R v Grant - [2002] NSWCCA 243

No judgment structure available for this case.

Reported Decision:
(2002) 55 NSWLR 80
(2002) 131 A Crim R 510

New South Wales

Court of Criminal Appeal

CITATION: R v Grant [2002] NSWCCA 243 revised - 30/07/2002

FILE NUMBER(S): CCA 60460/01

HEARING DATE(S): Friday 8 February 2002

JUDGMENT DATE:
8 July 2002

PARTIES :

Regina
Robert John Grant

JUDGMENT OF: Spigelman CJ at 1; Wood CJ at CL at 2; Kirby J at 132

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70042/00

LOWER COURT JUDICIAL
OFFICER : Hulme J

COUNSEL : Mr Dawe QC with Mr Clout (Crown)
Mr Haesler with Mr Wilson (Appellant)

SOLICITORS: S E O'Connor
Western Aboriginal Legal Service

CATCHWORDS: CRIMINAL LAW - murder - appeal against convictions - intoxication - directions given to jury in relation to intoxication - reckless indifference to human life- whether an offence of specific intent under part 11A of Crimes Act - application of the proviso. - CRIMINAL LAW - shooting with intent to murder - appeal against convictions - intoxication - whether verdict unreasonable or could not be supported by the evidence - whether jury should have entertained a reasonable doubt - whether a miscarriage of justice.

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Code Act 1995
Interpretation Act 1987

CASES CITED:
Boughey v The Queen (1986) 161 CLR 10
Crabbe v The Queen (1985) 156 CLR 464;
Director of Public Prosecutions v Beard (1920) AC 479
Fontaine v The Queen (1976) 136 CLR 62;
He Kaw Teh v The Queen (1985) 157 CLR 527
Her Majesty's Advocate v Kinnison [1870] 1 Coup 457
Jones v The Queen (1997) 72 ALJR 78
M v The Queen (1993) 181 CLR 487
Mackenzie v The Queen (1996) 190 CLR 348
Pearce v The Queen (1998) 194 CLR 610
Pemble v The Queen (1971) 124 CLR 107
Queen v O'Connor (1981) 146 CLR 64.
The Queen v Pereira (1988) 35 A Crim R 382 at 385
Regina v Ainsworth (1994) 76 A Crim R 127
Regina v Aiton (1993) 68 A Crim R 578
R v Farrell (1964) NSWLR 1143
R v Hancock [1986] AC 455
Regina v Haywood (1971) VR 755)
Regina v JB and RJH (1999) NSWCCA 93
Regina v Kamipeli, unreported
Regina v Keogh (1964) VR 400
Regina v Majewski 1977 AC 443
Regina v Mills NSWCCA, 3 April 1995
R v Moloney (1985) AC 905
R v Martin (1983) 9 A Crim R 376
Regina v Masnec (1962) Tas SR 254
R v Meade [1909] 1 KB 895
R v Morgan (1993) 67 A Crim R 526
R v Peterkin (1982) 6 A Crim R 351
R v Solomon (1980) 1 NSWLR 321
R v Stones (1956) 56 SR (NSW) 25
Regina v Winchester, 1955, Unreported
Royall v The Queen (1991) 172 CLR 378;
Smyth v The Queen (1957) 98 CLR 163
Stapleton v The Queen (1952) 86 CLR 358
Vallance v The Queen (1961) 35 ALJR 182
Viro v The Queen (1978) 141 CLR 88
Wilson v The Queen (1992) 174 CLR 313

DECISION: Appeal against conviction in respect of Count 1 allowed; conviction and sentence for Count 1 quashed. A new trial is directed in relation to Count 1. The appeal against conviction and sentence in respect of Count 2 is dismissed.

- 48 -IN THE COURT OF

60460/01

SPIGELMAN CJ
WOOD CJ at CL
KIRBY J
Monday 8 July 2002

REGINA v ROBERT JOHN GRANT

Judgment

1 SPIGELMAN CJ: I agree with Wood CJ at CL.

2 WOOD CJ at CL: Robert John Grant appeals against convictions recorded, and sentences imposed, following a trial before his Honour Justice Hulme and a jury in the Supreme Court of New South Wales on 22 June 2001 at Dubbo. The Appellant was convicted on one count of murder (s. 19A Crimes Act 1900) and on one count of shooting with intent to murder (s. 29 Crimes Act 1900). In respect of the charge of the murder of Ross Shersingh (Count 1) his Honour sentenced the Appellant to imprisonment for 18 years, to commence on 28 November 2001 and to expire on 27 November 2019, with a non-parole period of 13 years, to commence on 28 November 2001 and to expire on 27 November 2014. In respect of the charge of shooting with intent to murder Daniel Bradford (Count 2), his Honour sentenced the Appellant to a fixed term of imprisonment for 5 years, commencing on 28 November 1999 and expiring on 27 November 2004.

Facts

3 The Appellant was born on 29 January 1956, and was aged 43 at the time of the offences. He had been employed, up until a few months before 27 November 1999, at the Lightning Ridge Motor Village, also known as the Newton Hotel or Nobby’s, which was a hotel combined with a caravan park. He had been dismissed from this position after an altercation when he had been intoxicated. He remained a resident of the Lightning Ridge caravan park after his employment ceased.

4 The appellant had spent most of 27 November drinking alcoholic cider and shortly before the events which led to the charges, he had been refused service at the Lightning Ridge Bowling Club because of his intoxicated state. After this he had returned to his caravan where he remained for some little time before re-emerging, shortly after midnight, armed with a rifle.

5 It was the Crown case, in summary, that he was seen at this stage to walk toward Ross Shersingh, Daniel Bradford and Anthony Leeder, as they were talking, and drinking beer, at the rear of a Nissan Patrol utility parked in the car park of the hotel/caravan park. Anthony Leeder noticed him walking toward the car park from the direction of his caravan, carrying something which Mr Leeder first thought to be a broom, or stick, but which was later seen to be a rifle.

6 On the Crown case, the appellant, while holding a rifle at his hip, first shot and killed Ross Shersingh from a distance of about 20 to 25 feet. Its case in respect of this shooting was presented to the jury upon the basis of specific intent to kill or to cause grievous bodily harm, and upon the alternative basis of reckless indifference to human life, and his Honour summed up to the jury accordingly.

7 Having shot Mr Shersingh, the Crown asserted that the appellant chased Mr Bradford around the utility behind which the men had been standing, with the gun aimed at him, until Mr Bradford was able to make good an escape to the nearby drive-through bottle shop. It alleged that, in the course of this pursuit around the utility, a shot was fired by the appellant at Mr Bradford, with intent to kill him.

8 The evidence indicated that two shots were fired, the first of which struck and killed Mr Shersingh and the second of which became lodged in the door of a Mercedes Benz sedan which was parked nearby. The projectile recovered from the deceased was of .22 calibre and, upon testing, it was shown to have been fired by one of the rifles owned by the appellant. The appellant, and at least one other witness, said that they heard two shots fired, with other witnesses saying that they only heard one. Mr Bradford himself said, in his evidence, that he did not recall hearing a second shot, however in a statement, made to police shortly after the shooting, he indicated that he was aware of a second shot having been fired

9 There was evidence from one eyewitness that, at the time of the shots being fired, a male voice called out “you big-noting opal mining cunts”. Both Bradford and Leeder were involved in opal mining. The appellant had recently tried his hand at this activity without any success.

10 The appellant was indicted in respect of the second shooting, with the offence of shoot with intent to murder, and in the alternative with maliciously discharge a loaded firearm with intent to do grievous bodily harm.

11 It was the appellant's case at trial, in summary, that he had been drinking since the morning of 27 November 1999 with a friend. Later that day he continued to drink alcoholic cider at the Lightning Ridge bowling club, where he remained until closing time, with the exception of the period between 6.30 and 7.00 pm. During that period he claimed to have returned to his caravan, on the way meeting two men known as Lionel, and Gary Evans, to whom he then lent his guns and some bullets. He asserted that he had lent these two men guns in the past, on a number of occasions, to be used for pig shooting.

12 After lending the guns to the men, he said that he returned to the bowling club, where he remained until approximately 12.09 am. After returning to his caravan and going to bed, he heard a couple of shots outside the caravan, and then went outside to urinate. When he came back inside, he observed that his rifles, a .22 calibre Vostock long rifle, and a Lithgow brand .22 calibre shortened rifle which police later found under a Doona on his bed, had been returned, along with a jacket which he had not seen before. He put the jacket on, in an attempt to ward off mosquitos. It was found to have firearm residue, and a .22 calibre bullet cartridge was found in a pocket. He denied any involvement in the shootings.

13 The appeal against conviction relates to both offences. It is convenient to deal first with the single ground of appeal which concerns the conviction for the murder of Ross Shersingh.

Appeal Against Murder Conviction

14 The appellant submitted that his Honour erred in the direction which was given in relation to the relevance of intoxication for a charge of murder where that is dependent upon proof of reckless indifference. The point at issue arises by reason of an amendment to the Crimes Act 1900 (NSW), which in 1995 inserted a new Part 11A into the Act.

15 The directions which his Honour gave to the jury, in relation to the state of mind required for murder, including that involved in reckless indifference were relevantly, for present purposes, as follows:

The [appellant] should be found guilty of murder if, and only if, the Crown establishes beyond reasonable doubt each of the ingredients (i), (ii) and (iii) and one of the elements in subparagraph (iv) below.

(i) that Ross Shersingh has died.

AND

(ii) that his death was caused by a deliberate act;

AND

(iii) that the deliberate act was an act of the [appellant]

AND

(iv) that at the time the act was done, it was done with -

(a) an intention to kill; or

(b) an intention to inflict grievous bodily harm, or

(c) reckless indifference to human life.

…

An act is done with

reckless indifference to human life

if the person doing it –

· Then realised that his act was likely to cause death, and

· Was prepared to take that chance.

In this context

likely

means that there was a substantial or real chance as distinct form a mere or remote possibility. The word

likely

is not intended to suggest that death was (or must have been thought to be) more probable than not.

Intoxication

– Intoxication of the [appellant] can be taken into account on the question of whether he had one or other of the intentions referred to in subparagraph (iv) (a) and (b) but for no other purpose

.

16 The written directions in relation to manslaughter were as follows:

“ Manslaughter

If the Crown has not satisfied you beyond reasonable doubt of the ingredients of murder but establishes beyond reasonable doubt each of ingredients (i), (ii), (iii) and (iv) below, you should find the accused guilty of manslaughter.

(i) that Ross Shersingh has died,

AND

(ii) that his death was caused by a deliberate act;

AND

(iii) that the deliberate act was an act of the accused,

AND

(iv) that the act was both unlawful and dangerous as explained below.

Unlawful and Dangerous Act

Included in

unlawful

acts is the deliberate application of force to another person without that person’s consent.

An act is

dangerous

if it is such that a reasonable person in the position of the Accused, i.e. a 43 year old man, apparently experienced in the use of guns, but not intoxicated would have realised that, by that act, the deceased was being exposed to an appreciable (or significant) risk of serious injury.

Note:

The “act” referred to is not the death of Ross Shersingh which, in this context, is at most a consequence.

Intoxication cannot be taken into account in relation to manslaughter.

”

17 These direction were supplemented by the oral directions which his Honour gave, in the following terms:

I will start off with the ingredients of murder. Before you can convict of that charge the Crown must establish to your satisfaction beyond reasonable doubt each of the matters listed in subparagraphs (i), (ii) and (iii), and one of the elements in paragraph (iv) on the first page of the written directions.

So far as the fourth ingredient on that page is concerned, let me draw your attention to the following matters. Firstly, you need to be satisfied of only one of the three elements in the subparagraph numbered (iv). Secondly, you do not all have to be satisfied of the same one. AS I have said earlier, you do not all have to reach a result in the same way. Thirdly, you do not individually have to be able to choose between the three possibilities so long as you are satisfied that one of them exists…

…

Let me also draw to your attention that all of the elements listed in that subparagraph involve a consideration of the accused’s state of mind.

In the circumstances of this case there is no direct evidence, at least evidence favourable to the prosecution of that state of mind. There is no evidence he said to anyone, before or after the shooting, “I’m going to kill” or “I did kill Mr Shersingh”.

The Crown case depends on your being willing to infer from what he did, assuming that you find it was he that did it, that one or other of the elements listed in subparagraph (iv) existed at the relevant time.

You could not convict the accused merely because death resulted from any actions of his. If you find it was the accused who was responsible for the death of Mr Shersingh you must consider the question of what his intention was, or intentions were, at the time.

…

The third ingredient under subparagraph (iv) is reckless indifference to human life, and that is explained in the notes at the foot of the page.

Again, you are required to consider the accused’s state of mind, what he was thinking. Did he realise that his act was likely to cause death. Did he go ahead regardless, or prepared to take the chance.

I draw your attention, also, to the explanation of the word ‘likely’. It is not sufficient if the accused merely realised that death was a possible consequence.

The final note on page 1 concerns intoxication. It will not surprise you to know that being drunk is not an excuse for all acts otherwise criminal which might be committed in that state. However, parliament, and indeed the law over centuries, has recognised that intoxication is relevant at times.

One example relevant here, is where it is suggested that a person has a specific intent, for example an intent to kill. If he is so drunk that his mind does not permit him forming any intent at all, it would be wrong to convict as if he did have such an intent.

What the final note on page 1 does is to confine exhaustively the extent intoxication can be taken into account so far as the charge of murder is concerned.

On this topic of intoxication there is one further point I should make. Because it is relevant to an issue that the Crown must establish, namely intent, it is not a case of the accused having to prove he was intoxicated, or that his intoxication was significant.

It is a case of the Crown proving that, despite whatever evidence of intoxication there is, the accused had the requisite intent as set out in the written directions. Or, although intoxication is not relevant to this, acted with reckless indifference, as indicated.

I will just repeat that. It is a case of the Crown proving that despite whatever evidence of intoxication there is the accused had the requisite intent.

That, I think, covers all I need to say by way of directions of law on the ingredients of murder.”

18 His Honour then went on to deal with manslaughter by substantially repeating the matters contained in the written directions, including the instruction:

Finally you will note that any intoxication of the accused is irrelevant so far as manslaughter is concerned.

19 When directing the jury in relation to the offences, which were charged in the alternative, in relation to Mr Bradford, his Honour gave an instruction, both in writing and orally, that

Intoxication of the accused can be taken into account on the question of whether he had the intent referred to but for no other purpose.

20 As a result, the jury were directed that intoxication could be taken into account, in this case, in relation to the appellant’s state of mind for murder dependent upon intent to kill or to cause grievous bodily harm, as well as in relation to the counts involving Mr Bradford, but not in relation to murder dependent upon reckless indifference, or in relation to manslaughter.

21 It was submitted, by the appellant, that his Honour should not have drawn the distinction which he did, in the written and oral directions, between an offence of murder dependent upon intent to kill or to cause grievous bodily harm, on the one hand, and one dependent upon reckless indifference, on the other hand. The direction, which it is suggested should have been given, was to the effect that the jury should also have had regard to the appellant’s state of intoxication, when considering whether he had formed the state of mind required for reckless indifference.

22 Although the transcript of the proceedings appears to be incomplete in relation to the discussion between trial counsel, and his Honour, concerning the written directions, we were informed that the point now in issue was specifically taken by defence counsel, and supported then by the Crown Prosecutor. Notwithstanding that consensus, his Honour declined to accede to the submission which was advanced. The Crown, it may be observed, now wishes to take a contrary position to that adopted at trial.

23 Since it cannot now be ascertained whether or not the jury verdict was based upon a finding of specific intent to kill or to cause grievous bodily harm, or upon a finding of reckless indifference, the appellant contends that any misdirection relating to the relevance of intoxication for reckless indifference, could have cost him a chance of an acquittal of the offence of murder.

24 In passing, it may be noted that, for the purpose of sentencing, his Honour found that the appellant had not shot Mr Shersingh with any intention of killing him, but as between an intent to do grievous bodily harm and reckless indifference, he said that he was unable to decide.

25 In these circumstances, the appellant is clearly entitled to rely upon this ground of appeal and does not need leave to argue it.

26 The point at issue is deceptively simple, but it involves a fundamental question of principle, which seems not to have been considered by those responsible for the amendment.

27 In the Second Reading Speech, the Honourable Paul Whelan MLA said that the effect (purpose) of the introduction of Part 11A was to “remove self induced intoxication as a basis for escaping liability in relation to certain offences”: Hansard Legislative Assembly, 6 December 1995, 4278-4279.

28 The explanation for the proposed amendment continued:

The present law in New South Wales is that a person charged with a criminal offence, including murder, might be acquitted altogether if there is evidence that the accused was so intoxicated at the time of committing the act that there was a reasonable doubt whether the accused had acted intentionally or voluntarily. This reflects the common law as stated by the High Court in the Queen v O’Connor (1981) 146 CLR 64. It reflects the principle that a person should not be held criminally responsible for an act in the absence of proof that the accused acted voluntarily and with the required mental element for an offence. This is also the law in the other common law jurisdictions of Victoria, South Australia and the Australian Capital Territory.

By contrast, in the case of Regina v Majewski 1977 AC 443, the House of Lords in England held that evidence of self-induced intoxication may be considered in relation to offences of specific intent only, and cannot be considered in relation to offences of basic intent. The Majewski approach reflects generally the position in the code jurisdictions, as well as Canada and the United States of America. An offence of basic intent is an offence which simply requires an intention to perform some act – such as striking a person – rather than one requiring an intention to bring about some consequences, such as striking a person with intent to cause grievous bodily harm. An offence of specific intent is thus one involving an additional purposive element, that is, a specific purpose or an intention to achieve a particular result. Murder is such an offence.

It requires proof that the accused acted with an intention to kill or inflict grievous bodily harm

. By contrast, an offence of basic intent requires proof only that the accused intended to commit the act proscribed. Manslaughter is such an offence. It requires proof only that the accused committed an unlawful or dangerous act.

The effect of Majewski is that a person who kills another while in a state of gross intoxication may be found not guilty of murder but might still be guilty of manslaughter. For the purpose of determining guilt on a manslaughter charge, the accused’s intoxication would not be able to be taken into account. The effect of O’Connor, on the other hand, is that intoxication may be considered in relation to both offences such that a person might be acquitted outright. In 1994 the Standing Committee of Attorneys-General endorsed the Majewski approach in preference to the O’Connor approach for incorporation in the model criminal code. Majewski has consequently been adopted by the Commonwealth in the Criminal Code Act 1995, which codifies chapter 2 of the model criminal code on the general principles of criminal responsibility.

The preference for the Majewski approach is based on important public policy considerations. The Standing Committee of Attorneys-General, in particular, took the view that to excuse otherwise criminal conduct in relation to simple offences of basic intent – such as assault – because the accused is intoxicated to such an extent, is totally unacceptable at a time when alcohol and drug abuse are such significant social problems. The standing committee considered that if a person voluntarily

the risk of getting intoxicated then he or she should be responsible for his or her actions. This Government agrees with and strongly supports this approach. The proposed amendments therefore essentially reflect the approach taken in Majewski, as well as that taken by the Commonwealth Criminal Code Act 1995, which enacts the principles of the model criminal code.

Under the proposal, intoxication will mean intoxication whether by means of alcohol or drugs. The intoxication must be self-induced. Clearly it would be unfair for intoxication to be disregarded where a person becomes intoxicated due to fraud, reasonable mistake, duress or force. For example, it would be unfair not to allow evidence of intoxication to be considered where a person may unknowingly have had his or her drinks spiked.

The proposed section 428B lists examples of offences in the Crimes Act which are offences of specific intent for which evidence of intoxication may be taken into account. Murder is listed as an offence of specific intent. In conformity with Majewski, intoxication will not be able to be taken into account on a charge of manslaughter. Some of the specific intent offences are very serious offences, for example, assault with intent to have sexual intercourse. It should be noted, of course, that although evidence of intoxication can be taken into account on such an offence, such evidence will not be able to be considered in relation to a basic offence of assault.”

29 The emphasised passage would suggest, on its face, that attention had not been given to the fact that the offence of murder includes cases of reckless indifference and of felony murder, in addition to cases of specific intent to kill or to cause grievous bodily harm.

30 The amendment takes its context, for present purposes, in the light of the statutory definition of murder. That offence is defined in section 18 of the Crimes Act 1900 (NSW):

“18 Murder and manslaughter defined

(1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.

(b) Every other punishable homicide shall be taken to be

manslaughter.

(2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.

(b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only

31 It is made punishable by s 19A, which provides:

19A(1) a person who commits the crime of murder is liable to… imprisonment for life”

32 In order for an accused to be convicted of a charge of murder dependent upon intent to kill or to cause grievous bodily harm, the Crown has to prove that his or her act (or omission) was intended, that it was voluntary and that it was done (or omitted) in circumstances where he or she had formed the requisite intent to kill or to cause grievous bodily harm. As was pointed out by Gibbs J in Viro v The Queen (1978) 141 CLR 88 at 111-112, the issue in relation to the specific intent “is not whether the accused was incapable of forming the requisite intent, but whether he had in fact formed it”.

33 In order for an accused to be convicted of murder by reckless indifference to human life, the Crown needs to show that he or she knew that the probable result of his or her act (or omission), in this case the act of firing the gun, was to cause the death of another, and knowing of that likelihood (which has to be a substantial or real chance as distinct from a mere possibility) he or she went ahead and did the act regardless: Crabbe v The Queen (1985) 156 CLR 464; Royall v The Queen (1991) 172 CLR 378; Boughey v The Queen (1986) 161 CLR 10 (a code case). To prove murder by reckless indifference to human life, an accused need not be shown to have specifically intended or wanted death to result, only that he or she comprehended that there was a real or substantial likelihood of it occurring, and went ahead regardless. As such, it is strictly not a crime of specific intent (see the decisions on the equivalent offence in Code States such as Regina v Masnec (1962) Tas SR 254 and Vallance v The Queen (1961) 35 ALJR 182). The Crown must still however show that the accused intended to do the physical act (or omission) involved, and that such act (or omission) was voluntary.

34 Of importance is the circumstance that an awareness or foresight of the consequence of the act (or omission), on the part of the accused personally, is essential for proof of the offence. It is not sufficient that an ordinary or reasonable person would have foreseen the probability of the occurrence being the death of another: Pemble v The Queen (1971) 124 CLR 107. There is, accordingly, an additional element affecting the subjective mental state of the accused, which is to be established in the case of murder by reckless indifference, and which goes beyond the basic intent to do (or omit) the act which brings about death. The mens rea for this form of offence, as was pointed out in Crabbe v The Queen at 470-471, is the knowledge of the offender that death is the probable consequence of his or her act (or omission), to which I would add the decision to go ahead regardless of that consequence.

35 Before the amending legislation, intoxication was a matter which a jury was required to take into account, in accordance with the principles established in The Queen v O’Connor (1981) 146 CLR 64, both in relation to the voluntariness of the act (or omission) bringing about the victim’s death, and in relation to the state of mind of the accused, in whatever form murder was charged.

36 In passing it may be noted that, Barwick CJ observed in O’Connor (at 86) that “… murder does not fit the definition of a crime of specific intent; but yet it is consistently so treated.”

37 That intoxication was relevant, in relation to murder by reckless indifference, not only for the basic intent to do the physical act (or omission) involved, and for voluntariness, but also for the state of mind required for that form of the offence was well established on the authorities: R v Stones (1956) 56 SR (NSW) 25 per the Court at 34; R v Farrell (1964) NSWLR 1143; R v Solomon (1980) 1 NSWLR 321 per Begg J at 343; R v Peterkin (1982) 6 A Crim R 351 per Street CJ at 355; La Fontaine v The Queen (1976) 136 CLR 62; and Royall v The Queen (1991) 172 CLR 378.

38 In relation to the offence of manslaughter, the Crown does not have to prove that the act or omission was done (or omitted) with any specific intent, or that the accused personally appreciated or foresee that the act (or omission) was a dangerous one. The test of dangerousness in this regard, is an objective one, the relevant question being whether a reasonable person, in the position of the accused, would have realised that, by his or her act (or omission), the deceased was being exposed to an appreciable risk of really serious injury: Wilson v The Queen (1992) 174 CLR 313.

39 Prior to the introduction of Part 11A, it was however necessary for the Crown to establish, where any question of intoxication arose in relation to a charge of manslaughter, (as was the case for murder in its various forms), that notwithstanding its effects, the act (or omission) of the accused bringing about death, was both voluntary and intended (i.e. deliberate): R v Martin (1983) 9 A Crim R 376 and on appeal (1984) 58 ALJR 217. Absent such proof the accused was entitled to an acquittal (The Queen v O’Connor (1980) 146 CLR 64).

40 In the light of that background, I turn to Part 11A of the Crimes Act which draws a clear distinction between offences of which an intention not only to do the relevant act, but also “an intention to cause a specific result”, is an element, and offences which require only proof of an intent to do the relevant act.

41 S 428C provides in relation to “offences of specific intent” that:

“(1) Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent.

(2) However, such evidence cannot be taken into account if the person:

(a) Had resolved before becoming intoxicated to do the relevant conduct, or

(b) became intoxicated in order to strengthen his or her resolve to do the relevant conduct.

42 In the present case there was no evidence to suggest that the appellant had resolved, before becoming intoxicated, to shoot anyone, or that he had become intoxicated, so as to acquire “courage”, i.e. to strengthen his resolve to do so. It was not a case, accordingly falling within the ss (2) exception.

43 The definition section (s 428A) provides that an offence of specific intent “is defined in section 428B”, which in turn provides:

“(1) an “offence of specific intent” is an offence of which an intention to cause a specific result is an element

Table

(a) an offence under the following provisions of this Act:

19A	Murder
27	Acts done to the person with intent to murder
28	Acts done to property with intent to murder
29	Certain other attempts to murder
30	Attempts to murder by other means
etc
…

(b) an offence under the following provisions of this Act to the extent that an element of the offence requires a person to intend to cause the specific result necessary for the offence:

57	(assault on persons preserving wreck)
58	(assault with intent to commit serious indictable offence on certain officers)
66B	(assault with intent to have sexual intercourse with child under 10)
etc
…

44 The primary definition in s 428A(1) appears to have been borrowed from the judgment of Gibbs J in The Queen v O’Connor (1980) 146 CLR 64 at 91, where his Honour observed that “a crime of special intent is a crime of which an intention to cause a particular result is an ingredient.” (Emphasis added).

45 Express provision is then made, by s 428E of the Act, in relation to intoxication in the case of a person who is acquitted of murder, by reason of evidence of his or her intoxication, at the time of the relevant conduct giving rise to that charge:

428E Intoxication in relation to murder and manslaughter
If evidence of intoxication at the time of the relevant conduct results in a person being acquitted of murder:

(a) in the case of intoxication that was self-induced—evidence

of that intoxication cannot be taken into account in determining whether the person had the requisite mens rea for manslaughter, or

(b) in the case of intoxication that was not self-induced— evidence of that intoxication may be taken into account in determining whether the person had the requisite mens rea for manslaughter.

46 This provision had a direct relevance for the present case, since there was no suggestion, upon the evidence, other than that the appellant’s intoxication was self-induced. For this reason, the direction that intoxication could not be taken into account for the offence of manslaughter, which was left as an alternative, was clearly correct.

47 That intoxication has no relevance in relation to the test for dangerousness of the act (or omission), which is an element of the offence of manslaughter, is also made clear by s 428F of the Act, which provides:

428F.

If, for the purposes of determining whether a person is guilty of an offence, it is necessary to compare the state of mind of the person with that of a reasonable person, the comparison is to be made between the conduct or state of mind of the person and that of a reasonable person who is not intoxicated.

48 Similarly it is made clear by Part 11A that, for neither murder or manslaughter, is self induced intoxication relevant in relation to the voluntariness of the act (or omission) which is charged as giving rise to the offence. In that regard, s 428G provides:

428G.

(1) In determining whether a person has committed an offence, evidence of self-induced intoxication cannot be taken into account in determining whether the relevant conduct was voluntary.

(2) However, a person is not criminally responsible for an offence if the relevant conduct resulted from intoxication that was not self-induced.”

49 It may be noted that, in relation to the mens rea required for offences other than those of specific intent, s 428D provides:

428D.

In determining whether a person had the mens rea for an offence other than an offence of specific intent, evidence that a person was intoxicated at the time of the relevant conduct:

(a) if the intoxication was self-induced – cannot be taken into account,

or

(b) if the intoxication was not self-induced – may be taken into account.

50 Finally, it is to be noted that s 428H provides that:

The Common law relating to the effect of intoxication on criminal liability is abolished

51 In the first way in which the appellant put his case, reliance was placed upon the simple fact that murder was included within the offences referred to in part (a) of the Table to s 428B(2), as an example of an offence of specific intent, without any qualification as to any of the forms or ways in which that offence may be committed.

52 That submission has some force when regard is had to the circumstance that murder was included in part (a), and not as one of the part (b) offences, which are similarly listed in the table, as examples of offences of specific intent, but which are included only “to the extent that an element of the offence requires a person to intend to cause the specific result necessary for the offence”.

53 On the other hand, the primary definition is contained in s 428B(1), which defines an offence of specific intent as “one of which an intention to cause a specific result is an element”; whereas s 428B(2) is, on its face, a provision which gives examples of such an offence “without limiting the generality” of the s 428B(1) definition.

54 The alternative or supplementary submission turns upon the proposition that, under the pre-existing law, no relevant distinction was made in this State in relation to the effects of intoxication upon the state of mind required for murder by reckless indifference. So it was observed in R v Stones (1956) 56 SR (NSW) 25 at 34, in relation to the state of mind of the accused, that:

If he applied his mind to the consequences, and without concluding that they would probably happen (which is criminal intent) his state of mind was that he did not care whether they happened or not, that is recklessness. The task of a jury is to infer to what extent the accused appreciated the consequences of his act. It seems to us that to be recklessly indifferent to human life, as stated in s 18, the state of mind of the accused is relevant and requires proof of a high degree of malice in the doer, going beyond mere negligence or a dangerous act, unless in the latter case, the act is one of violence, e.g. rape, which comes within the latter part of s. 18(1)(a) which, if death ensues, necessarily constitutes a malicious homicide. Drunkenness of a high degree, therefore, may in rare cases operate to rebut reckless indifference to human life, although as the onus is on the prosecution, it is not strictly speaking a rebuttal

, but as it involves a state of mind, it becomes relevant in the same way as in the specific intent cases. We think also a practical result is thus achieved, for otherwise directions which a trial judge would be bound to give a jury would become unnecessarily complex and difficult for laymen to understand if a distinction was to be drawn, in cases where drunkenness was raised, between malice inferred from intent on the one hand and constructive malice to be inferred from a reckless indifference to consequences on the other

.

55 This passage provides some support for adopting a parity of approach for cases dependant respectively upon malice inferred from intent, and upon malice inferred from reckless indifference. That relates to the fact that the mental state required, in each instance, goes beyond that involved in basic intent, as well as to the fact that jurors may have considerable difficulty, if required to differentiate in relation to the effects of intoxication in cases where both forms of murder are left – as occurred in the present case.

56 It should be observed, additionally, that the problem identified is not confined to murder by reckless indifference. A similar problem can arise in relation to felony murder, as is indicated by a consideration of the circumstances in which it can arise.

57 For that form of murder, there is similarly no requirement for the Crown to prove that the accused intended to kill or to cause grievous bodily harm. What is required is that:

a crime which is itself punishable by imprisonment for life or for 25 years

58 There are very many “crimes” which are punishable under the Crimes Act (NSW), by imprisonment for life or for 25 years. For convenience a table of such offences is attached by way of an annexure to these reasons. While most of them are themselves crimes of specific intent, not all of them are. Some, for example s 32 (impeding endeavours to escape a shipwreck), s 46 (causing bodily injury by gunpowder etc) and s 204(b) (destruction of or damage to an aircraft or vessel) are made out by proof that the accused acted “maliciously”, or with “reckless indifference”. The Crimes Act provides, in relation to the definition of an act “done maliciously” that:

5 Maliciously

: Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime.”

59 Neither s 32 or s 46 are mentioned in part (a) or (b) of the table to s 428B(2), but s 204 is, however, included in part (b) of that table.

60 As was made clear in R v Stones (1956) 56 SR (NSW) 25 and R v Cunningham (1957) 2 QB 396, and, as s 5 of the Crimes Act also makes clear, crimes of malice require either intention or recklessness, each of which calls for a foresight of the consequences, in addition to the mental element required for basic intent.

61 The interpretation advanced by the Crown upon appeal would exclude some, but not all, forms of felony murder as offences of specific intent and would accordingly introduce another possible area of complexity in the directions which might, potentially, need to be given to a jury.

62 The issue before the Court comes down essentially to the question whether, as a matter of construction, bearing in mind the background to the amending legislation, murder, in all its forms, including cases of reckless indifference, and of felony murder, are to be regarded as coming within the operation of s 428B(1) and s 428C.

63 In support of the proposition that this question should be answered in the affirmative, counsel for the appellant placed some reliance upon the passage in Crabbe v The Queen (1985) 156 CLR 464, where the Court said (at 469):

… on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur

64 That observation no doubt reflected the much criticised, although often quoted presumption of fact that a person intends the natural and probable consequences of his acts (for a criticism of its use see Smyth v The Queen (1957) 98 CLR 163, and Stapleton v The Queen (1952) 86 CLR 358 at 365.

65 In He Kaw Teh v The Queen (1985) 157 CLR 527, Brennan J, after noting the distinction in mental states between voluntariness and general (basic) intent, and between general and specific intent, made reference to this passage, in the course of observing at p 570:

Both general intent and specific intent may be established by knowledge: the former by knowledge of the circumstances which give the act its character, the latter by knowledge of the probability of the occurrence of the result to which the intent is expressed to relate. But existing circumstances can be known more certainly than the probability of the occurrence of a future result, and therefore specific intent is usually established by proof of a desire or wish to cause the prescribed result, whereas general intent is usually established by proof of knowledge of circumstances prescribed by the statute as defining the act involved in the commission of the offence. Of course, proof of an actual desire or wish to do an act of the prescribed character is proof of general intent (cf Reynhoudt (1962) 107 CLR 381 at 398-399; Morgan at 210), but for practical purposes knowledge of the circumstances which give the act its character when an act is voluntarily done is the ordinary form of an intent to do it.

A specific intent to cause a prescribed result can be, but is not ordinarily, established by knowledge that such a result will probably (or is likely to) occur:

Crabbe (1985) 59 ALJR 417. Just as knowledge of the probable (or likely) results of an act establishes a specific intent to cause those results, so the doing of an act with knowledge that he circumstances are probably such as to make the act criminal establishes a general intent to do an act of that character.”

66 These passages, and particularly that in He Kaw Teh, do need to be understood in their context. It is the case that a relevant state of mind, such as knowledge, or specific intent, can be inferred from conduct, or from the circumstances in which an act is done: see The Queen v Pereira (1988) 35 A Crim R 382 at 385. It does not, however, follow that intent and knowledge are synonymous, or equivalent states of mind for all purposes.

67 While the purposive rule of interpretation is embodied in s 33 of the Interpretation Act 1987 (NSW) and the provision contained in s 428H of the Crimes Act must be given full effect, so must the presumption that a beneficial interpretation is to be given to criminal legislation, when there is an ambiguity: R v Morgan (1993) 67 A Crim R 526 at 534 per Mahoney JA. Additionally, it is appropriate to have regard to the history of the development of the relevant law and the source from which the amending legislation was derived, here the decision in Regina v Majewski (1977) AC 443.

68 The justification for the creation of a distinction in relation to the offence of murder, between cases of specific intent, on the one hand, and reckless indifference, on the other hand, so far as the effects of intoxication are concerned, is not easy to see, and was not directly addressed in Regina v Majewski. So far as the House of Lords there dealt with the offence of murder, it was in the context of an offence charging an intent to kill or to cause grievous bodily harm. To that decision I will however return, since it needs to be understood in its historical context, and in the light of the policy considerations which appear to have prevailed over the illogicality in the development of the law which some of the Law Lords noted.

69 As Underwood J (as he then was) observed in Attorney-General’s Reference No 1 of 1996: re Weiderman (1998) 7 Tas R 293 at 308-309, a code case which accordingly raised somewhat different considerations in relation the question there referred to the court:

In early times, drunkenness was a circumstance of aggravation, not an excuse for criminal conduct. This attitude gradually ameliorated over the years so that drunkenness was neither a circumstance of aggravation nor amelioration until the mid 19th Century when there began to emerge in the common law a doctrine that drink might be pleaded in mitigation; but the limits of the doctrine were far from clear until R v Meade [1909] 1 KB 895 and a decade later, Beard [Director of Public Prosecutions v Beard (1920) AC 479]. In the latter case, Lord Birkenhead stated these conclusions at 501-502:

2 That evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent.

3 That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.””

70 As Wright J also noted in Weiderman, at 316:

Although Beard deals with intent and not with knowledge, it seems to me that the basic legal policy (there) acknowledged…should apply to all situations…where a subjective mental element is an ingredient of the crime alleged.”

71 It may be noted that, at common law, knowledge was not an ingredient of the crime of murder: R v Moloney (1985) AC 905; and additionally, that Beard was rejected by the High Court in O’Connor v The Queen as stating the common law in Australia, particularly so far as the test was stated in terms of the capability of the accused forming intent.

72 The form of the offence, which involves reckless indifference to human life, has been regarded in this country as no less heinous than that which arises out of intent to kill or to cause grievous bodily harm. In Boughey v The Queen (1986) 161 CLR 10 (albeit a code case in which murder is defined in a significantly different way), Brennan J said (at 43):

Although we have accepted in this country that an intention to kill is not necessarily the same mental state as knowledge that death will probably result, we have regarded the two mental states as comparable in heinousness. We have understood that to be the orthodox view of the common law.

In England, where the House of Lords has been astute to ensure that the doctrine of Director of Public Prosecutions v Smith [1961] AC 290 should not be revived in a new garb, their Lordships have relegated knowledge of the probability of death to the field of evidence, treating it merely as a foundation for an inference of an intention to cause death. In R v Hancock [1986] AC 455, at p 472, Lord Scarman noted that in R v Moloney [1985] AC 905, the House of Lords had ‘made it absolutely clear that foresight of consequences is no more than evidence of the existence of the intent; it must be considered, and its weight assessed, together with all the evidence in the case. Foresight does not necessarily imply the existence of intention, though it may be a fact from which when considered with all the other evidence a jury may think it right to infer the necessary intent.’ In this country we have followed a different path by declining to follow R v Smith and by acknowledging the separate mental states of intent and knowledge of likely consequences. But the notion which underlies both the judgment of this Court in Crabbe (1985) 156 CLR 464 and the speeches in Moloney and Hancock is that that the mental state which is necessary to establish the crime of murder when the accused does not actually wish that death should result from what he does is knowledge (or foresight) that that result is so probable or likely that the doing of the fatal act is as heinous as if the accused had wished that result. In either case the accused compasses the death of the person killed or of some other person.

73 The absence of any logical basis for arbitrarily differentiating between the various forms of murder in terms of their seriousness, or between the public policy interests which make them punishable in accordance with s 19A of the Crimes Act, also has support in sentencing decisions such as Regina v Mills NSWCCA, 3 April 1995, Regina v JB and RJH (1999) NSWCCA 93 (in relation to felony murder); and Regina v Ainsworth (1994) 76 A Crim R 127, and Regina v Aiton (1993) 68 A Crim R 578 (in relation to reckless indifference).

74 As I have observed, the decision in Director of Public Prosecutions v Majewski (1977) AC 443, which was expressly not followed in O’Connor v The Queen, became the source for Part 11A. It was a case concerned with charges of assault occasioning actual bodily harm, and assault on a police officer in the execution of his duty. The defence of the accused was that the offences had been committed while he was suffering from the effects of alcohol and drugs. The question of law certified for the House of Lords was “whether a defendant may properly be convicted of assault notwithstanding that, by reason of his self-induced intoxication, he did not intend to do the act alleged to constitute the assault”. That question was answered by all of the Law Lords, who sat on the appeal, in the affirmative.

75 The argument focussed upon the question whether the rule at common law, that self induced intoxication was not a defence, although mitigated for offences where special intent had to be proved, was still an effective rule. In the course of considering that question, considerable attention was given to the judgment of Lord Birkenhead LC with whom the other members of the Appellate Committee had agreed, in Director of Public Prosecutions v Beard (1920) AC 479, and, in particular, to the passage at p 504, which some commentators have suggested was contradictory of the primary thesis advanced by His Lordship as being confirmatory of the continued existence of the rule.

76 Consideration was also given to the logical and ethical basis for the distinction, which had been accepted between cases of specific and general intent. That, similarly, was a matter which had attracted critical comment, and in some jurisdictions, of which Australia became one, after the law was declared in O’Connor v The Queen (and see earlier Regina v Keogh (1964) VR 400 and Regina v Haywood (1971) VR 755); Scotland was another (Regina v Winchester, 1955, Unreported, and Her Majesty’s Advocate v Kinnison [1870] 1 Coup 457; as was New Zealand (Regina v Kamipeli, unreported).

77 That the offence of assault is to be considered as an offence of basic intent, even though the striking is done with hostile intention, was seen by Lord Elwyn-Davies LC (at 471) and by Lord Edmund-Davies (at 487), to have support in the observations of Lord Simon of Glaisdale in Regina v Morgan [1976] AC 182 at 216:

By ‘crimes of basic intent’ I mean those crimes whose definition expresses (or, more often, implies) a mens rea which does not go beyond the actus reus. The actus reus generally consists of an act and some consequence. The consequence may be very closely connected with the act or more remotely connected with it: but with a crime of basic intent the mens rea does not extend beyond the act and its consequence, however, remote, as defined in the actus reus. I take assault as an example of a crime of basic intent where the consequence is very closely connected with the act. The actus reus of assault is an act which causes another person to apprehend immediate and unlawful violence. The mens rea corresponds exactly. The prosecution must prove that the accused foresaw that his act would probably cause another person to have apprehension of immediate and unlawful violence, or would possibly have that consequence, such being the purpose of the act, or that he was reckless as to whether or not his act caused such apprehension. This foresight (the term of art is ‘intention’) or recklessness is the mens rea in assault.”

78 The much cited passage in the speech of Lord Birkenhead LC (at 504), was to the effect that the course of decisions had established that:

where a specific intent is an essential element in the offence, evidence of a state of drunkenness rendering the accused incapable of forming such an intent should be taken into consideration in order to determine whether he had in fact formed the intent necessary to constitute the particular crime. If he was so drunk that he was incapable of forming the intent required he could not be convicted of a crime which was committed only If the intent was proved. … In a charge of murder based upon intention to kill or do grievous bodily harm, if the jury are satisfied that the accused was, by reason of his drunken condition, incapable of forming the intent to kill or to do grievous bodily harm…he cannot be convicted of murder. But nevertheless unlawful homicide has been committed by the accused, and consequently he is guilty of unlawful homicide

without malice afterthought

, and that is manslaughter: per Stephen J. in Reg. V. Doherty (1887) 16 Cox C.C. 306, 307.”

79 Thereafter his Lordship added, in a passage which has attracted judicial and academic comment, and a degree of puzzlement:

I do not think that that the proposition of law deduced from these earlier cases is an exceptional rule applicable only to cases in which it is necessary to prove a specific intent in order to constitute the graver crime – e.g., wounding with intent to do grievous bodily harm or with intent to kill. It is true that in such cases the specific intent must be proved to constitute the particular crime, but this is, on ultimate analysis, only in accordance with the ordinary law applicable to crime, for, speaking generally (and apart from certain special offences), a person cannot be convicted of a crime unless the mens was rea. Drunkenness, rendering a person incapable of the intent, would be an answer, as it is for example in a charge of attempted suicide.”

80 This passage was regarded as explicable by Lord Salmon (at 483), upon the basis that all His Lordship was intending to do was to “point out that drunkenness was relevant to all cases in which it was necessary to prove a specific intent or was not confined to those cases in which, if the prosecution failed to prove such an intent, the accused could still be convicted of a lesser offence”. To similar effect were passages in the speeches of Lord Russell of Killowen (at 499), with which Lord Elwyn-Jones and Lord Diplock (at 473, 476) agreed. That the distinction between cases of general and specific intent was lacking in logic, was recognised, in particular, by Lord Solomon (at 482-483), by Lord Edmund-Davies by Lord Russell of Killowen (at 498), and in passing by Lord Elwyn Jones LC (at 469). Possibly, it was best articulated by Lord Salmon (at 482):

As I understand it, the argument runs like this: Intention whether special or basic (or whatever fancy name you choose to give it) is still intention. If voluntary intoxication by drink or drugs can, as it admittedly can, negative the special or specific intention necessary for the commission of crimes such as murder and theft, how can you justify in strict logic the view that it cannot negative a basic intention, e.g., the intention to commit offences such as assault and unlawful wounding? The answer is that in strict logic this view cannot be justified. But this is the view that has been adopted by the common law of England, which is founded on common sense and experience rather than strict logic.”

81 The illogicality thus identified, was, in part, resolved by reference to the pragmatic approach which had been taken arising out of the harshness of the penalties of capital punishment or transportation, which attached to murder and to serious offences such as wounding with intent to cause grievous bodily harm, and by recognition of the sympathy attracted, for example, in cases of attempted suicide (per Lord Elwyn-Jones LC at 472 and Lord Salmon at 481).

82 Otherwise, it appears that justification for the distinction was seen in the long and uninterrupted course of precedent (per Lord Elwyn-Jones LC at 473, Lord Salmon at 482-483, Lord Edmund-Davies at 490-491), and in the policy which placed paramount weight on the protection of the public from violence attributable to self induced intoxication, particularly in the light of the recent increase, within the community, of the use of narcotic and hallucinatory drugs.

83 Lord Elwyn-Jones said, in this respect, at 474/5:

I do not for my part regard that general principle as either unethical or contrary to the principles of natural justice. If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct in reducing himself by drugs and drink to that condition in my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases: see Reg. V. Venna [1976] Q.B. 421, per James L.J. at p. 429. The drunkenness is itself an intrinsic, an integral part of the crime, the other part being the evidence of the unlawful use of force against the victim. Together they add up to criminal recklessness.”

84 That approach, His Lordship considered to be :

in line with the American Model Penal Code (s. 2.08 ‘When recklessness establishes an element of the offence, if the act, or due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial’)”

85 To similar effect were the observations of Lord Simon of Glaisdale at (476, 477 and 478), but most particularly at 479-480 where His Lordship said:

I do not in fact believe that the distinction drawn by Stephen J. and the Earl of Birkenhead L.C. between the effect of self-induced intoxication on crimes of basic intent, on the one hand, and on crimes of specific intent, on the other, is juristically unjustifiable and to be supported only on historical and practical grounds.

The concept of mens rea goes back to the Laws of Henry I and is clearly stated in its mature form in Coke. The argument for the appellant (that, if self-induced intoxication may negative specific intent, it must logically be capable of negativing basic intent) would mean that jurists from Coke to the Earl of Birkenhead L.C. (including Hale, Blackstone, and Stephen) not only formed a fallacious view of the law, but failed to recognise that there was even any problem posed by their formulation. So too, later, with Lord Denning. This seems to me inherently improbable.

As I have ventured to suggest, there is nothing unreasonable or illogical in the law holding that a mind rendered self-inducedly insensible (short of M’Naghten insanity), through drink or drugs, to the nature of a prohibited act or to its probable consequences is as wrongful a mind as one which consciously contemplates the prohibited act and foresees its probable consequences (or is reckless as to whether they ensue). The latter is all that is required by way of mens rea in a crime of basic intent. But a crime of specific intent requires something more than contemplation of the prohibited act and foresight of its probable consequences. The mens rea in a crime of specific intent requires proof of a purposive element.”

86 In even stronger terms Lord Salmon said (at 483):

As I have already indicated, I accept that there is a degree of illogicality in the rule that intoxication may excuse or expunge one type of intention and not another. This illogicality is, however, acceptable to me because the benevolent part of the rule removes undue harshness without imperilling safety and the stricter part of the rule works without imperilling justice.”

…

Absolute logic in human affairs is an uncertain guide and a very dangerous master. The law is primarily concerned with human affairs. I believe that the main object of our legal system is to preserve individual liberty. One important aspect of individual liberty is protection against physical violence.

If there were to be no penal sanction for any injury unlawfully inflicted under the complete mastery of drink or drugs, voluntarily taken, the social consequence could be appalling.

…

If, as I think, this long standing rule was salutary years ago when it related almost exclusively to drunkenness and hallucinatory drugs were comparatively unknown, how much more salutary is it today when such drugs are increasingly becoming a public menace? My Lords, I am satisfied that this rule accords with justice, ethics and common sense, and I would leave it alone even if it does not comply with strict logic.”

87 Lord Edmund-Davies also noted the policy considerations which had led to the judiciary developing a “more sympathetic attitude toward the plea that the crime was committed under the influence of drink”, observing (at 488-489):

So it was that in 1887 Stephen J. said (Reg. V. Doherty, 16 Cox C. C. 306, 308):

‘A drunken man my form an intention to kill another, or to do grievous bodily harm to him, or he may not; but if he did form that intention, although a drunken intention, he is just as much guilty of murder as if he had been sober…; but if his drunkenness prevented his forming such an intention he would be guilty of manslaughter, and not murder, though such an act in a sober man would prove an intention to do grievous bodily harm.’

As professor Jerome Hall observed (General Principles of Criminal Law, 2nd ed. (1960), p. 544), it is easy to understand what led Stephen J. and judges before him to rely on specific intent,

as the most acceptable means of achieving mitigation and they formulated the rule which achieved a degree of exculpation upon it. Whatever the attitude in earlier years, in modern times it is commonly felt that an injury inflicted under gross intoxication ought to be distinguished from a similar injury committed by a sober person.’

Nevertheless, the earlier attitude persisted to the extent that it was considered that complete exculpation of crimes committed under the influence even of gross intoxication could not be allowed.

‘The rules on criminal intent lay closest at hand to suggest a plausible mediation. Most of the harms met in these cases were homicides and aggravated assaults, and here the accepted distinction concerning ‘general’ and ‘specific’ intent could operate to produce the desired end in England and a minority of States where the resulting liability of the homicide was manslaughter.’”

88 His Lordship returned to this consideration (at 495):

Illogical though the present law may be, it represents a compromise between the imposition of liability upon inebriates in complete disregard of their condition (on the alleged ground that it was brought on voluntarily), and the total exculpation required by the defendant’s actual state of mind at the time he committed the harm in issue. It is at this point pertinent to pause to consider why legal systems exist. The universal object of a system of law is obvious – the establishment and maintenance of order.

‘the first aim of legal rules is to ensure that members of the community are safeguarded in their persons and property so that their energies are not exhausted by the business of self-protection.’”

89 He added (at 496):

The merciful relaxation of the old rule that drunkenness was no defence appears to have worked reasonably well for 150 years. As to the complaint that it is unethical to punish a man for a crime when his physical behaviour was not controlled by a conscious mind, I have long regarded as a convincing theory in support of penal liability of harms committed by voluntary inebriates, the view of Austin, who argued (Lectures on Jurisprudence, 1879, pp. 512-513) that a person who voluntarily became intoxicated is to be regarded as acting recklessly, for he made himself dangerous in disregard of public safety.

But, to my way of thinking, the nearest approach to a satisfactory refutation of charges of lack of both logic and ethics in punishing the most drunken man for actions which, were he sober, would call for his criminal conviction is that of Stroud, who wrote (Mens Rea (1914), p. 115):

…

… drunkenness is not incompatible with mens rea, in the sense of ordinary culpable intentionality, because mere recklessness is sufficient to satisfy the definition of mens rea, and drunkenness is itself an act of recklessness. The law therefore establishes a conclusive presumption against the admission of proof of intoxication for the purpose of disproving mens rea in ordinary crimes. Where this presumption applies, it does not make ‘drunkenness itself’ a crime, but the drunkenness is itself an integral part of the crime, as forming, together with the other unlawful conduct charged against the defendant, a complex act of criminal recklessness. This explanation affords at once a justification of the rule of law, and a reason for its inapplicability when drunkenness is pleaded by way of showing absence of full intent, or of some exceptional form of mens rea essential to a particular crime, according to its definition.”

90 And, (at 497):

.. in my judgment little can properly be made out of the criticisms that a law which demands the conviction of such persons who behave as the appellant did is both illogical and unethical. It may be that Parliament should look at it, and devise a new way of dealing with drunken or drugged offenders. But, until it does, the continued application of the existing law is far better calculated to preserve order than the recommendation that he and all who act similarly should leave the dock as free men.”

91 The importance of preserving public order was also a theme taken up by Lord Russell of Killowen, who said (at 498):

A man who has no knowledge of what he does cannot, it is said, be a guilty man, whatever may have deprived him of that knowledge. There is, at least superficially, logic in that approach: but logic in criminal law must not be allowed to run away with common sense, particularly when the preservation of the Queen’s Peace is in question. The ordinary citizen who is badly beaten up would rightly think little of the criminal law as an effective protection if, because his attacker had deprived himself of ability to know what he was doing by getting himself drunk or going on a trip with drugs, the attacker is to be held innocent of any crime in the assault. Mens rea has many aspects. If asked to define it in such a case as the present I would say that the element of guilt or moral turpitude is supplied by the act of self-intoxication reckless of possible consequences

92 Of somewhat more direct relevance to the present appeal is the observation of Lord Russell of Killowen, in relation to the second aspect of Lord Birkenhead’s speech in Beard (a case of murder consequent upon , or in the course of, a rape) which has similarly attracted critical attention, so far as the Lord Chancellor there appeared to have suggested (at 504 and 507) that “the charges would not have been made good had the accused been too drunk to form the intent of committing rape”. Lord Russell said in this regard (at 500):

In my opinion these passages do not indicate an opinion that rape is a crime of special intent. All that is meant is that conscious rape is required to supply ‘the felonious intent which murder involves.’ For the crime of murder special or particular intent is always required for the necessary malice aforethought. This may be intent to kill or intent to cause grievous bodily harm: or in a case such as Beard of constructive malice, this required the special intent consciously to commit the violent felony of rape in the course and furtherance of which the act of violence causing death took place. Beard, therefore, in my opinion does not suggest that rape is a crime of special or particular intent.”

93 The decision in Majewski, which was not regarded with favour in O’Connor, but which now has immediate relevance since it was the source of the amending legislation, is, in many ways, troubling. It accepts the existence of an illogicality, in legal principle, in drawing a distinction between offences of general and specific intent, so far as the effects of intoxication are concerned. In relation to reckless indifference there is a significant element of intent involved in a state of mind which requires first an awareness or foresight that the probable consequence of one’s act is death, and secondly a conscious decision to proceed regardless. Why that should be regarded as significantly different, or less deserving of punishment, than an act which is done with intent to cause serious bodily harm, but which results in death, is clearly debatable.

94 The preservation of that illogical distinction appears to have been justified in Majewski out of respect for long established precedent, and by reference to the public interest in ensuring that those who commit criminal offences under the influence of alcohol or drugs, do not go unpunished. For murder, and for more serious wounding offences involving special intent, it appears to have been of some relevance that an accused would remain criminally responsible for some lesser offence of basic intent, in the event of the effects of intoxication being permissibly taken into account as negating specific intent, where that is an essential element of the more serious charge.

95 There is at least a hint, in the concluding passage in the speech of Lord Russell, that there may be offences involving special malice aforethought, for which the effects of self induced intoxication remain relevant. In that regard, a distinction may properly be recognised between recklessness where a person does not apply his or her mind at all before undertaking an act, and where that person does apply his or her mind, and foreseeing the specific risk involved, nevertheless goes ahead regardless of it.

96 So understood, as the source for the amending legislation, I do not consider that Majewski necessarily calls for the narrow interpretation pressed by the Crown, which would call for a distributive application of s 428C in relation to the various forms of malice aforethought, or constructive malice, required for murder. Particularly is that so when it is recalled that, for manslaughter self induced intoxication provides no defence, a proposition for which there is long standing precedent: Regina v Doherty 16 Cox C.C. 306., and that Lord Birkenhead’s test was specifically phrased in terms of crimes calling for “malice afterthought”.

97 Bearing in mind the existence of the express provision (s 428E) relating to the offence of manslaughter, which prevents an accused, whose intoxication is self induced, from escaping criminal responsibility (as might formerly have occurred), the potential complexity for a jury where a case is left upon the alternative bases of specific intent, and reckless indifference and/or manslaughter, the comparable degree of heinousness which attaches to murder however committed, the nature of the malice aforethought involved, and the terms in which s 428B(2) is framed, I have reached the conclusion that the legislature should be taken as having intended that murder, in all of its forms, should come within the operation of s 428C. Had it been intended to apply a distributive effect to it, so that s 428C was applicable only to murder dependent upon intent to kill or to cause grievous bodily harm, then it might have been expected that it would have been included in part (b) of the table to s 428B(2), rather than in part(a).

98 For the foregoing reasons, I am of the view that the jury were misdirected in relation to the relevance of intoxication for the charge of murder, so far as the Crown relied upon reckless indifference.

99 I would accordingly propose that the appeal be allowed in relation to Ground 1, with the consequence that the conviction and sentence for the count of murder should be quashed and a new trial ordered.

Appeal Against Conviction for Shooting with Intent to Murder

100 It was submitted by the appellant that there was insufficient evidence to prove that a shot had been fired by the appellant at Mr Bradford, with the intention of killing him.

101 This ground of appeal accordingly focuses upon s 6(1) of the Criminal Appeal Act 1912 (NSW), in particular upon the question whether there was a miscarriage of justice in that the jury verdict was unreasonable and could not be supported by the evidence.

102 As has been established in M v The Queen (1993) 181 CLR 487 and Jones v The Queen (1997) 72 ALJR 78, the Court must undertake an independent examination of the relevant evidence to determine the answer to the question, which has been formulated, in the following terms:

Could it be said that the jury ought to have entertained a reasonable doubt, so as to support the quashing of the conviction and the entry of a verdict of acquittal?”

Regina v Giam

Fleming v The Queen

103 In addressing this question it is proper that the Court accept that any doubt, which it might experience, after reading the transcript, may be resolved by the fact that the jury was better placed than it, in having had the advantage of seeing and hearing the relevant witnesses give their evidence: M v The Queen at 494 and Mackenzie v The Queen (1996) 190 CLR 348 at 365 to 368.

104 It is necessary to return, in a little more detail, to the evidence in the trial concerning the second shooting.

105 The shooter, who was identified as the appellant, was seen by Mr Leeder, as he walked across the car park, carrying a rifle, towards Allen Hobden’s Nissan utility, at the rear of which he (Mr Leeder), Mr Shersingh and Mr Bradford were standing. Mr Leeder said, upon realising that the appellant was carrying a rifle, that he crouched down on the passenger side. The appellant, he said, approached the vehicle on the roadway and stopped in front of it. Mr Shersingh, he said, was standing at the rear of the Nissan on the driver’s side when he was shot.

106 On the driver’s side of the vehicle he said there was parked a Mercedes Benz sedan. On the other side (that is, the passenger’s side of the Nissan), there was a four wheel drive vehicle, which appeared to have been the Jeep Cherokee owned by Mr and Mrs Tishler.

107 After the shot was fired which hit the deceased, Mr Leeder said that he rolled under the four wheel drive vehicle, and then ran off towards the area where a party was underway, in order to get help. As he ran he heard a second shot. At that time he saw Mr Shersingh making his way back towards the hotel, where he later collapsed.

108 Mr Bradford similarly said that he and Mr Leeder were standing at the rear of the Nissan utility, on the passenger’s side, with Mr Shersingh on the driver’s side. He first saw the appellant about 30 feet away heading for the utility from in front of it. At a distance of about 20 feet away the appellant, he said, fired a shot which hit Mr Shersingh.

109 After this shot he saw that the appellant was pointing the rifle at him. He then began running and ducking along the side of the vehicle until such time as he was able to make good his escape over to the bottle shop. At one stage he said that the appellant was “chasing [him] around the ute”. He acknowledged, in cross-examination, that he was in shock and did not know whether he ran around the vehicle or not, although he added: “I was running all over the place”. He did not remember hearing a second shot, or being on the driver’s side of the vehicle while he was being chased. In an initial statement to police he had placed himself on that side, but he had subsequently corrected that statement, so as to place himself on the other side.

110 A small portion of lead material, which appeared to be the remains of a projectile, and a small projectile hole were found in the rear passenger side of the Mercedes Sedan. The projectile remains were not suitable for comparison purposes due to their damaged condition. The owner of the vehicle, Mr Middleton, however, said that he had not seen the bullet hole in the vehicle before this night.

111 It was the Crown case that this bullet was fired at Mr Bradford, a fact that depended upon him having been pursued around to the driver’s side of the utility, and the shot having been fired from the passenger’s side. It is accordingly necessary to look at any other evidence which was directed to the relative positions of the shooter and Mr Bradford.

112 Peter Riley gave evidence of hearing a shot and seeing a man walking from the public car park. He then looked over into the car park and saw a man standing near a Nissan utility on the passenger’s side. The man who he first saw, he said, came back a few seconds later and started chasing the man, who had been standing near the utility, and who had short blonde hair (as had Mr Bradford) around it once or twice. That second man, he said, appeared to be dodging something, adding “every time the other man came around one side he would go the opposite way trying to keep out of the way”. The pursuer, he said, had something like a bar in his hand, which he raised while standing next to the tray on the passenger’s side of the utility. After that happened he heard a crack. The man who was on the other side of the utility dodged behind the cab. The man with the bar then walked off into the shadows and caravan park. In cross-examination he made it clear that the two men kept changing sides as the man with the bar was “chasing him”, indicating with his hands circular and semi circular movements.

113 Phillip Riley gave evidence of looking out from the caravan, where he was seated, after hearing a gunshot. He said that he saw a “bloke dodging around” a utility, a manoeuvre which he described as “moving around from the back to the passenger side and back again”, and as “dodging and trying to crouch down a bit”. While this was happening he said that he heard another shot, at a time when the person who was doing the dodging, was towards the back of the truck.

114 There was also evidence from police witnesses, particularly from Detective Senior Sergeant Hobson and Senior Constable Buining as to the existence of a series of scuff marks in the soil around the Nissan utility which were described as being “consistent with running and stop-start motions”. Detective Senior Sergeant Hobson gave evidence of finding a .22 calibre fired cartridge case under the front driver’s side of the utility. Its location was equivocal since it may have been the casing for the first shot, or it could have been ejected at some time after the first shot, or even kicked into the position where it was found by any one of the several persons who went to the area after the shooting. The hole in the rear passenger’s side door of the Mercedes Benz, Detective Senior Sergeant Hobson said, was of similar appearance to that attributable to a .22 calibre bullet, and the lead fragment, he also said, was of similar appearance to a .22 calibre projectile. He also described the subsequent finding, of a fired cartridge case in a pocket of the jacket taken from the deceased.

115 The ballistics, and firearm discharge residue tests, in relation to the hands of the appellant, the residue found on his jacket, the .22 fired cartridge cases found under the Nissan utility and in the pocket of the appellant’s jacket, the impact damaged projectile recovered from the body of the deceased, the damaged projectile recovered from the Mercedes sedan, and the Vostok .22 calibre long rifle and the shortened Lithgow single shot .22 calibre rifle recovered from the appellant’s caravan, revealed that :

116 Firearm discharge residue was not discovered on the hands of the appellant, although before samples were taken he had been allowed to wash his hands, preparatory to fingerprints being taken. Moreover, the shooting had occurred more than 8 hours before Detective Senior Sergeant Hobson was able to conduct the gunshot residue examination of his hands.

117 There was evidence from Detective Senior Constable Elkins that each of the long and short rifles found under the doona in the appellant’s caravan had a round chambered. The bolt action was open in each weapon. There were a number of .22 calibre rounds found in the caravan, on the bench adjacent to the entrance door; similar ammunition was found in a black bag in the annexe.

118 The evidence given by the witnesses was summarised in considerable detail by his Honour, in the course of which the jury’s attention was directly and carefully focused upon the significance of the respective positions of the appellant and Mr Bradford, in relation to the Nissan utility, and the Mercedes.

119 The issue which arose as to whether the weapon had been pointed and discharged at Mr Bradford from the passenger’s side of the Nissan, across that vehicle in the direction of the Mercedes Benz, was clearly articulated on more than one occasion. His Honour made it clear that, in order to convict on this count, the jury had to be satisfied beyond reasonable doubt that the second shot was fired at Mr Bradford, with intent to kill him.

120 In determining that issue, it was important that Mr Bradford had a distinct recollection of the appellant pursuing him and pointing the gun at him. It was also important that, while Mr Bradford could not remember, in his understandable state of shock, running around to the drivers side of the utility, Peter Riley, who was observing the scene from a position of safety, described the shooter as chasing the blond headed man, who must have been Mr Bradford, around the vehicle, in the clockwise and anticlockwise directions which he indicated. He also made it clear that he saw the shooter on the passenger side of the utility, from which position, he said, a shot was fired at the man on the opposite side of the vehicle.

121 The firing of a shot, in the circumstances described by those witnesses, where the weapon had been pointed at Mr Bradford, where he was being pursued, and where he was ducking and weaving and crouching down, was in my view properly capable of supporting the jury verdict.

122 So far as there may have been any imprecision or uncertainty in Mr Bradford’s evidence, or any inconsistency between his evidence and that of Mr Riley, that was quintessentially a matter for the jury to determine, with the benefit of having seen and heard each witness. In resolving any question which arose, the jury were also entitled to take into account the conduct of the appellant preceding the firing of the second shot, as well as the evidence of Constable Larkin, as to the contemporaneous statement of Mr Bradford made to her that night, to the effect: “he pointed a gun at me. I ran around the car and he missed me.”

123 The absence of a match between the cartridge case found in the jacket of the appellant and the long rifle is not fatal to the Crown case. Two possibilities remain open: first, that the second shot was fired from the shortened rifle; and secondly, that the cartridge case for the second shot was ejected at some point away from the scene and never found. Of more direct relevance is the fact that two shots were fired in close proximity, by a man who was positively identified as the appellant, who was seen to have fired the shot which struck Mr Shersingh, and who was then seen to pursue Mr Bradford, and to fire another shot while the latter was taking action to get away from him.

124 That there were two shots fired is beyond doubt. The Mercedes Benz had not been struck by a bullet previously to this night, and the damage to it could not be explained by the bullet which was fired at Mr Shersingh, since it was recovered from his body.

125 There was clear evidence of identification of the appellant as the shooter by two men who already knew and recognised him. Moreover, his account of the weapon having been borrowed by two men, who none of the many witnesses called had seen, or even heard of, and then having been mysteriously returned to the caravan, without him noticing, bordered on the absurd.

126 I am not persuaded that the jury ought to have had a reasonable doubt. Accordingly, this ground has not been made good. I would dismiss the appeal against conviction in relation to the second count.

Proviso in Relation to Ground 1

127 By reason of the conclusion which I have reached in relation to the second count, it is necessary to return to Count 1, in order to determine whether the case is one to which the proviso to s 6 of the Criminal Appeal Act should apply. That arises by reason of the consideration that the jury must have rejected intoxication in relation to the state of mind required for Count 2, giving rise to the question whether a similar view would have been taken in relation to the first count, so far as it depends upon reckless indifference.

128 While the jury were directed to take intoxication into account in relation to the second count, in determining whether the appellant had, at the time when the shot was fired at Mr Bradford, the intent to kill him, it does not automatically follow that its findings in relation to that count should be carried over to the first count. The appellant was entitled to have the matter of intoxication correctly and separately left in relation to each count. The case is not one which calls for an application of the proviso.

Sentence

129 Since I am of the view that the appeal should be upheld in relation to Count 1, but dismissed in relation to Count 2, it is necessary to consider the sentence imposed for that count. That arises by reason of the circumstance that the appellant was sentenced, in respect of Count 2, to a fixed term, no doubt in recognition of the fact that it would be wholly absorbed in the sentence imposed for Count 1, which was partially cumulative upon it. His Honour, it may be assumed, in accordance with Pearce v The Queen (1998) 194 CLR 610 fixed a sentence which he otherwise considered appropriate for Count 2, being one which would require a period of full time imprisonment of 5 years. That sentence has not been challenged as being too severe.

130 If the Court were now to set a non parole period in relation to this count, it would result in a sentence that was manifestly lenient for a serious offence of shooting with intent to murder. In these circumstances, and taking into consideration ss 44(1) and 45(1) of the Crimes (Sentencing Procedure) Act 1999, I would accordingly decline to now vary the sentence imposed by fixing a non parole period.

131 Accordingly, I would propose the following orders:

1. The appeal against conviction in respect of Count 1 be allowed;

2. Conviction and sentence for Count 1 be quashed;

3. A new trial be directed in relation to Count 1;

4. The appeal against conviction and sentence in respect of Count 2 be dismissed.

132 KIRBY J: I agree with Wood CJ at CL.

Sections of the Crimes Act Where the Punishment is “25 years” or “life”

Section

Summary

12
Offences against the Sovereign:
Compassing etc deposition of the Sovereign—overawing Parliament etc

19
Punishment for murder: imprisonment for the term of the person’s natural life

24
Manslaughter: punishment is for 25 years

26
Conspiracy to commit murder: punishment is 25 years

27
Attempted murder (where intent is to murder): 25 years

28
Acts done to property (eg explosion, damage to railway etc) with intent to murder: 25 years

29
Certain other attempts to murder [eg poison, drown, suffocate, strangle]: 25 years

30
Attempted murder (where intention is murder) by any means not specifically stated in other sections relating to murder: 25 years

32
Impeding endeavours to escape a shipwreck (maliciously): 25 years.

33
Wounding etc with intent to do bodily harm or resist arrest: 25 years

36
Causing a grievous bodily disease (maliciously): 25 years

37
Attempts to choke etc (garroting) with intent to commit or assist an indictable offence: 25 years

38
Using chloroform etc to commit an offence – intention to commit, or aid commission of an indictable offence: 25 years.

46
Causing bodily injury by gunpowder etc - maliciously by the explosion of gunpowder or other substance, or the use of any corrosive fluid, or destructive matter, burns maims disfigures disables, or does grievous bodily harm: 25 years

47
Acts causing danger to life or bodily harm: Using etc explosive substance or corrosive fluid etc – maliciously whether harm caused or not: 25 years

61JA
(61I/61J)
Aggravated sexual assault in company:
Intention: knowingly have nonconsensual sexual intercourse in company of others and maliciously inflict grievous bodily harm or threatening with an offensive weapon or instrument to do grievous bodily harm: life imprisonment.

66EA
(66D/66E)
Persistent sexual abuse of a child on 3 or more separate occasions, occurring on separate days during any period, in relation to a particular child, and constituting a sexual offence: 25 years.

78H
Homosexual intercourse by a male with male person who is under 10 years: 25 years

86(3)
(86(1)/86(2))
Specially aggravated offence of kidnapping – where, in the company of others, at the time of or immediately before or after the commission of the kidnapping, actual bodily harm is occasioned: 25 years.

93IF
(31B, 31C)
Public order offences relating to contamination of goods in aggravated circumstances where death or grievous bodily harm caused (or was intended) as a result of contaminating goods with the intention of causing public alarm or economic loss (3IB), or threatening to contaminate goods with intent to cause public alarm or economic loss (3IC): 25 years.

96
(95)
133 Robbery with wounding – robbery or intent to rob, steal etc in circumstances of aggravation (s 95), which results in wounding or grievous bodily harm: 25 years

97(2)
(97(1))
Robbery etc or stopping a mail, being armed or in company, Rob with offensive weapon being armed with an offensive weapon, or instrument, or being in company with another person and robbing, or assaulting another with intent to rob, or stop any mail, or vehicle, railway train, or person conveying a mail, with intent to rob, or search the same AND armed with a dangerous weapon (Aggravated offence): 25 Years

98
(94)
Robbery with arms etc and wounding
Whosoever, being armed with an offensive weapon, or instrument, or
being in company with another person, robs, or assaults with intent to
rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person: 25 years

106(3)
(105A/106(1)/106(2))
Breaking and entering place of Divine worship and committing serious indictable offence (specially aggravated offence): 25 years

109(3)
(109(2)/109(3))
Breaking out of dwelling-house after committing, or entering with intent to commit, indictable offence (specially aggravated offence): 25 years

110
Breaking, entering and assaulting with intent to murder etc

112(3)
(112(1)/112(2))
Breaking etc into any house etc and committing serious indictable offence(specially aggravated offence)

198
Maliciously destroying or damaging property with the intention of endangering life

203B
Sabotage: conduct causing damage to a public facility, and intending to cause that damage, and intending by that conduct to cause extensive destruction of property; or major economic loss: 25 years

204
Destruction of, or damage to, an aircraft or vessel with intent to cause death or with reckless indifference to life

208(3)
(208(1)/208(2))
A threat to destroy or damage, or endanger the safety of, an aircraft,
vessel or transport vehicle, or to kill, or inflict bodily injury on, persons who are in or on an aircraft, vessel or transport vehicle together with a demand, and while that threat still has effect: (a) discharge a firearm, (b) cause an explosion, or (c) inflict grievous bodily harm on, or wounds, a person: 25 years

211
Criminal acts relating to railways - maliciously doing (or omitting to do) an act on or in connection with the operation of a railway, or in connection with a railway that it is the person’s duty to do, with the intention of causing the death of, inflicting bodily injury on or endangering the safety of any person who is on the railway, or who is in or on any locomotive or other rolling stock on the railway: 25 years.

349
Punishment of accessories after the fact to murder etc: 25 years

*******************

Citations

R v Grant [2002] NSWCCA 243

Most Recent Citation

Cases Citing This Decision

47

O'Connell v Director of Public Prosecutions [2025] ACTCA 20

Markisic v Vizza & 16 Ors [2002] NSWCA 384

Ince and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 92

Cases Cited

30

Statutory Material Cited

4

R v Barratt [2014] QCA 94

R v Crabbe [1985] HCA 22

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CITATION:	R v Grant [2002] NSWCCA 243 revised - 30/07/2002
FILE NUMBER(S):	CCA 60460/01
HEARING DATE(S):	Friday 8 February 2002
JUDGMENT DATE:	8 July 2002
PARTIES :	Regina Robert John Grant
JUDGMENT OF:	Spigelman CJ at 1; Wood CJ at CL at 2; Kirby J at 132

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70042/00
LOWER COURT JUDICIAL OFFICER :	Hulme J

COUNSEL :	Mr Dawe QC with Mr Clout (Crown) Mr Haesler with Mr Wilson (Appellant)
SOLICITORS:	S E O'Connor Western Aboriginal Legal Service
CATCHWORDS:	CRIMINAL LAW - murder - appeal against convictions - intoxication - directions given to jury in relation to intoxication - reckless indifference to human life- whether an offence of specific intent under part 11A of Crimes Act - application of the proviso. - CRIMINAL LAW - shooting with intent to murder - appeal against convictions - intoxication - whether verdict unreasonable or could not be supported by the evidence - whether jury should have entertained a reasonable doubt - whether a miscarriage of justice.
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 Criminal Code Act 1995 Interpretation Act 1987
CASES CITED:	Boughey v The Queen (1986) 161 CLR 10 Crabbe v The Queen (1985) 156 CLR 464; Director of Public Prosecutions v Beard (1920) AC 479 Fontaine v The Queen (1976) 136 CLR 62; He Kaw Teh v The Queen (1985) 157 CLR 527 Her Majesty's Advocate v Kinnison [1870] 1 Coup 457 Jones v The Queen (1997) 72 ALJR 78 M v The Queen (1993) 181 CLR 487 Mackenzie v The Queen (1996) 190 CLR 348 Pearce v The Queen (1998) 194 CLR 610 Pemble v The Queen (1971) 124 CLR 107 Queen v O'Connor (1981) 146 CLR 64. The Queen v Pereira (1988) 35 A Crim R 382 at 385 Regina v Ainsworth (1994) 76 A Crim R 127 Regina v Aiton (1993) 68 A Crim R 578 R v Farrell (1964) NSWLR 1143 R v Hancock [1986] AC 455 Regina v Haywood (1971) VR 755) Regina v JB and RJH (1999) NSWCCA 93 Regina v Kamipeli, unreported Regina v Keogh (1964) VR 400 Regina v Majewski 1977 AC 443 Regina v Mills NSWCCA, 3 April 1995 R v Moloney (1985) AC 905 R v Martin (1983) 9 A Crim R 376 Regina v Masnec (1962) Tas SR 254 R v Meade [1909] 1 KB 895 R v Morgan (1993) 67 A Crim R 526 R v Peterkin (1982) 6 A Crim R 351 R v Solomon (1980) 1 NSWLR 321 R v Stones (1956) 56 SR (NSW) 25 Regina v Winchester, 1955, Unreported Royall v The Queen (1991) 172 CLR 378; Smyth v The Queen (1957) 98 CLR 163 Stapleton v The Queen (1952) 86 CLR 358 Vallance v The Queen (1961) 35 ALJR 182 Viro v The Queen (1978) 141 CLR 88 Wilson v The Queen (1992) 174 CLR 313
DECISION:	Appeal against conviction in respect of Count 1 allowed; conviction and sentence for Count 1 quashed. A new trial is directed in relation to Count 1. The appeal against conviction and sentence in respect of Count 2 is dismissed.

Section	Summary
12	Offences against the Sovereign: Compassing etc deposition of the Sovereign—overawing Parliament etc
19	Punishment for murder: imprisonment for the term of the person’s natural life
24	Manslaughter: punishment is for 25 years
26	Conspiracy to commit murder: punishment is 25 years
27	Attempted murder (where intent is to murder): 25 years
28	Acts done to property (eg explosion, damage to railway etc) with intent to murder: 25 years
29	Certain other attempts to murder [eg poison, drown, suffocate, strangle]: 25 years
30	Attempted murder (where intention is murder) by any means not specifically stated in other sections relating to murder: 25 years
32	Impeding endeavours to escape a shipwreck (maliciously): 25 years.
33	Wounding etc with intent to do bodily harm or resist arrest: 25 years
36	Causing a grievous bodily disease (maliciously): 25 years
37	Attempts to choke etc (garroting) with intent to commit or assist an indictable offence: 25 years
38	Using chloroform etc to commit an offence – intention to commit, or aid commission of an indictable offence: 25 years.
46	Causing bodily injury by gunpowder etc - maliciously by the explosion of gunpowder or other substance, or the use of any corrosive fluid, or destructive matter, burns maims disfigures disables, or does grievous bodily harm: 25 years
47	Acts causing danger to life or bodily harm: Using etc explosive substance or corrosive fluid etc – maliciously whether harm caused or not: 25 years
61JA (61I/61J)	Aggravated sexual assault in company: Intention: knowingly have nonconsensual sexual intercourse in company of others and maliciously inflict grievous bodily harm or threatening with an offensive weapon or instrument to do grievous bodily harm: life imprisonment.
66EA (66D/66E)	Persistent sexual abuse of a child on 3 or more separate occasions, occurring on separate days during any period, in relation to a particular child, and constituting a sexual offence: 25 years.
78H	Homosexual intercourse by a male with male person who is under 10 years: 25 years
86(3) (86(1)/86(2))	Specially aggravated offence of kidnapping – where, in the company of others, at the time of or immediately before or after the commission of the kidnapping, actual bodily harm is occasioned: 25 years.
93IF (31B, 31C)	Public order offences relating to contamination of goods in aggravated circumstances where death or grievous bodily harm caused (or was intended) as a result of contaminating goods with the intention of causing public alarm or economic loss (3IB), or threatening to contaminate goods with intent to cause public alarm or economic loss (3IC): 25 years.
96 (95)	133 Robbery with wounding – robbery or intent to rob, steal etc in circumstances of aggravation (s 95), which results in wounding or grievous bodily harm: 25 years

97(2) (97(1))	Robbery etc or stopping a mail, being armed or in company, Rob with offensive weapon being armed with an offensive weapon, or instrument, or being in company with another person and robbing, or assaulting another with intent to rob, or stop any mail, or vehicle, railway train, or person conveying a mail, with intent to rob, or search the same AND armed with a dangerous weapon (Aggravated offence): 25 Years
98 (94)	Robbery with arms etc and wounding Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person: 25 years
106(3) (105A/106(1)/106(2))	Breaking and entering place of Divine worship and committing serious indictable offence (specially aggravated offence): 25 years
109(3) (109(2)/109(3))	Breaking out of dwelling-house after committing, or entering with intent to commit, indictable offence (specially aggravated offence): 25 years
110	Breaking, entering and assaulting with intent to murder etc
112(3) (112(1)/112(2))	Breaking etc into any house etc and committing serious indictable offence(specially aggravated offence)
198	Maliciously destroying or damaging property with the intention of endangering life
203B	Sabotage: conduct causing damage to a public facility, and intending to cause that damage, and intending by that conduct to cause extensive destruction of property; or major economic loss: 25 years
204	Destruction of, or damage to, an aircraft or vessel with intent to cause death or with reckless indifference to life
208(3) (208(1)/208(2))	A threat to destroy or damage, or endanger the safety of, an aircraft, vessel or transport vehicle, or to kill, or inflict bodily injury on, persons who are in or on an aircraft, vessel or transport vehicle together with a demand, and while that threat still has effect: (a) discharge a firearm, (b) cause an explosion, or (c) inflict grievous bodily harm on, or wounds, a person: 25 years
211	Criminal acts relating to railways - maliciously doing (or omitting to do) an act on or in connection with the operation of a railway, or in connection with a railway that it is the person’s duty to do, with the intention of causing the death of, inflicting bodily injury on or endangering the safety of any person who is on the railway, or who is in or on any locomotive or other rolling stock on the railway: 25 years.
349	Punishment of accessories after the fact to murder etc: 25 years