R v Bennett
[1989] TASSC 68
•23 November 1989
Serial No 68/1989
List "A"
CITATION: R v Bennett [1989] TASSC 68; A68/1989
PARTIES: R
v
BENNETT, Phillip John
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 91/1989
DELIVERED ON: 23 November 1989
DELIVERED AT: Hobart
JUDGMENT OF: Neasey, Nettlefold and Crawford JJ
Judgment Number: A68/1989
Number of paragraphs: 13
Serial No 68/1989
List "A"
File No CCA 91/1989
THE QUEEN v PHILLIP JOHN BENNETT
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NEASEY J
NETTLEFOLD J
CRAWFORD J
23 November 1989
Order of the Court
Leave to argue the appeal before a bench of five judges is refused.
Serial No 68/1989
List "A"
File No CCA 91/1989
THE QUEEN v PHILLIP JOHN BENNETT
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NEASEY J
23 November 1989
The respondent in this application by the Attorney–General, for leave to appeal against an acquittal of the respondent of a charge of unlawfully causing grievous bodily harm, has applied for leave to argue that two previous decisions of the Court of Criminal Appeal of this State should not be followed. These are the decisions in Snow v The Queen [1962] Tas SR 271 and Palmer v The Queen [1985] Tas R 138. This Court laid down in Gardenal–Williams v The Queen, CCA., 44/1985, certain rules which it said would in future govern procedural aspects of such applications. Among them were that the court would not hear argument that one of its previous decisions should not be followed unless leave were first obtained to do so, and that in the event of such leave being granted the whole appeal would ordinarily then be heard by a bench of five judges. This is the leave for which counsel for the respondent has applied.
In Gardenal-Williams v The Queen, also, the court affirmed some guiding rules which had been set out in the judgment of Green CJ in Arnol v The Queen [1981] Tas R, and concurred in by Cosgrove J in that case, as to when it might be appropriate to review one of its previous decisions. I need not repeat those guidelines in full here, but counsel for the respondent needs to invoke them successfully in order to have his present application approved.
In my opinion, no sufficient reason has been advanced in this case for reviewing the court's previous decisions in Snow or Palmer. It was argued in the respondent's written submissions and orally before us that these decisions were "patently wrong and should be overruled"; but on the contrary, in my view there is no reason to think that Palmer in particular, which affirmed that part of the decision in Snow's case which dealt with the effect of intoxication upon the operation of the criminal responsibility provisions of the Criminal Code, is other than plainly right. No climate of legal opinion has developed in this State suggesting that the decision in Palmer should be reviewed. The judgments given there, if I may say so, add substantially to our full understanding of Snow and of the operation of s17 of the Code.
As to Snow's case, it has stood undiminished now for 27 years. It dealt with two matters principally. One was the question of the essential elements of the crime of rape under the Code, and the other was whether rape is a crime involving "specific intent" within the meaning of s17(2) of the Code, and consequently whether evidence of drunkenness may be relied upon to show that the accused's act was not voluntary and intentional. In Arnol's case, Green CJ and Cosgrove J held that there was no sufficient reason to reconsider the correctness of that part of the decision in Snow of which review was sought; namely the first part, as to the essential elements of the crime of rape. As the third member of the court, I undertook a review of the decision in respect of that first question and expressed full agreement with it. In Palmer, the essential questions were whether murder committed on the basis of application of s157(1)(c) of the Code is a crime involving specific intent; and consequently, whether evidence of drunkenness is relevant to the voluntary and intentional nature of the accused's acts. Those being the questions, the second part of the decision in Snow's case, dealing with the application of ss17(2) and (3), was discussed fully. The result was unanimous affirmation of the validity of Snow in that respect.
It was argued by learned counsel for the respondent here that there is irreconcilable conflict in some respects between Palmer and Snow, but in my opinion there are no essential differences between the two decisions in any material respect. What does appear is some difference in emphasis as to the place and importance of "the presumption that a person intends the natural and probable consequences of his acts", given statutory recognition by s17(3) of the Code. The joint judgment of Burbury CJ and W E Cox J in Snow called it "this misleading maxim", and said a trial judge would be unwise to make use of the expression itself in directing a jury – (supra) at p289. Nettlefold J in Palmer (with whom Underwood J agreed) on the contrary said that, properly understood and used it is "a valid and useful intellectual tool" (supra) at p145. With respect, all were right. The maxim can be misunderstood and misused, but all the judges in both cases were concerned to stress that it is no more than a presumption of fact which it is for the jury to apply if they think the circumstances warrant, that it is for the jury alone to say whether the conclusion indicated by the presumption is to be reached, and that in considering whether the relevant acts of the accused were voluntary and intentional, any question of drink taken is legally irrelevant unless the crime is one involving "specific intent". Part of the judgment of Cox J in Palmer considered fully the question whether the decision of the High Court of Australia in Reg v O'Connor (1980) 146 CLR 64 had any effect upon the validity of the second part of Snow. His Honour expressed the opinion that it had not, and that is a view with which I fully agree. I do not say that difficult considerations, some of which can be discerned in the judgment of Crawford J in Snow, may not still arise in some situations in applying ss17(2) and (3) in accordance with Palmer and Snow, for example in respect of the meaning and application of "shall not rebut the presumption …" in s17(3), but those are for another day and I am satisfied there is no reason whatever for re–agitating the correctness of those two cases.
List "A"
File No CCA 91/1989
THE QUEEN v PHILLIP JOHN BENNETT
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NETTLEFOLD J
23 November 1989
I have read the reasons for judgment prepared by the other members of the Court. I agree with them that leave should not be granted.
The submission which forms the basis of this application is to the effect that the decisions in Snow v The Queen [1962] Tas SR 271 and Palmer v The Queen [1985] Tas R 138 are "patently wrong", in essence, on the basis that R. v O'Connor (1980) 146 CLR 64 is authority for the proposition that in determining whether or not a person's acts were voluntary and intentional intoxication must be taken into account.
That submission fails to have regard to the fact that the decision in O'Connor's case has no application in Tasmania. In O'Connor's case at p130 Wilson J said:–
"The problem before us is relevant only to those States which continue to rely, at least in part, on the common law for the principles of criminal responsibility. For Queensland, Western Australia and Tasmania the question is determined by the Criminal Codes which have been enacted in those States."
That view has also been taken by the Queensland Court in R. v Kusu [1981] Qd R 136 and by Cox J in Palmer (supra).
The law of Tasmania concerning the effect of self induced intoxication on criminal responsibility is to be ascertained by applying the ordinary rules for the construction of a statute to the Code, regard being had, of course, to the history of the development of the relevant law and the event in legal history from which, obviously, s17 is derived. On the essential aspect of the problem, that is, the construction of the Code, the reasons in O'Connor have nothing to say. O'Connor is like Majewski in one respect, that is, it is a policy decision. For us the relevant policy is that of the Tasmanian Parliament, not the majority of the court in O'Connor. It follows that no sufficient basis for the granting of leave has been shown.
List "A"
File No CCA 91/1989
THE QUEEN v PHILLIP JOHN BENNETT
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
23 November 1989
I have some difficulty accepting the view of the majority in Snow v The Queen [1962] Tas SR 271 that intoxication is irrelevant to the question whether an act of an accused was voluntary and intentional. It is clearly arguable that there is nothing in the Criminal Code which justifies such a limitation on the express requirement of section 13(1) that for there to be criminal responsibility, the act must be voluntary and intentional. However, the matter has not been argued before me and I have no concluded view.
Snow v The Queen has stood since 1962. Notwithstanding the inconsistent common law position held to exist in The Queen v O'Connor (1980) 146 CLR 64, the members of this Court in Arnol v The Queen [1981] Tas R 157 did not choose to alter what was established in Snow v The Queen. In Palmer v The Queen [1985] Tas R 138 the views of the majority in Snow v The Queen were affirmed, The Queen v O'Connor having been considered once again. Nothing has occurred since Palmer v The Queen which persuades me that this Court should review the question again.
I have had the advantage of reading in draft the reasons for judgment of Neasey J I agree with what he says about the submission by counsel for the respondent that there is irreconcilable conflict between Palmer v The Queen and Snow v The Queen.
Accordingly it is my view that leave to argue that the decisions in Snow v The Queen and Palmer v The Queen are wrong, should be refused.
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