R v T

[1996] QCA 258

IN THE COURT OF APPEAL	[1996] QCA 258
SUPREME COURT OF QUEENSLAND	C.A. No. 306 of 1995
Brisbane
Before	Fitzgerald P. Pincus J.A. Mackenzie J.
[R. v. T]

T H E Q U E E N

v.

T Appellant

FITZGERALD P.
PINCUS J.A.

MACKENZIE J.

Judgment delivered 06/08/1996

SEPARATE REASONS FOR JUDGMENT BY EACH MEMBER OF THE COURT,

CONCURRING AS TO THE ORDER MADE.

Appeal against conviction dismissed.

CATCHWORDS:	CONVICTION - arson - 15 year old appellant, 14 years at the time of offending - what was the apellant’s state of mind at the material time - whether it was open to the trial judge to find that the appellant “wilfully” set fire to the shop - whether conviction unsafe and unsatisfactory because the evidence was insufficient to ground the findings made by the trial judge - the test stated in Lockwood considered - the various meanings attributed to words such as “wilfully”, “likely” and “intentionally” considered - statutory interpretation.
Boughey v. R. (1986) 161 C.L.R. 10 Giorgianni v. R. (1985) 156 C.L.R. 473 Iannella v. French (1967-1968) 119 C.L.R. 84 R. v. Burnell [1966] Qd.R. 348 R. v. Crabbe (1985) 156 C.L.R. 464 R. v. Hancock and Shankland [1986] 1 A.C. 455 R. v. Lockwood; ex parte Attorney-General [1981] Qd.R. 209 R. v. Moloney [1985] 1 A.C. 905 R. v. Marshall (1986) 43 S.A.S.R. 448 R. v. Nedrick [1986] 1 W.L.R. 1025 R. v. Webb; ex part Attorney-General [1990] 2 Qd.R. 275 Royall v. R. (1990) 172 C.L.R. 378 Vallance v. R. (1961) 108 C.L.R. 56
ss. 23, 29, 302(1)(a), 316, 317, 351, 354, 363, 426(2), 669A and Chapt. 46 of Queensland Criminal Code ss. 13(1), 157(1)(c) Tasmanian Criminal Code ss. 14(1), 14(2), 14A, 14B Acts Interpretation Act 1954 ss. 5, 18(1)(a), 18(2)(a) Crimes Act 1900 N.S.W.
Counsel:	Mrs D. Richards for the Appellant J. Costanzo for the Crown
Solicitors:	Legal Aid Office for the Appellant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	9 February 1996

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 06/08/1996

The appellant, a 15 year old child who was born on 28 January 1980, has appealed against his conviction of an offence of arson of a shop in the Childrens’ Court (constituted by a Judge of District Courts) at Cairns on 10 July 1995. The fire to which the charge related occurred on 10 May 1994, when the appellant was aged 14 years. Before this Court, it was common ground that the prosecution had to prove beyond reasonable doubt that the appellant “wilfully and unlawfully” set fire to the shop (Criminal Code s. 461), and that “he had capacity to know that he ought not to do the act” which constituted the offence (Code s. 29).

On the night in question, the appellant and another boy broke and entered and stole from a Cairns pizza shop, which was later destroyed by fire. The appellant pleaded guilty to breaking, entering and stealing, but not guilty to arson. The fire began in an area under the counter near the front of the shop where the proprietor stored paper bags and sometimes some other paper and cardboard items. In his record of interview, about three weeks after the fire, the appellant said that he had been smoking while in the shop and that, when leaving, he flicked his cigarette onto the paper. However, he denied that he thought that “there was a chance that it could catch fire ... I just didn’t think it would like light up or anything.” When later that night he observed the fire, he realised that he had caused it.

In convicting the appellant, the trial judge said:

“In order to convict the accused I must be satisfied beyond reasonable doubt that he was aware that a fire was likely to result and yet flicked his cigarette into the materials reckless of the risk (see R. v. Lockwood ex parte Attorney-General (1981) Queensland Reports 209, in particular the judgment of Lucas A.C.J. at page 217).

It is conceded that there is no direct evidence that the accused child either intended to set fire to the premises or knew of the likelihood of the premises catching fire but was reckless of that risk. If I am to be satisfied beyond reasonable doubt of that it is an inference which must be drawn.

...

It is also relevant that at the time of the alleged offence the accused child was 14 years of age. I am satisfied that he had the capacity to understand that there was a risk of fire. However, that is not sufficient. It is necessary to be satisfied beyond reasonable doubt that he consciously appreciated it at the time. In other words, as I apprehend the relevant law, the test is solely a subjective one.”

In the present context, both ss. 461 and 29 of the Code raise issues concerning the appellant’s state of mind and the question whether he had the capacity to know that he ought not to “flick” his lighted cigarette onto the paper under the counter are obviously related.

While both ss. 461 and 29 raise issues concerning the appellant’s state of mind, s. 29 adds nothing of significance in the present context. It is difficult to comprehend any basis for a submission that the appellant might not have known that it was wrong to “flick” a lighted cigarette onto paper in a shop which he had broken into and from which he was stealing, and he would certainly have known that it was wrong to set fire to the shop. The appellant’s trial counsel realistically recognised the common sense position and said:

“In respect of the question of capacity I don’t intend to address Your Honour. Your Honour will form your own view having seen the record of interview as to his capacity. There may be some strength in what Your Honour points out in relation to his appreciation which might lead Your Honour to form the view that he has the capacity, but I’ve nothing more to say in respect of it.”

The trial judge saw the appellant and a video of his interview by the police and observed his answers, including his assertion that he did not appreciate the risk of fire in his conduct although, when later that night he observed the fire, he realised that he had caused it. There is plainly no justification for this Court interfering with the trial judge’s conclusion on the point.

The remaining question for this Court is whether it was open to the trial judge to find that the appellant “wilfully” set fire to the shop.

After stating that the appellant “deliberately disposed of the cigarette in that place”, which he described as “an unusual place in light of all of the other locations in the shop in which a cigarette might have been dropped”, the trial judge concluded:

“I am therefore satisfied beyond reasonable doubt that the accused deliberately disposed of the cigarette in the area under the counter in which the flammable material was stored. The only rational reason on the evidence for his doing so is to bring the burning cigarette into contact with the flammable material. I am therefore satisfied beyond reasonable doubt that the accused was aware of the likelihood of a fire starting and deliberately disposed of his cigarette underneath the counter, reckless of the risk.

I find the accused guilty of the offence.”

Before this Court, counsel for the appellant submitted that the conviction is unsafe and unsatisfactory because the evidence was not sufficient to ground the findings made by the trial judge. Reference was made to the test stated by the Court of Criminal Appeal in R. v. Lockwood; ex parte Attorney-General [1981] Qd.R. 209, and it was submitted that the evidence was insufficient to prove beyond reasonable doubt that the appellant was aware when he flicked the lighted cigarette onto the papers that a fire to the shop was a likely consequence of flicking the cigarette and that he nonetheless did so recklessly. This superficially simple argument disguises the difficulties involved in the test stated in Lockwood.

For example, the question whether, on the evidence in the present case, the trial judge could have been satisfied beyond reasonable doubt that the appellant foresaw that it was more probable than not that his act of “flicking” his lighted cigarette onto the paper would set the shop alight is patently different from the question whether his Honour could have been satisfied that the appellant foresaw that that was a real or substantial possibility (and was indifferent to, unconcerned at, or heedless of the consequence of his act, i.e., reckless). The question whether he was almost certain that his act would set the shop alight is different again. Lockwood does not establish which question should be answered to determine whether the appellant “wilfully” set fire to the shop. Indeed, it was, in retrospect, an inappropriate case in which to raise the questions which were answered. Lockwood, who kicked and damaged the door of a motor vehicle stopped at traffic lights, was charged with wilfully and unlawfully damaging the vehicle which he kicked, and was convicted by a jury. The Attorney-General nonetheless referred questions to the Court of Criminal Appeal asking, in effect, whether an intention to damage the property was an element of an offence. The Court answered in the negative, notwithstanding a process of reasoning which, in part at least, effectively equated “wilful” to “intentional”, as used in sub-s. 13(1) of the Tasmanian Criminal Code, according to the meaning which that word had been given in Vallance v. R. (1961) 108 C.L.R. 56. I will come back to the reasoning in Lockwood at a later point. For the moment, it is sufficient to note that it is accepted that the meaning of “wilfully” in s. 469 of the Code applies wherever that word is used in Chapter 46, including s. 461, and that the Court of Criminal Appeal held in Lockwood that in determining whether damage (or in this case a fire) has been “wilfully” caused it is sufficient if the person who did the act which caused the damage or fire was aware when he or she did so that the damage or fire was “likely” and nonetheless did the act recklessly. The issue is not whether the damage or fire was objectively “likely”, but whether it was (subjectively) “foreseen” to be “likely”. None of the words “wilfully”,[1] “intentionally”,2 and “likely”3 is a word of precise denotation uninfluenced by its context.4 The meaning of “likely” is commonly discussed by reference to distinctions between “possibility” and “probability”. However, “probable” is another word of variable import which takes its meaning from the context in which it is used: Boughey v. R. (1986) 161 C.L.R. 10, at p. 20 per Mason, Wilson and Deane JJ.; cf Gibbs CJ. at p. 14. In Johns v. R. (1980) 143 C.L.R. 108, Stephen J. seemed to accept at p. 121 that “probable” might sometimes be satisfied by “anything more than a bare possibility”; while, as will be seen below, sometimes the degree of probability required must be “overwhelming”; however, the more usual debate is whether “probable” requires more than a “real or substantial possibility”: see, for example, R. v. Hind and Harwood (1995) 80 A.Crim.R. 105. To complete the circle, just as the meaning of “likely” is sometimes expressed by reference to what is “probable”, the meaning of “probable” is sometimes related to whether an event or consequence is “more likely than not”: see, for example, The State Bank of South Australia v. Hellaby (1992) 59 S.A.S.R. 304, 312. Sometimes “probable” and “likely” are treated as synonymous; sometimes “probable” is regarded as a stronger word than “likely”; and sometimes “likely” is regarded as a stronger word than “probable”: see Australian Telecommunications Commission v. Krieg Enterprises Pty Ltd (1976) 27 F.L.R. 400, 408-409 per Bray C.J. In the present case, of

[1]           Environment Protection Authority v N (1992) 26 N.S.W.L.R. 352 at 355, per Hunt CJ; Bergin v

Brown (1990) V.R. 888, per Orminston J at 892; Fitzgerald v Montoya (1989) 16 N.S.W.L.R. 164 at 168 and 169, per Rogers A-JA and Iannella v French (1967-1968) 119 C.L.R. 84 at 93 and 95 per Barwick CJ and at 108 per Windeyer J.

2           Burhi Kural v The Queen (1987) 162 C.L.R. 502 at 504; Sherras v De Rutzen [1895] 1 Q.B. 918 at p.921 (which was subsequently referred to in He Kaw Teh v The Queen (1985) 157 C.L.R. 523, per Gibbs CJ with whom Mason J agreed); Cameron v Holt (1980) 142 C.L.R. 342 at 346 and 348 and Iannella, per Barwick CJ at p.95

3           R v Hind and Harwood (1995) 80 A.Crim.R. 105 at 113 per Fitzgerald P; Poignand v NZI Securities Australia Ltd and Ors (1992) 37 F.C.R. 363 at 371, per Gummow J; Australia and New Zealand Banking Group Ltd v Harper and Ors (1987) 89 F.L.R. 454 at 460; Boughey v R (1986) 161 C.L.R. 10, per Gibbs CJ at 14 and Mason, Wilson and Deane JJ at 20 and Brown v Sheppard (1986) 42 S.A.S.R. 153 at 157, per Cox J.

4              An appendix to this judgment lists some of the cases in which various meanings have been assigned to each of those words.

course, there is no relevant context; the Code does not mention “likely” in s. 461; likelihood is a concept which has been introduced into the consideration of s. 461 by judicial exegesis: cf sub-s. 462(2).

R. v. Webb; ex parte Attorney-General [1990] 2 Qd.R. 275 involved another reference by the Attorney-General to the Court of Criminal Appeal under s. 669A of the Code, this time raising questions concerning s. 462, which makes it a crime to attempt to commit arson; such a crime is committed by [a]ny person who -

(1)	attempts unlawfully to set fire to any such thing as is mentioned in the last preceding section; or
(2)	wilfully and unlawfully sets fire to anything which is so situated that any such things as is mentioned in the last preceding section is likely to catch fire from it.

According to the judgment of Macrossan C.J., the prosecution case was that the accused and a companion entered a laundry under a wooden dwelling house and there set fire to a towel on a chair with the result that the chair and another chair nearby caught fire; at the stage when the fire was extinguished, flames were reaching up towards the wooden floor of the house but the house itself had not caught fire. So far as is presently material, the question asked was whether, in the prosecution of the offence defined in sub-s. 462(2) of the Code “... in relation to the element of wilfulness is it necessary to prove the accused realised there was a likelihood of the second thing catching fire or he acted in reckless disregard of that prospect?” All members of the Court answered that question in the affirmative.

The Chief Justice, with whom Lee J. agreed, said at p. 278:

“Some propositions may be stated which should be regarded as authoritatively
decided for our purposes.

‘Wilfully’ should be understood as meaning to refer to either an intended consequence or a consequence which is in mind as likely but is recklessly ignored. Such a meaning was established by this Court in R. v. Lockwood, ex parte Attorney-General [1981] Qd.R. 209. That was a case of wilful and unlawful damage to property under s. 469 which section is contained in the same Ch. XLVI of the Code as ss 461 and 462. The reasons given by the members of the Court in that case proceed upon the basis that the same meaning should be given to ‘wilfully’ where it appears in s. 469 and where it appears in s. 461 (the offence of arson) and in the related offences which are to be found in Ch. XLVI. This approach has a lot to commend it. The meaning given to ‘wilfully’ is more extensive than would be conveyed by the word ‘intentionally’ which might be thought in some contexts to mean ‘of one’s own free will’. This meaning to be given to ‘wilfully’ should also embrace ‘a result not positively desired but foreseen as a likely consequence of the relevant act’ (per Lucas A.C.J. in Lockwood at 216A). The meaning fixed by the Court for ‘wilfully’ in Lockwood was arrived at after consideration of the meaning attributed to ‘maliciously’ and ‘intentionally’ in comparable contexts as, for example, may be seen in Kenny, Outlines of Criminal Law, (17th ed.) at p. 218, Vallance v. The Queen (1961) 108 C.L.R. 56 and other authorities which are referred to in Lockwood. The suggestion made in Lockwood that the word ‘wilfully’ should bear the same meaning in the related sections which appear in Ch. XLVI of the Code should be acted upon.”

The third member of the Court, Thomas J., said at pp. 285-286:

“ It is clear from R. v. Lockwood, ex parte Attorney-General [1981] Qd.R. 209 that the word ‘wilfully’ in Ch. XLVI should be given the same meaning wherever used. This includes its use in ss 461, 462(2) and 469. The court authoritatively defined the meaning of the word ‘wilfully’ as applying not only to an act causing intended consequences but also to a deliberate (willed) act by an accused aware at the time he did it that the result charged in the indictment was a likely consequence of his act and that he recklessly did the act regardless of the risk (at 212, 217, 218, 222). There can be no doubt that the Lockwood direction is necessary in relation to the element of wilfulness in s. 462(2).

The submission of counsel for the Attorney was that the Lockwood direction on wilfulness should be restricted to the act of setting fire to the first thing (i.e. the towel), and that an objective test should then be used in deciding whether in the circumstances the house was likely to catch fire in due course. In my view this submission is misconceived. The adverb ‘wilfully’ relates to the entire balance of the subsection. The gravamen of the offence is not in the lighting of the kindling or the initial object, but rather in the lighting of something in a situation where one of the specially listed items of property is jeopardised. The element of wilfulness would be absurdly limited were it to be applied only to the usually valueless item with which such a fire may be started. Commonly the offender uses his own trash or fuel to start a fire, or uses abandoned or valueless property such as newspapers or rags. Plainly the element of wilfulness has its principal application in relation to the prospect of the greater damage occurring.

This conclusion is supported by the reasons of the Chief Justice which I have now had the advantage of reading.”

While the authority of Lockwood was recognised in Webb, again no indication emerged concerning how it should be applied in a case such as the present. Similar comment can be made of other decisions of the Court of Criminal Appeal (such as R. v. McClymont; ex parte Attorney- General [1987] 2 Qd.R. 442), of this Court (see, for example, R. v. Dunwoody (C.A. 358 of 1993, unreported, 10 December 1993) and Dodds v. Scullin (C.A. 313 of 1994, unreported, 2 November 1994)), and of courts elsewhere (for example, McIntosh and McIntosh v. Lowe (1982) 8 A.Crim.R. 471; see also R. v. Hodgson (1985) Tas.R. 75).

Apart from Chapter 46, the Code uses “wilfully” only in Chapter 40, which involves, amongst other things, wilfully false promises; however, what is a “wilfully false promise” is defined by sub-s. 426(2). On the other hand, a particular result is expressly declared to be an element of the offence in a number of instances; for example, sub-s. 302(1)(a), intent to cause death or grievous bodily harm; s. 316, intent to commit or facilitate the commission of an indictable offence or to facilitate the flight of an offender ...; s. 317, intent to maim, disfigure or disable; s. 351, intent to marry or carnally know a woman ...; s. 354, intent to compel [a] person to work against that person’s will; s. 363, intent to deprive any parent, guardian, or other person who has the lawful care or charge, of a child under the age of 16 years, of the possession of such child; and s. 438, intent to defraud. The significance of these provisions lies in s. 23 of the Code; generally speaking, “... a person is not criminally responsible ... for an event which occurs by accident” (sub-s. 23(1)), but “[u]nless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or in part, by an act or omission, the result intended to be caused by an act or omission is immaterial” (sub-s. 23(2)). For the purpose of s. 461, the “result” within the meaning of sub-s. 23(2) is the property (in this case, a shop) becoming alight. The remainder of s. 23 should also be noted. Sub-section 23(3) provides: “Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.”

By virtue of the portion of sub-s. 23(1) set out above, the appellant would not be criminally responsible for the burning down of the shop if that consequence “... was such an unlikely consequence of [his] act [in flicking his lighted cigarette onto the papers] an ordinary person could not reasonably have foreseen it ... the relevant question [is] whether [the shop becoming alight] was not such an unlikely consequence ... that it could not have been foreseen by an ordinary person in the position of the accused.” Van Den Bemd (1993) 70 A. Crim. R. 489, 493; affirmed (by majority) (1994) 179 C.L.R. 137.[5] In the present case, the appellant did not rely on sub-s. 23(1); in other words, he did not contend that an ordinary person in his position could (or would) not have reasonably foreseen that the shop would become alight as a result of flicking a lighted cigarette onto the papers. On the other hand, the trial judge did not find that the appellant intended to cause that reasonably foreseeable result. Section 23 accepts that the result of a willed act may at the one time not be accidental but yet be unintended; the distinction lies in the objective nature of the first issue (accident) and the subjective nature of the second issue (intent).[6]

[5]              Proof by the prosecution that an accused (subjectively) intended a consequence will not only establish an intention to cause that result if it is an essential element of an offence but will also negative accident; proof that the accused (subjectively) foresaw the consequence will also negative accident: Mamote-Kulang of Tamagot v. R. (1964) 111 C.L.R. 62, 85; Vallance, pp. 61, 65, 82; Kaporonovski v. R. (1973) 133 C.L.R. 209, 231.

[6]              It is unnecessary, on this occasion, to consider how the requirement implicit in sub-s. 23(2) that the prosecution must prove more than that an event did not occur by accident if an intention to cause a particular result as an essential element of an offence is to be satisfied in ordinary circumstances once accident, as redefined in Van Den Bemd, is negatived. However, the proof that an act was intentional does not necessarily establish that an accused person intended the natural and probable consequences of that act; the intent of an accused is not necessarily the intent to be attributed to an ordinary person in the circumstances: R. v. Hawkins, (1994) 179 C.L.R. 500, at pp. 509, 513-514, 517.

One further matter should be mentioned at this point. The terms of sub-s. 23(2) have been noted, as has the absence of any finding that the appellant intended the shop to become alight. The prosecution case is, as it must be, that, in terms of sub-s. 23(2) “the result intended to be caused” by the appellant’s flicking the cigarette onto the papers is not “an element of the offence” of which he has been convicted and hence “is immaterial” for present purposes. Presumably, this proposition is intended to leave open the possibility that, although the appellant’s intention “is immaterial”, his guilt would be established if the prosecution had proved that he intended the shop to become alight: see Lockwood and Webb.

At least in part, this situation exists because of the view based on Lockwood that wilfulness for the purpose of Chapter 46 of the Code can be established by evidence which fails to prove intent to cause a particular result but does prove foresight that that result was “likely” to be caused by an act which was done recklessly. While not necessarily confusing in itself, the outcome in Lockwood, which was largely influenced by the material question referred, involves reasoning which largely equated “wilfully” to “intentionally”.

Thus, Lucas A.C.J., with whom Matthews J. agreed, said at p. 216:

“Accepting that word wilfully in s. 461 and s. 469 must mean something more than ‘of one’s free will; voluntarily’, and accepting also that that extended meaning is appropriately expressed by the word ‘intentionally’, I am of the opinion that the latter word should be construed to include a result not positively desired but foreseen as a likely consequence of the relevant act.”

Douglas J., who also noted that, since R. v. Burnell [1966] Qd.R. 348, the meaning of the word “wilfully” had been considered by the High Court in Iannella v. French (1967-1968) 119 C.L.R. 84, accepted that “wilfully” in the material provisions of the Code meant “intentionally” and went on to adopt the meaning of the word “intentional” in the Tasmanian Criminal Code established by Vallance; for example, in Vallance Dixon C.J. said, at p. 59:

“... it is clear that the word ‘intention’ ... covers all consequences whatever which the doer of an act foresees as likely to result from it, whether he does the act with an actual desire of producing them or only in recklessness as to whether they ensue or not. ...”

At p. 82 in Vallance, Windeyer J. said that intent, for the purposes of the Tasmanian Code, is to be determined by reference to the common law, under which a person charged with unlawfully wounding would be guilty if his actual purpose was to inflict a wound or:

“... if, without any actual purpose to wound anyone, but foreseeing that what he was about to do was likely to cause a wound to someone, he yet went on to do it. The common law treats what was done recklessly, in that way, as if it had been done with actual intent. It says that a man, who actually realises what must be, or very probably will be, the consequence of what he does, does it intending that consequence. The word ‘intentional’ in the Code carries ... these concepts of the common law. ...”

D.M. Campbell J. in Lockwood, after accepting that “wilfully is used in s. 461 in the sense of intentionally”, said at p. 223 that “the meaning of the word is wide enough to include a brand of recklessness, viz acting with indifference to the likelihood of a foreseen result occurring”. His Honour went on to say that he agreed substantially with Lucas A.C.J and Douglas J., with whom W.B. Campbell J. also agreed.

As has been said, the Chief Justice stated in Webb at p. 278, “[t]he meaning fixed by the Court for ‘wilfully’ in Lockwood was arrived at after consideration of the meaning attributed to ‘maliciously’ [as well as] ‘intentionally’ in comparable contexts as, for example, may be seen in Kenny, Outline of Criminal Law, (17th ed.) at p. 218, Vallance and other authorities which are referred to in Lockwood.” It might be possible to expand upon the concepts of “likelihood” and “recklessness” for which Lockwood provides by a repetition, and perhaps updating of that process. However, in my opinion, such a course is inappropriate. One difficulty which Lockwood presents is that the distinction between the intention associated with the commission of an act and the intention associated with the consequences of that act are not always kept separate: see, for example, Lucas A.C.J. at p. 212A-F, 217B. Another problem is that, in looking at the “pre-existing law” (see per Lucas A.C.J. at p. 213), reference was made not only to the common law but to statutory provisions, both in Queensland[7] and England,[8] which preceded Chapter 46 of the Code (see, for example, per Lucas A.C.J. at pp. 213-214; cf Douglas J. at pp. 219-220), and the use of the word “wilfully” in other statutory contexts (see, for example, D.M. Campbell J. at pp. 223-224). Further, the reliance upon Vallance involved reference to not only those aspects of that decision which mentioned the common law, but also to other earlier English legislation which lay behind the substantive section under which Vallance was convicted, s. 172 of the Tasmanian Criminal Code: see, for example, the pages from the judgments in Vallance which were referred to by Douglas J. in Lockwood at pp. 221-222. Finally, and perhaps most importantly, in his leading judgment, in justifying resort to common law and statutory notions of malice, Lucas A.C.J. said at p.214:

[7]              The Malicious Damage Act 1861 and the Offences Against the Person Act 1861.

[8]              The Injuries to Property Act of 1865

“There is thus a compelling body of authority for the proposition that the element of malice, in a statutory context such as that of the Malicious Injuries Act 1861, may be supplied not only by a direct intention to do the damage which was in fact done, but also by doing the act recklessly with foresight that damage of the type done was likely to result. But of course the word ‘maliciously’ does not occur in Chapter 46 of The Criminal Code, except, curiously enough, in the heading of s. 469, ‘Malicious Injuries in General’. We know why the word ‘maliciously’ does not occur, but we should not refer to Sir Samuel Griffith’s letter forwarding the Draft Code to the Attorney-General. Reg. v. Martyr [1962] Qd.R. 398. The heading of s. 469 is part of the section, as was noted in Reg. v. Burnell; s. 14(1) of the Acts Interpretation Act 1954-1974.”[9]

[9]              In R. v. Knutsen [1963] Qd.R. 157, which was referred to in Lockwood, both members of the majority made reference to Griffith’s letter to the Attorney-General: see per Stanley J. at p. 172 and per Mack J. at p. 184.

The Acts Interpretation Act 1954 has been significantly amended since Lockwood was decided. Sub-section 14(1) no longer provides that the heading to a section is part of the Act, and sub-s. 14(2) makes the heading of a section part of the Act only in specified circumstances which are not met in the provisions of Chapter 46 of the Code. Further, ss. 14A and 14B have been inserted, and it is no longer inappropriate, but now appropriate,[10] to refer to Sir Samuel Griffith’s letter forwarding the Draft Code to the Attorney-General.[11]

[10]            According to Pearce DC & Geddes RS, Statutory Interpretation in Australia, Butterworths, 1996 at 56, “in order that a reference to extrinsic materials may have the potential to change an interpretation of legislation which would otherwise have been arrived at, it is necessary for a court to conclude that one of the conditions of [s. 14B] has been met. That means the court must conclude, without taking account of any materials forming part of the Act, that the provision in question is ‘ambiguous’ or ‘obscure’ or that, taking account of its context and underlying purpose or object, the ordinary meaning leads to a result that is ‘manifestly absurd’ or ‘unreasonable’. Further, the language of extrinsic material cannot be substituted for the text of a statute and it remains the function of the Court to give effect to the will of Parliament as expressed in the enactment. This is especially so where an intention disclosed by extrinsic material which is unexpressed in an Act is restrictive of the liberty of the individual” Re Bolton; ex p. Beane (1987) 162 C.L.R. 514, 518 per Mason C.J., Wilson and Dawson JJ. See also Catlow v. Accident Compensation Commission (1989) 167 C.L.R. 543, 549-550 per Brennan and Gaudron JJ. Nonetheless, pursuant to s. 14B (and similar provisions in other jurisdictions) the Court may refer to any relevant material outside the legislation even when the provision is clear on its face, (Commr of Australian Federal Police v. Curran (1985) 55 A.L.R. 697 at 706-7 per Wilcox J.; and Gardner Smith Pty. Ltd. v. Collector of Customs (Vic) (1986) 66 A.L.R. 377 at 383-4; see also Humphries v. Poljak [1992] 2 V.R. 129 (Vic Sup Ct FC)), but only to confirm the literal meaning of the provision. (Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 A.L.R. 416 at 420). Further, there have been occasions where provisions similar to s. 14B have been assumed to complement the common law principles: see Alexandra Private Geriatric Hospital Pty. Ltd. v. Blewett (1984) 56 A.L.R. 265-271-2; Re Tasmanian Ferry Services Ltd. and Secretary, Department of Transport & Communications (1992) 29 A.L.D. 395 at 408; Lemair (Australia) Pty. Ltd. v. Cahill (1993) 30 N.S.W.L.R. 167 at 171-2 per Kirby P.; Re Bolton; Ex parte Beane (1987) 70 A.L.R. 225 at pp. 227-228; cf Gerhardy v. Brown (1985) 57 A.L.R. 472 at 497 per Mason J. and 507 per Wilson J.; Hoare v. R. (1989) 167 C.L.R. 348 at 360-1.)

[11]            The draft Bill for the Code was first presented to Parliament in 1898. The Bill was read for a second time and then referred on to a Royal Commission (whose members included Sir Samuel Griffith CJ, and other judges of the Supreme and District Courts of Queensland) to report on the draft. The second reading speech, made by the Minister for Justice, referred to Griffith’s letter of 29 October 1897, commented on part of the contents of the letter and made mention of the fact that the letter was at the disposal of the legislative assembly. (Hansard, 8 November 1898 at p. 1046.) Thus, the letter was “... a relevant document, that was laid before ... the Legislative Assembly by the member bringing in the Bill.” (s. 14B(3)(e) Acts Interpretation Act 1954) The Report of the Royal Commission (Legislative Council Journals, Queensland, Session 1 of 1899, vol. 49 at p.103) recommended minor amendments to s. 25 (now enacted as s. 23), but made no comment in relation to the use of the terms ‘malice’ or ‘maliciously’. When the Bill was returned to Parliament for the second time (Hansard, 7 November 1899 at p. 818), the previous history of the Bill in Parliament was referred to. (Hansard, 8 November 1898 at p. 1046).

The text of Griffith’s letter, insofar as it refers to s. 23 of the Code, is set out in the following annotation to s. 23 in Carter’s Criminal Law of Queensland:

“[s. 23.1] In his letter of 29 October 1897 to the Attorney-General, forwarding the Draft Criminal Code, Sir Samuel Griffith said: ‘I have throughout the Code intentionally avoided the use of the terms ‘malice’ and ‘maliciously’, which have come to acquire a technical meaning, quite different from that which they bear in ordinary language, and of which the use is, I think, as unnecessary as under these circumstances it is misleading. I will refer later to the use of the term ‘malice’ in connection with homicide. When used with respect to injuries to the person or property it means no more than that the offender did the act in question voluntarily (that is, not accidentally) and knowing what he was doing. The general rules of criminal responsibility set out in section 25 [s 23 of the Code as enacted] render it unnecessary to express these elements in the definition of an offence. In the case of injuries to the person, unless an intention to cause a specific result is expressly made an element of the offence, actual knowledge of the probable effect of the act is immaterial. With regard, however, to property, an act done not accidentally, but without any intention to cause injury, is ordinarily not punishable as an offence. The existence of the element of intention to do injury in this case is better expressed by the word ‘wilfully’, which has accordingly been used in that connection for that purpose, but the use of which elsewhere in its signification of ‘not accidentally’ is, in view of the rules mentioned, superfluous. In some cases, where the nature of an offence is such as to involve the element of deliberation, the word ‘advisedly’ (used in the Act 37 Geo 3 c 70, relating to inciting to mutiny), has been adopted to express that idea.”

Neither s. 23 of the Code, Griffith’s letter nor established principles of construction concerning penal statutes[12] support the adoption of low thresholds for the determinations of foreseen likelihood of result and recklessness of act which are necessary to satisfy the requirements of wilfulness in Chapter 46 of the Code. Before further consideration of what the prosecution must prove for that purpose, it is desirable to make reference to recent authority in some areas of the criminal law in which criminal liability has been related to foreseeability and recklessness. It is unnecessary to go back further than R. v. Moloney [1985] 1 A.C. 905 and R. v. Crabbe (1985) 156 C.L.R. 464, which were, of course, decided some years later than Lockwood. The decision in Moloney preceded that in Crabbe by only a few days. Although the law in England had been altered by the Homicide Act of 1957, both Moloney and Crabbe were concerned with the common law requirement of “malice aforethought” to constitute the crime of murder.[13]

[12]            See, for example, Smith v. Corrective Services Commission (N.S.W.) (1980) 147 C.L.R. 134, 139; Waugh v. Kippen (1986) 160 C.L.R. 156, 169; Director of Public Prosecutions’ Reference No. 1 of 1992 and No. 1 of 1993 (1993) 65 A.Crim.R. 197, 203-206; R. v. Clare [1994] 2 Qd.R. 619; Kelsey and Mansfield v. Hill [1995] 1 Qd.R. 182.

[13] It is unnecessary for present purposes to consider all aspects of the concept of malice, or the developments in England which progressed through D.P.P. v. Smith [1961] A.C. 290; R. v. Hyam [1975] A.C. 55; and R. v. Cunningham [1982] A.C. 567 to Moloney, and subsequently, R. v. Hancock and Shankland [1986] 1 A.C. 455.

In Moloney, the leading judgment was delivered by Lord Bridge of Harwich. All of the other members of the Bench agreed with his Lordship, and Lord Hailsham of St. Marylebone L.C. added some observations, including “a word of personal explanation” concerning his judgment in Hyam.

Moloney and his stepfather, to whom he was deeply attached, became drunk and had a contest concerning which of them could “outshoot”, “outload” and “outdraw” the other, using shotguns. Moloney fired his weapon and killed his stepfather, without intending to do so. He said that he did not aim the gun, and that it was “just a lark”. He was convicted of murder and his appeal on the basis that the jury had been misdirected was dismissed by the Court of Criminal Appeal. A further appeal to the House of Lords was successful, and a verdict of manslaughter was substituted.

At p. 920, Lord Bridge of Harwich said that, on the particular facts, if the jury were not satisfied that he intended to kill his stepfather, they could not conclude that he foresaw the probable consequences of firing the gun. He then went on at pp. 920:

“That conclusion would be sufficient to dispose of this appeal. But since I regard it as of paramount importance to the due administration of criminal justice that the law should indicate the appropriate direction to be given as to the mental element in the crime of murder, or indeed in any crime of specific intent, in terms which will be both clear to judges and intelligible to juries, I must first examine the present state of the law on that subject, ...

I could not, however hard I tried, hope to emulate the outstanding erudition with which the speeches of your Lordships’ House in Reg. v. Hyam [1975] A.C. 55, studied the history and development of, and the authorities relevant to, the concept of ‘malice aforethought’, to use the anachronistic and now wholly inappropriate phrase which still lingers on in the definition of murder to denote the necessary mental element. ...”

After referring to the Homicide Act of 1957, R. v. Vickers [1957] 2 Q.B. 664, and D.P.P. v.
Smith, his Lordship said at p. 922:

“My Lords, between 1957, when Reg. v. Vickers [1957] 2 Q.B. 664, was decided and the decision of Reg. v. Hyam [1975] A.C. 55, in 1974, I do not believe it was ever the practice of trial judges to equate intent with foresight of probable consequences. To invite a jury in effect, whatever the precise terms used in summing up, to apply the rule of evidence, or for that matter of common sense, that a man may ordinarily be presumed to intend the natural and probable consequences of his acts, is a different matter altogether.

So I must turn to consider Reg. v. Hyam and discover, if I can, just what it decided. ...”

After discussion of Hyam, and “three uncertainties” concerning the “mental element in murder” which it left undecided according to the Criminal Law Revision Committee in its Fourteenth Report entitled Offences Against the Person,[14] his Lordship said at p. 925 that one of those “uncertainties” had been settled by Cunningham but that the “other two uncertainties remain”. He then continued at pp. 925:

[14]            (1980) (Cmnd. 7844)

“First, it is a necessary ingredient in the crime of murder which helps to distinguish it from the crime of manslaughter that the action of the accused should be ‘aimed’ at someone in the sense intended by Lord Hailsham of St. Marylebone L.C. in Reg. v. Hyam [1975] A.C. 55, relying on a passage in the speech of Viscount Kilmuir L.C. in Director of Public Prosecutions v. Smith [1961] A.C. 290? If so, what exactly does this involve? Secondly, if foresight of probable consequences is to be treated either as equivalent to intent, or as evidence from which intent may (or must?) be inferred, how is the degree of probability in homicide cases, where some risk of death or serious injury is foreseen, to be defined in a way that will distinguish murder from manslaughter.

Before attempting to grasp these nettles, I would make some general observations. The definition of intent on which Stephen Brown J. based his initial direction to the jury in this case and which first appeared in the 40th edition but now appears virtually unchanged in the 41st edition of Archbold Criminal Pleading Evidence & Practice published in 1982, is, as previously stated, clothed with the spurious authority of quotation marks. I will repeat it here for clarity (para. 17-13, p. 995):

‘In law a man intends the consequence of his voluntary act, (a) when he desires it to happen, whether or not he foresees that it probably will happen, or (b) when he foresees that it will probably happen, whether he desires it or not.’

Although in its terms applicable to any offence of specific intent, this so-called definition must be primarily derived from Reg. v. Hyam [1975] A.C. 55. ... looking on their facts at the decided cases where a crime of specific intent was under consideration, including Reg. v. Hyam [1975] A.C. 55 itself, they suggest to me that the probability of the consequence taken to have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent. ...”

At p. 926, his Lordship returned to “the two uncertainties noted by the Criminal Law Revision
Committee ...” and, at p. 927-928 said:

“Starting from the proposition established by Reg. v. Vickers [1957] 2 Q.B. 664, as modified by Director of Public Prosecutions v. Smith [1961] A.C. 290 that the mental element in murder requires proof of an intention to kill or cause really serious injury, the first fundamental question to be answered is whether there is any rule of substantive law that foresight by the accused of one of those eventualities as a probable consequence of his voluntary act, where the probability can be defined as exceeding a certain degree, is equivalent or alternative to the necessary intention. I would answer this question in the negative. ...

The irrationality of any such rule of substantive law stems from the fact that it is impossible to define degrees of probability, in any of the infinite variety of situations arising in human affairs, in precise or scientific terms. As Lord Reid said in Southern Portland Cement Ltd. v. Cooper [1974] A.C. 623, 640:

‘Chance probability or likelihood is always a matter of degree. It is rarely capable of precise assessment. Many different expressions are in common use. It can be said that the occurrence of a future event is very likely, rather likely, more probable than not, not unlikely, quite likely, not improbable, more than a mere possibility, etc. It is neither practicable nor reasonable to draw a line at extreme probability.’

I am firmly of opinion that foresight of consequences, as an element bearing on the issue of intention in murder, or indeed any other crime of specific intent, belongs, not to the substantive law, but to the law of evidence. ... A rule of evidence which judges for more than a century found of the utmost utility in directing juries was expressed in the maxim: ‘A man is presumed to intend the natural and probable consequences of his acts.’ In Director of Public Prosecutions v. Smith [1961] A.C. 290 your Lordships’ House, by treating this rule of evidence as creating an irrebuttable presumption and thus elevating it, in effect, to the status of a rule of substantive law, predictably provoked the intervention of Parliament by section 8 of the Criminal Justice Act 1967 to put the issue of intention back where it belonged, viz., in the hands of the jury, ‘drawing such inferences from the evidence as appear proper in the circumstances.’ I do not by any means take the conjunction of the verbs ‘intended or foresaw’ and ‘intend or foresee’ in that section as an indication that Parliament treated them as synonymous; on the contrary, two verbs were needed to connote two different states of mind.

I think we should now no longer speak of presumptions in this context but rather of inferences. ...”

In Hancock, the Court of Appeal upheld an appeal against conviction following a direction by a trial judge to a jury (in accordance with what was said in Moloney) that, in determining whether the prosecution had established the intent necessary to sustain a charge of murder, the jury might find it helpful to ask themselves, “Was death or serious injury a natural consequence of what was done? Did a defendant foresee that consequence as a natural consequence?” All the other members of the House of Lords in Hancock agreed with the judgment of Lord Scarman, who at pp. 471-472 stated what had been decided by the House in Moloney, as follows:

“... First, the House cleared away the confusions which had obscured the law during the last 25 years laying down authoritatively that the mental element in murder is a specific intent, the intent to kill or to inflict serious bodily harm. Nothing less suffices: and the jury must be sure that the intent existed when the act was done which resulted in death before they can return a verdict of murder.

Secondly, the House 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. Lord Hailsham of St. Marylebone L.C. put the point succinctly and powerfully in his speech in Reg. v. Moloney [1985] A.C. 905, 913:

‘I conclude with the pious hope that your Lordships will not again have to decide that foresight and foreseeability are not the same thing as intention although either may give rise to an irresistible inference of such, and that matters which are essentially to be treated as matters of inference for a jury as to a subjective state of mind will not once again be erected into a legal presumption. They should remain, what they always should have been, part of the law of evidence and inference to be left to the jury after a proper direction as to their weight, and not part of the substantive law.’

Thirdly, the House emphasised that the probability of the result of an act is an important matter for the jury to consider and can be critical in their determining whether the result was intended.”

Lord Scarman went on at p. 472 to say that, in Moloney, it was “only when Lord Bridge of Harwich turned to the task of formulating guidelines that difficulty arises.” While Lord Bridge “did not deny the importance of probability”, but, as the passage quoted from Moloney demonstrates, stated that “the probability of the consequence taken or have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent”, His Lordship “omitted the adjective ‘probable’ from the time-honoured formulae ‘foresight of the natural and probable consequences of his acts’ because he thought that ‘if a consequence is natural, it is really otiose to speak of it as also being probable’.” At p. 473, Lord Scarman continued:

“... I very much doubt whether a jury without further explanation would think that ‘probable’ added nothing to ‘natural’. I agree with the Court of Appeal that the probability of a consequence is a factor of sufficient importance to be drawn specifically to the attention of the jury and to be explained. In a murder case where it is necessary to direct a jury on the issue of intent by reference to foresight of consequences the probability of death or serious injury resulting from the act done may be critically important. Its importance will depend on the degree of probability: if the likelihood that death or serious injury will result is high, the probability of that result may, as Lord Bridge of Harwich noted and the Lord Chief Justice emphasised, be seen as overwhelming evidence of the existence of the intent to kill or injure. Failure to explain the relevance of probability may, therefore, mislead a jury into thinking that it is of little or no importance and into concentrating exclusively on the causal link between the act and its consequence. In framing his guidelines Lord Bridge of Harwich [1985] A.C. 905, 929G, emphasised that he did not believe it necessary to do more than to invite the jury to consider his two questions. Neither question makes any reference (beyond the use of the word ‘natural’) to probability. I am not surprised that when in this case the judge faithfully followed this guidance the jury found themselves perplexed and unsure. In my judgment, therefore the Moloney guidelines as they stand are unsafe and misleading. They require a reference to probability. They also require an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended. But juries also require to be reminded that the decision is theirs to be reached upon a consideration of all the evidence.”

At p. 474, His Lordship added:

“In a case where foresight of a consequence is part of the evidence supporting a prosecution submission that the accused intended the consequence, the judge, if he thinks some general observations would help the jury, could well, having in mind section 8 of the Criminal Justice Act 1967, emphasise that the probability, however high, of a consequence is only a factor, though it may in some cases be a very significant factor, to be considered with all the other evidence in determining whether the accused intended to bring it about. The distinction between the offence and the evidence relied on to prove it is vital. ...”

Later in the same year, the English Court of Appeal referred to both Moloney and Hancock in R. v. Nedrick [1986] 1 W.L.R. 1025. At p. 1027, the statement by Lord Bridge of Harwich in Moloney at p. 928 that “foresight of consequences, as an element bearing on the issue of intention in murder ... belongs, not to the substantive law, but to the law of evidence” was approved. At p. 1028, Lord Lane C.J., with whom Leggatt and Kennedy JJ. agreed, said:

“When determining whether the defendant had the necessary intent, it may therefore be helpful for a jury to ask themselves two questions. (1) How probable was the consequence which resulted from the defendant’s voluntary act? (2) Did he foresee that consequence?

If he did not appreciate that death or serious harm was likely to result from his act, he cannot have intended to bring it about. If he did, but thought that the risk to which he was exposing the person killed was only slight, then it may be easy for the jury to conclude that he did not intend to bring about that result. On the other hand, if the jury are satisfied that at the material time the defendant recognised that death or serious harm would be virtually certain (barring some unforeseen intervention) to result from his voluntary act, then that is a fact from which they may find it easy to infer that he intended to kill or do serious bodily harm, even though he may not have had any desire to achieve that result.

As Lord Bridge of Harwich said in Reg. v. Moloney [1985] A.C. 905, 925: ‘the probability of the consequence taken to have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent.’ At p. 926 he uses the expression ‘moral certainty’; he said, at p. 929 ‘will lead to a certain consequence unless something unexpected supervenes to prevent it.’

Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.

Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen. The decision is one for the jury to be reached upon a consideration of all the evidence.”

In R. v. Marshall (1986) 43 S.A.S.R. 448, White J. expressed the opinion that Moloney and Hancock were inconsistent with the decisions of the High Court in Crabbe and Boughey. His Honour was of opinion (p. 474) that the “four cases, decided in the highest courts along divergent lines, indicate cases do at times arise where directions in terms of knowledge (foresight) must be elaborated with care.” Later, on the same page, his Honour said:

“... the difference of approach remains in the two countries whereby the House of Lords, on the one hand, treats foresight about the consequences as ‘at the best, material’ (part of the law of evidence) ‘which entitles or compels a jury to draw the necessary inference as to intention’ whereas the High Court, on the other, treats intention and foresight as aspects of the one substantive law relating to the mental state sufficient to constitute murder.”

At pp. 474-478, his Honour went on to quote and comment upon passages from Crabbe and Boughey, before concluding, by reference to Boughey, that Lord Bridge’s statement in Moloney at p. 925 that “[t]he probability of the consequence taken to have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent” is not part of the common law of South Australia.

Crabbe was convicted of murder after killing several people by driving a prime mover and trailer through the wall of a motel into a bar. It was held that the jury was materially misdirected when instructed that it could convict if satisfied beyond reasonable doubt that there might be people in the bar. In a joint judgment, the High Court said at pp. 467ff:

“The Criminal Code Act 1983 (N.T.) had not been passed at the times material to this case and the rules of the common law covered the question what mental element is necessary to constitute the crime of murder, or, to use the traditional terminology, what is meant by malice aforethought. That question was answered in Stephen’s Digest of Criminal Law, 1st ed. (1877) in Art. 223 which, so far as is relevant, is as follows:

‘... Murder is unlawful homicide with malice aforethought. Malice aforethought means ... (a) An intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not; (b) Knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused ...’

There has been in this Court some difference of opinion as to whether the knowledge which an accused person must possess in order to render him guilty of murder when he lacks an actual intent to kill or to do grievous bodily harm must be a knowledge of the probability that his acts will cause death or grievous bodily harm (as Stephen’s Digest of Criminal Law holds) or whether knowledge of a possibility is enough. In Pemble v. The Queen [(1971) 124 C.L.R. 107, at pp. 118-121], Barwick C.J. thought it sufficient that death or grievous bodily harm should be foreseen as possible but McTiernan and Menzies JJ. were of the opinion that it was necessary that the accused should have foreseen or known (the words are used without any apparent distinction) that death or grievous bodily harm would be a probable or likely (both expression are used) consequence of the act [(1971) 124 C.L.R., at pp. 127, 135]. The matter was considered again in La Fontaine v. The Queen [(1976) 136 C.L.R. 62]. In that case [(1976) 136 C.L.R., at pp. 85-86] Stephen J. agreed with the opinion expressed by Barwick C.J. in Pemble v. The Queen that it was enough that the accused foresaw the possible consequences of his acts but Barwick C.J. himself appeared now to think that it is an open question whether it is sufficient if the accused appreciated a possibility rather than the probability of serious harm [(1976) 136 C.L.R., at p. 69] . Gibbs and Jacobs JJ. held that in a case of this kind an accused would not be guilty of murder unless he foresaw that death or grievous bodily harm was a probable consequence of his behaviour [(1976) 136 C.L.R., at pp. 75-77, 94-100) and although Mason J. left the question open he noted [(1976) 136 C.L.R., at p. 91] that the suggestion made by Barwick C.J. in Pemble v. The Queen was not a view shared by McTiernan and Menzies JJ. In that case and that it was at odds with the speeches of the members of the House of Lords in Reg. v. Hyam [[1975] A.C. 55]. Clearly the balance of opinion on this Court has been in favour of the view that the mental state necessary to constitute murder in a case of this kind is knowledge by the accused that his acts will probably cause death or grievous bodily harm. The view that knowledge of a possibility is not enough has been accepted by the Full Court of the Supreme Court of Victoria (Reg. v. Jakac [[1961] V.R. 367]; Reg. v. Sergi [[1974] V.R. 1]; Nydam v. The Queen [[1977] V.R. 430]; Reg. v. Windsor [[1982] V.R. 89]) and by the Full Court of the Supreme Court of South Australia: Reg. v. Hallett [[1969] S.A.S.R. 141].

The conclusion that a person is guilty of murder if he commits a fatal act knowing that it will probably cause death or grievous bodily harm but (absent an intention to kill or do grievous bodily harm) is not guilty of murder if he knew only that his act might possibly cause death or grievous bodily harm is not only supported by a preponderance of authority but is sound in principle. The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur. That view was expressed in Reg. V. Hyam [[1975] A.C. at p. 82] by Viscount Dilhorne, Lord Diplock [[1975] A.C. at p. 86] and possibly by Lord Cross of Chelsea [1976] A.C. at p. 96], although Lord Hailsham of St. Marylebone L.C. [[1976] A.C., at pp. 74-75] denied its correctness. There is other authority in favour of the view, including some of the cases mentioned in Archbold’s Criminal Pleading, Evidence and Practice, 41st ed. (1982), pp. 995- 1001, and the passage from Kenny, Outlines of Criminal Law cited by Dixon C.J. in Vallance v. The Queen [(1961) 108 C.L.R. 56 at p. 59]. It is however unnecessary to enter upon that controversy. If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word ‘probable’ means likely to happen. That state of mind is comparable with an intention to kill or to do grievous bodily harm. There is a difference between the case in which a person acts knowing that death or serious injury is only a possible consequence, and where he knows that it is a likely result. The former is not a case of murder even if death ensues, unless death or grievous bodily harm is indended (or, perhaps - and it is unnecessary to consider this proposition - unless the act is done with the intention and for the sole purpose of creating a risk of death or grievous bodily harm).

In the circumstances, I would have preferred to reserve my opinion on the question until an occasion when it arises directly and is fully argued. However, because each of the other members of the Court have referred to the question, I feel obliged to give an indication of what I consider to be the focal issue, as to which I would need to be persuaded. That is that where criminal responsibility depends on the conjunction of foresight that a consequence is likely to occur and the doing of an act deliberately and recklessly after having foreseen the likelihood of the consequence occurring, proof that it was foreseen that the consequence is more probable than not is necessary rather than a lower threshold.

In my opinion, the appeal should be dismissed.