoxication “cannot be considered in determining whether conduct is voluntary”.

As to ground 2(e), in my opinion s 156(1)(a) and (b) and s 160(a) and (b) do not specify two separate conducts. The “conduct” is expressed in s 156(1)(a) and s 160(a). The consequence, or result of that conduct, is expressed in s 156(1)(b) and s 160(b). The combination of s 156(1)(a) and (b) and s 160(a) and (b) is the “physical element” in each case: see s 43AE. Although s 43AE suggests that there may be more than one physical element contained in an offence, s 43AM(1) suggests, by reference to “a physical element consisting only of conduct”, that a physical element may consist of both conduct and the result of conduct. The fault element for the physical element is expressed in s 156(1)(c) or s 160(c) as the case may be. In the case of murder, s 156 itself provides for a fault element which does not consist only of conduct, and therefore s 43AM(1) does not apply to that offence. In the case of manslaughter, s 160(c) provides a fault element, and therefore s 43AM(2) does not apply to that offence.
The argument of the appellant was that s 43AM(2) applied to the offence of murder. That depends upon the interpretation to be given to the words “if a law that creates an offence does not provide a fault element for a physical element that consists of a result or circumstance”. If the fault element in the case of murder consisted of both “conduct” as well as a “result of that conduct”, does s 43AM(2) apply to a physical element that consists of a fault element which consists of both conduct and a result of that conduct? In my opinion, if the draftsman of the Code had intended that to be so, I would have expected s 43AM(2) to have expressly said so. The logical consequence of that construction is that if s 43AM(2) applied to murder, bearing in mind that s 43AK(4) provides that “if recklessness is a fault element for an offence, proof of intention, knowledge or recklessness satisfies the fault element”, the Crown could establish murder by proving either an intention to cause death or an intention to cause serious harm, or by recklessness as to the conduct causing death, as the fault element for murder. I do not consider that Parliament intended this consequence for the reasons explained by the Chief Justice, but if it did, it does not carry with it the consequence that, in addition to proving an intent to cause serious harm, the Crown also had to prove recklessness.
Alternatively, as the Chief Justice explains, if (as I believe is the case) there are two fault elements to murder consisting of conduct and the result of conduct, the fault element for the result of conduct, i.e. the causing of the death of a person, is the intention to kill or to cause grievous harm. Consequently, s 43AM(2) does not apply to the fault element consisting of the result of the conduct because s 156 provides the fault element. This ground of appeal must be rejected.
As to the criticism of the learned trial Judge’s directions to the jury concerning intoxication, so far as ground 3(c) is concerned, the learned trial Judge is his re-direction at AB376 specifically dealt with that issue. In addition, I agree with the Chief Justice’s judgment on that aspect of the appeal.
As to the complaint by the appellant that the learned trial Judge’s direction on intoxication erred by excluding intoxication to a lesser degree than severe intoxication, in my opinion there is no substance to that submission at all. The direction his Honour gave was in accordance with R v O’Connor[88] and in the part of the direction complained of, is plainly based upon the judgment of Barwick CJ. It is my opinion that if the evidence as to intoxication was not capable of going to show that an accused was grossly affected by self-induced intoxication, the evidence is insufficient to be left to the jury as raising a reasonable doubt as to the accused’s mental state.[89]
To the extent that the learned trial Judge impressed upon the jury the relevance of severe intoxication in their deliberations, no error is shown; see also R v O’Connor per Murphy J,[90] when his Honour said:

“The inferences to be drawn from intoxication are not all one way: evidence of intoxication may result in absence of proof beyond reasonable doubt of mens rea, or in a more ready acceptance that mens rea exists on the supposition that intoxication reduces inhibitions.

------------------------------

[1] (1946) 73 CLR 566 at 577 and 578 per Dixon J.

[2] Charlie v The Queen (2000) 199 CLR 387.

[3] Section 43ACA was introduced by the Criminal Code Amendment (Hit and Run and Other Endangerment Offences) Act 2008 which came into operation on 17 October 2008.

[4] Conduct includes an act or omission to perform an act: s 43AD.

[5] These terms are defined in ss 43AI – 43AL.

[6] Alford v Magee (1952) 85 CLR 437 at 466.

[7] (2002) 211 CLR 193 at [8] – [14] and [41] – [51].

[8] (1985) 156 CLR 464.

[9] R v Crabbe (1985) 156 CLR 464 at 469.

[10] R v Krosel (1986) 41 NTR 34.

[11] (1961) 108 CLR 56.

[12] Vallance v The Queen (1961) 108 CLR 56 at 59.

[13] Vallance v The Queen (1961) 108 CLR 56 at 60.

[14] Vallance v The Queen (1961) 108 CLR 56 at 60.

[15] Vallance v The Queen (1961) 108 CLR 56 at 61.

[16] Charlie v The Queen (2000) 199 CLR 387.

[17] Charlie v The Queen (2000) 199 CLR 387 at [66].

[18] (1997) 188 CLR 1 at 12.

[19] Charlie v The Queen (2000) 199 CLR 387 at [69].

[20] (2002) 211 CLR 193.

[21] Murray v The Queen (2002) 211 CLR 193 at [2] – [4].

[22] Murray v The Queen (2002) 211 CLR 193 at [23].

[23] (1986) 128 LSJS 460 at 463.

[24] (1978) 141 CLR 88 at 111 – 112.

[25] Spencer v The Queen (2003) 137 A Crim R 444 at [20].

[26] Spencer v The Queen (2003) 137 A Crim R 444 at [18].

[27] R v Reeves (1992) 29 NSWLR 109 at 117 (citations omitted).

[28] Citations omitted.

[29] (1971) 126 CLR 28.

[30] Green v The Queen (1971) 126 CLR 28 at 32 – 33.

[31] Green v The Queen (1971) 126 CLR 28 at 33.

[32] (1960) 102 CLR 584 at 595.

[33] Thomas v The Queen (1960) 102 CLR 584 at 605.

[34] Thomas v The Queen (1960) 102 CLR 584 at 605.

[35] [1972] 1 NSWLR 373.

[36] R v Floyd [1972] 1 NSWLR 373. Special leave to appeal to the High Court was refused – see (1973) 47 ALJR 420.

[37] (1976) 136 CLR 62.

[38] (1986) 42 SASR 203.

[39] R v Wilson, Tchorz and Young (1986) 42 SASR 203 at 207 (citations omitted).

[40] R v Wilson, Tchorz and Young (1986) 42 SASR 203 at 206 (citations omitted).

[41] R v Pahuja (1988) 49 SASR 191.

[42] R v Pahuja (1988) 49 SASR 191 at 194 (citations omitted).

[43] R v Wilson, Tchorz and Young (1986) 42 SASR 203.

[44] R v Pahuja (1988) 49 SASR 191 at 194.

[45] R v Pahuja (1988) 49 SASR 191 at 194 – 195.

[46] R v Pahuja (1988) 49 SASR 191 at 195.

[47] R v Pahuja (1988) 49 SASR 191 at 211.

[48] R v Pahuja (1988) 49 SASR 191 at 204.

[49] R v Pahuja (1988) 49 SASR 191 at 205 (citations omitted).

[50] R v Pahuja (1988) 49 SASR 191 at 205.

[51] R v Pahuja (1988) 49 SASR 191 at 207.

[52] R v Pahuja (1988) 49 SASR 191 at 210.

[53] R v Pahuja (1988) 49 SASR 191 at 210.

[54] R v Pahuja (1988) 49 SASR 191 at 210 – 211 (citations omitted).

[55] R v Pahuja (1988) 49 SASR 191 at 220.

[56] R v Pahuja (1988) 49 SASR 191 at 220.

[57] [1988] 15 Leg Rep SL 4.

[58] [1992] 1 VR 57.

[59] R v Neilan [1992] 1 VR 57 at 69.

[60] R v Neilan [1992] 1 VR 57 at 70.

[61] R v Neilan [1992] 1 VR 57 at 70.

[62] Thomas v The Queen (1960) 102 CLR 584 at 595.

[63] (1971) 126 CLR 28 at 32-33.

[64] R v Neilan [1992] 1 VR 57 at 71 (citations omitted).

[65] R v Neilan [1992] 1 VR 57 at 71.

[66] (Unreported, Western Australian Court of Criminal Appeal, Malcolm CJ, Ipp and Steytler JJ, 26 May 1995).

[67] [1996] QCA 342.

[68] (1997) 99 A Crim R 193.

[69] R v Goncalves (1997) 99 A Crim R 193 at 196.

[70] (Unreported, New South Wales Court of Criminal Appeal, Spigelman CJ, Sully and Hidden JJ, 1 October 1988).

[71] [2000] 1 VR 491.

[72] R v Chatzidimitriou [2000] 1 VR 491 at [5].

[73] R v Chatzidimitriou [2000] 1 VR 491 at [9].

[74] R v Chatzidimitriou [2000] 1 VR 491 at [11].

[75] R v Chatzidimitriou [2000] 1 VR 491 at [46].

[76] R v Chatzidimitriou [2000] 1 VR 491 at [26].

[77] R v Chatzidimitriou [2000] 1 VR 491 at [22].

[78] (2000) 116 A Crim R 108.

[79] R v Graham (2000) 116 A Crim R 108 at [59].

[80] (2002) 130 A Crim R 545.

[81] R v Ho (2002) 130 A Crim R 545 at [32].

[82] R v Ho (2002) 130 A Crim R 545 at [41].

[83] R v Pahuja (1988) 49 SASR 191 at 204.

[84] (2005) 227 CLR 373 at [69].

[85] See Viro v The Queen (1978) 141 CLR 88 at 111-112; R v O’Connor (1980) 146 CLR 64 at 118 per Aickin J.

[86] (1990) 170 CLR 573.

[87] (1990) 171 CLR 207 at 214-215.

[88] (1980) 146 CLR 64 at 71-72.

[89] R v O’Connor (1980) 146 CLR 64 per Barwick CJ at 72; per Stephen J at 94-95; per Aickin J at 117 and 126.

[90] (1980) 146 CLR 64 at 114.

[2009] NTCCA 6

20 May 2009

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Intention

Sentencing