R v David Malcolm Duncan McLaren No. SCCRM 96/225 Judgment No. 5986 Number of Pages 4 Criminal Law

[1997] SASC 5986

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COX J

CWDS
Criminal law - jurisdiction, practice and procedure - verdict - alternative verdicts - accused on trial for shooting at another person with intent to do him grievous bodily harm (CLCA s21) - whether as a matter of law the jury may bring in a verdict of unlawful wounding - consideration of s24 and common law rule about alternative verdicts.

Criminal Law Consolidation Act 1935ss21, 23, 24; (1722) 9 Geo.Ic.22 sl; (1757) 13 Geo. II c.42 s2; (1803) 43 Geo. III c.58 ss1, 12; (1837) 7 Wm.IV&; 1 Vict.c.85 s4; Offences Against the Person Act 1861 s18; Acts Interpretation Act 1915s19, referred to. R v Miller (1979) 14 Cox CC 356; R v Austin (1973) 58 Cr App R 163; R v Lambert (1977) 65 CI. App R 12; R v Nichols (1979) CLR 247; R v McCready (1978) 67 Cr App R 345; R v Mandair [1995] AC 208, applied. R v Standley (CCA, judgment number 5914, 11 December 1996, unreported), discussed.

HRNG ADELAIDE, 22 January 1997 (hearing and decision) #DATE 22:1:1997 #ADD 19:2:1997

Counsel for appellant:     Mr P R Brebner

Solicitors for appellant:    DPP (SA)

Counsel for respondent:     Mr J T W Birchall

Solicitors for respondent: Andersons

ORDER
Ruling.

JUDGE1 COX J

1. I shall deal with the matter now. The accused is charged on an information which alleges two counts, the first of attempted murder and the second shooting at with intent to do grievous bodily harm. The facts in a word are that on 9 March 1996, at Osborne, he was, as he agrees, holding a rifle when it discharged and fired a bullet into the arm of a man who was standing a short distance away from him. There are issues about voluntariness and intention and they will be for the jury, if they can, to resolve. Mr Birchall for the accused has submitted that I should leave unlawful wounding as an alternative verdict open to the jury on the second count.

2. I should describe the second count in more detail. The statement of the offence is "shooting at with intent to do grievous bodily harm" with a reference to s21 of the Criminal Law Consolidation Act, and the particulars given are that the accused on 9 March 1996 at Osborne unlawfully and maliciously shot at Darren Anthony Ferrari with intent to do him grievous bodily harm.

3. Sections 21, 23 and 24 of the Criminal Law Consolidation Act read:
    "21. Any person who unlawfully and maliciously, by any means -
    (a) wounds any person;
    (b) causes any grievous bodily harm to any person;
    (c) shoots at any person;
    (d) attempts to discharge loaded arms of any kind at any
    person,with intent to -
    (e) maim, disfigure, disable, or do other grievous bodily harm to,
    any person;
    (f) resist, or prevent the lawful apprehension or detainer of,
    any person,shall be guilty of an offence and liable to be
    imprisoned for life."

"23. Any person who unlawfully and maliciously wounds or inflicts
    any grievous bodily harm on any other person, either with or
    without a weapon or instrument, shall be guilty of an offence and
    liable to be imprisoned for a term not exceeding five years or,
    where the victim was at the time of the commission of the offence
    under the age of twelve years, for a term not exceeding eight
    years."

"24. If on the trial of any person for any offence, except murder
    or manslaughter, the information alleges that the accused person
    wounded any person and the jury is satisfied that the accused
    person is guilty of the wounding charged in the information but is
    not satisfied that he is guilty of the offence so charged, the
    jury may acquit him of the offence and find him guilty of unlawful
    wounding and thereupon he shall be liable to be imprisoned for a
    term not exceeding five years or, where the victim was at the time
    of the commission of the offence under the age of twelve years,
    for a term not exceeding eight years."

4. The introduction of the offence of shooting at another, with or without a prohibited intention, seems to have begun in England with the statute (1722) 9 Geo.I c.22, s1 and then progressed through (1757) 13 Geo.II c.42, s2, (1803) 43 Geo.III c.58, ss1 and 12 and (1837) 7 Wm.IV and 1 Vict. c.85, s4 to culminate in the Offences Against the Person Act 1861, s18 where it was consolidated with other distinct offences. Section 18 was adopted by the Colony in substantially the same form. It seems clear, from its contents and structure and history, that s21 of the 1935 consolidation deals with several different offences, not just with one offence that may be committed in different ways or with different intentions. Cf. R v Standley, CCA, 11 December 1996, unreported.

5. Mr Birchall, as I said, argued that I should leave unlawful wounding as an alternative verdict to the shooting charge. He drew my attention to Judge LunnÕs general note to s21 about an alternative verdict on a charge under that section. He relied as well on the general substance of s21 which includes acts of wounding and causing grievous bodily harm in pars.(a) and (b) and speaks of relevant intentions in par.(e). (He also claimed support from the marginal note, but that cannot help him: Acts Interpretation Act, s19.) As to the facts in this case, because the evidence has shown that Mr Ferrari was in fact wounded, Mr Birchall pointed to s24 and appealed - indeed, this was his principal argument - to what he described as the fairness of the situation. He was inclined to question whether the second count should have been included in the information at all, but certainly unlawful wounding should be before the jury now either as an explicit third count (which is a matter for the DPP, not me) or, failing that, as a silent alternative available to the jury on the principle of fairness. I would just observe that it seems to me to be a nice question whether it works for or against the accused if unlawful wounding is not an available verdict. There could be more than one view about that. There is no need to pursue the question because fairness is not, in my opinion, the test for determining whether an alternative verdict is open on a particular charge. Verdicts have been set aside when a judge has left an alternative verdict, which the jury has then adopted as its own, and it transpires that, in accordance with legal principle, the verdict was not available.

6. There are two considerations, in point of principle, that might be thought to have a bearing on the question. The first is the common law rule that an accused person may be convicted of an alternative offence, not expressly charged, if it is an offence of the same character as the offence charged and if the definition of the offence charged necessarily includes the definition of the postulated alternative offence. That is the language of Archbold, 43rd Edition, para.4-459. The test was expressed a little differently in Archbold, 34th Edition, at para.575, which spoke of the information containing words apt to include the lesser alternative offence.

7. For present purposes it makes no difference which formula is applied. Unlawful wounding, in my opinion, fails the common law test for an implicit alternative to the offence under par(c) of s21 which was charged in the second count. I have already described the particulars in the information. An unlawful wounding charge requires proof of an actual wound, and it is possible to shoot at another person with intent to do him grievous bodily harm without wounding him. The shooter may miss altogether. That circumstance is reflected in the charge which makes an allegation about the accused's action and his intention, but says nothing about the result of what he allegedly did, and certainly does not assert that the victim was wounded. The fact that the undisputed evidence in this case shows that the victim was in fact wounded cannot affect the legal nature of the charge.

8. Indeed, even had the accused been charged under para.(b) of s21, that is, with causing grievous bodily harm with intent to do grievous bodily harm, it appears that the jury could not have lawfully found him guilty of unlawful wounding because causing grievous bodily harm does not require proof of a wound. The wrongdoer might inflict a disease on the victim or, as recent authority shows, serious mental harm. It would be otherwise, of course, with a charge laid under par(a) of s21 which explicitly asserts and requires an act of wounding.

9. For these reasons, I consider that I could not, in accordance with the common law rule, leave unlawful wounding to the jury on this particular information.

10. Perhaps, before I leave this part of the argument, I should say that the common law principle requires proof of an offence of the same character, as the text books put it, and that is an allusion to the distinction between felonies and misdemeanours. Those old categories were recently abolished in this State and I would conclude that this part of the test is no longer applicable here or, at least, would require some modification or adaptation to current trial procedures. But I do not need to decide that now.

11. Next, Mr Birchall relied on s24. I have already set it out. It will be seen that the section uses the expression "the information alleges ... that the accused person wounded". It also speaks of "the wounding charged in the information". This information, however, makes no such allegation. It does not directly or indirectly charge the accused with wounding anyone . It says nothing at all about any wounding. It is not for me to re-fashion s24 to suit the purposes of this particular trial. I am bound by the terms that Parliament has used. In my opinion, s24 does not assist Mr Birchall's argument. For these reasons I consider it is not open to the jury on this information to bring in a verdict of unlawful wounding as an alternative to the second count. I shall therefore not leave unlawful wounding to them.

12. I mention the following as cases that have some greater or lesser bearing on the matter that I have been discussing. But I add a warning, that the corresponding English legislation has in recent times been amended. The cases are: Miller (1879) 14 Cox CC 356; Austin (1973) 58 Cr.App.R 163; Lambert (1977) 65 Cr.App.R 12; McCready
(1978) 67 Cr.App.R 345; and Mandair [1995] AC 208. I note that Archbold 34th Edition at p.1619, in the table of alternative verdicts, makes no provision for any alternative verdict in the case of the offence of shooting at with intent. (I cite an old edition of Archbold because shooting at with intent appears to have disappeared since then from the English criminal calendar.)