R v Abdul-Rasool
[2008] VSCA 13
•12 February 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 362 of 2004
| THE QUEEN |
| v |
| RAJAA ABDUL-RASOOL |
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JUDGES: | CHERNOV and REDLICH JJA and KING AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 October 2006 | |
REASONS FOR JUDGMENT: | 12 February 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 13 | |
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CONVICTION – Reckless conduct endangering life – s 22 Crimes Act 1958 – Sufficiency of the evidence – Whether contemplated future acts of accused could be considered in determining whether offence committed – Relevance of acts not performed to elements of offence – Risk of death must be appreciable – Necessary foresight of probability of risk – Relevance of psychological or emotional state of accused – Conviction quashed – Verdict of acquittal entered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Ms A Cannon, Solicitor for Public Prosecutions |
For the Applicant | Mr L Lasry QC Ms P Murphy (Sol) | Robert Stary and Associates |
CHERNOV JA:
I have had the advantage of reading the draft reasons for judgment of Redlich JA in this matter and agree that, essentially for the reasons he gives, the impugned conviction should be quashed and a verdict of acquittal entered. More specifically, I accept that, in the end, the critical issue in the case is whether, on the evidence, a person was exposed, or may have been exposed, to an appreciable risk of death (as distinct from a mere possibility of that occurring) by reason of the whole of the offending conduct of the applicant, assessed in the context in which it occurred. Such endangerment is an essential element of the offence.[1] In my view, there was no exposure to such endangerment by reason of the applicant’s conduct. Importantly for present purposes, the question whether anyone was or may have been placed in danger of death by the applicant’s conduct is to be determined by reference to what she actually did on that occasion. The relevant conduct was the splashing of petrol by her on the floor and on the principal’s clothes. The Crown did not contend, nor could it have done so sensibly, that these acts endangered life. Nor did it claim that the presence of petrol vapour, by itself, produced such an endangerment. Rather, the Crown’s case was that the endangerment to life arose because the vapour could have been ignited by one or more of three potential sources, thereby producing a chain of events leading to the possible death of a relevant person. Two of such sources were external to the applicant – the heater and the computer. On the evidence, however, there was no realistic prospect of either of those sources igniting the vapour. The third potential source was the act of the applicant striking the lighter that was in her bag. But it is common ground that she made no attempt to use it. In the circumstances, and notwithstanding that the applicant was in a highly agitated state when she made the threats to burn the school, her conduct, without more, did not create an appreciable risk of death (of the principal or anyone else in the room or the school children). In my view, the applicant’s no case submission
should have been upheld by the trial judge. Hence, as I have said, I would allow the application for leave to appeal, treat the appeal as having been heard instanter and allow it, quash the conviction and order that a verdict of acquittal be entered.
[1]See Mutemeri v Cheesman [1998] 4 VR 484, 489 (Mandie J).
REDLICH JA:
The applicant, Rajaa Abdul-Rasool, was found guilty by a jury of reckless conduct endangering life under s 22 of the Crimes Act 1958. Upon conviction the applicant was released on her own undertaking to be of good behaviour for two years. She seeks leave to appeal against her conviction. At the trial the prosecution invited the jury to assess the applicant’s conduct on the basis that there was an appreciable risk that, whilst in a highly agitated state, she may have committed a further act which would have relevantly endangered the people in her presence. The principal issue raised by the appeal is whether criminal liability can arise as a consequence of anticipated acts which the accused has yet to perform. Further refined, the question is whether the prospect of further conduct by Ms Rasool, from which the danger to life could materialise, could be taken into account for the purposes of establishing the actus reus or the objective or subjective elements of the crime. A related question is whether the psychological or emotional state of the applicant could be treated as part of the conduct constituting the offence.
Section 22 is in these terms:
A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of death is guilty of an indictable offence.
Endangerment offences in Australian jurisdictions were once, and are still in some cases, relatively particularised crimes prohibiting dangerous conduct in specified circumstances.[2] Section 22 marked a departure from the usual endangerment offences common to the post 19th century British tradition of criminal
[2]See Victoria, Parliamentary Debates, Legislative Assembly, 25 October 1985, 1039-1040 (Mr Mathews, Minister for Police and Emergency Services).
offences in Victorian law.[3] The innovation of general endangerment offences has its origin in the American criminal canon.[4] One of the primary objectives of replacing specific endangerment offences with such general endangerment offences was to simplify the criminal law.[5]
[3]Smith ‘Liability for Endangerment: English Ad hoc Pragmatism and American Innovation’ [1983] Criminal Law Review 127, 129.
[4]Ibid.
[5]Victoria, Parliamentary Debates, Legislative Assembly, 25 October 1985, 1039-1040 (Mr Mathews, Minister for Police and Emergency Services); Criminal Law and Penal Methods Reform Committee of South Australia, Fourth Report: The Substantive Criminal Law July 1977, 76-77; see also Teremoana (1990) 49 A Crim R 207, 212 (Cox J, with Jacobs J agreeing in the result)
Factual Background
The offence occurred at Maribyrnong Secondary College on Monday 5 August 2002. The applicant’s five children attended the school. On the previous Thursday, the applicant’s eldest daughter Rafif did not return home from school. Anxious about her daughter’s safety, the next day the applicant made inquiries of the school and the police about Rafif’s whereabouts. Unbeknownst to the applicant, her daughter had been placed in a refuge.
Over the weekend, the applicant became extremely distressed worrying about her daughter and could not sleep. On Monday morning the applicant went to the school and met with the deputy principal of the school, Ms Clencie, in her office. One of her sons, Aquil Riyadh Ali, was with her. The applicant carried with her a handbag and a plastic bag.
Though the applicant has a reasonable command of English, Ms Clencie called in the school interpreter. The applicant repeatedly demanded to know Rafif’s whereabouts. Although she knew that Rafif was in a refuge, Ms Clencie regarded this as confidential information and told the applicant that she did not know where Rafif was.
The applicant was distraught, her speech switched between English and Arabic and she began slapping her own face, waving her arms about and pulling her hair. She pulled a can of petrol out of the plastic bag she was carrying and poured petrol over herself. There was a cigarette lighter on the top of her bag which she had placed by her side. Ms Clencie testified that the applicant said: ‘I am going to burn the school, I am going to burn you.’ Some of the petrol splashed onto the carpet, wall and desk, and onto the clothing of Ms Clencie and the interpreter. Miss Pitcher, the student welfare coordinator, came into the office, as did another of the applicant’s children, Mohamed Riyadh Ali, who had seen his mother in Ms Clencie’s office. Miss Pitcher noticed the strong smell of petrol as she entered the room.
In response to a call which had been placed to emergency services, an ambulance paramedic, Mr Calnan, arrived. Mr Calnan testified that the applicant repeated her threat, saying ‘I’ll kill myself and you and burn the school down.’ Mr Calnan wrested the petrol container from the applicant, screwed the cap onto it and threw it out the window. The applicant was arrested and interviewed by police.
The Crown’s case at trial
At the trial, the Crown called Dr John Kelleher, a forensic scientist, to give evidence as to the possibility of an explosion occurring in the circumstances of the case. Dr Kelleher identified two potential sources of ignition of the petrol: the oil heater and the computer which were operating in Ms Clencie’s office. Dr Kelleher explained that while the oil heater itself would not get hot enough to ignite the petrol, if the heater were switched off or unplugged a spark might be generated which could then ignite the petrol. Similarly, the computer’s electrical connections were also possible sources of ignition based on their potential to emit sparks. In cross-examination, Dr Kelleher admitted that he could not quantify the possibility of the petrol being ignited by these sources. There was no evidence that anyone in the office attempted to switch off or unplug the heater or the computer.
At the conclusion of Dr Kelleher’s evidence, defence counsel submitted that the applicant had no case to answer on the count of recklessly endangering life. He submitted that the risk of death created by conduct of the accused needed to be ‘appreciable’ rather than merely possible,[6] and that the Crown had adduced no evidence to show that the endangerment to persons present in Ms Clencie’s office reached that threshold.
[6]Citing Mutemeri v Cheesman [1998] 4 VR 484.
In response to these submissions, the prosecutor identified a further source of danger, submitting that in addition to the heater and surrounding electrical appliances, Ms Rasool herself was a potential source of ignition. He submitted that in Ms Rasool’s highly agitated state, and given her threatening language as her demands were not being met, there was an appreciable risk she may have lit the petrol by picking up the lighter and setting fire to herself. Thus this aspect of the Crown case called for an assessment of the likelihood of the applicant taking further action.
Counsel for the applicant submitted the applicant’s potential or future behaviour should not be taken into account in determining whether the requisite elements[7] of the offence had been satisfied. As to evidence of risk, reliance was placed upon the fact that Ms Rasool made no attempt to ignite the fuel over a period of about an hour.
[7]Transcript of Proceedings, R v Abdul-Rasool (County Court, Judge Nixon, 1 December 2004).
The learned trial judge rejected the no case submission and left the count of reckless conduct endangering life to the jury. The prosecutor then advanced a similar argument in his closing address. In the charge, his Honour summarised Dr Kelleher’s evidence regarding the potential for the oil heater and the computer to ignite the petrol, and referred to the fact that Ms Rasool was carrying matches and a lighter and was in a highly distressed state.
Submissions on the application for leave to appeal
Although the application was initially made on a number of grounds, the only ground that was pursued was that the jury’s verdict on the count of recklessly endangering life was unsafe and unsatisfactory as the evidence did not establish that there was a sufficient danger to life or that the applicant had the necessary mens rea.
The elements of the offence of recklessly endangering life are not in issue. The initial focus on appeal was on the sufficiency of the evidence. It was submitted for the applicant that there was no evidence to support a finding that the external sources of ignition supplied the necessary risk of danger. Furthermore it was said the Crown could not establish that the applicant had the requisite foresight of the probability of that risk. Dr Kelleher’s evidence was said to have undermined the essential part of the Crown case that the applicant herself appreciated the danger of ignition from these sources as the Crown had to rely on evidence to establish that the computer and the oil heater were potential sources of ignition. As to the alternate basis that the applicant may have been the source of ignition, it was contended that the applicant’s ephemeral mental condition could not be relied on to generate an inference that she would go on to perform the further act.
As the oral argument developed it became apparent that underlying the question of the sufficiency of the evidence, was the question whether, as a matter of law, the prospect of the likelihood of further conduct by Ms Rasool as a source of ignition, could be taken into account for the purposes of establishing elements of the crime. Before addressing the issue, I turn to briefly address the elements of the offence.
Though relatively new offences, the general endangerment offences in Australian jurisdictions have received either judicial,[8] legislative[9] or scholarly[10] criticism of some sort. The reason for this criticism has generally arisen because of the complexities involved in the overarching structure of the offences. In R v Nuri[11] Young CJ, Crockett and Nathan JJ said in relation to the offence created by s 22:
Its enactment was designed to create a general endangerment offence to replace a large number of offences that previously were to be found in the Crimes Act. Sections repealed were ss. 17, 21, 22, 29, 32, 197(2) and 197(5). The problem is that, in an endeavour to subsume all life-endangering behaviour in one offence, the very generality of that offence has given rise to difficulties of construction and interpretation.[12]
[8]See Bedi v R (1993) 61 SASR 269, 274 (Duggan J, with Bollen and Mullighan JJ agreeing); R v D (Unreported, Supreme Court of Victoria, Hampel, 1 May 1996): BC9607711, 5-6.
[9]Northern Territory, Parliamentary Debates, Ninth Assembly: First Session, 5 May 2005, Parliamentary Record No 26 (Dr Toyne, Justice and Attorney-General).
[10]Blokland, ‘Dangerous Acts: A Critical Appraisal of Section 154 of the Northern Territory Criminal Code’ (1995) 9 Criminal Law Journal 74; Lanham, ‘Danger Down Under’ [1999] Criminal Law Review 960; Clarkson, ‘General Endangerment Offences: The Way Forward?’ (2005) 32 University of Western Australia Law Review 131. See also the extra-judicial comments made by Scott J of the Western Australian Supreme Court (Model Criminal Code Officers Committee, Model Criminal Code: Chapter 5; Non-Fatal Offences Against the Person, Final Report 1998, 69) and Nader J of the Northern Territory Supreme Court (Nader J ‘The Criminal Code in the Northern Territory’, paper presented to the Australian Bar Association Conference, 1990, 28-30 see Blockland ftn 7)
[11][1990] VR 641.
[12]Ibid 643.
The elements of the offence under s 22 as discussed in Nuri and as further refined and developed by subsequent case law,[13] leaving aside the element of lawful excuse, are:
(1)The accused engaged in conduct; and
(2)That conduct placed a person in danger (ie conduct that carried with it an appreciable risk) of death; (the actus reus)
(3)The accused engaged in that conduct voluntarily;
(4)A reasonable person in the position of the accused, engaging in the very conduct in which the accused engaged and in the same circumstances, would have realised that they had placed another in danger of death; (the objective mental element) and
(5)The accused engaged in that conduct recklessly in that they foresaw that placing another in danger of death was a probable consequence of their conduct in the surrounding circumstances (the subjective mental element).
[13]R v McCarthy (Unreported, Supreme Court of Victoria: Court of Criminal Appeal, Brooking, Teague and Coldrey JJ, 4 November 1993): BC9300908; Filmer v Barclay [1994] 2 VR 269; R v B (Unreported, Supreme Court of Victoria, Teague J, 19 July 1995): BC9507977; R v Anderson (Unreported, Supreme Court of Victoria, Hampel J, 5 December 1997); Mutemeri v Cheesman [1998] 4 VR 484; R v Bekhazi (2001) 3 VR 321, 329; R v Wilson [2005] VSCA 78, [17]; R v Khien Lam [2006] VSCA 162, [11]–[16]. Cf R v D (Unreported, Supreme Court of Victoria, Hampel J, 1 May 1996): BC9607711; R v Adams (Unreported, Supreme Court of Victoria: Court of Appeal, Winneke P, Callaway JA and Hampel AJA, 15 February 1996).
i. The accused engaged in conduct voluntarily
In the second reading of the Bill that introduced s 22, the responsible Minister said:
[i]t should be noted that it is not necessary to prove that any person was actually put in danger. It is enough if that could have been so.[14]
[14]Victoria, Parliamentary Debates, Legislative Assembly, 22 October 1985, 1041 quoted in R v Nuri [1990] VR 641 at 643.
It is inherent in the ‘potential’[15] to endanger life that it concerns risks that may not have materialised. The Crown seized on this aspect of the offence in suggesting that the future conduct of the applicant considered in conjunction with the conduct actually engaged in placed other persons in danger of death.
[15]Ibid 643.
Counsel for the applicant submitted that as the applicant did not reach for her lighter or matches and ignite herself, what she in fact did could not amount to conduct that carried with it the requisite danger of death in the surrounding circumstances. That submission implicitly drew attention to the physical requirements of the offence.
Despite the modern shift in attention from the physical to the mental elements of a crime, it remains a fundamental principle of the criminal law, reflected in Lord Mansfield’s often quoted observation, that ‘so long as an act rests in bare intention it is not punishable by our laws.’ [16] Blackstone explained the reason:
As no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise than they are demonstrated as outward actions, it therefore cannot punish for what it cannot know. For which reason in all temporal jurisdictions an overt act or some open evidence of an intended crime is necessary in order to demonstrate depravity of the will, before the man is liable to punishment.[17]
[16]Scofield (1784) Cald 402.
[17]Blackstone, Commentaries on the Laws of England, Book 1V, Chapter 11, 21
There must be some act, conduct or state of affairs that the accused has engaged in which further a criminally designated harm,[18] as what goes on inside a man’s head is never enough in itself to constitute a crime.[19]
[18]Hart traced this requirement of physicality back to Austin’s Lectures on Jurisprudence (3rd ed 1869) I 424 (see Punishment and Responsibility (1968) 97).
[19]Glanville Williams, Textbook of Criminal Law (2nd ed, 1983) 146-147.
Professor Glanville Williams justifies the requirement for a physical act on the dual grounds that it is difficult to distinguish between day-dream and fixed intention in the absence of behaviour tending towards the crime intended and because it is undesirable to spread the criminal law so wide as to cover a mental state that the accused does not translate into action.[20]
[20] Criminal Law: The General Part (2nd ed 1961) 2.
As a general rule,[21] definitions of the actus reus of a crime have retained this requirement for physical action.[22] In R v Falconer,[23] the High Court, in dealing with the question of the defendant’s incapacity to control her actions at the time of the alleged murderous act, considered the definition of an ‘act’ for the purposes of the crime of murder in the Western Australian Criminal Code.[24] Mason CJ, Brennan and McHugh JJ said:
In our opinion, the true meaning of “act” in s.23 [of the Code] is that which Kitto J. in Vallance attributed to “act” in s.13(1) of the Tasmanian Code, namely, a bodily action which, either alone or in conjunction with some quality
of the action, or consequence caused by it, or an accompanying state of mind, entails criminal responsibility ... [25]
[21]Conspiracy, and arguably to a lesser extent, inchoate offences and marginal cases dealing with doctrines of complicity, may constitute notable exceptions to this minimum requirement of physicality. However, I note that even in respect of conspiracy, it is said that the mere intention to agree to commit a criminal offence is insufficient: some overt act of agreement is required (R v Scott (1978) 68 Cr App R 164, 167 [Lane, Shaw LLJ and Caulfield J]).
[22]The term ‘conduct’ is generally employed in the Crimes Act (Vic) in this way to indicate that it refers to physical activity as distinct from the offender’s mental state. See for example: ss 9AC, 9AD, 9AE, s 21A(2).
[23](1990) 171 CLR 30.
[24]For all intensive purposes, this provision corresponds with the requirement of a willed act under the common law: Falconer (1990) 171 CLR 30, 39-40.
[25]Ibid 39-40 (emphasis added).
A non-physical or mental state of affairs will only amount to the actus reus of a crime where it can be characterised as an act; as for example where the accused is said to assent to or encourage the crime by presence and the absence of dissent.[26] But this was not such a case. Even though, as the Crown stressed, Ms Clencie and Mr Calnan testified that it was the applicant’s spoken intention to engage in the further action that would lead to her being set alight, the mere intention to engage in such further conduct does not supply the necessary bodily action required for the actus reus.[27]
[26] R v Russell [1933] VLR 59, 66-68 (Cussen ACJ, with Mann J substantially agreeing).
[27]Glanville Williams, Textbook of Criminal Law (2nd ed., 1983) 146-147.
The mental component of voluntariness[28] provides further reason for resisting reliance on any future conduct the accused may have gone on to perform. It is an element of the offence under s 22 that the accused voluntarily engage in the impugned conduct. A conclusion as to voluntariness cannot be drawn from future conduct. As Sir Samuel Griffiths explained in his notes to the Draft Code of 1897, to which Mason CJ, Brennan and McHugh JJ referred to in R v Falconer:
An act to involve criminal responsibility must be voluntary, as distinguished from involuntary – that is to say it must be accompanied by volition. In order that an action may be accompanied by volition there must be in the first place perception, more or less accurate, of the facts, then a determination or choice of the action to be taken upon those facts, and finally the action.[29]
[28]See R v O’Connor (1979) 146 CLR 64, 81-82 (Barwick CJ); see also He Kaw Teh v R (1985) 157 CLR 523, 569-572; R v Morgan [1976] AC 182, 216 (Lord Simon of Glaisdale).
[29]Ibid 47.
Accordingly, consideration of future conduct is made logically difficult in light of the need to infer voluntariness. In Falconer Mason CJ, Brennan and McHugh JJ went on to say:
When an act is done by an apparently conscious actor, an inference that the act is willed must be drawn – not as a matter of law but as a matter of fact –
unless it be shown that the actor, being of sound mind, has been deprived of the capacity to control his actions by some extraordinary event or unless the actor, being of unsound mind, has thereby lost the capacity to control his actions. … The inference that an act is willed is thus supported by the presumption that all persons have the capacity to control their actions...[30]
[30](1990) 171 CLR 30, 43; see also Vallance v R (1961) 108 CLR 56, 64 (Kitto J).
The endangerment offences are concerned with the consequences of action-that is to say with something which follows as an effect or result of something antecedent. A further voluntary act does not follow as an effect or result of an antecedent voluntary act. It is not a consequence of the act of pouring petrol on oneself that one must set oneself aflame. There is no deterministic relationship between the two acts. The second act would occur as a matter of choice and not as a consequence of the first act. To say that a person can be reckless as to a further voluntary act by them is to deny them their own free will.
That Ms Rasool did not in fact take the action which the Crown says was foreseeable, invites the inference that she in fact chose not to do so. The applicant made an intentional decision not to set fire to herself. Such an inference becomes prominent when judged by the duration – nearing one hour – for which the applicant sat doused in petrol without taking any steps to reach for the sources of ignition on her person, let alone ignite them. The applicant did not do all that was necessary to create the risk. Can it then be said that she has engaged in the conduct which has created the risk?
It is also necessary to distinguish circumstances and consequences surrounding an act from the voluntary act itself.[31] In Falconer Mason CJ, Brennan and McHugh JJ addressed this issue:
In the present case, what is the "act" to which the first limb in s 23 refers? Is it merely a muscular movement of the accused's body (the contraction of the trigger finger), or is it the discharging of the loaded gun, or is it the entirety which commences with the contraction of the trigger finger and ends with the fatal wounding of the deceased? In one sense, it can be said that the discharge of a gun is the consequence of a bodily movement of contracting the trigger finger. In our opinion, however, a consequence which the bodily movement is apt to effect and is inevitable and which occurs contemporaneously with the bodily movement is more appropriately regarded as a circumstance that identifies the character of the "act" which is done by making the bodily movement: cf per Barwick CJ in Timbu Kolian 34. Adopting the meaning of "act" expressed by Kitto J in Vallance, the act with which we are concerned in this case is the discharge by Mrs Falconer of the loaded gun; it is neither restricted to the mere contraction of the trigger finger nor does it extend to the fatal wounding of Mr Falconer.[32]
[31]Austin, Lecturers in Jurisprudence (3rd ed., 1869) I 427; Lord Salmond, Jurisprudence (11th ed, 1957), 401; Smith and Hogan, Criminal Law (2nd ed., 1961) S 11. Filmer v Barclay, Mansfield v Arnold (1994) 2 VR 269, 277 (McDonald J). Model Criminal Code Officers Committee, Model Criminal Code: Chapter 2; General Principles of Criminal Responsibility, Final Report, 1992, 9-10.
[32] Falconer (1990) 171 CLR 30, 39 (emphasis added).
The applicant’s possible further acts – reaching for her matches or lighter and proceeding to ignite herself – were neither inevitable nor contemporaneous effects of the conduct actually engaged in. That is to say, the surrounding circumstance or consequences of the act performed do not encompass such a further act by the applicant.
In Ryan v R[33] the High Court was concerned with a defendant who pleaded not guilty to a charge of murder on the grounds that his act was not voluntary. He had discharged a rifle killing the victim but claimed he never intended to do so; rather, it was merely his intention to hold up the rifle to the victim’s person in order to scare him. It followed that the victim in a sudden movement frightened the accused into a reflex action leading him to discharge the weapon and thereby cause the victim’s death. Windeyer J said:
If he then presses the trigger in immediate response to a sudden threat or apprehension of danger, as is said to have occurred in this case, his doing so is, it seems to me, a consequence probable and foreseeable of a conscious apprehension of danger, and in that sense a voluntary act.[34]
This view was cited with approval and applied by Gaudron J in Murray v R.[35]
[33](1967) 121 CLR 205.
[34]Ibid 245. Cf Ryan (1967) 121 CLR 205, 218-219 (Barwick CJ); Kaporonovski (1975) 133 CLR 209, 231 (Gibbs J).
[35](2002) 189 ALR 40, 42.
But any such analogy of that principle, or the aforementioned principle in Falconer, with the present case erroneously equates conduct that does not occur in fact with conduct that does in fact occur involuntarily, but is taken in law to be a voluntary act because of its inextricability with the conduct voluntarily engaged in. The principle’s application does not lead to some enlargement of the conduct actually engaged in to include anticipated but nonetheless hypothetical future conduct. It cannot be said that Ms Rasool’s future conduct was so closely a consequence of the conduct she voluntarily engaged in that it amounted to a circumstance that informs the character of that conduct.[36]
[36] Voluntariness and intent should not be confused. ‘Intent’ usually relates to consequences whereas ‘will’ or ‘voluntariness’ relates to the act done- the former being that element of mens rea which relates the will to act to the deed in question, and the latter, that element of mens rea which relates to the deed the general intent with which that will was exercised. Falconer (1990) 171 CLR 30, 39; He Kaw Teh v The Queen (1985) 157 CLR 523 at 569-72.
The submissions in this case did not seek to identify reckless endangerment with an inchoate offence and so I do not pause to consider that issue. Suffice to say that even though it has been likened to an inchoate offence at times,[37] in this State reckless endangerment has been distinguished from a crime of attempt.[38]
[37]Model Criminal Code Officers Committee, Model Criminal Code: Chapter 5; Non-Fatal Offences Against the Person, Final Report , 1998, 69.
[38] R v Anderson (Unreported, Supreme Court of Victoria, Hampel J, 5 December 1997) Compare R v Evans (1987) 48 SASR 35.
For these reasons the actus reus of the offence cannot include the future conduct relied upon by the Crown. I leave open the possibility that there may be circumstances in which the actus reus may include acts not yet committed but it is difficult to conceive of circumstances in which that would be so. An analysis of the objective and subjective elements of the crime also serves to enforce the conclusion that such future conduct could not form part of the offence.
ii. Endangerment and the objective element
On one view, as a consequence of the wording of the offence and in particular, the inclusion of the phrase ‘may have placed’ others in danger of death,[39] ‘potential’ endangerment involves both the actual conduct engaged in and the defendant’s likely future acts. In Mutumeri v Cheesman[40] Mandie J dealt with a defendant who had sexual relations with a woman knowing himself to be HIV positive. During the course of retracing the various cases dealing with reckless endangerment, his Honour recognised that the concept of danger has an in-built notion of exposure to the chance of death:
Danger has a meaning in this context of liability or exposure to harm or injury; the condition of being exposed to the chance of evil; risk, peril” and is ordinarily construed with “the evil that threatens or impends”: Oxford English Dictionary. Thus, to be placed “in danger of death” is to be put in the position of liability or exposure to death or in the condition of being exposed to the chance, risk or peril of death.[41]
[39]See Nuri [1990] VR 641, 643; R v D (Unreported, Supreme Court of Victoria, Hampel J, 1 May 1996): BC9607711.
[40][1998] 4 VR 484.
[41]Ibid 491.
Scholars such as Smith, among others,[42] have made observations pertaining to this expansive effect of the words ‘may place others in danger of death’ in general endangerment offences:
The likelihood of harm occurring is separable from the question of whether anyone in fact was endangered. To resort to the standard example of the workman who throws down a heavy piece of timber into the street below without first making sure no one is underneath; if the street is usually busy the likelihood of injury is high, if by chance the street were empty no particular person would have been actually endangered. Moreover, there is the awkward question of how close an identifiable party must come to being harmed before the case can be treated as actual endangerment. Avoiding this proximity issue, the [American Law Institute’s] Model Penal Code refers to risk which “… places or may place another in danger …” making it clear that the actual jeopardising of another’s safety is unnecessary.[43]
[42]Blokland, ‘Dangerous Acts: A Critical Appraisal of Section 154 of the Northern Territory Criminal Code’ (1995) 9 Criminal Law Journal 75; Lanham, ‘Danger Down Under’ [1999] Criminal Law Review 960.
[43]Smith ‘Liability for Endangerment: English Ad hoc Pragmatism and American Innovation’ [1983] Criminal Law Review 127, 133.
In their 1998 Report on Non Fatal Offences, the Model Criminal Code Officers Committee agreed with Professor Smith’s analysis and went on to say:
The Committee believes that the offence should be phrased in terms of potential danger, first because the point of the offence is to punish great risk-taking and not the creation of the risk itself and second because the liability
of the accused in such situations as the above [described by Professor Smith] would depend on mere luck.[44]
[44]Despite this apparent preference for an offence that encompasses theoretical endangerment, the Committee also recommended that the offence be preceded by the following interpretive clause:
For the purposes of this Division, conduct gives rise to a danger of death or serious harm if it is ordinarily capable of creating a real, and not merely a theoretical, danger of death or serious harm (Model Criminal Code Officers Committee, Model Criminal Code: Chapter 5; Non-Fatal Offences Against the Person, Final Report , 1998, 64)
I do not think the expression ‘may place’ as a matter of principle or authority attenuates the requirement for a substantiated and real danger of death existing in the given circumstances. The endangerment to life contemplated by s 22 is real and as Ashley JA observed in R v Lam[45] not merely a hypothetical construct.[46] The point is also made clear in R v Anderson[47] which supports the view that there must in fact exist a danger of death in the impugned conduct in the surrounding circumstances. The danger of death must not be contingent upon some unsubstantiated conduct that has yet to exist[48]. The decision in Coggins v R illustrates that ‘potential’ endangerment is not established by supplementing the impugned conduct with future events, so as to invest the impugned conduct with the requisite quality of endangerment.
[45][2006] VSCA 162.
[46]Ibid [19]–[23];see also R v Ashley (1991) 104 FLR 431, 434 (Kearney J)
[47](Unreported, Supreme Court of Victoria, Hampel J, 5 December 1997); BC9707061
[48]Coggins v R (Unreported, Federal Court of Australia, Fox, Northrop and Toohey JJ, 26 September 1985); BC8501455.
That the real danger of death must arise from existing and not speculative circumstances is implicit in the description in Nuri of the objective intent:
The objective intent required to be established involved proof that a reasonable man in the accused’s position engaging in the very conduct in which the accused engaged would have realised that he had placed or might have placed another in danger of death.[49]
[49] R v Nuri [1990] VR 641, 644.
This formula was derived from the objective element in unlawful and dangerous act manslaughter.[50] Teague J in R v B, drawing further on the objective element from manslaughter, employed the standard of an ‘appreciable risk’[51] and said:
Whatever “appreciable” may mean, it seems to me that it cannot cover the situation where there is only a remote possibility of death or a mere possibility that the conduct might cause death.[52]
The test of appreciable risk has been applied in subsequent decisions.[53] Accordingly, a potential or actual danger of death is more than a mere possibility of death. This distinction between a potential danger and merely possible danger was drawn in Nuri:
… does the expression “may have placed” mean that the impugned conduct had the potential to endanger life; or does it mean that that conduct was such that it possibly did place another in danger of death? Hansard’s record of the debate upon the second reading of the Bill suggests it was the former conduct against which the section was designed to strike.[54]
[50]Ibid.
[51](Unreported, Supreme Court of Victoria, Teague J, 19 July 1995).
[52] R v B (Unreported, Supreme Court of Victoria, Teague J, 19 July 1995).
[53] R v Wilson [2005] VSCA 78; R v D (Unreported, Supreme Court of Victoria, Hampel J, 1 May 1996): BC9607711; Mutemeri v Cheesman [1998] 4 VR 484, 492. Like other cases involving transmission of sexual disease, Mutemeri was unique insofar as the relevant risk could be relatively precisely quantified. See R v D (Unreported, Supreme Court of Victoria, Hampel J, 1 May 1996) noted by Groves, ‘Case and Comment’ (1997) 21 Criminal Law Journal 40, 42; see also R v Totivan and Date (Unreported, Supreme Court of Victoria, Court of Appeal, 15 August 1996); BC9603712.
[54][1990] VR 641, 643.
In R v Wilsonand Carman,[55] Batt JA, with Buchanan and Vincent JJA agreeing, said that amongst the elements of the related offence of conduct endangering persons:[56]
that, objectively, a reasonable person, in the position of the accused, engaging in the very conduct in which the accused engaged, would have realised that the conduct placed, or might place, the alleged victim in danger of serious injury, that is, under exposure to an appreciable risk of serious injury;… [57]
[55][2005] VSCA 78.
[56]S 23 Crimes Act 1958.
[57]Ibid [17] (emphasis added).
In referring to the phrase of an appreciable risk of injury, Batt JA makes no distinction between cases that actually placed others in danger and those that potentially, ‘might place,’ others in danger. This was a view cited with approval in R v Lam.[58] I do not pause to consider whether there is any material difference in the objectively foreseeable risk when there is an actual endangerment as opposed to a potential danger.[59] An evaluation is called for of the conduct that ‘may have placed’ others in danger in order to determine the likelihood of death; the likelihood being variously described as an appreciable risk of death[60] or more than a mere possibility of death.[61]
[58] R v Lam [2006] VSCA 162, [11]–[12].
[59]See Bedi v R (1993) 61 SASR 269; Teremoana (1990) 49 A Crim R 207; Sanby v R (1993) 117 FLR 218, 220 (Martin CJ).
[60]Mutemeri v Cheesman [1998] 4 VR 484 , 491
[61]R v Nuri (1990) VR 641; R v B (Unreported, Supreme Court of Victoria, Teague J, 19 July 1995): BC9507977.
A further reason that tends to support the conclusion that section 22 does not extend the field of liability so as to prohibit conduct that, if supplemented by some future series of acts, would only then endanger the lives of others, is the fact that it has always been an ingredient of the objective test in manslaughter that the appreciable risk arise from the actual conduct the accused engaged in, and not the conduct the accused is likely to have engaged in. In R v Holzer[62] Smith J said an act was dangerous if:
a reasonable man in the accused's position, performing the very act which the accused performed, would have realised that he was exposing another or others to an appreciable risk of really serious injury.[63]
[62](1986) VR 481.
[63]Ibid 482 (emphasis added).
That test was later cited with approval in R v Nydam[64] – which this Court in Nuri, relied on, in the passage I have quoted, to formulate the objective risk component in this offence.[65] In R v Wilson the High Court also approved this test, with Mason CJ, Toohey, Gaudron and McHugh JJ making slight alterations to the level of harm required in distinguishing dangerous act manslaughter from reckless murder.[66]
[64][1977] VR 430; see also R v Wills [1983] 2 VR 201.
[65]Nuri [1990] VR 641, 644.
[66](1991) 174 CLR 313, 327, 333.
That approach to the objective test has been adhered to in the crime of reckless endangerment. This can be seen from the above cited passages in Nuri and Wilson and Carman amongst others.[67] For instance, in Filmer v Barlcay[68] McDonald J referred to Nuri and went on to state the elements of the crime, which included:
…secondly, that viewed objectively, that is by applying the standard of a reasonable person in the position of the accused and performing the conduct that was performed by the accused, it would be realised that the conduct placed or might have placed another in danger of death.[69]
[67] R v McCarthy (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Brooking, Teague and Coldrey JJ, 4 November 1993): BC9300908, [5].
[68][1994] 2 VR 269.
[69]Ibid 275 (emphasis added).
In dangerous act manslaughter, the defendant’s impugned conduct is required to have ‘carried’ with it the relevant appreciable risk.[70] For instance, in R v Wilson the majority concluded:
In the end the jury had to determine whether the applicant's act in punching the deceased was, from the standpoint of a reasonable person, an act carrying with it an appreciable risk of serious injury to the deceased.[71]
[70] R v PDJ (2002) 7 VR 612, 626 - 628 (O’Bryan AJA, with Chernov and Eames JJA agreeing); R v Besim (No 2) [2004] VSC 169, [36] (Redlich J).
[71] Wilsonv R (1992) 174 CLR 313, 335 (Mason CJ, Toohey, Gaudron and McHugh JJ).
This test was developed as a direct answer to the ambiguity associated with the degree of danger that ‘must be apparent in the act’ given the surrounding circumstances.[72] Accordingly, in R v Bekhazi[73] Winneke P, with whom Charles and Vincent JJA agreed, said:
It is not sufficient to establish either the offence prescribed by s 318 of the Crimes Act or the offence prescribed by s 22 of that Act to merely prove a course of driving which can be described either as “grossly negligent” or “reckless”. In my view, the constituent “acts or omissions”, essential for the proof of the respective offences, will necessarily include the consequences (namely death or danger of death) which the sections contemplate must flow to the victims of the offences created.[74]
[72] Holzer [1986] VR 481, 482 (emphasis added).
[73] (2001) 3 VR 321 (emphasis added).
[74](2001) 3 VR 321, 329.
In all these cases the conduct the subject of focus is confined to the ‘very’ act performed by the accused and the circumstances in which that act occurred. There is no advertence to hypothetical or future conduct by the accused. The offence is intended to prohibit conduct that carries with it an appreciable risk of death.
In dangerous act manslaughter however, the prohibited consequence is the death of the victim and that is attributed to the defendant’s conduct via the doctrine of causation. The objective element is only a means of ascertaining whether the defendant is at fault. Thus it can be seen that in reckless endangerment offences, the objective element is not only a means of ascertaining whether the defendant is at fault, but perhaps more importantly, whether or not the harm sanctioned by the offence can be attributed to the accused’s act.[75] In that sense, by focussing upon the assessment of risk, the objective element also informs the quality of the act which is sanctioned.[76]
[75] R v Nuri [1990] VR 641, 644.In that respect, the South Australian Courts have avoided some of the difficulties associated with such offences by simply noting that instead of an objective fault element, all that must be demonstrated is an objective fact of an ‘actual likelihood’ of the danger occurring. The objective component of the offence in that jurisdiction is merely limited to the task of ascertaining risk (Bedi v R (1993) 61 SASR 269, 274-275 (Duggan J, with Bollen and Mullighan JJ agreeing).
[76]The potential difficulty encountered with this conflation of causation and fault was alluded to in R v Nuri [1990] VR 641, 644.
Hence the relevant inquiry for the objective element is not whether a reasonable person in the position of the accused foresaw such an appreciable risk arising from a further act taken by her. Rather, the relevant inquiry is whether a reasonable person in the position of the accused, who engaged in the same conduct as the accused, would have foreseen that that very same conduct carried with it an appreciable risk of death.
Given the nature of the inquiry, the Crown’s reliance on the applicant’s emotional state of mind was misplaced. In R v Wills[77] the Full Court stated that one could not attribute the ephemeral emotional and mental condition of the accused to the reasonable man’s appreciation of danger in dangerous act manslaughter. The case concerned an accused that had fired a single shot from a rifle that passed through the rear door of a vehicle and struck and killed the victim within. There was an issue as to whether it was appropriate for the jury to take into account the accused’s emotional state of mind in considering whether a reasonable person in the position of the accused would foresee the dangerousness of the act. Lush J, with whom Murphy and Fullagar JJ agreed, said:
In my opinion it is sufficient for the present case to say that the circumstances relevant to the question whether a reasonable man would appreciate danger include the physical features of the situation and of the action of the accused man involved. I would not, for my part include the idiosyncrasies of the accused man or his ephemeral emotional or mental state. They are matters peculiar to him which would affect his judgement of danger but the relevant judgement must be, by definition, the judgement of a reasonable man.[78]
[77][1983] 2 VR 201.
[78]Ibid 212.
Fullagar J made the following observation in obiter:
… I am clearly of opinion that the circumstances of the accused's situation which may be taken into account, whether or not they can include anything personal to him, cannot include anything personal to him which is sought to be included because it may affect his reasoning and his judgment on the question of whether the act is dangerous or not. It may be that facts of the kind sought here to be got in, which are personal to the accused man, might be got in some circumstances if they were calculated to affect the actual quality of the act itself as dangerous or not when viewed by the reasonable man above, as it were — a question which is wholly unnecessary to decide in this case. (That the firer of the gun knew he suffered from a palsy might provide a case in point). But, like the learned Presiding Judge, I am of the opinion that the scenario, as it were, the state of the stage on which the act is committed which must be considered, cannot include matters which are calculated to influence the judgment of the actor himself as to whether the act was dangerous or not, because that would be to bring into the equation a judgment by a man whose reason and judgment are in a morbid and clouded condition, whereas the reasonable man for the purpose of this particular rule of law is a man who judges with the unclouded reasoning power of a healthy and reasonable mind. I entirely agree with the judgment which has been delivered.[79]
[79]Ibid 214 (emphasis added).
In Besim (No 2)[80] I referred to Wills and went onto say:
While the idiosyncrasies or mental state of the accused which may diminish the accused's capacity to reason are not to be taken into account, any knowledge possessed by the accused that would bear upon whether the act was dangerous is to be attributed to the reasonable person: R v Wills and R v Dawson (1985) 81 Cr App Rep 150, 157.[81]
[80](2004) 148 A Crim R 28.
[81]Ibid 38; see also Milton v DPP [2007] 4 All ER 1026.
Knowledge or awareness of an idiosyncrasy of the accused (or arguably a state of mind) may in the limited circumstances hypothesised by Fullagar J in Wills,[82] and as further discussed in Besim, be relevant to the objective assessment of the gravity of the danger in the fault element. That is because knowledge of that fact is so inextricably bound up in the act performed that it may affect the quality of that act.
[82]See in the example given by Fullagar J in the passage I have quoted.
But the Crown sought to rely upon the applicant’s emotional state of mind for a different purpose, to invite the inference that from a reasonable standpoint, her conduct was sufficiently dangerous because she was more likely to reach for the lighter and ignite herself given that she was in a state of agitation and apparently intended to do so. I do not accept that the applicant’s emotional state forms part of the relevant conduct and may be taken into account as bearing upon the likelihood of a further act so as to objectively conclude that there was an appreciable risk of danger to life from anticipated conduct.
Such anticipated or foreseeable conduct – no matter how likely – is not the ‘very’ conduct the accused engaged in. Moreover, if such future conduct must be relied upon to establish an appreciable risk of death, then the actual conduct the applicant engaged in does not of itself ‘carry’ with it, or ‘include’ in it, the requisite danger of death. Finally, to allow such an inference would circumvent the fundamental principles which inform the actus reus of a crime, namely, that the accused cannot be liable for the mere intention to engage in conduct and for conduct that is not demonstrably voluntary. The Crown could not, as a matter of law, rely upon the applicant’s emotional state of mind to satisfy the objective element.
iii. Endangerment and the subjective element
Neither can future conduct satisfy the subjective element. In Mutemeri Mandie J noted:
…the language of the section dictates that the probable consequences to be realised or foreseen but disregarded under the rubric “recklessly” are the precise consequences referred to or indicated in the section.
Perhaps any confusion which exists has stemmed to a considerable extent from the juxtaposition of the accepted meaning of recklessness with the phrase “in danger of death”. Recklessness involves acting with indifference towards or in disregard of what is realised or foreseen to be the probable consequences of the relevant conduct. … Because danger of itself carries the notion of chance or risk, this aspect of chance or risk may tend to be equated or conflated with the notion of chance or risk involved in the “probability” of harm which, it is said, must be foreseen or realised by the reckless accused. This confusion may lead to the conclusion that acting recklessly under this section involves the realisation or foresight of the probability of the other person's death whereas, as I have said, I consider that the section is concerned with the realisation or foresight of the probability of the other person's exposure to the risk of death. I should add that I would respectfully agree that danger of death in this context means an “appreciable risk” of death.[83]
[83][1998] 4 VR 484, 490-491.
In order to avoid conflating the chance involved in recklessness with the chance involved in danger, at one stage some authorities advocated that the subjective element required foresight of death itself.[84] However, subsequent decisions of this Court[85] have preferred the approach taken by Mandie J. As the law stands it requires the applicant only to have foresight of the probability of a danger of death.
[84]See R v D (Unreported, Supreme Court of Victoria, Hampel J, 1 May 1996): BC9607711; R v Adams (Unreported, Supreme Court of Victoria: Court of Appeal, Winneke P, Callaway JA and Hampel AJA, 15 February 1996); R v Totivan and Dale (Unreported, Court of Appeal, Phillips CJ, Callaway JA and Smith AJA, 15 August 2005): BC9603712 16.
[85] R v Lam [2006] VSCA 162, [13] (Ashley JA, with Redlich, JA and Bell AJA concurring); R v Toms [2006] VSCA 101, [7];
There are conceptual difficulties involved in treating the subjective element as encompassing future acts by an accused. The accused must advert to the danger of death and not some ancillary or proximate cause of that danger.
On appeal the Crown submitted the applicant was reckless since she adverted to her emotional state of mind and the increased likelihood that she would subsequently ignite herself in that state of agitation. This submission misses the relevant inquiry. The subjective element requires advertence to, at least, the danger of death included in the conduct already committed. The relevant inquiry is not whether the applicant foresaw the probability of herself taking further action and igniting herself. Rather, the relevant inquiry is whether Ms Rasool, in all the circumstances that existed during the time she sat in Ms Clencie’s office doused in petrol, appreciated that that conduct – without any anticipated further act – probably carried with it an appreciable risk of death.
So much is clear from the rigorous approach adopted by McDonald J in Filmer v Barclay.[86] The case involved two accused who placed explosives in a playground with the intention that they would explode immediately when there appeared to be no other people in the vicinity. However, two of the explosives detonated eleven hours later when children were at the playground. The issue arose as to whether the accuseds possessed the necessary foresight of the probable danger under s 23, which is for present purposes identical to the foresight under s 22. McDonald J said:
To establish that the conduct the subject of the charge is engaged in recklessly it must be proved that the accused engaged in the same having foreseen or realised that the probable consequences of engaging in such conduct would result in another person sustaining serious injury. It is not sufficient in order to prove that the person charged with an offence under s23 of the Act recklessly engaged in the relevant conduct to prove that he foresaw the probable physical result of his actions without having regard to whether the person who engaged in the relevant conduct foresaw that the probable consequence of the same would be that another person would sustain serious injury.
Accordingly, in this case it was not sufficient in order to determine whether the applicants engaged in the relevant conduct recklessly for the magistrate to be satisfied only that they foresaw that by mixing the chlorine and brake fluid together it would probably cause an explosion and that they performed the relevant acts in disregard of that consequence. Similarly, if the conduct alleged to be engaged in by a person in contravention of s 23 of the Crimes Act was the firing of a gun it would be insufficient to satisfy the element necessary to be proved as part of the proof of the crime charged, that the accused recklessly engaged in the relevant conduct, to prove that the accused foresaw that by pulling the trigger of a loaded firearm it would probably result in the gun discharging.
Where a person is charged with an offence under s 23 of the Crimes Act, before it may be found that the offence charged has been proved or before the person charged may be convicted of such offence, it is necessary for the prosecution to prove to the required standard that the accused engaged in the relevant acts recklessly. In order to prove that element it is necessary for the prosecution to prove that in all the circumstances as existed the accused foresaw or realised that the probable consequences of performing those acts would be that some person other than himself would sustain serious injury.
Accordingly, I am satisfied that when determining the issue as to whether the applicants had engaged in the relevant conduct recklessly the magistrate was in error. The fact that the applicants foresaw that the probable consequences of mixing the chlorine and brake fluid together would be that there would be an explosion is not sufficient for it to be concluded that the relevant conduct engaged in was engaged in recklessly. For that conduct to be engaged in recklessly it is necessary for the prosecution to prove that in the circumstances that existed the applicants when engaging in the relevant conduct foresaw or realised that the probable consequences would be that some person other than themselves would sustain serious injury.[87]
[86](1994) 2 VR 269, 276-277.
[87]Ibid.
To focus upon whether or not Ms Rasool adverted to the probability of her igniting herself is to confuse her foresight of the consequence of the prohibited conduct with foresight of a proximate further act which would produce that consequence. Consideration of her foresight as to conduct she would probably engage in which may produce the necessary consequence, would create the obvious conceptual difficulty of assessing her foresight as to the likelihood of the commission of a further intentional act.[88] This would require the Crown to prove that the applicant foresaw that in the emotional state she was in, having doused herself with petrol and with the matches and lighter within reach, she created a situation in which she would probably choose to ignite herself so endangering the lives of those present.
[88]See also [29]-[30] above.
According to her record of interview, the applicant claimed not to have turned her mind to the existence of a heater in the room[89] or the possibility of an explosion occurring without her taking any further action.[90] Rather, she claimed only to have considered the harm befalling her own person and specifically did not advert to the risk of harm to which she was exposing others from the act she had performed.[91] She acknowledged her actions were ‘dangerous’ in retrospect,[92] but such a concession is not a relevant consideration insofar as it goes to her foresight at the time of engaging in the impugned conduct.[93] This failure to advert to a present danger of death to others is consistent with the undisputed state of agitation she was in[94] and her knowledge that two of her other children were in Ms Clencie’s office with her. Her contemporaneous statements, which plainly constituted a threat to kill[95], and for which she could have been tried, showed that she recognised that she would need to do something more before harm to others would result.
Evaluation of risk for the objective and subjective elements
[89]Tape Record of Interview between Senior Constable O’Mahoney and Rasool 5 August 2002, 67.
[90]Ibid 61
[91]Ibid 53, 54, 55, 57, 59.
[92]Ibid 60-61
[93] R v Wilson [2005] VSCA 78, [18].
[94]Tape Record of Interview between Senior Constable O’Mahoney and Rasool 5 August 2002, 58, 59, 60, 61.
[95]s 20 Crimes Act1958.
The definition of recklessness in violent non-fatal offences follows the definition set out in R v Crabbe.[96] In R v Campbell[97] this Court dealt with a charge of recklessly causing serious injury under s 17 of the Crimes Act 1958. Hayne JA and Crockett AJA referred to Nuri and went on to say:
In that case the court was considering s 22 of the Crimes Act 1958 which involves conduct endangering life. Crabbe's case was referred to by the Court of Criminal Appeal.
The offence of which the applicant was found guilty was laid under s 17 of the Crimes Act. That section is one of a group of sections which include s 22. It cannot be supposed that the legislature intended that there be, or that the courts would interpret the relevant sections so as to produce, a different requirement concerning the extent of “the intent” with regard to each of those sections.
It should also be said that the Crown cited a number of cases that favour the test of “might” or “possibility” over the “probability” test for intent. These are relatively old cases and concerning the now repealed offences of unlawful and malicious wounding or unlawful and malicious infliction of grievous bodily harm. The spirit of the decision in Crabbe indicates that such cases should not be applied to the offence of recklessly causing injury. Nuri used a test of “probability” in a kindred section to this case and it must be the case that all relevant sections in the group bear the same interpretation.[98]
[96](1985) 156 CLR 464; Cf: R v Coleman (1990) 19 NSWLR 467.
[97](1997) 2 VR 585.
[98]Ibid 593.
Courts have for some time attempted to distance the quantum of risk involved in recklessness from a mathematical or numerical evaluation.[99] This was the view clearly established in Bougheyv R,[100] where the Chief Justice sought to distinguish foresight of a probability largely by comparison to foresight of a possibility.[101] Mason, Wilson and Deane JJ in that case were also unequivocal in opposing a direction regarding recklessness couched in terms of a mathematical quantum of risk.[102]
[99] La Fontaine v R (1976) 136 CLR 62, 99 (Jacobs J); R v Faure [1999] 2 VR 537, 551 (Brooking JA, with Winneke P and Ormiston JA agreeing).
[100](1986) 161 CLR 10.
[101]Ibid 13-15.
[102]Ibid 19-20.
The tribunal’s task is not that of assessing the ‘possibility’ that risk existed. If that were the standard, and future conduct was relevant, it would be sufficient if the tribunal was satisfied that the risk arising from that conduct was something more than fanciful. But the standards are more demanding. The task of the tribunal is to determine whether the relevant conduct gave rise to an appreciable risk and whether the accused had foresight of the probability of that risk. The application of those standards to the facts would become a complex if not impossible task, were the conduct to be assessed to include future hypothetical conduct of the offender.[103] As I have said, it would involve an assessment of both the degree of likelihood that the further act would occur and the ‘complex notion’[104] of the accused’s foresight of the likelihood of that occurrence.[105] The standards of an objective ‘appreciable risk’ and the accused’s foresight of the ‘probability’ of the danger, are further factors which strongly militate against the inclusion of future conduct in such an offence.
[103]See [50]-[51] above.
[104] R v Khien Lam [2006] VSCA 162, [16] (Ashley JA, with Redlich, JA and Bell AJA concurring)
[105]See [65]-[66] above.
Conclusion
It will be apparent from the foregoing that in my opinion the future conduct of the applicant is not conduct that can be considered. It has no place in an evaluation of the actus reus of the crime. To take contemplated but unperformed acts into account would undermine the fundamental principle that as a general rule, an evil mindset must be translated into some voluntary bodily action for it to attract criminal sanction. Nor can it be said that the future conduct shares a sufficient temporal and causal proximity with the conduct actually engaged in for it to be characterised as part of that conduct. Finally, since it did not in fact occur, the voluntariness of any such anticipated action can not be imputed to the accused via principles of voluntariness.
Such future conduct can form no part of the objective element. The danger of death encompassed by s 22 is not a hypothetical construct. It does not facilitate speculation as to the future conduct of the accused. To objectively ascertain danger of an appreciable risk of death, that risk must be ‘included in’ or ‘carried by’ the very same conduct performed by the applicant and not by some anticipated future conduct. The applicant’s emotional state of mind does not provide a basis for evaluating the dangerousness of any conduct the applicant is likely to perform.
The applicant’s future actions have no legal relevance to the subjective element. The subjective element cannot be established without presupposing the satisfaction of the objective element. The mens rea of recklessness required the accused to have adverted to the probability of an appreciable risk of death from her conduct. That does not include future conduct which may have given rise to such a risk, even if it could be established that the applicant foresaw the prospect of that risk.
As a matter of law no account was to be taken of the future conduct of the applicant – whether it be likely or not. The jury verdict may have rested on this impermissible foundation. Moreover, even if the jury could have taken into account the applicant’s future conduct, the evidence could not sustain the conclusion that the applicant foresaw the probability of that conduct or the consequential appreciable risk of death.
The question remains whether the evidence concerning the external sources of ignition supports a finding that Ms Rasool foresaw the probability of an appreciable risk of death arising from her conduct and acted with indifference to that consequence. A verdict of guilty based on the external sources of ignition was not supported by the evidence. The evidence given by Dr Kelleher was that the risk of ignition from the external sources could not be quantified as anything more than a mere possibility.
No evidence was presented which suggested that the applicant had any special knowledge of the risk of ignition from the appliances in the office, and such evidence as there was did not indicate that she had averted to such a risk. It follows there is also a logical difficulty involved in accepting that the applicant was possessed of the necessary foresight where the expert forensic scientist could not clearly identify a sufficient danger of death in the existing circumstances. This is also a necessary implication arising from a finding that the objective element could not be made out on the basis of her relevant conduct.
Thus there was no evidence that there was an appreciable risk of death in the circumstances or that the accused was possessed of the necessary foresight. For these reasons the jury verdict was unsafe and unsatisfactory.[106] I would therefore grant leave, allow the appeal and direct that a verdict of acquittal be entered.
[106]M v R (1994) 181 CLR 487.
KING AJA:
I agree that the application for leave to appeal against conviction should be allowed for the reasons given by Redlich JA and that a verdict of acquittal be entered.
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