Police v WILSON
[2012] SASC 38
•14 March 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v WILSON
[2012] SASC 38
Judgment of The Honourable Justice Vanstone
14 March 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - GENERALLY
Appeal against decision to dismiss charge - respondent was charged with aggravated assault - it was alleged that she threw a chair at her partner in an attempt to hit him with it but missed and struck a third person - prosecution put its case on the basis that the respondent was guilty of assault under s 20 of the Criminal Law Consolidation Act 1935 (SA) by virtue of the doctrine of transferred malice - magistrate found that the doctrine did not apply to the statutory offence - whether doctrine of transferred malice applies to offence created by s 20 - whether accused must have the specific intention to apply force to the person to whom force is actually applied.
Held: appeal allowed.
Criminal Law Consolidation Act 1935 (SA) s 20; Criminal Code Act 1983 (NT), referred to.
Pederson v Hales (2010) 10 NTLR 73; R v Latimer (1886) 17 QBD 359; R v Pembliton (1874) LR 2 CCR 119, distinguished.
Vallance v The Queen (1961) 108 CLR 56; R v Mitchell [1983] 1 QB 741; He Kaw Teh v The Queen (1985) 157 CLR 523, considered.
POLICE v WILSON
[2012] SASC 38Magistrates Appeal
VANSTONE J: The police appeal against a decision of a magistrate, dismissing a complaint containing a charge of assault.
The respondent was charged with an aggravated form of assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). It was alleged that on 20 October 2011 during the course of an altercation in a Centrelink office, the respondent threw a chair at her boyfriend, missing him but hitting a staff member. These facts were not disputed.
The prosecution put its case on the basis that the respondent had intended to assault her boyfriend, and that she was therefore guilty of assault against V, by virtue of the common law doctrine of transferred malice or transferred intention. Counsel for the respondent submitted that the doctrine of transferred malice did not apply to the offence created by s 20.
The magistrate found that no offence was made out. The magistrate relied on the wording of s 20, requiring an intentional application of force to the victim. In that regard he referred to a decision of Martin CJ in the Northern Territory Supreme Court (Pederson v Hales (2000) 10 NTLR 73) where the Chief Justice found that the Northern Territory Criminal Code Act 1983 (NT), having not expressly imported the common law principle of transferred malice in its statement of the law of assault, must be taken to have intended that it not apply. The magistrate also contrasted the terms of s 20 with s 23 (causing serious harm) and s 24 CLCA (causing harm) where recklessly causing harm as well as intending to cause harm is proscribed.
Background
The matter fell for determination by the magistrate in rather unusual circumstances. The trial was scheduled to proceed on 12 September 2011. However, the defendant did not appear. Mr Truscott appeared for the defendant and sought an adjournment so that her attendance might be secured. The magistrate declined to grant an adjournment and Mr Truscott indicated that he had instructions to proceed.
The statements making up the prosecution case and transcript of the defendant’s interview with police were tendered by the police prosecutor by consent. In the interview the defendant admitted having thrown a chair at her boyfriend, more than once, aiming to hit him. She said that at that time there were a few females and a few men standing in the vicinity of her boyfriend. She agreed that she had simply thrown the chair, not really caring about others.
Having received the statements, an argument took place before the magistrate as to whether the facts alleged amounted to an assault. I take this discussion to have been in the nature of argument following a no case to answer submission, although the making of a submission of that nature is not recorded in the transcript. In any event, the magistrate adjourned the matter for some six weeks and at that time delivered a judgment in which he ruled as I have indicated and dismissed the charge against the defendant.
Arguments on appeal
In support of the appeal, counsel for the appellant, Mr M Grant, argued that s 20 CLCA which came into force on 15 May 2006 did not amount to a codification of the law relating to assault. He relied on parts of the second reading speech of the Attorney-General (South Australia, Hansard, House of Assembly, 22 October 2003, 585). It is clear from statements made by the then Attorney-General that s 20 was intended to reflect the case law on assault and to provide a tiered penalty scheme and that common law defences (for example, the defence of lawful correction) were expected to continue to be available. Accordingly, it was argued, the common law doctrine of transferred malice would continue to apply. In response, Mr Truscott, who again appeared for the respondent, argued that the plain reading of s 20 showed that only where the offender was successful in applying force to the intended victim would the conduct amount to an assault. He argued that, the meaning of the section being clear, there was no occasion to resort to the second reading speech. Mr Truscott submitted that, had the Parliament intended applications of force to a person who was not the target of the assault to be caught, then it is likely that the formula used in s 23(3) (recklessly causing serious harm to another) and s 24(2) of the Act (recklessly causing harm to another) would have been employed.
I find myself unable to wholly agree with either argument.
To assist in understanding the arguments I set out the relevant sections.
20—Assault
(1) A person commits an assault if the person, without the consent of another person (the victim)—
(a)intentionally applies force (directly or indirectly) to the victim; or
(b)intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or
(c)threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that—
(i)the person who makes the threat is in a position to carry out the threat and intends to do so; or
(ii)there is a real possibility that the person will carry out the threat; or
(d)does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or
(e)accosts or impedes another in a threatening manner.
(2) However—
(a)conduct that lies within limits of what would be generally accepted in the community as normal incidents of social interaction or community life cannot amount to an assault; and
(b)conduct that is justified or excused by law cannot amount to an assault.
(3) A person who commits an assault is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 2 years;
(b)for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 3 years;
(c)for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 4 years.
(4) A person who commits an assault that causes harm to another is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 3 years;
(b)for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 4 years;
(c)for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 5 years.
Note—
This offence replaces section 40 (assault occasioning actual bodily harm) as in force prior to the commencement of this subsection and, consequently, see Coulter v The Queen (1988) 164 CLR 350.
23—Causing serious harm
(1) A person who causes serious harm to another, intending to cause serious harm, is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 20 years;
(b)for an aggravated offence—imprisonment for 25 years.
(2) (irrelevant)
(3) A person who causes serious harm to another, and is reckless in doing so, is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 15 years;
(b)for an aggravated offence—imprisonment for 19 years.
24—Causing harm
(1) A person who causes harm to another, intending to cause harm, is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 10 years;
(b)for an aggravated offence—imprisonment for 13 years.
(2) A person who causes harm to another, and is reckless in doing so, is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 5 years;
(b)for an aggravated offence—imprisonment for 7 years.
I find myself unable to wholly agree with either argument.
Doctrine of transferred malice
Before examining the terms of s 20 I turn to consider the so-called doctrine of transferred malice. Very few cases illustrate it, but it is discussed in some depth by Glanville Williams Criminal Law, The General Part (2nd ed, Stevens & Sons Limited, 1961) p 126-137 under that heading.
The case generally referred to as best describing the principle is R v Latimer (1886) 17 QBD 359. There, the prisoner had deliberately struck at a man but had instead struck and wounded a woman standing beside the intended victim. It was held that his conviction for unlawful and malicious wounding was correct. Lord Coleridge CJ, with whom the other members of the bench agreed, said this:
It is common knowledge that a man who has an unlawful and malicious intent against another, and, in attempting to carry it out, injures a third person, is guilty of what the law deems malice against the person injured, because the offender is doing an unlawful act, and has that which the judges call general malice, and that is enough.
The other case generally referred to in this connection is R v Pembliton (1874) LR 2 CCR 119. The defendant was charged with unlawfully and maliciously damaging a window. He had thrown a stone at some persons but had missed. The stone broke a window beyond his target. The jury found he did not intend to break the window, but convicted him. On a case stated to the Court for Crown Cases Reserved, Blackburn J distinguished the malice involved in the attempt to hit the victim with that required to prove property damage. The conviction was quashed. He added that the jury might have been told (but was not) that it would have been sufficient if the defendant had known that the probable consequence of his act was to break a window behind his target. It can be seen that the principle of transferred malice did not finally avail the prosecution because, as I read it, there was no deliberation in relation to the type of harm actually caused, being the property damage.
In Vallance v The Queen (1961) 108 CLR 56 at 81 Windeyer J, having referred to Hale’s Pleas of the Crown, observed that the principle originally related only to homicide but was, at an early date, given a wider application. Interestingly, Vallance, though concerned with the Tasmanian Code, is generally accepted as establishing that at common law recklessness, in the sense of foresight of likelihood of the infliction of harm, is a sufficient mental element for assault. See Howard, Criminal Law (5th ed, Law Book Company, 1990) 141-144.
In R v Mitchell [1983] 1 QB 741 the Court of Appeal considered the question of whether the defendant, having hit a man in a queue at a post office and that man having fallen against an elderly woman who then fell and later died from her injuries, was properly convicted for manslaughter of that woman. The Court held that he was. For the crime of manslaughter it was not necessary to prove that the defendant’s unlawful and dangerous acts were aimed at the victim: 748. In finding so the Court did not rely on the principle of transferred malice; although it noted that “Parliament evidently holds the same view in relation to the allied offence of unlawful and malicious wounding”, and referred to Latimer’s case.
Analysis
I question whether the principle of transferred malice ever extended to common assault. The cases dealing with it to which I have been referred are all cases in which malice was an element of the offence. Moreover – and this really gets to the heart of the present matter – in my view it would never have been necessary to extend the principle down to crimes of basic intent, such as assault is. At common law what had to be intended to prove assault was the act which resulted in an application of force. There was no requirement that the act be done maliciously, that is, accompanied by either an actual intention to do the particular kind of harm that was in fact done or recklessness as to whether such harm should occur: Watson & Purnell, Criminal Law in New South Wales, Volume 1, ‘Indictable Offences’ (The Law Book Company, 1971). The distinction under discussion is often referred to as the distinction between crimes of basic intent and crimes of specific intent. It is the difference in “intention as it relates to conduct”, that is, deliberately performing the act, as opposed to intention “as it relates to consequences”: Bronitt and McSherry, Principles of Criminal Law (2nd ed, 2005, Lawbook Co) p 174. In He Kaw Teh v The Queen (1985) 157 CLR 523 at 569-570 Brennan J expressed the distinction as follows:
General or basic intent relates to the doing of the act involved in an offence; special or specific intent relates to the results caused by the act done. In statutory offences, general or basic intent is an intent to do an act of the character prescribed by the statute creating the offence; special or specific intent is an intent to cause the results to which the intent is expressed to relate.
If I am correct then, malice (or intention to cause a particular result) never having been an element of an assault, the principle of transferred malice has no work to do where an offence against s 20 is charged.
If I am correct in this conclusion then the question of whether the Northern Territory case of Pederson was correctly decided arises. The report I have cited does not set out s 189A of the Criminal Code Act (NT) which the decision concerned and I have not paused to turn it up. Martin CJ also considered the interpretation of that section in the context of other provisions of the Code. In those circumstances I would be slow to express any view about the decision; it is enough to say that I do not consider it assists in interpreting the South Australian legislation.
I return to the words of s 20. The argument before me focussed on s 20(1)(a). In my opinion the opening words of subsection (1) together with the words of subparagraph (a) do not change the common law so to require proof that the defendant intentionally applied force to the very person to whom force was in fact applied. It is true that subparagraph (a) speaks of force applied “to the victim” but, bearing in mind that, according to the preamble “the victim” is simply another way of saying “another person”, the intention referred to is an intention to apply force, rather than an intention to apply force to the person in fact impacted.
The wording of s 20(1)(d) could also apply to the facts of the present case. Under that subparagraph it is enough that the defendant does an act for the purpose of applying force to another person. This subparagraph seems to contemplate the sort of circumstances which arise in the present case, where the act of throwing the chair was done with the intended purpose of applying force to another person. Under this subparagraph it is still clearer that the relevant intention relates to the act done, rather than the consequence of it.
Thus far there has been no need to refer to Mr Truscott’s argument to the effect that a comparison of s 20, s 23 and s 24 leads to a conclusion that recklessness is not a sufficient state of mind for the purposes of an offence under s 20. Even were that argument correct, it does not affect the outcome of this appeal. There is no question that the respondent had the basic intent to throw the chair.
From all this I would conclude that the magistrate was wrong to dismiss the complaint. There was no requirement that the prosecution prove that the respondent intended to hit the particular victim. Proof that she intended to throw the chair at her boyfriend and in fact hit the victim gave rise to a case to answer. Properly directing himself, a trier of fact could have concluded beyond reasonable doubt that this conduct amounted to assault under s 20 CLCA.
Conclusion
I have found that the magistrate erred in dismissing the complaint at the end of the prosecution case. Therefore the matter should be remitted to another magistrate for a new trial.
I make the following orders:
1. the appeal is allowed;
2.the order dismissing the complaint and all orders of the magistrate are set aside;
3.the matter is remitted to the Magistrates Court for a new trial.
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